United States District Court, W.D. Washington, Tacoma
DONALD ARTHUR YAW and MARIETTA DIANNE YAW, Husband and Wife, Plaintiffs,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION TO
AMEND AND RESERVING RULING AND REQUESTING SUPPLEMENTAL
BRIEFING ON DEFENDANTS' MOTION FOR SUMMARY
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants General Electric
Company (“GE”), CBS Corporation
(“Westinghouse”), and Foster Wheeler Energy
Corporation's (“Foster Wheeler”)
(collectively “Defendants”) motion for summary
judgment. Dkt. 95. The Court has considered the pleadings
filed in support of and in opposition to the motion and the
remainder of the file and hereby reserves ruling and requests
supplemental briefing on the motions for the reasons stated
Arthur Yaw (“Mr. Yaw”) worked at Puget Sound
Naval Shipyard (“PSNS”) in Bremerton, Washington
from approximately 1964 to 2001. Dkt. 1, ¶ 28.B. Mr. Yaw
worked as an apprentice from 1964 to 1968, as a shipfitter
from 1968 to 1980, and as a structural planner and estimator
from 1980 to 2001. Id. Mr. Yaw was exposed to
asbestos-containing products and products manufactured for
foreseeable use with asbestos products during his work at
PSNS. Id. ¶ 28. Mr. Yaw was
diagnosed with mesothelioma on March 26, 2018, id.
¶ 28.F, and died on September 29,
2018, Dkt. 140 at 2 (citing Dkt. 141-1 at 2).
21, 2018, Plaintiffs Mr. Yaw and Marietta Dianne Yaw
(“Mrs. Yaw”) filed a complaint against the
Defendants named in this order as well as nineteen other
entities for personal injuries Mr. Yaw sustained due to
exposure to asbestos between 1964 and 2001. Dkt.
1.On January 31, 2019, Defendants filed a
motion for summary judgment. Dkt. 95. On February 19, 2019,
Plaintiffs responded. Dkt. 106. On February 22, 2019,
Defendants replied. Dkt. 111.
MOTION TO AMEND COMPLAINT
March 21, 2019, Mrs. Yaw filed a motion for leave to amend
her complaint to add a claim for wrongful death. Dkt. 140 at
3. While the deadline for amended pleadings in this case was
October 4, 2018, Dkt. 87, Mr. Yaw passed away on September
29, 2018, just five days before the deadline, Dkt. 140 at 3.
Mrs. Yaw explains that she attempted to negotiate a
stipulation to amend the complaint but was unsuccessful,
leading to the need for her motion. Dkt. 140 at 3. No
defendant, whether named in this Order or otherwise, filed
opposition to the motion. “[W]hen a party seeks to
amend a pleading after the pretrial scheduling order's
deadline for amending the pleadings has expired, the moving
party must satisfy the ‘good cause' standard of
Federal Rule of Civil Procedure 16(b)(4), which provides that
‘[a] schedule may be modified only for good cause and
with the judge's consent,' rather than the liberal
standard of Federal Rule of Civil Procedure 15(a).”
In re W. States Wholesale Nat. Gas Antitrust Litig.,
715 F.3d 716, 737 (9th Cir. 2013). The Court finds that the
timing of Mr. Yaw's passing clearly constitutes good
Court finds good cause for leave to amend under Rule 16(a),
the Court next considers pursuant to Fed.R.Civ.P. 15 whether
the amendment shows or would create “(1) bad faith, (2)
undue delay, (3) prejudice to the opposing party, (4)
futility of amendment; and (5) whether plaintiff has
previously amended his complaint.” Allen v. City of
Beverly Hills, 911 F.3d 367, 373 (9th Cir 1990). As
noted, no defendant has opposed the motion. Under the Local
Rules, the Court may consider a failure to respond as an
admission that the motion has merit. Local Rules W.D. Wash.
LCR 7(b)(2). The Court finds no indication of bad faith,
prejudice to the opposing party or futility of amendment, and
Mrs. Yaw has not previously amended her complaint. While
there was some delay before the filing of this motion on
March 21, 2019, the Court finds no indication that it was
undue. Therefore, the Court will grant the motion to
Yaw brings claims including products liability claims on both
negligence and strict liability theories, claims for
conspiracy and premises liability, claims under “the
former RCW 49.16.030, and any other applicable theory of
liability, ” and “if applicable, RCW 7.72 et
seq.” Dkt. 1, ¶ 34. Mrs. Yaw's complaint does
not specify whether her claims are pursuant to Washington law
only, or also pursuant to maritime law. Both appear
applicable to her claims. See Dkt. 95 at 9. In
maritime tort cases, as distinct from state-law tort cases,
federal courts “act as common-law court[s], subject to
any controlling statutes enacted by Congress.” Air
& Liquid Systems Corp. v. DeVries, 139 S.Ct. 986,
994 (2019) (“DeVries”) (citing Exxon
Shipping Co. v. Baker, 554 U.S. 471, 507- 08 (2008)).
The Supreme Court's recent decision in DeVries
announced a new legal standard for the duty to warn in
maritime torts. DeVries, 139 S.Ct. at 991. This
decision was announced on March 19, 2019, after the parties
had submitted the briefing on the motions for summary
judgment at issue. As will be discussed in more detail below,
the Court will require supplemental briefing addressing this
Summary Judgment Standard
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(nonmoving party must present specific, significant probative
evidence, not simply “some metaphysical doubt”).
See also Fed. R. Civ. P. 56(e). Conversely, a
genuine dispute over a material fact exists if there is
sufficient evidence supporting the claimed factual dispute,
requiring a judge or jury to resolve the differing versions
of the truth. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
determination of the existence of a material fact is often a
close question. The Court must consider the substantive
evidentiary burden that the nonmoving party must meet at
trial-e.g., a preponderance of the evidence in most civil
cases. Anderson, 477 U.S. at 254; T.W. Elec.
Serv., Inc., 809 F.2d at 630. The Court must resolve any
factual issues of controversy in favor of the nonmoving party
only when the facts specifically attested by that party
contradict facts specifically attested by the moving party.
The nonmoving party may not merely state that it will
discredit the moving party's evidence at trial, in the
hopes that evidence can be developed at trial to support the
claim. T.W. Elec. Serv., Inc., 809 F.2d at 630
(relying on And ...