The opinion of the court was delivered by: SWEET
Defendant Raymark Industries, Inc. ("Raymark") has moved to dismiss, stay or transfer four of six asbestos actions consolidated for trial before this Court.
For the reasons set forth below this motion is denied.
This action concerns five of six consolidated claims from the so-called "asbestos cases" that have been supervised by the Multi-District Litigation Panel for discovery and pretrial purposes.
Each of these actions was originally filed in the Southern District of New York and subsequently transferred by order of the Multi-District Litigation Panel to the Honorable Charles Weiner of the Eastern District of Pennsylvania. On April 28, 1995, the cases were transferred back to this Court for trial purposes on the basis of hardship arising out of trial delay. The actions were consolidated by this Court on March 28, 1997.
Raymark's instant motion to dismiss four of the actions was filed on February 26, 1997. Argument was heard on March 26, 1997, at which time the motion was considered fully submitted.
The consolidated claims consist of six actions: Greff, 87 Civ. 8085; Moore, 88 Civ. 4214; McPadden, 90 Civ. 3473; Strafford, 92 Civ. 3900; Ciletti, 92 Civ. 3901; and Conway, 93 Civ. 7177. Raymark's motion to dismiss concerns only McPadden, Ciletti, and Strafford (collectively "Plaintiffs").
Raymark claims that it has already been dismissed by order of Judge Weiner from Greff and Moore.
Four of the five plaintiffs bring claims arising from their contracting mesothelioma, a cancer caused by exposure to asbestos. Richard Conway ("Conway") worked as a sailor in the United States Navy between 1955 and 1958 and claims to have been exposed to asbestos from pipe covering and steam pipe insulation. Martin McPadden ("McPadden") worked as a mechanic and steamfitter between 1957 and 1973 on several naval ships and in several power-generating stations. Joseph Greff ("Greff") worked as a welder at a shipyard between 1941 and 1984. Alfred Ciletti ("Ciletti") worked as a sheetmetal worker at various shipyards between 1940 and 1973.
Walter Strafford ("Strafford"), a smoker, claims exposure to asbestos in 1962 from packing materials and gaskets, while working in a sheet metal shop dismantling and refurbishing valves allegedly containing asbestos packing. Strafford's claim arises out of his contracting mesothelioma and lung cancer.
Richard Moore's ("Moore") claim arises out of his contracting lung cancer allegedly as a result of exposure to asbestos during his work as a mason tenderer and laborer at numerous construction sites in New York City between 1959 and 1986.
Raymark moves for dismissal against all Plaintiffs for lack of service, and on grounds that amendment of Plaintiffs' complaints to include Raymark was ineffective. Raymark also argues that the claims by Ciletti and Strafford should be dismissed or stayed on grounds that both plaintiffs have asbestos claims pending in New York State Supreme Court. Finally, Raymark asserts that Judge Weiner previously dismissed Raymark from the actions by Greff and Moore.
1. Dismissal for Lack of Service
Raymark claims that Plaintiffs failed to effect proper service pursuant to Section 307 of the New York Business Corporation Law, entitled "Service of process upon unauthorized foreign corporation". Raymark alleges that Plaintiffs' service was defective in two ways.