Aaberg v. ACandS Inc.

MEMORANDUM OPINION

SMALKIN, District Judge.

This 1,000 plaintiff asbestos case is before the Court on plaintiffs’ counsel’s response to various defendants’ motions to dismiss, and pursuant to this Court’s letter order of December 15, 1993.

At this juncture, the plaintiffs have abandoned any reliance on the Court’s diversity jurisdiction. It is also clear from the plaintiffs’ filing that they do not seek to have this case proceed as a class action, but as a case in which 1,000 plaintiffs are properly joined under Fed.R.Civ.P. 20. The plaintiffs oppose dismissal, even if the Court were to find misjoinder, citing Fed.R.Civ.P. 21 as precluding dismissal on account of misjoinder of parties.

It is plain to this Court that the 1,000 plaintiffs’ claims, set forth in this complaint simply as a skeleton claim of maritime exposure to asbestos, without any attempt at individualization or description of the particular circumstances and exposures of the individual plaintiffs, let alone the products and/or defendants alleged to have been responsible, do not satisfy the “same transaction or occurrence” test of Fed.R.Civ.P. 20(a). See, e.g., Saval v. BL Ltd., 710 F.2d 1027, 1031-32 (4th Cir.1983). This is so plain on the face of the matter as not to require any oral hearing. See Local Rule 105.6, D.Md.

The Court is mindful of the strictures of Fed.R.Civ.P. 21 that prohibit dismissal of a ease for misjoinder. That same rule however, provides that the Court may, upon its own initiative, drop parties who are misjoined “on such terms as are just.”

In this case, it is entirely appropriate and just to drop all but the first named plaintiff, Mr. Aaberg, on condition that their having been dropped from this lawsuit is without prejudice to their institution, individually, of suit against some or all'of the present defendants based on the claim or claims attempted to be set forth in the present complaint. Of course, any such filing must be accompanied by the appropriate filing fee, and the complaint must satisfy the jurisdictional, pleading, and venue requirements of federal law and the Federal Rules of Civil Procedure.

As for the complaint of the remaining plaintiff, Mr. Aaberg, the Court is of the opinion that the complaint fails the threshold test in Fed.R.Civ.P. 8(a)(2) of setting forth a short and plain statement of the claim showing that the pleader is entitled to relief. This is not a pro se complaint, but, rather, one filed by counsel, and it -involves only reasonable expectations of competence to require that a complaint at least identify some or all of the voyages undertaken by the plaintiff during which he was allegedly exposed to asbestos and the specific products (and manufacturers of those products) that, plaintiff claims, caused his injury. Without these facts in the complaint, defendants are helpless to answer or otherwise respond to it intelligently. The Court recognizes that asbestos litigation is different from most other federal litigation, but it still is litigation, subject to the Federal Rules. Additionally, the plaintiff must properly plead proximate cause, injury, and damage.

Therefore, the Order to be entered herein, in addition to dropping all plaintiffs other than Mr. Aaberg on the conditions set forth above, will also dismiss the present complaint for failure to comply with Fed.R.Civ.P. 8(a), unless an amended complaint complying with the rule is submitted on behalf of Mr. Aaberg within 21 days of the date hereof. Absent such filing of an amended complaint, this ease will be dismissed, with prejudice, without the need for further application by the defendants.

ORDER

For the reasons ■ stated in the foregoing Memorandum Opinion, it is, this 7th day of January, 1994, by the Court, ORDERED:

1. That all plaintiffs, other than the first named plaintiff, Mr. Aaberg, BE, and they hereby ARE, DROPPED as plaintiffs herein, and their claims ARE DISMISSED, without prejudice to their right to file individual, particularized complaints, accompanied by the appropriate filing fee, and satisfying the jurisdictional, pleading, and venue requirements of federal law and the Federal Rules of Civil Procedure;

2. That the remaining plaintiff, Mr. Aaberg, BE, and he hereby IS, GRANTED 21 days’ leave to file an amended complaint complying with Fed.R.Civ.P. 8(a), failing which there will be a dismissal of this case as to Mr. Aaberg, with prejudice and without further notice; and

3. That the Clerk of Court mail copies of the foregoing Memorandum Opinion and of this Order to counsel for the parties.