Motion to Dismiss in Joseph Rajcevich, Sara Rajcevich his wife v. Mrc Holdings, Inc. As Successor To Primerica Corporation f/k/a THE AMERICAN CAN COMPANY, a joint venturer of CHEMPLEX COMPANY| Trellis.Law

On December 14, 2023 a Motion-Secondary was filed involving a dispute between Joseph Rajcevich, Sara Rajcevich His Wife, and Mrc Holdings, Inc. As Successor To Primerica Corporation F K A The American Can Company, A Joint Venturer Of Chemplex Company, for Torts - Asbestos in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

NEW YORK CITY ASBESTOS LITIGATION

JOSEPH RAJCEVICH and SARA RAJCEVICH, ! Index No.: 190322/2023
his wife, '
'
'
Plaintiffs, ' LA.S. Part 30
'
' (Hon. Adam Silvera)
-against- '
'
'
MRC HOLDINGS, INC. as successor to:
PRIMERICA CORPORATION f/k/a THE:
AMERICAN CAN COMPANY, a joint venturer
of CHEMPLEX COMPANY,

Defendant.

MRC HOLDINGS, INC.’S MEMORANDUM OF LAW
IN SUPPORT OF ITS MOTION TO DISMISS

SILLS CUMMIS & GROSS P.C.
101 Park Avenue, 28” Floor
New York, New
Y ork 10178
(212) 643-7000

Attorneys for Defendant
MRC Holdings, Inc.

Of Counsel:

Joseph L. Buckley, Esq.
James M. Hirschhom, Esq.
Ahmed J. Kassim, Esq.

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TABLE OF CONTENTS

INTRODUCTION
FACTUAL AND PROCEDURAL HISTORY .
A The New Y ork Action...
B. The Illinois Action.
ARGUMENT
PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED ON FORUM
NON CONVENIENS GROUNDS
A Legal Standard for Forum Non Conveniens
B. All the Forum Non Conveniens Factors Favor Dismissal
1 Plaintiffs are not residents and their claims lack a substantial
nexus to New Y ork.
2. All witnesses and evidence
are located outside of New
Y ork. .
3, The burden on this Court is substantial
4. Plaintiffs have access to viable, altemative forums.
IL PLAINTIFFS’ COMPLAINT FAILS TO STATEA CAUSE OF ACTION
BECAUSE IOWA LAW BARS THEIR CLAIMS
A Iowa Law Govems
B. The Iowa Statute Of Repose Bars This Action. 10
Til. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED BECAUSE THE
ILLINOIS ACTION IS STILL PENDING 11
CONCLUSION. 12

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TABLE OF AUTHORITIES

Page(s)
FEDERAL CASES

Harder
v. Acands,
179 F.3d 609 (8th Cir. 1999) 11

STATE CASES

Ackleyv. AC. &S,, Inc.,
2010 WL 2754083 (Sup. Ct. N-Y. Cnty. July 10, 2010)

Alberta & Orient Glycol Co. Ltd. v Factory Mut. Ins. Co.,
No. 603150/05, 2007 WL 6881693, aff'd, 2008 N.Y . Slip Op. 01855 (1st Dep't 2008)

Bewers v. Am Hone Prod. Corp.,
99 A.D.2d 949 (1st Dep't 1984) 6,7

Buttz v. Owens-Corning Fiberglass Co.,
557 N.W.2d 90 (Iowa 1996) 11

Cooneyv. Osgood Mach., Inc.,
81 N-Y.2d 66 (1993)

Econonns v. Zizikas,
18 A.D.3d 392 (1st Dep’t 2005) 4,8
Elson v. Defren,
283 A.D.2d 109 (1st Dep’t 2001)

Est. of Kainerv. UBS AG,
37 N.Y .3d 460 (2021)...

Evdokias v.
123 A.D.2d 598 (2d Dep't 1986)
Flintkote Co. v. Am Mut. Liabilit Ins. Co.,
103 A.D.2d 501 (2d Dep’t 1984) 12

Gozzo v. First Am Title Ins.,
75 A.D.3d 953 (3d Dep't 2010)

Inre OxyContin II,
76 A.D.3d 1019 (2d Dep't 2010)

Islamic Republic of Iran v. Pahlavi,
62 N.Y.2d 474 (1984)

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Jackamv. Nature’s Bounty, Inc.,
70 A.D.3d 1000 (2d Dep’ t 2010)

Kinseth
v. Weil-Mclain,
913 N.W.2d 55 (Iowa 2018) 11

Kniery v. Cottrell, Inc.
59 A.D.3d 1060 (4th Dept. 2009) 10

Krull v. Co.,
522 N.W.2d 607 (Iowa 1994) 11

Locke v. Aston,
31 A.D.3d
33 (1st Dep’ t 2006)

Manaster v. Northstar Tours Inc.
193 A.D.2d 651 (2d Dep’t 1993) 4, 6, 8,9

Martinv. Mieth,
35 NY.2d 414 (1974)

McKimv. A.O. Smith Water Prod. Co.
2014 WL 1511151 (Sup. Ct. N-Y. Cnty. Apr. 16, 2014)

Montalvo
v. Air Dock
37 A.D.3d567 (2d Dep't 2007) 11

Nicholsonv. Pfizer, Inc.
278 A.D.2d 143 (1st Dep’t 2000)

NWG Ins. Inc. v. Fronteer Gold Inc.
2013 WL 4482713 (Sup. Ct. N-Y. Cnty. Aug. 21, 2013)

Padula v. Lilarn Properties Corp.,
84. NY.2d 519 (1994) 9, 10

Schultzv. Boy Scouts,
65 N.Y.2d 189 (1985) 10

Silver v. Great American Ins. Co.
29 N.Y .2d 356 (1972)

Sondikv. Kimnel,
131 A.D.3d 1041 (2d Dep’t 2015)

Tallmanv. W.R. Grace & Co.
558 N.W.2d 208 (Iowa 1997) 11

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Tangesv. HeidelbergN. Am, Inc.
98 N.Y.2d 48 (1999) 10

W. Broward Group, LLC v. Cmty. Bank Corp.,
13 Misc.3d 1019 (Sup. Ct. N.Y. Cnty. Oct. 18, 2008)...

Wilson v. Pfizer,
2008 WL 2468538 (Sup. Ct. N-Y. Cnty. June 13, 2008)

STATE STATUTES

Towa Code § 614.2A(a) 11

Towa Code § 614.11 10

RULES

CPLR§ B27. .essessssessssessssssssssessssessseesssessssessssesssesssecsssecsssecsseessssesssscsssssssneessneessueessseesssessssessneesses 4,12

CPLR § 327(a) 14

CPLR§ 3211(a)(4) 2,11

CPLR§ 3211(a)7 1,9

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INTRODUCTION

This case does not belong in New
Y ork. Plaintiffs are residents of Arizona who claim that

Plaintiff Joseph Rajcevich developed mesothelioma as a result of his exposure to asbestos while

working as a pipefitter
at a Chemplex Company plastics factory in Iowa between 1967 and 1969,

more than 50 years ago. Plaintiffs allege the Chemplex Company is a predecessor of Defendant

MRC Holdings, Inc. Plaintiffs’ complaint does not allege that Mr. Rajcevich ever worked or lived

in NewY ork. There is no allegation
that Mr. Rajcevich was exposed to any asbestos in New Y ork.

The only connection this suit has to New
Y ork is that MRC is headquartered here.

This is not Plaintiffs’ first bite at the apple. Plaintiffs have also sued MRC and over ninety

other defendants in Madison County, Illinois seeking damages for Mr. Rajcevich’s mesothelioma

allegedly caused by his occupational asbestos exposures. The record developed in that action

leaves no doubt that Plaintiffs’ claims here have no connection to New Y ork. In the Illinois suit,

Mr. Rajcevich confirmed that he has never lived or worked in New Y ork and that all of his alleged

asbestos exposures occurred in Illinois, Iowa, and other states in the Midwest. The Illinois suit is

still pending, and Plaintiffs have not dismissed MRC despite filing this action in NewY ork for the

same injury.

MRC seeks dismissal of Plaintiffs’ complaint on three grounds. First, dismissal is

warranted under CPLR § 327(a) on forumnon conveniens grounds in favor of Iowa because this

action has no connection to New York and nothing in the record suggests otherwise. MRC’s

residence alone is an insufficient basis to retain jurisdiction. Second, even if this Court retains

jusisdiction, Plaintiffs’ complaint fails to state a cause of action and should be dismissed under

CPLR § 3211(a)7 because the claims are untimely under Iowa law. Because all the relevant

conduct occurred in Iowa, Iowa law applies to Plaintiffs’ claims, and Iowa’ s statute of repose bars

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this action. Finally, CPLR§ 3211(a)(4) compels dismissal because the Illinois suit is still pending

against MRC and seeks damages for the same injury.

FACTUAL AND PROCEDURAL HISTORY

A. The New York Action

Plaintiffs Joseph Rajcevich and Sara Rajcevich filed a Summons and Complaint on

December 15, 2023. (See Ex. A).! Plaintiffs are Arizona residents. (Ex. A, Complaint, 4 1).

Plaintiffs allege that Mr. Rajcevich developed mesothelioma as result of his exposure to asbestos

while working as a pipefitter at the Chemplex Company, a predecessor of MRC, in Iowa between

1965 and 1984. (Ex. A, {1 1, 4-5; Ex. B, Initial Fact Sheet). Mr. Rajcevich was diagnosed with

mesothelioma
in January 2023 in Arizona. (Ex. A, 11; Ex. B, Initial Fact Sheet, Pathology Report).

The complaint purports to plead three counts against MRC: negligence (Count One); strict

liability (Count Two); and willful, reckless, and wanton misconduct (Count Three). (Ex. A, 1 7-

12). Despite having been filed in NY CAL, the complaint
does not allege that Mr. Rajcevich was

exposed to asbestos or received medical care or worked anywhere in New York. The sole

allegation connecting this suit to New Y ork is that MRC has its principal place of business here.

(Id. 116).

B The Illinois Adion

In March 2023, Plaintiffs filed suit against MRC and over ninety other defendants in

Madison County, Illinois seeking damages for Mr. Rajcevich’s mesothelioma (“Tlinois Action”).

(See Ex. C, Madison County Complaint). In the Illinois Action, Plaintiffs broadly alleged that Mr.

Rajcevich was exposed to asbestos between 1969 and 1984 at various facilities throughout the

United States, including in Illinois and Iowa, while working as a pipefitter. (Id. 1913-5, 9, 11, 13,

1 All exhibits are attached
to the Affirmation of AhmedJ. Kassim, dated January 17, 2024, unless
otherwise indicated.

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1(Count III)). As in the New
Y ork action, Plaintiffs allege that Mr. Rajcevich was exposed at the

Chemplex facility in Iowa. (Id. (19, 11, 1(g) (Count III), 2 (Count VII)). There is no allegation
in

the Illinois complaint that Mr. Rajcevich ever lived or worked or was exposed to asbestos in New

York.

Mr. Rajcevich was deposed over four days in the Illinois Action. See Exs. D- G. He

testified that he lived in Iowa from his birth in 1944 to 1984. (Ex. D, Rajcevich Tr. (Vol. 1) at

18:15 - 19:5; 84:10 - 18; 85:13 - 15). As one episode
in his long career as a pipefitter
in Iowa,

between 1967 and 1969 Mr. Rajcevich
worked as a pipefitter at the Chemplex Company plastics

Plant in Clinton, Iowa. (Id. at 33:16-34:15). His job was to repairleaking pipes, pumps
and gaskets.

(Ex. G, Rajcevich Tr. (Vol. 4) at 86:14-87:20). While his repair work involved removing asbestos

insulation, he did not install new insulation. (Id. at 88:9-24, 90:22-24). He was not involved in any

construction work at the site. (Id. at 86:10-13, 90:9-14). After moving to Arizona in 1985, Mr.

Rajcevich neither worked around nor was exposed
to asbestos. (Ex. D, Rajcevich Tr. (Vol. 1) at

85:22 - 86:6). Mr. Rajcevich was diagnosed with and treated for his mesothelioma in Arizona.

(Ex. G, Rajcevich Tr. (Vol. 4) at 145:23 - 146:24; 147:12 - 22). Mr. Rajcevich’s testimony thus

confirmed that all of his asbestos exposures occurred in Illinois and Iowa between 1962 and 1984.

There was no testimony or evidence that Mr. Rajcevich
ever set foot in New York - let alone

worked in New
Y ork or was exposed to asbestos here.

In October 2023, MRC moved for summary judgment in the Illinois Action on several

grounds, including lack of personal jurisdiction and Iowa's statute of repose. (Ex. H, Copy of

Madison County docket as of January 9, 2024, p. 28). While that motion was pending, Plaintiffs

filed this action. Despite suing in New
Y ork, Plaintiffs have not voluntarily dismissed MRC from

the Illinois Action and the Illinois court has not yet ruled on MRC’s motion. (See generally Ex. H;

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see also Ex. I, Copy of Case Participant List as of January 9, 2024). Thus, the two actions are

pending concurrently.

Accordingly, MRC now moves for an Order dismissing this action.

ARGUMENT

PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED ON FORUM NON
CONVENIENS GROUNDS

A. Legal Standard for Forum Non Conveniens

It is well settled that New York courts “need not entertain causes of action lacking a

substantial nexus with New Y ork.” Martinv. Mieth, 35 N-Y.2d 414, 418 (1974). The doctrine of

forum non conveniens, codified in CPLR § 327, provides that a New Y ork court may dismiss an

action if it finds “that in the interest of substantial justice the action should be heard in another

forum.” CPLR § 327(a). The application of this flexible doctrine is discretionary and New Y ork

courts considering a motion
to dismiss based on CPLR § 327 weigh several factors, including: (1)

the location of the accident; (2) the residency of the parties; (3) the location of witnesses and

evidence; (4) the burden on the New Y ork court; and (5) the availability of another forum, with no

single factor controlling. See Islamic Republic of Iran v. Pahlavi, 62 N.Y .2d 474, 478-479 (1984);

Econonmws v. Zizikas, 18 A.D.3d 392 (1st Dep’t 2005).

Even where one party is a New Y ork resident, the case may be dismissed
on forum non.

conveniens grounds. Silver v. Great American Ins. Co., 29 N-Y .2d 356 (1972) (although defendant

was New Y ork corporation, all significant events took place in Hawaii); Manaster v. Northstar

Tours Inc., 193 A.D.2d 651, 653 (2d Dep't 1993) (affirming dismissal on forum non conveniens

grounds and finding “the sole fact of the defendants’ New Y ork residence does not establish a

nexus sufficient to merit the retention of jurisdiction in this State.”). Where plaintiffs are not

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residents of the forum, “the plaintiff’s choice of forum is entitled to less deference.” NWG Invs.

Inc. v. Fronteer Gold Inc., 2013 WL 4482713, at*5 (Sup. Ct. N.Y. Cnty. Aug. 21, 2013).

All the relevant factors compel dismissal here: (a) Neither plaintiffs nor their claims bear

a substantial
nexus to New Y ork; (b) none of the evidence or witnesses who may testify at trial

regarding Mr. Rajcevich’s alleged exposure and medical history are in in New
Y ork; (c) litigating

this case in New York places an unreasonable and unnecessary burden on this Court; and (d)

Plaintiffs have access to a viable, altemative forum
in which to bring their claims. Where, as here,

all factors weigh heavily in favor of dismissal and the claims have no connection to New
Y ork, a

forumnon conveniens dismissal is required.

1. Plaintiffs are not residents and their claims lack a substantial nexus
to New
York.

It is undisputed that the key events giving rise to this case occurred outside New Y ork.

Plaintiffs reside in Arizona where Mr. Rajcevich received his diagnosis and medical treatment.

(Ex. A, 71; Ex. B, Initial Fact Sheet, Pathology Report; (Ex. G, Rajcevich Tr. (Vol. 4) at 145:23-

146:24; 147:12-22). The alleged exposures and injury occurred in Iowa where Mr. Rajcevich

resided until 1984. (Ex. A, (91, 4, 5; Ex. B, Initial Fact Sheet).

This action’s sole tie to New
Y ork is it is the location of MRC’s headquarters- a fact that

New
Y ork courts have repeatedly rejected
as a reason
to refain a tort case filed by an out-of-state

Plaintiff against
a New Y ork company. See, e.g., Gozzo v. First Am Title Ins., 75 A.D.3d 953, 954

(3d Dep’t 2010) (“[A] party’s New Y ork residency does not preclude dismissal, particularly where,

as here, there is no substantial nexus between this state and the cause of action.”); Wilson v.

Pfizer, 2008 WL 2468538 (Sup. Ct. N.Y. Cnty. June 13, 2008); Alberta & Orient Glycol Co. Ltd.

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v Factory Mut. Ins. Co., No. 603150/05, 2007 WL 6881693, aff d, 2008 N-Y. Slip Op. 01855 (1st

Dep't 2008).
NY CAL courts routinely dismiss asbestos claims on forumnon conveniens grounds where,

as here, there is no allegation that asbestos exposure occurred in New Y ork. Ackley v. A.C. & S,,

Inc, 2010 WL 2754083, at *5 (Sup. Ct. NY. Cnty. July 10, 2010) (“A prerequisite to bringing
[an] asbestos case in New
Y ork City is the existence of evidence
that plaintiff sustained his injury

due to asbestos exposure in New Y ork.”); Jackamv. Nature’s Bounty, Inc., 70 A.D.3d 1000, 1002

(2d Dep't 2010) (dismissing claim for forum non conveniens where plaintiff was not exposed to

asbestos
in New Y ork); see also McKimv. A.O. Smith Water Prod. Co., 2014 WL 1511151, at*2

(Sup. Ct. N-Y. Cnty. Apr. 16, 2014) (finding that New York is not a convenient forum when

“plaintiffs [have not] been able to produce admissible evidence which shows that the decedent
was

exposed to asbestos in New York.”). This is so even where the defendant is a New Y ork-based

company. See, e.g., McKim, 2014 WL 1511151, at *3 (granting forum non conveniens motion in

asbestos case even though defendants were headquartered in New Y ork); Bewersv. Am Home

Prod. Corp., 99 A.D.2d 949, 949 (1st Dep’t 1984) (reversing denial of forum non conveniens

motion by defendant headquartered in New
Y ork); affd, 474 N.E.2d 247 (1984); Manaster, 193

A.D.2d at 652 (same).

2. All witnesses and evidence are located outside of New York.

New Y ork courts generally favor the forum where witnesses are located for two reasons:

(1) to avoid “the potential hardship to proposed witnesses including, especially, nonparty

witnesses”; and (2) to ensure that the court has “the authority to subpoena out-of-state nonparty

witnesses” who have “critical information on both proximate cause and damages.” Inre OxyContin

IL, 76. A.D.3d 1019, 1021 (2d Dep't 2010) (reversing trial court’s denial of forumnon conveniens

motion, in part, because “[nJone of the nonresident plaintiffs purchased Oxycontin in New Y ork,

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none ingested the drug here and, importantly, none received treatment for alleged resulting injuries

in this State”).

Both considerations weigh heavily in favor of dismissal here. Plaintiffs’ allegations do not

suggest that any witnesses or evidence are in New Y ork. Because Mr. Rajcevich’s alleged asbestos

exposures occurred in Iowa and his medical care took place in Arizona, all witnesses
who may

testify at trial regarding
Mr. Rajcevich’s
alleged exposure and medical history
are outside New

York. See Evdokias v. Oppenheimer, 123 A.D.2d 598, 599 (2d Dep't 1986) (affinming dismissal,

even though the defendants were residents of New Y ork, because “a substantial majority of the

witnesses and the documentary evidence” was in Quebec). Indeed, if this case proceeds, MRC’s

ability to effectively litigate this case will be hampered because all witnesses with knowledge of

Mr. Rajcevich’s occupational exposures
and medical care are outside the subpoena power of this

court. Nicholson
v. Pfizer, Inc., 278 A.D.2d 143 (1st Dep’t 2000) (reversing trial court’s denial of

motion to dismiss on ground of forum non conveniens because plaintiff’ s treating physicians were

located beyond New York subpoena power); Bewers, 99 A.D.2d at 949 (dismissing United

Kingdom residents’ claims against pharmaceutical company on forum non conveniens grounds

explaining “the injuries allegedly suffered
by plaintiffs all occurred in the United Kingdom, [] the

drugs complained
of were prescribed, purchased
and ingested in England,” and as a result, “[t]he

vast majority of witnesses and documentation” would be in the United Kingdom).

3. The burden on this Court is substantial.

Litigating
this case in New Y ork will force
the Court to apply the law of a different
state

and burden this Court’s already severely backlogged docket. If this case survives this initial

motion, a choice of law analysis will be required. See Point II, infra. Under New
Y ork’s choice-

of-law nules, “New
Y ork courts usually apply the law of the place where the tort occurred because

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that jurisdiction has the greatest interest in regulating behavior that takes place within its borders.”

Elson v. Defren, 283 A.D.2d 109, 115 (1st Dep't 2001).

Here, because
the tort — Mr. Rajcevich’s alleged occupational exposure
to asbestos at the

Chemplex factory — occurred in Iowa, Iowa law should apply to his claims. Where, as here,

adjudicating a claim would require the application of foreign law, that factor favors dismissal as it

would constitute an unnecessary burden on this Court. See W. Broward Group, LLC v.

Independence Cnty. Bank Corp., 13 Misc.3d 1019, 1022 (Sup. Ct. N-Y. Cnty. Oct. 18, 2006) (“an

unnecessary burden is placed
on this Court which would be forced to interpret Florida law when a

Horida forum is available.”)

Furthermore, “New York has a strong interest in preserving its limited judicial resources

for those cases that have a strong nexus to the state, which is undermined
when courts “use their

resources to hear cases that have no comnection to their state.” Economns v. Zizikas, 18 A.D.3d.

392, 393 (2005). As the Court is intimately aware, asbestos litigation is costly and exhaustive of

the judiciary’
s resources. Asbestos trials can take months of the Court’s undivided attention. The

Court should not devote judiciary resources to expensive, consuming lawsuits that do not concem

New
Y ork residents or causes of actions. Plaintiffs are merely attempting to import their claims

into a forum that they view as favorable, but with which neither they nor their claims bear any

arguable relationship.

4. Plaintiffs have access to viable, alternative forums.

Jowais aviable altemative forum. As the epicenter of Plaintiffs’ claims against MRC, Iowa

has a far more substantial nexus to the events giving rise to this dispute
than New Y ork.? Illinois

2? Whether Iowa is viable altemative forum in light of its statute of repose is rendered “academic”
because, even if this action proceeds in New Y ork, as explained in Point II, choice of law would
operate to likewise dismiss the action under Iowa law. See Manaster, 193 A.D.2d at 653. At any
rate, the availability of an altemate forum is not a controlling factor in the determination of whether

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is conceivably an altemate forum as the Illinois Action is still pending against MRC. The fact

MRC filed for summary judgment does not make it any less so until the Ilinois court rules (and,

if in favor of MRC, on what grounds). Thus, with altemate forums available this factor favors

dismissal.

Accordingly, the interests of justice, faimess, and convenience overwhelmingly favor

dismissal of this action on forumnon conveniens grounds.

I PLAINITFFS’ COMPLAINT: FAILS TO STATE A CAUSE OF ACTION
BECAUSE IOWA LAW BARS THEIR CLAIMS

Even if the Court were to decline to dismiss for forum non conveniens, the complaint

should be dismissed for failure to state a claim under CPLR § 3211(a)(7) because Plaintiffs’ claims

are barred by Iowa law.

A. Iowa Law Governs

Inresolving conflicts of goveming law, New
Y ork applies an interest analysis under which.

“the law of the jurisdiction having the greatest interest in resolving the particular issue” is given

controlling effect. Sondikv. Kinamel, 131 A.D.3d 1041, 1041 (2d Dep't 2015) (quoting Cooney v.

Osgood Mach., Inc., 81 N-Y .2d 66, 72 (1993)). The interest analysis addresses two inquiries: “(1)

what are the significant contacts and in which jurisdiction are they located; and, (2) whether the

purpose of the law [at issue] is to regulate conduct or allocate loss.” Padula v. Lilarn Properties

Corp., 84 N.Y .2d. 519, 521 (1994). If the conflicting laws regulate conduct, the law of the place of

the tort “almost invariably obtains” because “that, jurisdiction has the greatest interest in regulating

behavior within its borders.” Cooney, 81 N-Y.2d
at 72; see also Locke v. Aston, 31 A.D.3d_33, 38

(1st Dep’t 2006) (“[W]here the plaintiff and defendant are domiciled in different states, the

or not to grant dismissal on the grounds of forum non conveniens. Id; see also Est. of Kainer
v.
UBSAG, 37 N.Y .3d.460, 467 (2021) (observing availability of suitable forumis not “a prerequisite
for applying the conveniens doctrine” or a “precondition to dismissal”).

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applicable law in an action where civil remedies are sought for tortious conduct is that of the situs

of the injury.” (citations omitted)). This is because the jurisdiction where the tort occurred, the lex

loci delicti, will almost always have the greatest interest in regulating conduct within its borders.

See Padula, 84 N.Y
.2d at 522; Schultzv. Boy Scouts, 65 N-Y .2d 189, 198 (1985).

As discussed in Point II.B., below, Iowa has a 15-year statute of repose, Iowa Code §

614.11, that cuts off personal injury claims based on exposure to asbestos installed on real property.

New Y ork
has no comparable
statute of repose. Even when a New Y ork resident injured in another

state is the plaintiff, New
Y ork will apply that state’ s statute of repose as a substantive limit on the

right to sue for personal injury. Tanges v. Heidelberg N. Am, Inc., 93 N.Y.2d 48, 55-58 (1999)

(applying Connecticut statute of repose to products liability claim by New Y ork resident injured

in Connecticut); accord Kniery v. Cottrell, Inc., 59 A.D.3d 1060 (4th Dept. 2009) (applying Ohio

statute of repose to products liability claim by New
Y ork resident injured in Ohio). Iowa is the

state with the greatest interest. Mr. Rajcevich was an Iowa resident at the time of his injury and his

alleged exposure occurred at Chemplex’s facility in Iowa. None of his exposures occurred.in New

York. A fortioi the Iowa statute of repose should control and invalidate any claim by an Iowa

resident injured in Iowa.

B The Iowa Statute Of Repose Bars This Action

Iowa Code § 614.11(a)(3) and (b) provides a statute of repose for any action “arising out

of the unsafe or defective condition of an improvement to real property based on tort or implied

warranty. . . and founded
on. . . injury
to the person.” No such action may be brought more than

eight years after the date of the improvement. Iowa Code. § 614.11(a)(3). Even if the defective

condition of the improvement was fraudulently concealed or intentionally created, no action may

be brought more than 15 years after the date of the act or omission that caused the injury. Iowa

Code. § 614.11(b). Section 614.11 is a statute of repose “which closes the door after fifteen years

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on certain claims arising from improvements to real property.” Krull v. Thermogas Co., 522

N.W.2d 607, 611 (Iowa 1994). The 15-year period mins from the date the improvement was

installed on the property. Id. While Iowa has a discovery rule for product liability claims based on

latent diseases, Iowa Code § 614.2A(a), the discovery mule specifically excludes claims based on

asbestos that are covered by the statute of repose. Iowa Code. § 614.2A(b).

The Iowa Supreme Court has held that asbestos installed on real property is an

“improvement” within the meaning of the statute of repose and that claims based on exposure to

installed asbestos are therefore barred unless brought within 15 years of its installation. Kinseth v.

Weil-Mclain, 913 N.W.2d 55, 76 (Iowa 2018); Tallmanv. W.R. Grace & Co., 558 N.W.2d 208,

210-11 (Iowa 1997), followed
in Harder v. Acands, 179 F.3d 609, 612-13 (8 Cir. 1999). The bar

includes exposure when installed asbestos is removed during maintenance or repairs. Harder, 179

F.3d at 612-13; Kinseth, 913 N.W.2d at 76; Tallman, 558 N.W.2d at 211. To be sure, an earlier

decision had held that the statute of repose does not apply to exposure before the asbestos is

physically attached to the property. Buttz v. Owens-Comning Fiberglass Co., 557 N.W.2d 90, 92

(Iowa 1996). However, Mr. Rajcevich testified in his deposition that he was not involved in

construction at the Chemplex factory and did not install new asbestos. All of his exposure was in

the course of maintenance and repair work on existing equipment. (Rajcevich
Tr. (Vol 4) at 86:10-

87:20, 88:9-24, 90:9-14, 90:22-24). Therefore any claim based on his exposure at Chemplex in

1967 through 1969 is long since barred by the statute of repose.

I. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED BECAUSE THE
ILLINOIS ACTIONIS STILL PENDING

CPLR § 3211(a)(4) provides an independent basis for dismissal when there is “another

action pending between the same parties for the same cause
of action.” See Montalvo v. Air Dock

Sys., 37 A.D.3d 567, 567 (2d Dep't 2007) (dismissal permitted
when there is a “substantial identity

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of the parties,” “the two actions [are] sufficiently similar
and the relief sought [is] the ‘the same or

substantially the same.”’). In addition, a court evaluating a motion to dismiss under CPLR §

3211(a)(4) considers the same forum non conveniens factors that govem dismissals under CPLR

§ 327 or, in other words, “whether the litigation and the parties have sufficient contact with this

State to justify the burdens imposed on ourjudicial system.” Flintkote Co. v. Am Mut Liabilit Ins.

Co., 103 A.D.2d 501, 506 (2d Dep’t 1984). For all the reasons stated above, this Court should

dismiss this action in favor of the pending Illinois Action, where Plaintiffs have not yet dismissed

MRC nor has the Illinois state court ruled on MRC’s motion for summary judgment.

CONCLUSION

For these reasons, MRC requests that the Court grant its motion and any other relief that

this Court may deem just and proper.

Dated: New Y ork, New Y ork
January 17, 2024

SILLS CUMMIS & GROSS P.C.

By: __/s/Ahnred J. Kassim
JosephL. Buckley, Esq.
James M. Hirschhom, Esq.
Ahmed J. Kassim, Esq.
101 Park Avenue, 28 Floor
New York, New
Y ork 10178
(212) 643-7000

Attorneys for Defendant
MRC Holdings, Inc.

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Certification under Section 202.8-b the Uniform Civil Rules for the Supreme Court and the
County Court

The undersigned attomey for Defendant certifies under Section 202.8-b the Uniform Civil

Rules for the Supreme Court and the County that the word count for the foregoing Memorandum

of Lawis 4,683 words, exclusive of the caption, table of contents, table of authorities, and signature

block as counted by the word processing program: Microsoft Word.

Dated: January 17, 2024

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Motion-Secondary: Joseph Rajcevich, Sara Rajcevich his wife v. Mrc Holdings, Inc. As Successor To Primerica Corporation f/k/a THE AMERICAN CAN COMPANY, a joint venturer of CHEMPLEX COMPANY

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