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Spells v. Air & Liquid Systems Corp.

United States District Court, S.D. Illinois

August 19, 2014

RICHARD SPELLS, JR., Plaintiff
v.
AIR & LIQUID SYSTEMS CORPORATION, AMPCO-PITTSBURGH CORPORATION, BW/IP INTERNATIONAL, CARRIER CORPORATION, CBS CORPORATION, CRANE CO., FLOWSERVE CORPORATION, FMC CORPORATION, FOSTER WHEELER ENERGY CORPORATION, GARDNER DENVER, INC., GENERAL DYNAMICS CORPORATION, GENERAL ELECTRIC COMPANY, HONEYWELL INTERNATIONAL, INC., IMO INDUSTRIES, INC., INGERSOLL-RAND COMPANY, JOHN CRANE, INC., METROPOLITAN LIFE INSURANCE COMPANY, NASH ENGINEERING CO., NORTHROP-GRUMMAN CORPORATION, TUTHILL CORPORATION, UNION CARBIDE CORPORATION, WARREN PUMPS, LLC, AFLA LAVAL, INC., ARMSTRONG INTERNATIONAL, INC., ASBESTOS CORPORATION LTD., ASCO VALVES, INC., AURORA PUMP COMPANY, CLEAVER-BROOKS INC., ENPRO INDUSTRIES, INC. FOSTER ENGINEERING, INC. GEORGIA PACIFIC, LLC, HOPEMAN BROTHERS, INC., MCCORMICK INSULATION SUPPLY, INC., RSCC WIRE & CABLE LLC, SEARS ROEBUCK AND CO., TRANE US, INC., VELAN VALVE CORP., and WEIR VALVES & CONTROLS USA, INC., Defendants.

ORDER

DONALD G. WILKERSON, Magistrate Judge.

Now pending before the Court are the Motions for Summary Judgment filed by Defendants:

[1]

No party has responded to these Motions for Summary Judgment.

Plaintiff has also filed stipulations of dismissal as to Defendants:

DISCUSSION

Unopposed Summary Judgment Motions

Summary judgment is proper only if the moving party can demonstrate Athat there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.@ FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary judgment is Athe put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.@ Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).

Defendants' arguments are essentially identical: there is no evidence that Plaintiff's asbestos exposure was related to any of their products. Defendants state that the sole fact witness in this case, Charles Giovantti (Plaintiff's coworker during the relevant time period), did not testify that Plaintiff was exposed to any of Defendants' products. Thus, there is no connection between Defendants' products and Plaintiff's injuries/damages. In light of the lack of evidence, an essential element of causation has not been established. Thacker v. UNR Industries, Inc., 603 N.E.2d 449, 455 (Ill. 1992) ("A necessary element of proof in the present case is that the defendant's asbestos was a cause' of the decedent's injuries."). Plaintiff has not responded to these motions and is thereby admitting to the merits of the motions. See Local Rule 7.1(c). Accordingly, summary judgment is GRANTED in favor of the following Defendants and against Plaintiff:

In light of this ruling, Plaintiff's stipulations of dismissal are MOOT.

Remaining Defendants

The remaining Defendants who have been served include

The remaining Defendants who have not been served or who have not filed an answer include:

On April 4, 2014 (Doc. 332), this Court directed Plaintiff to indicate why these Defendants should not be dismissed for lack of service of process within the time provided by Federal Rule of Civil Procedure 4(m).[2] In response, Plaintiff states that these Defendants were added to this suit by operation of an Amended Complaint filed on May 22, 2013 (Doc. 73). Plaintiff believes that he e-mailed summons to the clerk of Court when he submitted his Amended Complaint for review. Plaintiff then indicates that "believing that service had been made, " he served discovery on the new Defendants on December 19, 2013. He thereafter discovered that they had not, in fact, been served. It should be noted that at a hearing held on April 2, 2014, Plaintiff's counsel indicated that an error in her office resulted in a failure to serve Defendants. Plaintiff goes on to argue that he should be allowed to serve these Defendants and proceed on his claims against them because, while he would be prejudiced if service is ...


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