Killmeyer v. Oglebay Norton Co.
817 F. Supp. 2d 681
W.D. Pa.2011Background
- Killmeyer sued in state court (1995) for wrongful death, loss of consortium, and survival claims against 52 defendants including Beazer East and Ferro Engineering over asbestos-related products.
- The case was removed to federal court in 1996 and became part of a multidistrict litigation; it remained dormant for years before re-emerging in 2007.
- During probate, Killmeyer obtained a Family Agreement (1996) asserting estate proceeds were allocated to her wrongful death and loss of consortium claims; no formal closing order for the estate is shown.
- Killmeyer filed a Chapter 7 bankruptcy in 2009; the trustee disclosed an interest in settlement payments arising from the decedent’s asbestos-related claims.
- The trustee moved to substitute into the action as real party in interest; Ferro asserted it was dismissed by the 1996 state court order; Beazer opposed summary judgment; the court granted Ferro’s summary judgment and denied Beazer’s, with substitution of the trustee.
- The court ultimately substituted the chapter 7 trustee as real party in interest and held that the trustee, not Killmeyer personally, may pursue the claims for the benefit of creditors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ferro was properly dismissed by the 1996 order. | Killmeyer argues the 1996 order was mistaken. | Ferro contends the 1996 order dismissed it from the case. | Ferro dismissed; order given full effect and binding. |
| Whether the trustee is the real party in interest in the litigation. | Trustee should substitute for plaintiff. | Trustee should replace plaintiff as real party in interest. | Trustee is real party in interest; substitution granted. |
| Whether judicial estoppel bars the trustee from pursuing the action. | Bankruptcy schedules concealed the action; estoppel may apply. | Estoppel should apply to bar the trustee. | Judicial estoppel not applied to the trustee. |
| Whether substitution under Rule 17(a) and Rule 25 is appropriate and timely. | Substitution would be inappropriate or untimely. | Substitution should occur to prevent injustice. | Substitution granted; action proceeds by trustee. |
| Beazer's and Ferro's summary judgment motions on merits. | Beazer and Ferro should be liable to plaintiff/executors. | Ferro should be dismissed (already dismissed); Beazer should prevail. | Ferro granted summary judgment; Beazer denied summary judgment. |
Key Cases Cited
- Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 F.2d 423 (U.S. 1974) (state-federal treatment of settlements and orders post-removal)
- In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220 (3d Cir.2002) (state orders transformed into federal court orders after removal)
- Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300 (5th Cir.1988) (preemption of state court judgments after removal)
- Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir.1996) (bankruptcy schedules require disclosure of contingent assets; judicial estoppel standards)
- Krystal Cadillac-Oldsmobile-GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314 (3d Cir.2003) (standard for judicial estoppel in bankruptcy contexts)
- Parker v. Wendy's Int'l, Inc., 365 F.3d 1268 (11th Cir.2004) (trustee can pursue undisclosed claims; equitable relief considerations)
- Eastman v. Union Pac. R.R., 493 F.3d 1151 (10th Cir.2007) (judicial estoppel considerations involving trustees and debtors)