Covington Ex Rel. Estate of Garnes v. MCIC, Inc. ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2055
LISA COVINGTON, as Personal Representative of the Estate of Otis
Garnes, Deceased; MARQUISE GARNES; JOYCE GARNES; MARVIN GARNES;
ARNETTA HUDSON; DELORSE ALCINDOR; LINDA EDWARDS,
Plaintiffs – Appellants,
and
OTIS GARNES,
Plaintiff,
v.
MCIC, INC., Its Remaining Director Trustees, Robert I.
McCormick, Elizabeth McCormick and Patricia Schunk; GENERAL
ELECTRIC COMPANY; WALLACE & GALE ASBESTOS SETTLEMENT TRUST,
Successor to the Wallace & Gale Company; SB DECKING, INC.; WAYNE
MANUFACTURING COMPANY,
Defendants – Appellees,
and
OWENS-ILLINOIS GLASS CO., f/k/a Owens-Illinois, Incorporated;
DURABLA MANUFACTURING COMPANY; UNIVERSAL REFRACTORIES COMPANY;
SELBY, BATTERSBY & COMPANY; A.W. CHESTERTON COMPANY; CBS
CORPORATION, f/k/a Westinghouse and B. F. Sturtevant; PREMIER
REFRACTORIES, f/k/a J.H. France Refractories Company; THE
GOODYEAR TIRE & RUBBER CO.; RHI REFRACTORIES AMERICA, f/k/a RHI
AG; METROPOLITAN LIFE INSURANCE CO.; H.B. FULLER COMPANY, f/k/a
Amchem Products, Inc., f/k/a Benjamin Foster; INTERNATIONAL
PAPER CORPORATION, f/k/a Champion International Corporation,
f/k/a U.S. Plywood Corp. & Champion Papers, Inc.; COOPER
INDUSTRIES, INC., Individually and as Successors in Interest to
Crouse Hinds Co; UNION CARBIDE CORPORATION; FERRO ENGINEERING,
Division of Oglebay Norton Co.; FOSECO, INC.; GARLOCK SEALING
TECHNOLOGIES LLC; SQUARE D COMPANY, Individually and as
Successor in Interest to Electric Controller and Manufacturing
Co; GREEN, TWEED & CO., Individually and as Successor in
Interest to Palmetto Inc.; E.L. STEBBING & CO., INC.; HAMPSHIRE
INDUSTRIES, INC., f/k/a John H. Hampshire Company; CERTAINTEED
CORPORATION, Individually and as Successor to Bestwall Gypsum
Co.; KAISER GYPSUM COMPANY, INC.; BAYER CROPSCIENCE, INC.,
Individually and as Successor In Interest to Benjamin Foster
Co., Amchem Products, Inc. H.B. Fuller Co., Aventis Cropscience
USA, Inc., Rhone-Poulenc AG Company, Inc., Rhone-Poulenc, Inc.
and Rhodia, Inc.; PFIZER CORPORATION; GENERAL REFRACTORIES
COMPANY; KOPPERS COMPANY, INC.; HONEYWELL INTERNATIONAL, INC.,
f/k/a Allied Signal, Inc., Successor to Bendix Corporation;
DITCH BOWERS & TAYLOR, INC.; TPC CORP., Individually and as
Successor in Interest to Wareheim Air Brakes; WAREHEIM AIR
BRAKES, INC.; WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION;
PNEUMO-ABEX CORPORATION, Successor in Interest to Abex
Corporation; GL&V DORR-OLIVER INCORPORATED, Individually and/or
as Successors in Interest to Keeler Boiler Works and Dorr-Oliver
Boiler Co.; AMERICAN STANDARD, INC., Individually and as
Succesor in Interest to Kewanee Boiler Manufacturing Co.,
Westinghouse Air Brake Company and Union Switch & Signal; CRANE
CO., Individually and as Successor-in-Interest to Chapman Valve
Co., Deming Pumps, Cochrane Corp., Cochrane, Inc., Crane Pumps
and Pacific Steel Boiler Co; GEORGIA PACIFIC CORPORATION;
UNIROYAL, INC.; AMCHEM PRODUCTS, INC.; ANCHOR PACKING COMPANY;
ALLITE GASKETS; FLEXITALLIC GASKET CO., INC.; MELRATH GASKET,
INC.; PARAMOUNT PACKING & RUBBER CO.; PHELPS PACKING & RUBBER
CO.; WORTHINGTON PUMP, INC., f/k/a Dresser Pump Division; WAYNE
MANUFACTURING CORPORATION; DANA CORPORATION; BABCOCK & WILCOX
COMPANY; CROKER, INCORPORATED; NATIONAL GYPSUM COMPANY; QUIGLEY
COMPANY, INC., a Subsidiary of Pfizer, Inc.; WARREN PUMPS, INC.;
ALFA LAVAL, INC., Individually and as Successor-in-Interest to
Sharples, Inc., Alfa Laval Separation, Inc. and DeLaval
Separator Co.; ALLIS CHALMERS; DRESSER-RAND CO., f/k/a Terry
Turbines, Individually and as Parent Corporation and Successor-
in-Interest to Terry Steam Turbines; FMC CORPORATION,
individually and Successor-in-Interest to Peerless Pumps and
Stearns Electric Co.; I.M.O. INDUSTRIES, INC., f/k/a DeLaval
Turbine, Inc., f/k/a Delaval, Inc., f/k/a IMP Delaval, Inc.,
Individually and as Successor-in-Interest to DeLaval Turbine,
Inc. and Warren Pumps, Inc; MCGRAW EDISON COMPANY, Individually
and as Successor-in-Interest to Worthington Pumps, Worthington
Pumps, Inc. and Turbodyne Corp.; FOSTER WHEELER LLC; FOSTER
WHEELER ENERGY CORPORATION; HOPEMAN BROTHERS, INC.,
Defendants,
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v.
JOHN CRANE INCORPORATED,
Third Party Defendant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:12-cv-00461-GLR)
Argued: December 9, 2015 Decided: January 5, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Harry Goldman, Jr., Robert Gordon Skeen, SKEEN, GOLDMAN,
LLP, Baltimore, Maryland, for Appellants. Mitchell Y. Mirviss,
VENABLE LLP, Baltimore, Maryland; David William Allen, GOODELL,
DEVRIES, LEECH & DANN, LLP, Baltimore, Maryland; Frank Ford
Loker, Jr., MILES & STOCKBRIDGE, P.C., Baltimore, Maryland;
Louis Eberhardt Grenzer, Jr., BODIE, DOLINA, HOBBS, FRIDDELL &
GRENZER, P.C, Towson, Maryland; Donald Stephen Meringer,
MERINGER, ZOIS & QUIGG, LLC, Baltimore, Maryland, for Appellees.
ON BRIEF: John Amato, IV, GOODMAN, MEAGHER & ENOCH, LLP,
Baltimore, Maryland, for Appellants. Theodore F. Roberts, Scott
M. Richmond, VENABLE LLP, Towson, Maryland; David J. Quigg,
MERINGER, ZOIS & QUIGG, LLC, Baltimore, Maryland; Derek P.
Roussillon, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland;
Terri Goldberg, Aaron L. Moore, GOODELL, DEVRIES, LEECH & DANN,
LLP, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The estate of Otis Garnes, along with his eight surviving
children, appeal the district court’s grant of summary judgment
for defendants MCIC Inc. (“MCIC”), General Electric Corporation
(“GE”), Wallace and Gale Asbestos Settlement Trust (“Wallace and
Gale”), SB Decking Inc. (“SB Decking”), and Wayne Manufacturing
Company (“Wayne”). Finding no reversible error, we affirm.
Otis Garnes died of lung cancer in 2005 at the age of 83.
In 2008, the appellants filed this wrongful death suit in
Maryland state court against 63 companies, alleging that Garnes’
lung cancer was caused in part by exposure to asbestos-
containing products sold or installed by those companies. The
case was removed to federal court. Over time, the appellants
voluntarily dismissed or consented to summary judgment for 58
defendants, leaving only the five appellees. The district court
granted summary judgment for each of the five appellees.
Federal Civil Procedure Rule 56(a) provides that the
district court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” On a motion
for summary judgment, we view “all facts and reasonable
inferences in the light most favorable to the non-moving party.”
Dulaney v. Packaging Corp. of America, 673 F.3d 323, 330 (4th
Cir. 2012). We review a summary judgment order de novo. Lee
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Graham Shopping Ctr., LLC v. Estate of Kirsch, 777 F.3d 678, 681
(4th Cir. 2015).
The district court held that the appellants failed to
provide evidence of exposure to any products manufactured or
installed by MCIC, Wallace and Gale, SB Decking, or GE
sufficient to meet the “frequency, regularity, and proximity”
test for substantial-factor causation in Maryland negligence
cases alleging asbestos exposure. See Eagle-Picher Indus., Inc.
v. Balbos, 326 Md. 179, 210 (Md. 1990); Lohrmann v. Pittsburgh
Corning Corp., 782 F.3d 1156, 1162 (4th Cir. 1986). Because the
appellants could not meet that test, their claims failed as a
matter of law.
The district court further held that the plaintiffs failed
to raise a genuine dispute as to whether Wayne is subject to
personal jurisdiction. The court found that Wayne, a Virginia
corporation, did not have sufficient “minimum contacts” with
Maryland to permit an exercise of personal jurisdiction
consistent with the due process requirements of the Fourteenth
Amendment. See Consulting Engineers Corp. v. Geometric Ltd.,
561 F.3d 273, 277 (4th Cir. 2009) (A defendant must have
“sufficient ‘minimum contacts’ with the forum state such that
‘the maintenance of the suit does not offend traditional notions
of fair play and substantial justice.’”)(quoting Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)).
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Having reviewed the record and the applicable law, and
having had the benefit of oral argument, we affirm the judgment
based on the reasoning of the district court. *
AFFIRMED
* The appellants also argue that the district court abused
its discretion by denying their Rule 60(b)(1) motion to file an
opposition to GE’s motion for summary judgment out-of-time. We
find that the district court did not abuse its discretion in
failing to grant plaintiffs a third extension of time. See Home
Port Rentals, Inc. v. Ruben, 957 F.2d 126, 132 (4th Cir.
1992)(explaining that plaintiffs must show that they were not at
fault in order to show excusable neglect under Rule 60(b)(1)).
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