Motion for Reconsideration Based Upon Change in Law Denied as Untimely U.S. District Court for the District of Delaware, April 9, 2018

DELAWARE — Plaintiffs Icom and Johanna Evans filed a lawsuit on June 11, 2015 in Delaware Superior Court relating to Mr. Evans’ alleged asbestos exposure. Foster Wheeler removed the matter to federal court on August 4, 2015, pursuant to the federal officer removal statute. Defendants Foster Wheeler and Warren Pumps filed motions for summary judgment in October 2016. Both motions were opposed. The district court issued a Report and Recommendation (R&R) on August 30, 2017, recommending that the motions be granted pursuant to maritime law, based upon the lack of substantial factor causation and the bare metal defense. The plaintiffs did not oppose the R&R, and Judge Robreno adopted the court’s recommendation and granted the motions on September 26, 2017.

In a separate case, on October 3, 2017, the Third Circuit Court of Appeals issued its opinion in the Devries matter, holding that the bare metal defense is not an absolute bar to a plaintiff’s negligence claim under maritime law. On November 8, 2017, the plaintiffs filed a motion for reconsideration of the entries of summary judgment based upon the opinion in Devries. The deadline to file a motion for reconsideration, pursuant to F.R.C.P. 59(e) is 28 days, meaning plaintiffs had until October 24, 2017 to file the motion. The court denied the plaintiffs’ motion as untimely, particularly since they did not address the lapsed deadline or offer any good cause why it was untimely filed.

Read the full decision here.

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