On July 25, 2012 a
Motion-Secondary
was filed
involving a dispute between
Eddie Howard Bailen,
Rena Norene Ash-Bailen,
and
Air & Liquid Systems Corporation As Successor By Merger To Buffalo Pumps, Inc.,
American Standard, Inc.,
Armstrong International, Inc.,
Ballantyne Of Omaha Individually And As Successor To Strong Electric Corp.,
Bethlehem Apparatus Company, Inc.,
Bird Incorporated F K A Bird & Son, Inc.,
Borg Warner Corporation By Its Successor In Interest Borg Warner Morse Tec Inc.,
Burnham Corporation,
Bw Ip International Co. Formerly Known As Borg Warner Industrial Products Inc., A Former Subsidiary Of And Successor To Borg Warner Corp. And Byron Jackson Pumps,
Carrier Corporation,
Cbs Corporation A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Cleaver Brooks Company F K A Aqua Chem, Inc.,
Crane Co.,
Electrolux Home Products, Inc. Individually And As Successor To Tappan And Copes Vulcan,
Elliott Turbomachinery Co., Inc.,
Flowserve Us, Inc. Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company,
Ford Motor Company, Individually And As Successor To Philco-Ford,
Foster Wheeler Llc,
General Electric Company,
Georgia-Pacific Corporation Individually And As Successor To Bestwall Gypsum Company,
Goulds Pumps, Inc.,
Grinnell Corporation,
Gte Sylvania Incorporated,
Honeywell International, Inc. Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp.,
Imo Industries, Inc. F K A Imo Delaval, Inc., Individually And As Successor To Turbine Equipment Company,
I.T.T. Industries, Inc. Individually And As Successor To Bell & Gossett,
Kentile Floors, Inc. A K A Kentile Operating Company,
Lg Electronics U.S.A., Inc. Individually And As Successor In Interest To Zenith Radio Corp. And Zenith Electronics Corp.,
Lindberg,
Lindberg Mph,
Magnovox,
Marley Company,
Metropolitan Life Insurance Company,
Motorola Communications And Electronics, Inc.,
Nebraska Boiler Company, Inc.,
Owens Illinois, Inc.,
Rapid-American Corporation Individually And As Successor-By-Merger To Glen Alden Corporation, Briggs Manufacturing Co., Philip Carey Corporation And Philip Carey Manufacturing Company,
Raytheon Aircraft Company F K A Beech Aircraft Corporation,
Raytheon Company Individually And As Successor To Ebasco Services, Inc.,
Rca Communications, Inc. Individually And As Successor To Rca Global Communications,
Riley Power, Inc. F K A Babcock Borsig Power, Inc. And F K A Riley-Stoker Corporation D B A Db Riley, Inc.,
Spence Engineering Company, Inc.,
Surface Combustion, Inc.,
Thomas Industries, Inc. Individually And As Successor To Welch Pumps,
Trane U.S. Inc. American Standard, Inc.,
Tuthill Corporation Individually And As Successor To Kinney Vacuum Pump Company, Kinney Pump Company And Murray Turbine,
Tyco Flow Control, Inc. Individually And As Successor To Keyston, Yarway Corporation And Grinnell Corporation,
Tyco International,
Union Carbide Corporation,
Union Pacific Railroad Company,
Velan Valve Corp.,
Verizon Communications, Inc.,
Visteon,
Warren Pumps Llc Individually And As Successor To The Quimby Pump Company,
Weil Mclain A Division Of Marley Wylain Company,
Welch Rietschle Thomas,
Yarway Corporation,
York International Corporation Individually And As Successor To Frick Company,
Zurn Industries, Inc. A K A And Successor-In-Interest To Erie City Iron Works,
for Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 04/24/2013 INDEX NO. 190318/2012
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/24/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
EDDIE HOWARD BAILEN and RENA
NORENE ASH-BAILEN
Memorandum of Law in Support of
Plaintiffs, Defendant Union Pacific Railroad
Company, Inc.'s Motion to Dismiss for
V. Forum Non Con veniens
AIR AND LIQUID SYSTEMS Index No.: 190318/2012
CORPORATION., as Successor by Merger to
Buffalo Pumps, Inc., et al.,
Defendants.
AND NOW COMES Defendant, Union Pacific Railroad Company, Inc. ("Defendant")
by and through their attorneys, BURNS WHITE LLC, and files this Memorandum of Law in
Support of Defendant's Motion To Dismiss For Forum Non Conveniens.
. FACTS & BACKGROUND
Plaintiffs, Eddie and Rena Bailen ("Plaintiffs") filed a Summons and Complaint in the
State of New York, Supreme Court, County of New York on or about August 1, 2012.
Plaintiffs' Complaint alleges that Eddie Bailen ("Plaintiff') was exposed to asbestos-
containing products while employed in various capacities throughout his life, and as a result
suffers from mesothelioma (Lyda Aff., Exhibit A).
In regards to this Defendant, Plaintiff alleges that Defendant violated the Federal
Employer's Liability Act ("FELA") 45 U.S.C. § 51, et seq., and the Locomotive Boiler
Inspection Act, 272 U.S. 605, 607, by negligently exposing Plaintiff to asbestos while
employed by Union Pacific.
More specifically, Plaintiff's Answers to Interrogatories allege that he was exposed to
asbestos-containing products while working as an electrician with the Defendant from 1958-
1959 in Omaha, Nebraska, as a TV and Radio repairman with Rite-Way TV/Hanover
Electronics from 1962 until 1977 in Omaha Nebraska, and with EEE as a control systems
worker at various locations from 1977 until the present (Lyda MT., Exhibit B).
As will be shown below, New York County, New York is clearly an improper and/or
inconvenient forum for this cause of action. New York County, New York and New York
state had virtually no contact with the subject matter of this litigation, and that the state of
Nebraska is the most appropriate and convenient forum.
II. ARGUMENT
A. Standard of Review/Burden of Proof
In cases arising under the FELA (federal law), when an action is brought in state courts,
that specific state's venue and forum provisions apply and the venue section of the FELA (45
U.S.C. § 56), is inapplicable. Hairston v. Metro-North Commuter R.R., 259 A.D.2d 370, 687
N.Y.S.2d (1st Dept., 1999). As such, New York's doctrine of forum non conveniens is to be
applied in FELA cases where there is no substantial nexus with New York. See Rivera v.
Parvez, 108 A.D.2d 640 (1st Dept 1985)
In New York, the common-law doctrine of forum non conveniens is recognized and
codified by CPLR § 327 (a):
"When the court finds that in the interest of substantial justice the actions should
be heard in another forum, the court, on the motion of any party, may stay or
dismiss the action in whole or in part on any conditions that may be just. The
domicile or residence in this state of any party to the action shall not preclude
the court from staying or dismissing the action.
The purpose of dismissal for forum non conveniens is so that New York Courts, "should not be
under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of
action having no substantial nexus with New York." Shin-Etsu Chemical Co., Ltd. v. 3033
ICICI Bank Ltd. 9 A.D.3d 171, 176 (1st Dept.2004).
The factors to be considered when considering aforum non conveniens motion are: "the
burden on the New York courts, the potential hardship to the defendant, and the unavailability
of an alternative forum in which plaintiff may bring suit...The court may also consider that
both parties to the action are nonresidents...and that the transaction out of which the cause of
action arose occurred primarily in a foreign jurisdiction..." [citations omitted]. Islamic
Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245, cert.
denied 469 U.S. 1108, 105 S.Ct. 783,83 L.Ed.2d 778).
Finally, when a Plaintiff is a non-resident, it is the Plaintiff's burden to demonstrate that
special circumstances exist warranting retention of the case in New York. Blais v. Deyo, 92
A.D.2d 998, 461 N.Y.S.2d 471 (3rd Dept. 1983). affd 60 N.Y.2d 679, 455 N.E.2d 662, 468
N.Y.S.2d 103 (N.Y. 1983). Moreover, this Honorable Court outlined "relevant private or
public interest factors" that militate against retention of the action in New York in Kiselovski v.
A.O. Smith Water Prods. Co., 2012 N.Y. Misc. Lexis 4585 (Sup. Ct., N.Y. County Sept. 24,
2012)(quoting Islamic Republic of Iranv. Pahlavi, 62 N.Y. 2d 474, 479, 483 (1984)). These
factors include: (i) the residency of the parties; (ii) the jurisdiction in which the underlying
transaction occurred; (iii) the location of the relevant document and witnesses; (iv) the
availability of a suitable forum; and (v) the interest of the alternative forum in deciding the
issues.
This Court further stated that no one factor is controlling and indeed "the great advantage
of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of
each case." Lastly, the overall issue is whether there is a "substantial nexus" between the
plaintiff's faction and the State of New York." Id.
B. Facts Supporting Dismissal for Forum Non Conveniens
. The location/residents of the parties, attorneys, and medical providers.
A review of the locations/residents of this Defendant and the Plaintiff, as well as the
Plaintiff's alleged worksite in this action shows virtually a complete absence of any connection
to New York County or New York State. The Plaintiff is not a resident of New York (Lyda
Aff., Exhibit A.) Additionally, Defendant Union Pacific Railroad Company, Inc., is
incorporated in Omaha, Nebraska. Further, the medical providers who provided treatment for
the injuries alleged in the complaint are all located in Nebraska and Plaintiff's family
members, whom likely will be called as witnesses in this matter, likely reside in Nebraska.
Additionally, the alleged tort occurred mostly in Omaha, Nebraska, as Plaintiff's Answer to
Interrogatories state that all of the Plaintiffs employers were located in Omaha, Nebraska. (Lyda
Aff., Exhibit B).1
Moreover, Plaintiff testified during his deposition that while he was employed by
Union Pacific, he never traveled to New York, and that the only locale he worked at for Union
Pacific was in Omaha, Nebraska. (Lyda Aff., Exhibit C).
Further, a review of the record in this matter reveals that the only connection Plaintiff
has with the State of New York is the approximately one (1) month he spent in New York City
in 1977 while working for his own company/corporation EEE. (Lyda Aff., Exhibit C).
I Please note that Plaintiff's Answers to Interrogatories indicate that Plaintiff worked at the Andrew Heiskell Braille
and Talking Book Library located at 40 West 20th Street, NY, NY while employed with EEE.
Lastly, this action satisfies all of the elements outlined by this Court in Kiselovski.
First, as noted previously Plaintiff resides in Omaha as does the Defendant, Union Pacific.
Next, virtually all of the allegations/alleged exposures other than one (1) month in 1977
occurred in Omaha, Nebraska. Further, the relevant witnesses including the Plaintiff reside in
Omaha, Nebraska. In addition, the State of Nebraska is an alternative forum that is certainly
capable of managing an asbestos case.
C. Application of the Facts
Matters such as the present matter, which have little or no connection to New York, are
cases where dismissal for forum non conveniens is clearly supported by the caselaw. In Rivera
v. Parvez, 108 A.D.2d 640 (1st Dept 1985) the court considered whether to apply the forum non
conveniens provisions of CPLR § 327 in a FELA case. The court reviewed the FELA action
brought by a non-resident of New York, and succinctly held:
The accident occurred in Millham, New Jersey, where plaintiff had been employed.
Medical treatment was rendered in Pennsylvania, where he resided. Clearly, the
action has no nexus with this State and appears to be a species of "imported
litigation". New York has no relationship with the issues in this foreign-based
litigation and, clearly, there is an insufficient ground here to warrant continuance
of the action in New York.
Rivera, 108 A.D.2d at 640 (internal citations omitted).
As the court found that the actual tort occurred in New Jersey and the doctors were in
Pennsylvania, it granted the railroad defendants' motion to dismiss under CPLR § 327.
Further even in cases in which the injury admittedly occurred in New York have been
dismissed for forum non conveniens. In Economos v. Zizikas, 18 A.D.3d 392 (1st Dept.2005)
the court considered a forum non conveniens motion for a case very similar to the matter at
hand. In Economos, the accident occurred in New York County, but the matter was filed in
Bronx County, even though all the parties were residents of New Jersey. The Economos court
ruled that the fact that the injury actually occurred in New York (New York County) does not
justify the case being heard in New York (Bronx County.) Instead, the court ruled that the
non-resident plaintiff did not demonstrate the necessary "special circumstances" necessary for
retention of the action in New York and dismissed the case for filing in a more appropriate
forum. With striking similarity, the Plaintiff here has filed his action in New York County for
injuries that mainly occurred in Nebraska. Moreover, as previously noted, Plaintiff only spent
one month in New York in 1977.
III. CONCLUSION
This case is clearly nothing more than "imported litigation," filed in New York County
for the sole benefit of Plaintiff's attorneys. Plaintiff, as a non-resident, has the burden to
prove that her case should be heard in New York, and, more specifically, in New York County.
Dated: April 24, 2013 T.H. Lyda, Esquire
Pittsburgh, Pennsylvania BURNS WHITE LLC -
Four Northshore Center
106 Isabella Street
Pittsburgh, PA 15212
Counsel for Defendant
Union Pacific Railroad Company
Preview
FILED: NEW YORK COUNTY CLERK 04/24/2013 INDEX NO. 190318/2012 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 04/24/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EDDIE HOWARD BAILEN and RENA NORENE ASH-BAILEN Memorandum of Law in Support of Plaintiffs, Defendant Union Pacific Railroad Company, Inc.'s Motion to Dismiss for V. Forum Non Con veniens AIR AND LIQUID SYSTEMS Index No.: 190318/2012 CORPORATION., as Successor by Merger to Buffalo Pumps, Inc., et al., Defendants. AND NOW COMES Defendant, Union Pacific Railroad Company, Inc. ("Defendant") by and through their attorneys, BURNS WHITE LLC, and files this Memorandum of Law in Support of Defendant's Motion To Dismiss For Forum Non Conveniens. . FACTS & BACKGROUND Plaintiffs, Eddie and Rena Bailen ("Plaintiffs") filed a Summons and Complaint in the State of New York, Supreme Court, County of New York on or about August 1, 2012. Plaintiffs' Complaint alleges that Eddie Bailen ("Plaintiff') was exposed to asbestos- containing products while employed in various capacities throughout his life, and as a result suffers from mesothelioma (Lyda Aff., Exhibit A). In regards to this Defendant, Plaintiff alleges that Defendant violated the Federal Employer's Liability Act ("FELA") 45 U.S.C. § 51, et seq., and the Locomotive Boiler Inspection Act, 272 U.S. 605, 607, by negligently exposing Plaintiff to asbestos while employed by Union Pacific. More specifically, Plaintiff's Answers to Interrogatories allege that he was exposed to asbestos-containing products while working as an electrician with the Defendant from 1958- 1959 in Omaha, Nebraska, as a TV and Radio repairman with Rite-Way TV/Hanover Electronics from 1962 until 1977 in Omaha Nebraska, and with EEE as a control systems worker at various locations from 1977 until the present (Lyda MT., Exhibit B). As will be shown below, New York County, New York is clearly an improper and/or inconvenient forum for this cause of action. New York County, New York and New York state had virtually no contact with the subject matter of this litigation, and that the state of Nebraska is the most appropriate and convenient forum. II. ARGUMENT A. Standard of Review/Burden of Proof In cases arising under the FELA (federal law), when an action is brought in state courts, that specific state's venue and forum provisions apply and the venue section of the FELA (45 U.S.C. § 56), is inapplicable. Hairston v. Metro-North Commuter R.R., 259 A.D.2d 370, 687 N.Y.S.2d (1st Dept., 1999). As such, New York's doctrine of forum non conveniens is to be applied in FELA cases where there is no substantial nexus with New York. See Rivera v. Parvez, 108 A.D.2d 640 (1st Dept 1985) In New York, the common-law doctrine of forum non conveniens is recognized and codified by CPLR § 327 (a): "When the court finds that in the interest of substantial justice the actions should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action. The purpose of dismissal for forum non conveniens is so that New York Courts, "should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York." Shin-Etsu Chemical Co., Ltd. v. 3033 ICICI Bank Ltd. 9 A.D.3d 171, 176 (1st Dept.2004). The factors to be considered when considering aforum non conveniens motion are: "the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit...The court may also consider that both parties to the action are nonresidents...and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction..." [citations omitted]. Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245, cert. denied 469 U.S. 1108, 105 S.Ct. 783,83 L.Ed.2d 778). Finally, when a Plaintiff is a non-resident, it is the Plaintiff's burden to demonstrate that special circumstances exist warranting retention of the case in New York. Blais v. Deyo, 92 A.D.2d 998, 461 N.Y.S.2d 471 (3rd Dept. 1983). affd 60 N.Y.2d 679, 455 N.E.2d 662, 468 N.Y.S.2d 103 (N.Y. 1983). Moreover, this Honorable Court outlined "relevant private or public interest factors" that militate against retention of the action in New York in Kiselovski v. A.O. Smith Water Prods. Co., 2012 N.Y. Misc. Lexis 4585 (Sup. Ct., N.Y. County Sept. 24, 2012)(quoting Islamic Republic of Iranv. Pahlavi, 62 N.Y. 2d 474, 479, 483 (1984)). These factors include: (i) the residency of the parties; (ii) the jurisdiction in which the underlying transaction occurred; (iii) the location of the relevant document and witnesses; (iv) the availability of a suitable forum; and (v) the interest of the alternative forum in deciding the issues. This Court further stated that no one factor is controlling and indeed "the great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case." Lastly, the overall issue is whether there is a "substantial nexus" between the plaintiff's faction and the State of New York." Id. B. Facts Supporting Dismissal for Forum Non Conveniens . The location/residents of the parties, attorneys, and medical providers. A review of the locations/residents of this Defendant and the Plaintiff, as well as the Plaintiff's alleged worksite in this action shows virtually a complete absence of any connection to New York County or New York State. The Plaintiff is not a resident of New York (Lyda Aff., Exhibit A.) Additionally, Defendant Union Pacific Railroad Company, Inc., is incorporated in Omaha, Nebraska. Further, the medical providers who provided treatment for the injuries alleged in the complaint are all located in Nebraska and Plaintiff's family members, whom likely will be called as witnesses in this matter, likely reside in Nebraska. Additionally, the alleged tort occurred mostly in Omaha, Nebraska, as Plaintiff's Answer to Interrogatories state that all of the Plaintiffs employers were located in Omaha, Nebraska. (Lyda Aff., Exhibit B).1 Moreover, Plaintiff testified during his deposition that while he was employed by Union Pacific, he never traveled to New York, and that the only locale he worked at for Union Pacific was in Omaha, Nebraska. (Lyda Aff., Exhibit C). Further, a review of the record in this matter reveals that the only connection Plaintiff has with the State of New York is the approximately one (1) month he spent in New York City in 1977 while working for his own company/corporation EEE. (Lyda Aff., Exhibit C). I Please note that Plaintiff's Answers to Interrogatories indicate that Plaintiff worked at the Andrew Heiskell Braille and Talking Book Library located at 40 West 20th Street, NY, NY while employed with EEE. Lastly, this action satisfies all of the elements outlined by this Court in Kiselovski. First, as noted previously Plaintiff resides in Omaha as does the Defendant, Union Pacific. Next, virtually all of the allegations/alleged exposures other than one (1) month in 1977 occurred in Omaha, Nebraska. Further, the relevant witnesses including the Plaintiff reside in Omaha, Nebraska. In addition, the State of Nebraska is an alternative forum that is certainly capable of managing an asbestos case. C. Application of the Facts Matters such as the present matter, which have little or no connection to New York, are cases where dismissal for forum non conveniens is clearly supported by the caselaw. In Rivera v. Parvez, 108 A.D.2d 640 (1st Dept 1985) the court considered whether to apply the forum non conveniens provisions of CPLR § 327 in a FELA case. The court reviewed the FELA action brought by a non-resident of New York, and succinctly held: The accident occurred in Millham, New Jersey, where plaintiff had been employed. Medical treatment was rendered in Pennsylvania, where he resided. Clearly, the action has no nexus with this State and appears to be a species of "imported litigation". New York has no relationship with the issues in this foreign-based litigation and, clearly, there is an insufficient ground here to warrant continuance of the action in New York. Rivera, 108 A.D.2d at 640 (internal citations omitted). As the court found that the actual tort occurred in New Jersey and the doctors were in Pennsylvania, it granted the railroad defendants' motion to dismiss under CPLR § 327. Further even in cases in which the injury admittedly occurred in New York have been dismissed for forum non conveniens. In Economos v. Zizikas, 18 A.D.3d 392 (1st Dept.2005) the court considered a forum non conveniens motion for a case very similar to the matter at hand. In Economos, the accident occurred in New York County, but the matter was filed in Bronx County, even though all the parties were residents of New Jersey. The Economos court ruled that the fact that the injury actually occurred in New York (New York County) does not justify the case being heard in New York (Bronx County.) Instead, the court ruled that the non-resident plaintiff did not demonstrate the necessary "special circumstances" necessary for retention of the action in New York and dismissed the case for filing in a more appropriate forum. With striking similarity, the Plaintiff here has filed his action in New York County for injuries that mainly occurred in Nebraska. Moreover, as previously noted, Plaintiff only spent one month in New York in 1977. III. CONCLUSION This case is clearly nothing more than "imported litigation," filed in New York County for the sole benefit of Plaintiff's attorneys. Plaintiff, as a non-resident, has the burden to prove that her case should be heard in New York, and, more specifically, in New York County. Dated: April 24, 2013 T.H. Lyda, Esquire Pittsburgh, Pennsylvania BURNS WHITE LLC - Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Counsel for Defendant Union Pacific Railroad Company