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Appeals Court Reverses Dismissal, Rules Defendant's Motion Untimely

October 14, 2005 – Media Coverage
HarrisMartin

WEST PALM BEACH, Fla. -- A Florida Court of Appeals has reversed the dismissal and remanded the claims of two non-resident plaintiffs, finding that defendant Union Carbide had untimely filed its forum non conveniens motion. Sanders, et al. v. Union Carbide, No. 4D04-2768; Fox v. Union Carbide, No. 4D04-2769 (Fla. Ct. App., 4th Dist.).

In a Sept. 21 opinion, the 4th District found that Union Carbide had violated the 60-day filing period for forum motions by filing its motion nearly five months after it had been served with the complaint.

Plaintiff Roy Fox named Union Carbide in a lawsuit in which he claims that he was exposed to asbestos in a number of locations, including Florida and Alabama. Fox served the last defendant on Dec. 15.

On May 21, Union Carbide filed a forum non conveniens motion to dismiss, stating that Fox did not reside in Florida, did not receive treatment there, and no other witnesses lived in Florida. Instead, Union Carbide claimed, the proper venue is Alabama, where the plaintiff lives and alleges exposure. A trial court granted the motion, prompting the instant appeal.

On appeal, Fox contended that Union Carbide had untimely filed their motion, and the Court of Appeals agreed.

'Based on the dates of service of the complaint listed in the trial court docket, even if Union Carbide was served on the latest date of December 15, 2003, the forum non conveniens motion filed on May 21, 2004 was untimely because it was filed more than 60 days after the complaint was served on Union Carbide,' the 4th District said. 'As such, we conclude that the trial court erred by granting Union Carbide's motion to dismiss on forum non conviens grounds because it was untimely filed. Consequently, we reverse and remand for further proceedings consistent with this opinion.'

The 4th District also not that it was not persuaded that the case warranted an equitable estoppel exception to the rule, as Union Carbide had suggested on appeal.

In a Sept. 28 opinion, the 4th District also reinstated the claims of plaintiffs Frank and Doris Sanders against Union Carbide, basing the decision on the reasons expressed in Fox.

Counsel for the plaintiffs are David A. Jagolinzer and James L. Ferraro of Ferraro & Associates in Miami.

Union Carbide is represented by Nathan M. Thompson and Evelyn Fletcher Davis of Hawkins Parnell & Young in Atlanta.

Documents Are Available Call (800) 496-4319 or Search www.harrismartin.com Sanders Opinion Ref# ASB-0510-12 Fox Opinion Ref# ASB-0510-13

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