UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No. C 05 02017 WHA
(State Court Case No. CGC-04-436144)
PLAINTIFFS' MOTION TO RETAIN JURISDICTION FOR THE LIMITED PURPOSE OF
ASSESSING SANCTIONS UNDER THE COURT'S INHERENT POWERS SHOULD PLAINTIFF
DIE BEFORE TRIAL
Come now plaintiffs and file this motion to retain jurisdiction for the
limited purpose of assessing sanctions under the Court's inherent
powers should plaintiff die before trial, and would respectfully show
the Court as follows:
As the Court is aware, Mr. Galassi is dying of mesothelioma. In view of
his exigent condition, pursuant to California Civil Procedure Code §36,
plaintiffs' case was set for trial in state court on June 14, 2005.
That trial date was lost because of the removal of the case to this Court.
As the Court found in its Order Remanding Case and Vacating Hearing, "[i]ndependent
of the questionable timing, Warren Pumps' removal of the action was
wholly unnecessary, meritless and obviously an attempt to delay plaintiffs'
upcoming trial date." Order at 5.
In view of the lack of merit in the removal and its clear motive, the Court
also held that an award of attorneys' fees and costs is warranted
pursuant to 28 U.S.C. §1447(c). In a separate order, the Court set
forth a procedure for determining the amount of fees and costs to be awarded.
Pursuant to that order, plaintiffs filed their submission on June 24, 2005.
The present motion requests the Court to retain jurisdiction for the purpose
of preserving the ability of plaintiffs to seek an award of additional
sanctions under the Court's inherent powers. As detailed below, if
Mr. Galassi dies before trial, plaintiffs will lose a very significant
element of recoverable damages -- his pain and suffering before death.
This was the true motivation for the removal. While plaintiffs of course
hope this will not happen, and are working strenuously to obtain a trial
as quickly as possible, plaintiffs respectfully request the Court to retain
jurisdiction to assess sanctions under its inherent powers if necessary.
I. IF MR. GALASSI DIES BEFORE TRIAL, THERE IS NO RECOVERY FOR HIS PAIN
As the Court knows, mesothelioma victims have a life span measured in weeks
or months, not years. Mr. Galassi was diagnosed with mesothelioma in the
summer of 2004, and unfortunately has, in all likelihood, only a few weeks
or months left to live. It was upon such a showing that plaintiffs'
case was granted preference under §36 and set for trial on June 14, 2005.
If Mr. Galassi dies before trial, there is no right of recovery for his
"pain, suffering or disfigurement" on the part of his survivors.
Cal. Civil Proc. Code §377.34. Indeed, this would be true even if
Mr. Galassi makes it through a trial, but dies before judgment is entered.
Kellogg v. Asbestos
Corp., 41 Cal.App. 4
th 1397, 1407 (1996), rev. denied. This element of damages is significant.
"[M]esothelioma victims invariably suffer great pain and disability."
Georgine v. Amchem Prods., Inc., 83 F.3d 610, 633 (3d Cir.), aff'd, 521 U.S. 591 (1997). As Justice
Kennedy put it:
One who has mesothelioma, in particular, faces agonizing, unremitting pain
in the lungs, which spreads throughout the thoracic cavity as tumors expand
and metastasize. See W. Morgan & A. Seaton, Occupational Lung Diseases
353 (3d ed. 1995). The symptoms do not subside. Their severity increases,
with death the only prospect for relief. And death is almost certain within
a short time from the onset of mesothelioma.
Norfolk and Western Ry. Co. v. Ayers, 538 U.S. 135, 168 (2003) (Kennedy, J., concurring).
Mr. Galassi was diagnosed with mesothelioma in the summer of 2004, and
so he will die in a matter of months.
Thus, if Mr. Galassi dies before trial, his survivors will lose a substantial
element of damages. Put simply, the baseless removal will still have been
worth it to Warren if this occurs. Even if Warren pays the entire amount
requested by plaintiffs in fees -- just over $33,000 -- Warren still will
have avoided exposure to a claim worth hundreds of thousands or millions
of dollars. 
Plaintiffs are doing everything in their power to get the case to trial
as quickly as possible, and of course hope that a trial occurs before
Mr. Galassi dies. On June 22, plaintiffs' counsel appeared in state
court to request that the case immediately be restored to the trial calendar.
Predictably, counsel for Warren and other defendants argued against the
request. The state court has ordered the parties to return on June 28,
at which time the case will likely be assigned to a single judge who will
resolve all procedural issues and will then, at some point, return the
case to the Presiding Judge for assignment to the trial department. See
affidavit of Jeffrey Kaiser, attached as exhibit B.
In sum, plaintiffs are doing everything possible to move the case to trial;
Warren and other defendants are resisting. We hope a trial will occur
while Mr. Galassi is alive, but it may not.
II. AS AN EXERCISE OF ITS INHERENT POWERS THE COURT HAS THE POWER TO AWARD,
AS A SANCTION, THE LOST ELEMENT OF DAMAGES
It was not possible to file a motion for sanctions under Rule 11 in this
case, as such a motion requires 21 days advance notice. Moreover, once
the Court granted plaintiffs' motion for remand, a motion under Rule
11 was effectively mooted.
Truesdell v. Southern Calif. Permanente Group, 293 F.3d 1146, 1151-52 (9
th Cir. 2002);
Barber v. Miller, 146 F.3d 707, 710-11 (9
th Cir. 1998). The Court is, however, free to award sanctions for bad faith
conduct under its inherent powers.
Nasco, Inc., 501 U.S. 32, 48-49 (1991). While the Court has already ordered an award
of attorneys' fees, an additional sanction, in recognition of sums
lost by plaintiffs as a result of a wrongful removal, is within the Court's power.
Davis v. Veslan Enterprises, 765 F.2d 494, 501 (5
th Cir. 1985). The Court may retain jurisdiction, after the case has been
remanded to state court, for purposes of considering such an award.
Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 445 (9
th Cir. 1992).
III. THE COURT NEED NOT RESOLVE THIS MOTION NOW, BUT IT IS FILED TO COMPLY
WITH THE LOCAL RULES
This motion will be moot, of course, if Mr. Galassi survives through the
time of trial and entry of judgment. While plaintiffs have noticed a hearing
date of August 18, 2005, this date of course may be continued, and plaintiffs
would agree that defendant need not respond to this motion unless and
until it becomes ripe. In an abundance of caution, however, plaintiffs
have filed the present motion within 14 days of the Court's order
remanding the case to state court. Local Rule 54-6 provides that a motion
seeking an award of attorneys' fees must be filed within 14 days of
entry of judgment. While the present motion would not seek an award of
attorneys' fees, and while an order remanding a case to state court
is not an entry of judgment, plaintiffs believe that the broader intent
of this Local Rule is that motions seeking relief of this type are to
be filed within 14 days of the district court's final disposition
of a matter. Plaintiffs emphasize again that they are asking only that
jurisdiction be retained for this limited, conditional purpose, and that
defendant need take no action in response unless and until this motion
WHEREFORE, PREMISES CONSIDERED, plaintiffs respectfully pray that the Court
retain jurisdiction over this matter for the limited purpose of considering
an award of sanctions, under the Court's inherent powers, if Mr. Galassi
dies before the trial of the state court action.
DATED: June 27, 2005
 To give one recent example, in
Treggett v. Alfa Laval Inc., et al., No. BC-307-508, another mesothelioma case, a jury in Los Angeles
County awarded the plaintiff $12,000,000 in noneconomic damages, in addition
to substantial awards for economic damages and punitive damages. Defendant's
motion for new trial was denied and the case is on appeal. The judgment
is attached as exhibit A. While this award is larger than most, it demonstrates
the substantial nature of this element of damages. Plaintiffs propose
to establish a value for this element by introducing evidence of typical
awards and settlements in like cases.