Vicknair v. Phelps Dodge Industries, Inc., 794 N.W.2d 746

Plaintiffs including Joseph Vicknair and twelve others filed December 2002 asbestos-related product liability actions in North Dakota district court against manufacturers, sellers, and distributors; plaintiffs are residents of states other than North Dakota and their exposure did not occur in North Dakota.
Defendants moved to dismiss for inconvenient forum; district court dismissed without prejudice; on appeal this Court reversed and remanded, holding an adequate alternate forum does not exist if the other forum’s statute of limitations has expired.
On remand, defendants again moved for summary judgment arguing all claims were barred by applicable limitations periods in other jurisdictions (ranging from 1 to 4 years); plaintiffs conceded those limitations had run and sought either North Dakota’s six-year period via the escape clause or additional discovery time.
The district court held the escape clause did not apply and dismissed the claims with prejudice.
The instant appeal challenges (1) the escape clause application and (2) the denial of discovery under Rule 56(f); the court also assumes, for purposes of appeal, that North Dakota’s six-year statute would apply to asbestos-based claims under North Dakota substantive law.
The court affirmed, holding the escape clause did not apply and there was no abuse of discretion denying further discovery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the escape clause applies	Vicknair argues ND § 28-01.2-04 should apply to extend ND’s six-year period.	Phelps Dodge contends the escape clause is rarely used and not shown to apply here.	Escape clause did not apply; ND six-year period not triggered.
Burden of proof for escape clause	Plaintiffs bear burden to prove the escape clause applied.	Defendants argue plaintiffs failed to prove other states’ periods did not afford a fair opportunity to sue.	Plaintiffs failed to establish fair opportunity; summary judgment proper.
Whether other states’ limitation periods afforded a fair opportunity to sue	Other jurisdictions’ limitations should not govern, so ND six years should apply.	Other states’ periods governing substantive issues should apply under conflict-of-laws rules.	No genuine issue on fairness; no exceptional circumstances shown.
Whether denial of discovery under Rule 56(f) was an abuse of discretion	Additional discovery was necessary before summary judgment.	No affidavits or specifics were provided; discovery unnecessary given prior delays.	District court did not abuse discretion; no entitlement to further discovery.

Kimball v. Landeis, 2002 ND 162 (ND) (burden to prove exception to statute rests with party asserting it)
In re Estate of Conley, 2008 ND 148 (ND) (uniform acts interpreted for consistency)
In re Estate of Allmaras, 2007 ND 130 (ND) (uniform law treated consistently with other jurisdictions)
Hall v. Summit Contractors, Inc., 356 Ark. 609, 158 S.W.3d 185 (Ark. 2004) (burden to show unfairness supported by evidence; bald assertions insufficient)
Hein v. Taco Bell, Inc., 60 Wash. App. 325, 803 P.2d 329 (Wash. App. 1991) (need for evidence of unfairness to trigger escape clause)
Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 128 S. Ct. 2395 (S. Ct. 2008) (principle that those who carve out exceptions must prove them)
Paracelsus Healthcare Corp. v. Philips Med. Sys., Nederland, B.V., 384 F.3d 492 (8th Cir. 2004) (burden-shifting analysis in some 8th Circuit conflict cases)
Perkins v. Clark Equip. Co., 823 F.2d 207 (8th Cir. 1987) (treating limitations as substantive in conflict-of-laws)
Horob v. Farm Credit Servs. of North Dakota ACA, 2010 ND 6 (ND) (Rule 56(f) discovery considerations and standards)