Document x5GB1NQxvbaorq0N7nndK3Ey0

P _ z _ D__ Ex. No. D ate: !E ] Ik Shirley Q Cas ilan, CSR No. 12361 304 571 FEDERAL SUPPLEMENT physically strong, hard-laboring individual had not suffered in his pre-ailment life, credibility and unquestionably provided a preponderance of evidence in favor of the without physical pains, incapacities or pres sures, and without dependency upon both his wife and children. As I viewed the evidence, I found that he had become total ly incapacitated from the waist down, and that it had become necessary to use artifi cial methods to provide the ordinary neces sities of elimination because of his inability to do so. I also viewed the method which Mrs. Nolen was required to apply in clean defendant and against the plaintiff. Since the Findings of Fact and Conclu sions of Law of necessity compel a verdict in favor of the defendant, judgment will be entered accordingly. The Findings of Fact and Conclusions of Law are incorporated in this Opinion in accordance with Federal Rule of Civil Pro cedure No. 52.6 ing the decubitus ulcers which had bur rowed deep into Nolen's flesh, as the evi dviednecoetappree. senItefedelithitghhrosuygmhptahtheymfoearnbsotohf him and his wife. I could not help but feel kindly to the family as they all cooperated in moving him to and from bed, from the wheelchair and automobile. If mercy alone ORDER OF COURT AND NOW, TO-WIT, this 7th day of September 1983, in accordance with the evi dence as presented in the non-jury trial of this case, and the foregoing Findings of Fact and Conclusions of Law, judgment is hereby granted in favor of the defendant. was the basis upon which compensation should have been paid to this man and his family, there was an abundance of it in his favor. But the rules by which I am bound as a district court in which I serve, this court can only function and be administered in accordance with legal justice. Mercy must always permeate and temper justice within the rules of equity, but it cannot displace the law--unfortunately in this case. I cannot abandon the legal prin ciples by which this court must be guided and directed, because this would only be an David Howard WESTFALL, in his capaci ty as Administrator of the Estate of Thomas Howard Westfall, and in his ca pacity as Administrator of the Estate of Betty E. Westfall injustice against the defendant and all of v. its highly respected medical servants, and so compel the commission of injustice to the public at large. WHITTAKER, CLARK & DANIELS, METROPOLITAN TALC CO., INC. Pfizer, Inc., Omya, Inc. and Windsor While the plaintiff presented evidence Minerals, Inc. and made an effort to show a connection between his ailment and the action or inac tion of the defendant's medical employees, he actually presented the evidence of only C.A. No. 79-0269B. United States District Court, D. Rhode Island. one doctor who gave him some help, but even his testimony was overwhelmingly Sept. 7, 1983. swept aside by the two other doctors of the plaintiff and by all the evidence of the Action was commenced against un defendant, other experts who testified with known and known suppliers of talc to dece- 8.wc(aoiR)uthurEotlefufset5hc2aat..lljuFfIrininnyddaiolnltrhgaeswctbiiftoyahncttshasnetrsiCapedeodcvuiiruastp.loloyryn ajtnuhdrey,sfattachttees fIasifnelepdadan,craoiottnepwcliylniulilsoiitbnosencossoruonffmcfillecuamisweionoantrpasifnpodethfauermlatfhwionefdrteihdnienegr.cseiosoinfonf.a.ci.st ^ u Ttffs CEAXMHIB-6IT0 E X H IB IT iC jiiL WIT:! DATErt - \ ~ j - \ > w . L u y nAuS,, OPR, RMR, CRR, CLP. WESTFALL v. WHITTAKER, CLARK & DANIELS Cite as 571 F.Supp. 304 (1983) 305 dent's employer to recover damages for 4. Limitation of Actions @=>122 pleura mesothelioma, a form of lung cancer caused by exposure to asbestos. Subse quently, motion to add named defendants and eliminate references to John Doe corpo ration was granted. On objections to mag istrate's report and recommendations as to motions for summary judgment of defend ants, the District Court, Francis J. Boyle, Chief Judge, held that three-year delay in serving previously unknown defendants in wrongful death action was unreasonable, even though these unknown defendants were properly added to complaint subse quent to expiration of statute of limita tions, and thus unknown defendants were Three-year delay by decedent, who had commenced his action against known and unknown suppliers of talc to his employer to recover damages for pleura mesothelio ma, a form of lung cancer caused by expo sure to asbestos, in serving previously un known defendants in wrongful death action was unreasonable, even though they were properly added to complaint subsequent to expiration of statute of limitations, and thus unknown defendants were not duly served as required by statute, warranting j1u9d5g6,men9t-5i-n20.their favor. R.I.Gen.Laws nwoetreduelnytistelervdedtoasjurdegqmuiernedt ibny tshtaeitrutfeavaonrd, R. Daniel Prentiss, Providence, R.I., for Ordered accordingly. plaintiff. Benjamin V. White, III, Providence, R.I., 1. Limitation of Actions @=6(1) A 1981 amendment changing limita tions period in wrongful death actions from two years to three years was not retroac tively applicable. R.I.Gen.Laws 1956, 107-2. Edward Leibensperger, Nutter, McClennan & Fish, Boston, Mass., for defendant Wind sor Minerals, Inc. Michael G. Sarli, Robert W. Lovegreen, Providence, R.I., for defendant Whittaker, Clark & Daniels. 2. Limitation of Actions @=>6(11) A 1982 amendment to wrongful death statute expressly made retroactive by legis lature could not aid plaintiff in maintaining action against corporations which it former ly referred to as John Doe corporations, in that 1982 amendment applies only to those deaths caused by any wrongful act, neglect John F. Dolan, Providence, R.I., for de fendant Omya, Inc. William A. Curran, Providence, R.I., for defendant Metropolitan Talc Co., Inc. OPINION FRANCIS J. BOYLE, Chief Judge. or default which could not in exercise of reasonable diligence be discoverable within three years after death of such person, while decedent had discovered that he was victim of tortious conduct at very latest by date on which his original complaint was filed, and, when decedent died less than two months later of same disease alleged in complaint, the date of discovery did not change. R.I.Gen.Laws 1956, 19-7-2, 10-7-2 note. 3. Federal Civil Procedure @=>101 In federal diversity action in district of Rhode Island, John Doe pleadings must be allowed where requirements of statute are met. R.I.Gen.Laws 1956, 9-5-20. This civil action is presently before the Court on objections of the Plaintiff and Defendant Windsor Minerals, Inc. (herein after Windsor) to the Magistrate's report and recommendations as to the Motions for Summary Judgment of Defendant Omya, Inc. (hereinafter Omya) and Defendant Windsor. The Magistrate recommended that Defendant Omya's Motion for Summa rayntJuWdignmdseonrt'sbbeegdraenniteedd., aTndhethisastueD, epfeanredd down to its simplest form, is whether Plain tiff's claims against these two Defendants are time barred. A brief chronology of the pleadings is necessary to an understanding of the ques 306 571 FEDERAL SUPPLEMENT tions presented. On May 24, 1979, Thomas menced within two (2) years after the death Howard Westfall and his wife, Betty E. of such person[.]" R.I.Gen.Laws 10-7-2 Westfall, commenced this action to recover damages for pleural mesothelioma, a form (w1e9r6e9 aRddeeendaacstmDeenfte)n. daWntisnidnsotrhisanadctiOonmoyna of lung cancer caused by exposure to asbes June 18, 1982, more than two years after tos. Mr. Westfall alleged that he contract Mr. Westfall's death. ed the disease as a result of his inhalation of talc from 1946 to 1975, when he worked at the Uniroyal, Inc. plant in Providence, Rhode Island. Jurisdiction is based on di versity of citizenship. The original Defend ants were Whittaker, Clark & Daniels (an alleged supplier of talc to Uniroyal), and "John Doe Corporation." Less than two months later, on July 10, 1979, Mr. Westfall died of pleural mesothelioma. July 10,1979 was also the date on which Defendant Whittaker, Clark & Daniels filed a thirdparty complaint against Metropolitan Tale Company, Inc. and Pfizer, Inc. On November 1, 1979, an amended com plaint was filed substituting Betty Westfall, in her capacity as administratrix of her husband's estate, as named Plaintiff, and adding Metropolitan Talc Company, Inc. and Pfizer, Inc. as Defendants. Like the original complaint, the first amended com plaint included three counts against "John Doe Corporation." Shortly thereafter, on November 17, 1979, Mrs. Westfall died and a second amended complaint was filed by the Westfalls' son, David Howard Westfall, in his capacity as administrator of the es tates of his parents, as named Plaintiff in the action. On May 24, 1982, Plaintiff again moved to amend his complaint. This motion was g1r9a8n2tetdheonthJirudneam14e,n1d9e8d2, caonmdpolaninJtunaded1e8d, Defendants Windsor Minerals, Inc. and Omya, Inc., and eliminated all references to "John Doe Corporation." [1] On May 12, 1981, before the twoyear statutory period had run on Plaintiff's cause of action, R.I.Gen.Laws 10-7-2 was amended, changing the limitations period from two years to three years. See 1980 R.I.Pub.Laws ch. 198, 1. Plaintiff con tends that this amendment applies retroac tively, permitting the filing of an action up to three years after a decedent's death. If Plaintiff's contention were to prevail, no further inquiry would be necessary since Windsor and Omya were added as Defend ants within three years of Mr. Westfall's deveearth, .thisBaCsoeudrtofninRdshothdeatItshlaenMd alyaw12, ,h1o9w81 amendment to the wrongful death statute cannot be applied retroactively. The general rule applicable to all statutes of limitations with regard to the issue of retroactivity is "well-settled in Rhode Is land." Skaba v. Capasso, 117 R.I. 512, 514, 368 A.2d 570, 571 (1977). In Flske v. Briggs, 6 R.I. 557 (1860), the Rhode Island Supreme Court noted that "the general doc trine to be gathered from the decisions, both English and American, is, that the courts consider the language of these stat utes of limitation, and make them retro spect, or otherwise, as the intention of the legislature language. . is .. to " I dbe gathered at 563-64. frIonmRothtcehir- ford v. Union Railroad Co,, 25 R.I. 70, 54 A. 932 (1903), the court followed what it ac knowledged to be "a familiar rule of con struction that statutes of limitations are held to be prospective only in their opera As the first of many arguments, both tion, unless by their express terms or by Windsor and Omya assert that the Rhode necessary implication they shall be held to Island wrongful death statute in force at express the legislative intent that a retroac the time of Mr. Westfall's death applies to tive effect is to be given to them." Id. at bar Plaintiff's action against them. Mr. 72, 54 A. at 933. The "general doctrine" Westfall died on July 10, 1979. At that referred to in Fiske, and the "familiar rule time, the last sentence of R.I.Gen.Laws of construction" referred to in Rotchford 10-7-2 read, in pertinent part: "Provid must still be applied to questions of retroac ed, that every such action shall be com tivity in the interpretation of Rhode Island WESTFALL v. WHITTAKER, CLARK & DANIELS Cite as 571 F.Supp. 304 (1983) 307 statutes of limitations. See Skaba v. Ca- name of the executor or administrator of p(IT1naw9cs7s.o,4om),;1e11y3H17evR.s.tRIeC..rIa.2vr.6lat4oTt,nim521H6o48toh,, uy33s,6e2180o8AAfR..P22.Iddr.o3v9a7i8dt6,,en53178c01e20;,, 275 A.2d 637, 640 (1971). such deceased person, whether appointed or qualified within or without the state, and the amount recovered in every such action sh husband all o or ne-half widow ,(V2a)ntdh e reof go to one-half the (%) Furthermore, the law in Rhode Island is equally clear with respect to the statute of slCviu.momriIptmna.,tatie5ror9innz3esadFtfio.ob2rndyawtl1hr4eo2TnFe(g1lifersupstlthCodCineriear.1ct9hu&7i9ta)ci:ntTioeClneasg.driaeApuhxs the Rhode Island Supreme Court has con sistently refused to read exceptions into the statute of limitations, reasoning that tehnecetimofe alimleigtiisslaativcoenlydictiroenatoend tchaeuesexisotf action unknown to the common law and ttRhio.eIn.re4of4or1r]ee,x3pn7ao4nt sAiso.u2nbd.je7c8St7hto(oRrt.jIu.v1d.9i7cFi7al)yl;nanNltae[s1rc1ai8mento v. Phillips Petroleum Co., 115 R.I. thereof to the children of the deceased, and if there be no children the whole shall go to the husband or widow, and if there be no husband or widow, to the next of kin, in the proportion provided by law in relation to the distribution of per sonal property left by persons dying in testate. Provided, that every such action shall be commenced within three (8) years after the death of such person; and pro vided, further, whenever any person or corporation is found liable under 10-7-1 to 10-7--4, inclusive, he or it shall be liable in damages in the sum of not less than twenty-five thousand dollars ($25,000). 395, 346 A.2d 657 (1975); Tillinghast v. 1980 R.I.Pub.Laws ch. 198, 1. Reed, 70 R.I. 259, 38 A.2d 782 (1944). Clearly, there is no express language in Id. at 144. The First Circuit's analysis is this amended version of the statute to make undoubtedly correct in light of a Rhode it retroactive. Plaintiff argues, however, Island Supreme Court memorandum deci that the statute necessarily implies retroac sion one year later in which the court cited Short v. Flynn, and Tillinghast v. Reed, stating: tive application. The thrust of Plaintiff's argument is that because the amendment does not use words such as "after the cause we are of the opinion that in a wrongful of action shall accrue," or "after such per death action, the two year period within son shall die," it should not be held to apply which the action must be brought consti prospectively only. In support of this prop tutes a condition of limitation upon the osition, Plaintiff cites Fiske v. Briggs, 6 R.I. created right itself and not merely a limi 557 (1860), Rotchford v. Union Railroad Co., tation affecting the remedy. The statute 25 R.I. 70, 54 A. 932 (1903), and Twomey v. permits of no exception to this require Carlton House of Providence, Inc., 113 R.I. ment. 264, 320 A.2d 98 (1974). Santelle v. Miriam Hospital, 414 A.2d 191, 191 (R.I.1980). At issue in Fiske was whether the statute of limitations for an action of debt upon a Turning to the 1981 amendment then, it judgment was retroactive. The statute is first necessary to examine the language provided that such actions shall be com used in order to determine whether by "ex menced and sued "within twenty years, press terms" or "necessary implication" it next after the cause of said action." 6 R.I. was intended to apply retroactively. R.I. at 562. The court held that "there was General Laws 10-7-2, as amended on nothing in this language to indicate a pur May 12,1981, reads thus: pose to confine the operation of this act to Action b y executor or administrator-- causes of action which should accrue after Persons benefited--Commencement of the passage of the act," and distinguished action--Minimum recovery--Every such the statutory language from that in "Wil action shall be brought by and in the liamson v. Field, . . . , `after such action 308 571 FEDERAL SUPPLEMENT shall accrue,' which was held in that case to refer to such action aeeruef.]" (emphasis as by tshheouclodurtht)ereIadfteart 562-63. In Rotchford, a newly enacted statute of limitations for personal injury actions pro vided that "[Ajctions of the case for injuries to the person shall be commenced and sued within action sthwaoll yaecacrrsuen, eaxntdafntoetr the cause of after." (em phasis added) 25 R.I. at 70, 54 A. at 932. Based in part on the legislature's use of the ttwFiioooisnnrkd,cwsthca"eossuhcproartulolrhstaapcdhecceretludimveetp"hhoaaantnsldityzhetiednhsestouapfctaeuhrctateattiiohdnnais.qttuitneIhcdse. at 72-73, 54 A. at 933. Plaintiff also relies on Twomey, in which the 1971 amendment to the statute of limi tations affecting injuries to the person was in question. In Twomey, the trial justice had held that the 1971 amendment, which enlarged the two-year limitation period three years, did not apply retroactively. Itdo. 113 R.I. at 266, 320 A.2d at 99. The express language used by the legislature to describe the new limitations period was "within ttFSiheoirsenekees1h(9a3a7n)l1ldyaeRRcacor.rIst.ucPehnu[fe.bo]x".rLtda,a(wefatmsnedrpchhtnah.oseits2icn0aag0du.dsteehdaCo)tfittianIhcdge. 1971 amendment included an express provi sdthieoetnerTtmwhiaontmatieitoynwcootuuhrladtt not apply retroactively, utphheeladmtehnedtmrieanltjuopsteircaet's ed prospectively only. Id. at 268, 320 A.2d at 99-100.1 While Plaintiff's argument that the 1981 amendment does not use such words as "after the cause of action shall accrue" and 1.wfatqtafmo"oehiltuftvAatcraheihe2aetsrteloel7teabhwbeulsm31ywfeoag9,hfauruh7sese3rnuns3gcen2eitshoctdf0tatoewoaiamtsrtbtAoistrhnyaeiew.edleendx2tecdetahdidjgths.uspem"itpesdwailnllaceltiaashicgonIimttinade1,mtaintvn.t0it,eattitme3uifoan3.ffrttteidf2sehenitsno0nheTtctonaeadeheAhfsnpccedeest.ratpl2,itieeseopmactdndeatonrotlh,iluiauatoagettaorrmirceintgtnvc.1cijueoeoou0htmsnr3Tuhdetr1d.selrgewe1dinttmtn3iohrbntgtomueeaRhanrrlseett.aeceiItfiosyt,. hence should apply retroactively is an ap pealing one, it fails to take into account the important distinction that the Rhode Island tSwuepernemweroCnogufurtl dheaasthcoancstiiostnesntalnyd mcaaudseesboef aTticohtneioncoafuthsdeasetbotwf eoarncetioaknnjouawtdngismsauetencti)on,mFRmioostkncehlf(aoawrcd. (personal injury), and Twomey (personal in jury) were not created by statute, but were fkinonooTtwnwonotema,teiycnodpmiocimanttoienndgloatuwhta. tthIhinsaddfaistcthti,necthtciaeouncseoinuoraft action been created by statute, it would have presented an entirely different issue than that before the court. See 113 R.I. at 269-70 n. 5, 320 A.2d at 101 n. 5. In Tillinghast v. Reed, 70 R.I. 259, 38 A.2d 782 (1944), the Rhode Island Supreme Court characterized the wrongful death statute as one which created an entirely new right of action that did not exist at common law, and held that the limitations period was a condition imposed upon the right of action, providing for "no exception as be tcoomthme etnimceed.w"ithIidn. which the at 264-65, action shall 38 A.2d at 7in83N-8a4sc. imTehnetocvo.uPrthirlleipitserPaetterdolethuims pCoos.,it1io1n5 R.I. 395, 346 A.2d 657 (1975), and held fur ther that "the provisions of 10-7-2 pro viding that `every such action shall be com menced within two (2) years after the death of such person' are clear and unequivocal c2a6o75nn39d.,strr2Sue7q3cetuei(iorRanel.sIbo.n1yo9Du8e2sfm.)u"rp(tsshIuedeyb.rsaveti.qn3uSt9eet9ran,ptter8,e4cth64aa5tAn1io.g2nAed.2oatdort amount or elements of damage in wrongful death statute is substantive and must be applied prospectively only).2 Accordingly, 2,wACAaaatReBMidclsvo.ihrcP2tatetiutoehbaltdtolartrhdyiyotcinilee.anzi8rsmwpha1tIetwviaspetas.Ifilihltotnftlao(dauyeFni1nnscdttM9,ruiadtehoao6hm4,benam1faS8maane)tuwnnonrRipsdtCntrauiduhs.rgo,Inomtieeht.nhtrdthmttgh3peehWeemfn1oaereuoc0rttcoruoClfsa,uiRrsugttdotktthi1ahhrooeum3ectbtotnar7'thtsdetet,iichh'oetneAsacsebn9'oes.astIrs3,eslnrcsto9ftsarlCst,uaa0aRiedenoogt7onanqi.udnhImtnfdgu.(ittsdo1tepMeh4tnS9aonehrn2a2uespnteeo6nl7opestrct,)ncfarrrerthojaeataeif1uitmmaautanoh7escrsvtnd6eeest. WESTFALL v. WHITTAKER, CLARK & DANIELS 309 a te as 571 F-Supp. 304 (1983) the 1981 amendment to the Rhode Island 1982 amendment, and suit was brought wrongful death statute does not apply ret within three years thereafter. roactively. The Magistrate below considered this ar Plaintiff next argues that the 1982 amendment to the wrongful death statute, expressly made retroactive by the legisla ture, applies under the circumstances here alleged. The 1982 amendment provides: "It is further provided, . . . , that in re spect to any death caused by any wrong ful act, neglect or default which could not in the exercise of reasonable diligence be discoverable within three (3) years after the death of such person, an action here under shall be commenced within three (3) years of the time that the wrongful act, neglect or default should, in the exer cise of reasonable diligence, have been discoverable." 1982 RI.Pub.Laws ch, 436, 1. Section 2 of the amendment provided that it would take effect upon passage (May 21,1982) and would apply to all wrongful death actions for which the wrongful act, neglect or de fault became discoverable after a date three (3) years prior to the effective date of the amendment. 1982 Ri.Pub.Laws ch. 435, 2 . gument, but recommended that the 1982 amendment would be unconstitutional as aWppillliieadminDathnizsecra&se.Co.Hve. bGauselfd&hiSshrieppIosrltanond E.R., 268 U.S. 633, 45 S.Ct. 612, 69 L.Ed. 1126 (1925), in which the Supreme Court held that a statute of limitations, if applied retroactively to revive a cause of action based on a legislatively created liability, wlfaeownud.ladnSteueonfcidop.nrsaotptite6ur3tt7iyo, nw4a5iltlhySo.Cudtte. pdarutiev6ep13rt.ohceessdoef (2] This Court finds it unnecessary to reach the constitutionality of the 1982 amendment, either in general, or as applied to the facts of this particular case, in that the Plaintiff's reliance on the discovery rule with respect to Defendants Windsor and Omya is misplaced. The "discovery" re ferred to in the 1982 amendment to the wrongful death act is the discovery of a wcaruosnegdfual deaactth, , naengdlencott othre ddeisfacouvlterywohficha particular defendant. See generally Wil kinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968) (adoption of discovery rule in Plaintiff asserts that his cause of action medical malpractice actions). See also against Windsor and Omya became dis Richman v. United States, 709 F.2d 122,123 coverable during April of 1982. On May 24, (1st Cir.1983) (where plaintiff knew of inju 1982, Plaintiff sought to amend his com ry but failed to inquire and learn of defend plaint in order to add Windsor and Omya as ant's fault, statute of limitations not tolled). defendants in this action. Therefore, Plain Mr. Westfall had discovered that he was the tiff argues, discovery was made within the victim of tortious conduct at the very latest period of retroactivity established by the by May 24, 1979, the date on which his Attaqr8wcBadmuoiheamt4funeocrhele22un-nteiatt4ine8ti88hsnctetltr3nt5aseoh--retet2adh3d3l.'hms,tspeom54troestdxoure-e-e1hecoid5iS4eltlr7ssendaahvfmy7te6teittesie.e(elaidnpdee1onr(Asteto1l,9neoec4iPod.at9bm7s.s2ew8y.p7h9edLtaeecoa9othciR9p.elphfsna1Reaap3p.Ra9ukdltiteetsl.hmt6oWsyReneteu80eeainnee.bt4,htrltnotiwwai.h.seoinirac3tstteocankjatcor1ahuutmeTmtenor2rwm.rrlmt4agth,edysieia3cumineihvn9pn1sts3onet4eno'li3ec)sd-rov;tuco7;u3)aeyehl.tdr4nnCpdlmAaryRtRi,dabeshoen.Therc..eedtm1aIIgninaatoahg7..oteetGGtvophsie6d.,dneteteieeh1asAarnnnmak39tewesms..w,o8nn3usLL2aei.p1pdeootdbtraaRr9hnieorweswwoui6tkIidnal.tenninnlny0sss-t. TwahnapIdtnereho.lodwe4udca3leadt4rdd"mi,ui4gg[dte1h3ri]vna7th3e.l6d-er3mreraAe4diRnse.,ede2anifdtsi1tthnso7hweaen6oratoauA8rttslhh5imd.g2n.eehedontrltoeciaattgidltrireascien8slpuaai4pmgdt-tulny8hysre5tieedsar.xneiitctncsorTotetoineshncantergcedewt.nec"iavthodtieeouiIlcntyrdhoat... lPafvmlssayiheimrlnnoyaosrcrde,utieenenallbdSdatdnrli,utmudfeibphfnscseetrohgehnew,nsaemtttuspoerFevbgeptrieutjrhCreosrmosuec,otntaeutwotCnhsrhtuiriottaevrnoticentcntu.hihwegtiemNatfriuTtsoiaeslnhnansftidcrgmhtCsesiefemaeueaCodltetorhf1ioneue9dtutar8sdhoextst1iaeao,saittrnssnhuRaeipdtnnngheedagos.ocDrttdiadife1escitmc,9otuaIh8naptsl2eet 310 571 FEDERAL SUPPLEMENT original complaint was filed. In addition, it is clear from Plaintiff's initial inclusion of John Doe Corporation as a defendant, that Plaintiff knew at that time that there were possibly other defendants responsible to him. When Plaintiff died less than two months later of the same disease alleged in the complaint, that date of discovery did not change. By its terms, the 1982 amend ment to the wrongful death statute applies only to ful act, tnheogseledcteaotrhsd"efcaauulstedwbhyichancyouwldronngot didniesacttohhveeorefaxsbeulrecchiwspeitehroisnfonrth,ear.es.oe.n(.a3"b) ly(eeemadrpislhigaaesfnitsecreadthbdee ed). Mr. Westfall's death clearly does not fall within this description. Therefore the 1982 amendment cannot aid Plaintiff in maintaining this action against Windsor and Omya. Plaintiffs penultimate argument is that by naming a John Doe Corporation in his original complaint, pursuant to R.I.Gen. Laws 9-5-20, he tolled the statute of limitations. Section 9-5-20 provides as fol lows: Whenever the name of any defendant or respondent is not known to the plaintiff, the summons and other process may issue against him by a fictitious name, or by such description as the plaintiff or com plainant may select; and if duly served, it shall not be abated for that cause, but may be amended with or without terms as the court may order. Defendant Windsor argues that the Fed eral Rules of Civil Procedure do not autho rize "John Doe" pleadings, but instead re quire this Court to look to the provisions of Fed.R.Civ.P. 15(c) to determine whether the amendment adding Windsor and Omya meets the conditions necessary to relate back to the original complaint. Rule 15(c) provides: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institu tion of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the ac tion would have been brought against him. ^ The majority of circuits that have con sidered this issue undoubtedly support Windsor's contention. See, e.g., Britt v. Arvanitis, 590 F.2d 57, 61 (3d Cir.1978) (New Jersey statute permitting fictitious name practice was merely procedural and not available to plaintiff in federal diversity action under rule of Hanna v. Phimer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) and in light of Fed.R.Civ.P. 15(c)); Sassi v. Breir, 584 F.2d 234, 235 (7th Cir.1978) (nam ing of "John Doe" defendant in complaint does not toll statute of limitations, but con stitutes change of parties and must comply with requirements of Fed.R.Civ.P. 15(c)); Craig v. United States, 413 F.2d 854, 856 (9th Cir.), cert, denied, 396 U.S. 987,90 S.Ct. 483, 24 L.Ed.2d 451 (1969) (only way to substitute accurate name of defendants af ter statute of limitation has run is compli ance with Fed.R.Civ,P. 15(c), and Rule 15(c) does not permit pleading of fictitious par ties). A particularly compelling rationale for not allowing John Doe pleadings in a federal diversity action is the resulting ina bility to initially determine complete diver sity of the parties where one or more of them is an unknown entity. Plaintiff, how ever, urges this Court to analyze the issue in light of Marshall v. Mulrenin, 508 F.2d 39 (1st Cir.1974). In Marshall, the First Circuit considered a conflict between a Massachusetts statute forth or attempted to be set forth in the permitting liberal amendments as to parties original pleading, the amendment relates and pleadings and Fed.R.Civ.P. 15(c). The back to the date of the original pleading. An amendment changing the party Massachusetts statute at that'time provided as follows: WESTFALL v. WHITTAKER, CLARK & DANIELS Cite as 571 F.Supp. 304 (1983) 311 The court may, at any time before final 15(c) under these circumstances, but went judgment, except as otherwise provided, on to note that "[o]ur Circuit...........has allow amendments introducing a neces adopted a different position in determining sary party or changing the form of the action, and may allow any other amend ment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause for which it was hwihnigcehs rounlediivseraspitpyli.c"abIled. waht e1n15j2u-r5is3d. icTtiohne court refused to base a dismissal of the complaint against two defendants on the fact that their names statute of limitations hwaedreruand.deIdd.afatter11t5h5e. intended to be brought, or enable the The facts at issue in Santiago are strik defendant to make a legal defence. ingly similar to those involved in this ac Mass.Gen.Laws Ann. ch. 231, 51.3 The Marshall court determined that this was not a conflict between two strictly procedural rules, ruling in in wHhainchnacavs.e PtlhuemeSru, p3r8e0meU.CS.ou4r6t0's, 465, 85 S.Ct. 1136,1140, 14 L.Ed.2d 8 (1965) would have required that the federal rule of procedure supersede the state rule. The court held that although the Massachusetts statute was "cast in procedural terms," it had "a direct substantive effect," and "[w]e 5b0e8lieFv3eAthaetfe4d4.eral court must recognize it." S.AIn., Santiago v. Becton 539 F.Supp. 1149 Dickinson & (D.P.R.1982), Co., the court relied on Marshall to uphold the appli cation of dure 15.5 Puerto Rico in a federal Rule of diversity CaicvtiilonP.rocIde. at 1152-53. Rule 15.5 allows a plaintiff to use a fictitious name to identify a defend ant whose filing the name is original unknown complaint. atItdh. eattim11e52o.f4 tion. In Santiago, two injured workers ctcholaueirmmseeadontfuotfhahceatirvuereembeopeflnobyiamnntdeon-xatiicdbasyt.eadIdddy.uerauitnsge1d1t5hi1ne. CLiokuerwt iasell,egPelasinthtiaftf iMnrt.hWe aecsttfioanll bceofnotrreacttheids pplleouyrmaelnmt eassothaelrieosmualt aotf htaislcpulasceed oifn etmhe mcaasensu,fpaclatuinrteiffosf idruenbtbiefiredpruondkuncotsw. n Idnefbenodth ants in their original complaints as the manufacturers of the harmful products that allegedly caused their injuries. Plaintiffs later amended their complaints, identifying tuwteos moaf nluimfaictatutiroenrss bhyadnarmune. afItnerStahnetisatgaot, the manufacturers submitted affidavits tulahnratlityl,tahinfetyeMrraterhcseehiavsletlad, tpunltaoeinnhtaoifdtficsreuanmo.fentIhddee.daScthitmieoiinr complaint to add "new and unnotified de fendants after the statute had run[,]" after having named the wrong defendants in The court acknowledged the many circuits that require application of Fed.R.Civ.P. tAhsesiurmorinigginaarlgcuoemndpolatinhta.t 508 F.2d at Defendants 40-41. Wind- 3. aRnSmoa.TtlfpCAicalTselsMtfiisiehteuorehmbrbemhilrnndaenvebttaieeeseeshdel:dm.ifrsrsunPtcinRoaastmaRrasgbh.eadadluntmttetus,neeceaimg1htptotnclhsttha5heJotinuiIetuh(nacossurannstcaithslftatden,cop)otlheeif"oty,s.aittnrrfte,hchiet"lpaFscaailC4srae'acrMyee9eds3tlvteird0oNdCvriAemmeaicesubiixdorolnseriClaiFpyrnebtsm.aetgPieeMnaoi.tcalnRraisrumcetottnidafaioTin.hRhrrcfDgmtetbsoctiuehaoiursresn.oewlsa.emuldeGnaweeonMaMbhun4tdtfeecnotrs2aoaeno1saotadcteM7tpvsh5.ifluosFpLttstem(esrduha.weircn.aRt(otisAdit'a)hanDscfasnil..cimnnnoed.ChRis.eiRtnsMnngnoiiuidui.ofcc.Cvo.pgfesCbrapea.CtseiesaitePtsnshaitvattrhilevotsa.ssrtl.eiltase.oP.svoMnit1rPmbnwaye1d.dw9F.e1t1a5oS8itididre7i1sn(nhvr11suadoc1esve5gg5eeee)l)...f, Idw2asiiMb"nna3cmaaigtyat1tcteihais,korna4syen.ntg2tRshaoa9t.alesl-C5lilitm3yn1omhip0v,weert.rp.nheP"elwoddeyl.raamhemittncgi1eheceiad5nnhasat(satttcmdoel)cdr"reephetfnihleac.ssed.ntlenaaa.mdigdrtnaaiueeimnnnIndtgnfegtteo,d.nrat"ateMhdmodepmaddatar,iescnresinatnltg.yatGthet)caeee(goirnonnte.cbrrcLtloiaaralc.uucnataedkrscslst-t.,, 4. vttniAnnhhiaopPdgeemtpeuc.kseoepo,rnrItrmIthohoopwRapecrtRel.naose"ih1icdcnt(5eaoiowt.nel5ldR]gtd.hhimeuneeslagraeineg.pk"ondletafahiatnCeuiPmtnipni.vgRfeoaifnln,.mhLdPhiaemmrleweooeacssbnfrheytndaaAiuliandlnnrngenestyfo.he,1hnne5sTidat.sp5amiatltn.eperetare3diioai2nnsl 312 571 FEDERAL SUPPLEMENT sor and Omya had no notice of Mr. West- ings must be allowed where the require fall's action prior to the running of the statute of limitations, all three of these rreeqsuulitrsemareentsin odfirFeecdt .Rco.Cntivra.Pv.en1t5io(cn), owf htihche mamanenddamtesentthartecaeipvearstyuctho nboetibcreouogfhtthien abcy tion that he will not be prejudiced in main taining his defense. [3] Defendant Windsor points out that the statutes at issue in Marshall, Santiago, and the case at bar each contain slightly different terms and provisions. The Massa chusetts statute is conceivably the broadest, liberally allowing amendments as to parties, process and pleadings at any time before final judgment. The Puerto Rico statute, like the Rhode Island statute, however, re lates solely to the naming of John Doe defendants in an original complaint and the later substitution of actual names. The major distinguishing feature of R.I.Gen. Laws 9-5-20 is the requirement that a ments of R.I.Gen.Laws 9-5-20 are met. Defendant Omya argues that even if R.I. Gen.Laws 9-5-20 applies in a federal di versity suit, Plaintiff's reliance on it in this action is misplaced. Omya contends that 9-5-20 does not apply where the defend ant is an unknown person or entity, but only where the plaintiff knows the defend ant's identity but does not know his name at the time of filing the complaint. Omya does not cite any case law in support of this position. In Santiago, the court pointed out that the notes relating to Puerto Rico Rule of Civil Procedure 15.5 indicate "that it does not refer to unknown persons or entities but rather to defendants whose identity is known but whose name at the moment of filing the complaint is unknown to plain tiffs." 539 F.Supp. at 1153. There are no such legislative notes interpreting 9 -5 - defendant must be "duly served" before the 20, and cases construing the statute do not amended complaint will be deemed to relate address this issue. In light of Plaintiff's bWaicnkdstoorthaergduaetse tohfatthebeocraiguisnealocfomthpislairnet. description of John Doe Corporation in his original complaint, however, it is unneces quirement 9-5-20 is not a pure tolling sary to decide this issue. In paragraph 3 of statute. All three statutes, however, have bweheinchcopnlastirnutiefdfs ams apyrotvoidllintghea smtaetauntse boyf limitations where a defendant's name is un known at the time the original complaint is filed. See Santiago, 539 F.Supp. at 1153 (dcuornestr1u5i.n5)g; PuCeortvoelRivc.o RSualfeetoecf hC,ivIilnPc.r,oc9e0 F.R.D. 427, 429 (D.Mass.1981) (construing Mass.RCiv.P. 15(c)); Sousa v. Casey, 111 R.I. 623, 633, 306 A.2d 186, 191-92 (1973) (construing R.I.Gen.Laws 9-5-20). It is beyond question that all three statutes have the same substantive effect of allowing pre viously unnotified defendants to be brought into an action after the applicable statute the complaint, Defendant John Doe Corpo ration is described as: a corporation duly organized and existing under the laws of a state other than Rhode Island with the necessary mini mum contacts within the State of Rhode Island to be subject to the jurisdiction of this Honorable Court. At all times rele vant hereto Defendant John Doe Corpo ration manufactured and/or distributed talc to Uniroyal, Inc. for usage in its plant in Providence, Rhode Island. This Court is satisfied that such a descrip tion is sufficient to show that the Defend ant John Doe Corporation was not a person of limitations has run. Finding no signifi cant distinctions between the totality of or an entity entirely unknown to Plaintiff. As noted supra, the plaintiffs in Santiago circumstances in the case at bar, and those initially described defendant manufacturers in Marshall and Santiago, this Court is com in a similar, fashion, and the court there pelled to follow the reasoning of the First found that "a review of the entire original Circuit and the District of Puerto Rico and complaint shows that when they filed it hold that in a federal diversity action in the they knew* that there existed entities that District of Rhode Island, John Doe plead produced, distributed and sold the dye to WESTFALL v. WHITTAKER, CLARK & DANIELS C ite as S7I F.Supp. 304 (1983) 313 their employer whose names at that time In construing 9-5-20, this Court must were unknown to them." 539 F.Supp. at first look to the intent of the Rhode Island 1154. By the same token, Plaintiff in this action knew there were entities that manu factured and/or distributed talc to Uniroyal, Inc. for use in its Providence plant dur ing the 30-year period Mr. Westfall was employed there, but did not know all of their names at the time the original com plaint was filed. In support of the Magistrate's recommen dation, Defendant Omya next argues that if R.I.Gen.Laws 9-5-20 applies, Plaintiff's complaint against it should nonetheless be dismissed because the original complaint and subsequent amendments refer to only lteegeisolaf ttuhree.C itByeortfhWiaouomnesovc.kSetc,h3o9o7l Commit A.2d 889 (cdlRaoistu.icIvr.e1ter9np7ho9iist)n.htotaerUtdynoiofnuofttre:ttnhute"n.TashttaeIanlttyui,tnBtetheefernrrtothemiiaissudwnmiohseci,lcoehvgtehitrsoe e8ndAcd9iaosl2,teu.fs7nrr3ooe(tmn,cReiod.atItin.ansdn4gue9pxo8Nerpb,xaorja5,leea0mcst2nhtsi,lney5voa.7fltaRiAtopnhenr.g2peoudrvoaesifdt7gsae3eett0nhu,otetaa7fept3l.ip"a2vrne(o9g1IpC-9ud5r4oa.i-8uga2)anet)0et., wording to defendants. beTuhseedSionusdaesccroiburintg unknown indicated, however, that the nature and object of the one John Doe Corporation. Omya contends statute is to allow a plaintiff to toll the that 9-5-20 requires a fictitious designa statute of limitations by filing a complaint tion for each separate defendant whose against fictitious defendants until the plain name is not known, therefore Plaintiff can substitute only Defendant Windsor for the tiff learns the names of the defendants. I ll R.I. at 632-34, 306 A.2d at 192. John Doe Corporation in the complaint. The Magistrate accepted this argument and recommended that Omya's motion for sum In addition to examining the language, nature and object of 9-5-20, this Court must also "adhere to the canon that stat mary judgment be granted and that Wind sor's be denied. Understandably, Windsor argues with vigor against this result. Section 9-5-20 does not set forth any particular language that must be used in a complaint filed pursuant to its provisions. In Sousa v. Casey, 111 R.I. 623, 306 A.2d 186 (1973), the plaintiff, pursuant to 9-5-20, filed a complaint against "John Doe, John Smith, John Jones, et al., fictitious names of certain police officers of the City of Provi dence . . . the true names and identity of said police plaintiff at othffisicteirms eb."einIgd. unknown to the at 625, 306 A.2d at 188. Defendant Omya submits that the Rhode Island Supreme Court in Sousa "de lineated" this format as the proper proce dure to be followed under the statute. This Court notes that the Sousa court neither expressly condoned nor condemned the par ticular wording of that complaint. Rather, the court impliedly approved the language 3umSC6ttree,aeaspt3nee8iasnvhu.g(o-1SlCue9plsr7drso4as)gson.,"uroe3ta,8b5B1bs1eeAu3rr.t2dhRcdoi.aInr.6use5t3msr8u5u,e1lte,,6sd63.3059t57(oSR,3eA.2eIa.2.c12Ih9dAni7e.82var)dee;t 892, Omya's interpretation of the statute allowing the substitution of only one de fendant per "John Doe Corporation," would force an absurd and patently unjust result if applied in this case. The entirely fortui tous circumstance that Windsor was named first and Omya was named second in Plain tiff's third amended complaint should, in Omya's estimation, compel the conclusion that Windsor must continue to defend itself in this lawsuit, while Omya escapes further litigation. Furthermore, this Court notes, without deciding, that a routine application of Omya's analysis would seem to effective ly preclude the use of 9-5-20 by products liability plaintiffs who do not know the names of the manufacturers of alleged harmful products. The meaning ascribed to when it held that the plaintiff had succeed the statute by Omya would unfairly force ed in Soiling the statute of limitations by such plaintiffs to divine how many manu filing a complaint against unknown defend facturers of a product there might be prior ants. I ll R.I. at 633, 306 A.2d at 192. to any discovery. If a plaintiff happens to 314 571 FEDERAL SUPPLEMENT guess that there are three, and through timely discovery learns that there are four, Omya's reasoning would leave the plaintiff with no recourse against the fourth defend ant if the statute of limitations had run. This result contravenes the underlying toll iSnoguspau. rpose of 9-5-20 as interpreted in Perhaps the more prudent course for all plaintiffs under these circumstances would DbeoetoCionrspeorrtattihoen"wionrdths e"iretorailg"inaafltearnd"Jsouhbn sequent amended complaints. The purpose ful liberalization of pleadings and procedure that has occurred on both a state and feder al level, however, and the unambiguous Rhode Island law of statutory construction strongly militate against such a triumph of fRohromdeoIvselarndsubSsutparnecme.e CAosursttaintedWiblkyinstohne v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968), "[n]o statute should be construed to bring about a patently inane result; more over, we have often said the legislature could never be presumed to have intended 4g(Autoc0un.i92erteid,ennAa3gas.128co1d2Stn3ta(l5a1ab3Rt9wl6ee.5I,s.9."v5)..w430HhI5Sd1i(ac.eR,hgea.3gItaa.5e1lr25rs9eot3,7y99,Ba3,)b2;e82s2a94uuS3rRdtAdaAo.,.Iti2..ne2uddn1vv5j..3au8P6St,s,pet71rt355ioat138r, (1974)). Accordingly, this Court upholds Plaintiffs substitution of both Windsor and Omya for "John Doe Corporation" in his third amended complaint. Finally, this Court must consider whether Plaintiff has complied with the requirement of ants 9b-e5"-2d0ulythsaetrfviecdti.t"iouIsnlySnoaumsaedv.deCfaesnedy, the Rhode Island Supreme Court discussed this prerequisite as follows: Section 9-5-20 further provides that the "summons and other process" must be duly served and that it may be amended with or without terms as the court may order. However, there is nothing in our statute which says that the service must be made within the statute of limitations. Service must be made within a reasonable time after a complaint has been filed, absent a showing by the plaintiff that Fsuacnhndineglay&wDaosoerxiecyusCaobnles.tr. SCeoe.,C1a0p4rioR.vI.. 197, 199-200, 243 A.2d 738, 740 (1968). I l l R.I. at 632-33, 306 A.2d at 192. In Caprio, which did not involve the use of veh9i-c5l-e2c0o,llPislioanin.tifKf nwoawsiningjuwrheod tihne ademfeontodr ants were, she filed her complaint on the last day of the two-year statute of limita tions then in effect, but took over a year to issue summonses and process and serve the defendants. 104 R.I. at 197-98, 243 A.2d at 739. The court held: In the circumstances of this case we can not say that plaintiff issued process with in a reasonable time after she filed her complaint . . . more than a year had elapsed from the time she filed her com plaint to the time she issued process. Nor can we say that plaintiff has present ed evidence which would justify render ing the aforesaid delay excusable. Id. at 200, 243 A.2d at 740. More recently, the Rhode Island Supreme Court had occasion to apply this standard in Curtis v. Diversified Chemicals, 440 A.2d 747 (R.1,1982). Although the court did not specifically refer to 9-5-20 in its opinion, it did refer to one of plaintiff's wrongful death actions listing eleven defendants, "as well as `John Does known Defendants.' "I--VIdI.I'aat n7d48`.OtThhere Un pre cise issue before the court was whether plalyasinitniffsse'rsviixn,gsepvreonc,esasndoneitghhet dmefoenntdhadnets were unreasonable. Id. The court upheld the trial justice's determination that the delays were unreasonable, explaining its de cision thus: In this case plaintiffs presented no evi dence to justify the delays except for the testimony that their attorney desired to serve all defendants at the same time. Even this excuse does not explain the amount of time plaintiffs took to obtain the names of registered agents or the addresses of some of the defendants. Ob viously, much of this information was readily available to plaintiffs. Telephone calls to the Secretary of State's office would have easily and quickly yielded the WESTFALL v. WHITTAKER, CLARK & DANIELS a te as 571 F.Supp. 304 (1983) 315 names and addresses of registered agents June, 1982, more than three years after the of all domestic corporations and those filing of the original complaint. This Court registered to do business in the state. Additionally, plaintiffs themselves had set forth the addresses of some of the out-of-state defendants in one of their complaints and, under Rule 4(e)(2), could have served process on those defendants by mail without having first obtained the court's permission. . . . Basing our anal ysis on the facility with which names and addresses could have been obtained and service effectuated as well as the evi dence presented below, we cannot say that the Superior Court justice was clear ly wrong in finding that the delays were unreasonable. Neither can we say that he was clearly wrong in rejecting as inex cusable plaintiffs' explanation for the de lays. Id. at 749. Plaintiff argues that all of these cases involved situations where the identities and names of the defendants were known to the plaintiffs. This analysis is accurate, with the exception of the facts in Curtis, where plaintiff sued "John Does I-V II." The dis tinction the fact isthuantimthpeorCtaunrtt,ishcoowuervtedr,idinnloigthctoonf sider the difficulty in ascertaining the iden tity of a John Doe defendant, nor did the plaintiff raise it as a possible reason to finds that such a delay in service is patently unreasonable. Bearing in mind that efforts to ascertain the identity of John Doe de fendants would justify a somewhat greater delay than otherwise, the crucial question nonetheless is whether Plaintiff has justi fied rendering an approximately three-year delay in service excusable. Defendants Omya and Windsor assert that Plaintiff did not undertake any dis covery until August of 1981. Indeed, more than two years had elapsed from the time the original complaint was filed when Plaintiff served its first sets of interrogato ries on Defendants Whittaker, Clark & Daniels, Pfizer, and Metropolitan Talc Com pany in August, 1981. In one of his memo randa, Plaintiff states in passing that "[discovery was ongoing throughout 1980 and 1981," What discovery was ongoing in 1980, however, is impossible to discern. Plaintiff has submitted no affidavits or evi fduerntcheerinexsupplapnoarttioonf tohfiswchoanttednistcioonv,erayndtoonko place in 1980 appears in the memoranda filed in this action. All other accounts by Plaintiff of the difficulties encountered in the discovery process begin with the August 1981 interrogatories. excuse her delays in service in that case. Plaintiff has set forth in great detail the This Court accepts Plaintiff's contention problems that arose in trying to identify the that a "reasonable time" within which a known defendant should be served under Rule 4 of the Rhode Island Superior Court Rules of Civil Procedure, is not necessarily the same as a "reasonable time" within which an unknown defendant should be served pursuant to 9-5-20. With these principles in mind, the Court must now determine whether Plaintiff's delay in serv ing Omya and Windsor was unreasonable, and if so, whether Plaintiff has "presented evidence which would justify rendering the aforesaid delay excusable." Caprio, 104 R.I. at 200, 243 A.2d at 740. type and origin of the talc that allegedly caused Mr. Westfall's mesothelioma. Only after filing Motions to Compel did Plaintiff begin to receive documents and responses to interrogatories from Defendants Whittaker, Pfizer and Metropolitan. This discovery led to the realization that Uniroyal had used three types of talc at its Providence plant-- Italian, Montana and Vermont. Further discovery "began to point toward Vermont talc as the likely source of his asbestos-con taminated talc exposure" and "a geologist was consulted in April, 1982 to determine the location of the Vermont mines operat [4] Plaintiff commenced this lawsuit on ing and producing talc during the 1940s and May 24, 1979. Defendants Windsor and 1950s." (Plaintiff's Memorandum in Oppo Omya were not served with process until sition to Motions of Defendants Windsor 316 571 FEDERAL SUPPLEMENT Minerals, Inc. and Oiriya, Inc. for Summary Judgment at 4.) This Court is aware that, unlike the plain tiff in Curtis, Plaintiff in this action had to do more than simply ascertain the names of registered agents in Rhode Island for known corporate defendants. Further more, Plaintiffs' proffered excuse of trou blesome and intricate discovery procedures iisn aCmurotrise, raeadsoensiarbeletoonseertvheanaltlhdaetfreenjdeactnetds simultaneously. The Court appreciates the complexity of the discovery that was neces sary in this action. Plaintiff's dissertation on discovery difficulties, however, does not offer a reason for waiting more than two years to even begin discovery. Clearly, dis covery was the key to identifying the un known suppliers of talc to Uniroyal. As tute and painstaking discovery eventually revealed 1) that a producer of Vermont talc was possibly liable to Plaintiff, and 2) who the producers of Vermont talc were during Plaintiffs period of employment. There is ample reason to believe that if Plaintiff had begun discovery earlier in the course of this litigation, the approximately three-year de lay in serving Windsor and Omya would not have occurred. This Court is compelled to find that the delay in serving Defendants Windsor and Omya was unreasonable. The problems Plaintiff had to surmount in the discovery process do not justify waiting more than two years after filing a lawsuit to engage in any discovery whatsoever, and conse quently cannot justify a three-year delay in service of process. Therefore, Defendants Windsor and Omya were not "duly served" as required by 9-5-20, and their Motions for Summary Judgment are hereby grant ed. G I KM*8ERSrSTM} TV Edward DELAYER, et al., Plaintiffs, v. WEIRTON STEEL DIVISION OF NA TIONAL STEEL CORPORATION: and Independent Steelworkers Union, De fendants. Civ. A. No. 83-0036-W. United States District Court, N.D. West Virginia, Wheeling Division. Sept. 8, 1983. A civil action concerned activity con nected with a proposed employee buy-out plan. On a motion to dismiss, an amended motion by one defendant for summary judgment and a motion by plaintiffs to defer ruling, the District Court, Maxwell, Chief Judge, held that neither terms of sale proposed to amend pension program for sal aried nonunion personnel nor those terms of sale relating to severance pay and correlat ed amendment to employer's policy on ter mination of exempt, salaried division em ployees would violate provisions of Employ ee Retirement Income Security Act relating to prohibited transactions, or provisions of ERISA relating to fiduciary duties or provi sions of ERISA relating to vested, accrued benefits or nonforfeitable benefits or provi sions of existing policy. Order in accordance with opinion. 1. Federal Civil Procedure <8=2533 Where issues presented by defense mo tion for summary judgment were fair state ments of major claims of complaint but did not include every issue raised in complaint, court would view motion as motion for par tial summary judgment. 2. Master and Servant =78.1(3) It is not per se unlawful to alter pen sion plan with respect to prospective bene fits, provided change doesn't otherwise vio late requirements of Employee Retirement Income Security A ct Employee Retire-