National Asbestos Workers Medical Fund v. Philip Morris

Full title: NATIONAL ASBESTOS WORKERS MEDICAL FUND, et al., Plaintiffs v. PHILIP…

Court: United States District Court, E.D. New York

Date published: Feb 27, 2001

98 CV 1492 (E.D.N.Y. Feb. 27, 2001)

Opinion

98 CV 1492.

February 27, 2001

MEMORANDUM and ORDER

JACK B. WEINSTEIN, Senior District Court Judge:

Pursuant to Rule 15 of the Federal Rules of Civil Procedure, plaintiffs have moved to file a fifth amended complaint to: 1) state nationwide claims under New York's Consumer Protection Act, sections 349 and 350 of New York's General Business Law, 2) substitute a New York based plaintiff, Syracuse Plumbers and Steamfitters Local 267 Insurance Fund ("Syracuse Fund"), 3) add a subclass of New York based union trust funds for class certification consideration, and 4) make other modifications in its complaint. Plaintiffs also move to stay the trial of the Syracuse Fund and to "fold in" the action with the Simon II proceedings.

After a full hearing:

1. Plaintiffs motion to amend its complaint is granted, subject to the oral caveats of the court on the weakness of the section 350 claims.

2. Plaintiffs motion to substitute the Syracuse Fund as the first named plaintiff and to make other modifications in its complaint is granted without objection by defendants.

3. Plaintiffs motion to create a new subclass of approximately 150 New York-based funds is denied as premature; it may be orally renewed when certification of the Simon II class action is considered.

4. Plaintiffs motion to stay the trial of the single class member's action, the Syracuse Fund, is granted without objection by defendants. As a condition of this stay, plaintiff may not proceed further with its discovery. The magistrate judge may allow discovery by the defendants to the extent reasonable under the circumstances.

5. Plaintiffs motion to "fold in" its action to Simon II is denied, but may be orally renewed when certification of the Simon II class action is considered.

SO ORDERED