Federal Jurisdiction: Garner v. DII Industries LLC 

U.S. District Court, Western District of New York

Federal Jurisdiction

Pleadings

Garner v. DII Industries LLC
08-CV-6191
Judge Siragusa

Background: The decedent, Angelo Palermo, was a union insulation mason for 29 years, from 1937 through 1966, in the construction asbestos industry. He spray-coated and handled products  that contained asbestos while working for one or more of the Haliburton or Harbison-Walker entities. Palermo died April 23, 1966, at the age of 51. On June 6, 2003, Palermo was diagnosed posthumously with mesothelioma “by a tribunal of asbestos experts who were part of the Extraordinary Claims Panel of the Mansville Trust.” On April 4, 2006, the plaintiff filed a claim with DII Industries LLC and, on the following day, filed a claim with the DII Trust with regard to her father’s death. The defendants eventually rejected the claims, and a pro bono evaluator confirmed defendants’ denial. The defendants have moved to dismiss on statute of limitations grounds.

Ruling: The court finds no factual basis alleged for federal jurisdiction in the amended complaint, “only a conclusory statement that jurisdiction is related to a laundry list of statutes. … Diversity jurisdiction is neither pleaded, nor are there any facts alleged from which it could be construed.” The amended complaint alleges Palermo’s representative, his daughter, is a resident of New York, but does not allege the citizenship of the defendants. The court concludes it “is not a cause of action concerning whether the Trust was properly formed under the Bankruptcy law and, since the Bankruptcy Court retained jurisdiction itself for those questions, the Court fails to find any basis for federal question jurisdiction. Without a basis for subject matter jurisdiction, any opinion rendered on the substantive motion to dismiss would violate the Constitution’s prohibition against issuing advisory opinions.” The defendant’s motion to dismiss is granted.

Christina A. Agola for the plaintiff, and Andrew L. Morrison of K&L Gates LLP for the defendants