Omnium Lyonnais D'Etancheite Et Revetement Asphalte v. Dow Chemical Co.

73 F.R.D. 114, 1977 U.S. Dist. LEXIS 18021
CourtDistrict Court, C.D. California
DecidedJanuary 7, 1977
DocketCiv. A. Nos. 75-142-AAH, 75-618-AAH
StatusPublished
Cited by6 cases

This text of 73 F.R.D. 114 (Omnium Lyonnais D'Etancheite Et Revetement Asphalte v. Dow Chemical Co.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Omnium Lyonnais D'Etancheite Et Revetement Asphalte v. Dow Chemical Co., 73 F.R.D. 114, 1977 U.S. Dist. LEXIS 18021 (C.D. Cal. 1977).

Opinion

PRETRIAL ORDER NO. 2 AND REFERENCE TO SPECIAL MASTER TO SUPERVISE AND SUPERINTEND DISCOVERY

HAUK, District Judge.

This matter comes before the Court upon the defendant’s motions for:

(1) An order abating the action until after discovery has been completed, and

(2) for the appointment of a special Master to superintend and supervise the discovery proceedings;

(3) upon plaintiff’s motion to compel production of documents; and

(4) upon defendant’s motion for protective order vis-a-vis the production of documents.

[116]*116The Court has allowed argument in the matter on both sides, has heard all of the argument, has considered all of the points and authorities and pleadings produced and filed in connection with the said motions, now makes its decision.

The above-captioned two cases are companion cases, consolidated for all proceedings herein on December 16, 1975. The plaintiffs are numerous corporations and individuals consisting of insurance companies, contractors and builders and owners of property, all in connection with property located in France. The defendant in each of these eases is The Dow Chemical Company which, it is alleged, supplied defective roofing materials to the aforesaid contractors who, in turn, felt obliged to call upon the insurance companies and the owners for assistance in their endeavor to obtain relief against The Dow Chemical Company.

Long prior to the cases having been filed here on January 15, 1975, the complaint in the first consolidated case, and on February 24,1975, the complaint in the second consolidated case, all of the plaintiffs had either already or have by now filed their own suits in France, which now involve by French interpleader or otherwise, The Dow Chemical Company, so the Court understands from the papers and the argument, for virtually the same alleged misdeeds by the defendant Dow. As I said at the outset, both of our cases have been consolidated for all purposes since December 16, 1975.

The Court issued its Pretrial Order Number 1 on February 18, 1976, at that time, and temporarily, denying defendant’s motion for dismissal, thereupon setting the pretrial conference schedule and providing that the Court would not entertain a further motion for order of dismissal until after the satisfactory completion of pretrial discovery pursuant to a schedule set forth in that Order of February 18, 1976, and a satisfactory stipulated judgment against Dow for the full amount of all compensatory damages as may be awarded by the French courts with respect to the aforesaid claims and lawsuits on behalf of plaintiffs herein, then pending in France for some years before the filing of the actions here in January and February of 1975.

Now, upon consideration of the defendant’s two motions, Number 1, to abate any proceedings in the case pending completion of discovery, and for the appointment of a Special Master to superintend and supervise the discovery, and considering the other two motions also, the motion of the plaintiffs for production of documents, and the motion of the defendant for a protective order, the Court now makes the following findings and orders:

I. ORDER RE ABATEMENT

1. The Court finds that since the actions in France were instituted many months or years before the actions herein were instituted, in January and February, 1975, and in the interest of comity and the orderly and proper progression of litigation which may be filed in two different countries, it is not only in the interest of justice and in the interest of the saving of judicial time, but also under the doctrine of forum non conveniens necessary for this Court to defer to the litigation in France, which litigation the Court is informed and therefore finds is that litigation identified in Exhibit “1” attached hereto and incorporated herein as though set forth in full hereat (hereinafter “the French litigation”).

The Court finds further that it would be in the interest of justice for all parties that litigation proceed in France.

Therefore, the Court does find and grant abatement of all proceedings herein in these two consolidated cases, except discovery proceedings for the purposes of the litigation in France, including discovery with respect to all of the issues which will be set forth hereinafter as guidelines for the Special Master. This abatement to be effective until the French litigation above-described has been finally determined and terminated, or until earlier order of this Court, if so made upon motion of either one of the parties herein, but at the end of and at the conclusion of all discovery proceedings herein, under the supervision of the Special Master as appointed hereinafter.

[?]*?2. If the conditions set forth in the Court’s Pre-trial Order Number 1 of February 18, 1976, are met, together with the bond that has now been filed herein by the defendant Dow in the amount of $12,000,-000, on December 20, 1976, guaranteeing any and all French judgments that may be rendered pending the duration of the abatement order herein, so that plaintiffs can and do definitely recover in France or here, in this court, the amount that they are adjudged to be entitled to recover in France in terms of American dollars, then the Court will entertain dismissal of the cases herein, unless it finds upon motion and after discovery has been completed, and after a full hearing upon any such motion, that the French courts cannot and may not and in fact shall not award the kind of damages which it is the belief of the plaintiffs that only this Court can award and the French courts cannot award, to wit, so-called punitive or exemplary damages, based upon actual malice as provided by the law in California, which we must necessarily follow here, of course, because this is a diversity case.

II. ORDER RE APPOINTMENT OF SPECIAL MASTER

The following matters the Court finds as relevant considerations under Federal Rules of Civil Procedure, Rule 53, on the question of appointing a Special Master in these two consolidated cases herein to superintend and to supervise all discovery matters as are empowered to be done under the said Rule 53 and hereinafter:

A. The claims asserted herein by all parties on both sides are essentially the same as those asserted in France and asserted here in the complaint and answer on file herein.

The claims asserted herein by all parties who are plaintiffs here and in France are essentially those asserted in the complaint in the first of the within actions, that is Number CV 75-142, filed on January 15, 1975, and the complaint filed in the second case, Number CV 75-681, filed on February 24,1975, and the consolidated first amended complaint filed January 22, 1976.

These claims, from all of the papers and pleadings herein, appear to be the same as the claims that are filed in the French litigation.

B. The French litigation was initiated and has been enlarging since at least March 8, 1971. These United States eases have been pending and at issue since the consolidated answer in both cases was filed on March 15, 1976. To this date, despite numerous discovery motions and court hearings and several conferences between counsel and the Court, discovery appears not to have progressed beyond its virtual beginning stages.

C.

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Bluebook (online)
73 F.R.D. 114, 1977 U.S. Dist. LEXIS 18021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omnium-lyonnais-detancheite-et-revetement-asphalte-v-dow-chemical-co-cacd-1977.