Opinion
Case No. 3:18-cv-246 Case No. 3:18-cv-251
2020-07-08
Dorothy KOTALIK, Individually and on behalf of estate of John Kotalik, deceased, Plaintiff, v. A.W. CHESTERTON COMPANY, et al., Defendants. Catherine Selfors, individually and on behalf of estate of Duane Selfors, Plaintiff, v. Apollo Piping Supply, Inc., et al., Defendants.
Jeanette Boechler, Boechler, PC, Fargo, ND, David C. Thompson, Grand Forks, ND, for Plaintiff. Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Thomas M. Stieber, Foley & Mansfield PLLP, Minneapolis, MN, Elena D. Harvey, Houser LLP, Excelsior, MN,Kristi K. Brownson, Brownson PLLC, Minneapolis, MN, Cassandra A. Marka, Zimney Foster PC, Grand Forks, ND, Scott J. Landa, Zimney Foster PC, Grand Forks, ND, Jessica M. Rydell, Joel A. Flom, Flom Law Office, P.A., Fargo, ND, for Defendants.
Jeanette Boechler, Boechler, PC, Fargo, ND, David C. Thompson, Grand Forks, ND, for Plaintiff.
Elizabeth Sorenson Brotten, Jason Mohr, Joanna M. Salmen, Kyle B. Mansfield, Thomas M. Stieber, Foley & Mansfield PLLP, Minneapolis, MN, Elena D. Harvey, Houser LLP, Excelsior, MN,Kristi K. Brownson, Brownson PLLC, Minneapolis, MN, Cassandra A. Marka, Zimney Foster PC, Grand Forks, ND, Scott J. Landa, Zimney Foster PC, Grand Forks, ND, Jessica M. Rydell, Joel A. Flom, Flom Law Office, P.A., Fargo, ND, for Defendants.
ORDER
Alice R. Senechal, United States Magistrate Judge
Pending motions in the cases captioned above present identical issues. First, certain defendants (collectively, moving defendants) move to enforce plaintiffs' compliance with disclosure requirements of North Dakota's Asbestos Bankruptcy Trust Transparency Act (the Trust Transparency Act). Second, plaintiffs and some of moving defendants jointly request a hearing on that motion. Third, plaintiffs move for certification of a question to the North Dakota Supreme Court regarding constitutionality of the Trust Transparency Act.
Summary
The court determines plaintiffs do not raise a "close" question of state law that necessitates certification of a question to the North Dakota Supreme Court. Therefore, the court will deny plaintiffs' motions for certification.
As to moving defendants' motions, the court concludes the Trust Transparency Act's disclosure provisions are substantive state law, which thus apply to these proceedings. In this court's opinion, the disclosure provisions clearly and plainly require plaintiffs to provide the requested information to defendants. Accordingly, this court will grant moving defendants' motions. Because the parties' briefs are sufficient for the court's analysis and decision, the joint motions for a hearing will be denied.
Facts
The underlying facts are set forth in prior reports and recommendations and, for brevity's sake, are not repeated here. Kotalik v. A.W. Chesterton Co., No. 3:18-cv-246, Doc. 109, 2019 WL 3758035 (D.N.D. May 13, 2019) ; Selfors v. Apollo Piping Supply, Inc., No. 3:18-cv-251, Doc. 110 (D.N.D. May 13, 2019). In Kotalik, forty-two defendants currently remain, and sixteen of those move to enforce plaintiffs' compliance with the Trust Transparency Act; in Selfors, fifty-one defendants currently remain, and sixteen of those move to enforce plaintiffs' compliance with the Trust Transparency Act. More specifically, moving defendants seek an order directing plaintiffs to comply with the disclosure requirements of the Trust Transparency Act set forth in North Dakota Century Code section 32-46.1-02(1). Kotalik, Doc. 159, p. 3; Selfors, Doc. 183, p. 3.
In Kotalik, the moving defendants are: A.W. Kuettel & Sons, Inc.; Bayer CropScience, Inc.; Border States Industries, Inc.; CBS Corporation; Cleaver Brooks; Fargo-Moorhead Insulation Company; General Engineering Development Corporation; Goodin Company; Honeywell, Inc.; Northern Plumbing Supply, Inc.; Riley Power, Inc.; Singer Safety Company; Union Carbide Corporation; Weil McLain Company; Zurn Industries, LLC; and Rockbestos-Suprenant Cable Corporation.
In Selfors, the moving defendants are: AWT Air Company, Inc.; Border States Industries, Inc.; CBS Corporation; Carol Cable Corporation; Cleaver Brooks; Fargo-Moorhead Insulation Company; General Engineering Development Corporation; Goodin Company; Goodrich Corporation; Honeywell, Inc.; RCH Newco II, LLC; Riley Power, Inc.; Rockbestos-Suprenant Cable Corp.; Singer Safety Company; Weil McLain Company; and Zurn Industries, LLC.
Moving defendants provide the following background information regarding the Trust Transparency Act:
North Dakota's Bankruptcy Trust Transparency Act was enacted in 2017, and became effective on August 1, 2017. In so doing North Dakota joined several other states—now sixteen in number—which have enacted similar legislation. The passage of North Dakota's Act, as well as that of the other states who have thus far done so, followed after nearly all major manufacturers of asbestos-containing thermal insulation products ... were forced into bankruptcy as the result of nationwide asbestos litigation.
....
In 1994, the United States Congress enacted 11 U.S.C. § 524(g) of the United States Bankruptcy Code, explicitly authorizing companies plagued by mass asbestos tort claims to establish and fund a trust to address and pay all present and future claims as part of their bankruptcy reorganization. This law codified the procedure used in the bankruptcy proceeding of Johns-Manville—the largest producer of asbestos-containing products and manufacturer of more than 50% of asbestos-containing insulation sold worldwide—which created a settlement trust for the express purpose of paying future asbestos claimants for their injuries. The trust operates on the basis of "Trust Distribution Procedures" (TDPs), which includes a schedule of diseases and exposure and medical criteria; once a claimant establishes that he or she is a trust beneficiary by satisfying a TDP's disease and exposure criteria, the claimant is entitled to have his or her claim paid out of that trust.
According to moving defendants, the other states that have passed similar legislation are: Alabama, Arizona, Iowa, Kansas, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin.
... [T]he only recourse against a bankrupt asbestos defendant is to file a claim with the trust.
....
Because of the amount of money available, one might assume that litigants would pursue bankruptcy trust claims, if available, as soon as possible. But, to Moving Defendants' knowledge, such is not the case. Instead, and while Moving Defendants have no evidence that this has happened in North Dakota litigation, a detailed opinion released by the United States Bankruptcy Court for the Western District of North Carolina in 2014 illustrates the prevalence of fraud in asbestos tort litigation, describing evidence from multiple states establishing that litigants have delayed the filing of trust claims in an attempt to withhold evidence of alternative sources of asbestos exposure. See ... In re: Garlock Sealing Techs., LLC , 504 B.R. 71, 82-86 (Bankr. W.D.N.C. 2014).
....
Ultimately, based on this discovery, the court concluded in In re Garlock that "on average, plaintiffs disclosed about two exposures to bankruptcy companies' products, but after settling with Garlock, made claims against about 19 such companies' Trusts." The court thus concluded that "the last ten years of [Garlock's] participation in the tort system was infected by the manipulation of exposure evidence by plaintiffs and their lawyers" and that "it was regular practice by many plaintiffs' firms to delay filing trust claims for their clients so that the remaining tort system defendants would not have that information."
In the wake of In re: Garlock , Judge Peggy L. Ableman—a former Delaware judge who was solely responsible for the asbestos docket in Delaware—released an article entitled "The Garlock Decision Should Be Required Reading for All Trial Court Judges in Asbestos Cases." ....
Judge Ableman went on to describe efforts to curb asbestos bankruptcy abuse by the judiciary (in the form of case management orders) and by legislation at both the federal level, and by some states. She concluded:
Although bankruptcy remains a viable option for otherwise healthy companies seeking relief from the debilitating effect of having to defend countless lawsuits, the trust mechanism established by § 524(g) has also had the undesirable effect of increasing the liability share of those solvent defendants that remain in the tort system. Indeed, there has been no other credible explanation for the phenomenon regarding liability of peripheral defendants that has taken place since the trusts were created. After the primary asbestos insulation manufacturers, who had previously been responsible in tort for the lion's share of the liability, went bankrupt, the payments by the peripheral defendants increased, even though the extent of their responsibility remained unchanged. And as plaintiffs reach out to more fringe levels of defendants it becomes increasingly difficult to know what other exposures have taken place. It is the trust submissions that will provide an efficient means of identifying those other exposures.
... It is against this backdrop that The Trust Transparency Act was enacted. Kotalik, Doc. 159, pp. 3-9 (citations and footnotes altered); Selfors, Doc. 183, pp. 3-9 (same).
Moving defendants seek plaintiffs' compliance with the following disclosure requirements in North Dakota's Trust Transparency Act:
1. Within thirty days after an asbestos action is filed, the plaintiff shall:
a. Provide the court and parties with a sworn statement signed by the plaintiff and plaintiff's counsel indicating an investigation of all asbestos trust claims has been conducted and all asbestos trust claims that could be made by the plaintiff have been filed. The sworn statement must indicate whether a request has been made to defer, delay, suspend, or toll any asbestos trust claim and provide the disposition of each asbestos trust claim.
b. Provide parties with all trust claims materials, including materials related to the conditions other than those that are the basis for the asbestos action and any materials from all law firms connected to the plaintiff in relation to the plaintiff's exposure to asbestos.
c. Produce all available trust claims materials submitted to any asbestos trusts by other individuals if the plaintiff's asbestos trust claim is based on exposure to asbestos through those individuals.
Copies of correspondence in the record show at least one moving defendant has asked plaintiffs' counsel twelve times to comply with the statute "by providing the Court and all parties with, inter alia , a sworn statement indicating that an investigation of all trust claims had been conducted, and that all asbestos trust claims that could be made by the Plaintiff[s] have been filed." Kotalik, Doc. 159, p. 14; Selfors, Doc. 183, p. 14. Plaintiffs acknowledge they have not complied with section 32-46.1-02. Kotalik, Doc. 162, p. 5; Selfors, Doc. 186, p. 4. Moving defendants note the same issue arose previously in Wallock v. A.H. Bennett Co.—a North Dakota asbestos case involving different parties but the same attorneys—where the parties raised the same arguments and where the court ordered plaintiffs to comply with the Trust Transparency Act's disclosure requirements or face dismissal of the action. Kotalik, Doc. 159, pp. 12-13; Selfors, Doc. 183, pp. 12-13. Moving defendants therefore request an order directing plaintiffs to comply with the Trust Transparency Act's disclosure requirements and further request dismissal with prejudice if plaintiffs fail to do so. Kotalik, Doc. 159, p. 22; Selfors, Doc. 183, p. 22.
Plaintiffs contend the Trust Transparency Act violates the North Dakota's constitutional provisions regarding separation of powers. Plaintiffs argue the Trust Transparency Act "represents statutory procedural rule-making" and "seriously infringes upon the exclusive authority of North Dakota District Courts to manage civil actions by virtue of judicial branch power conferred upon these District Courts by the North Dakota Supreme Court in its adoption of" procedural and evidentiary rules. Kotalik, Doc. 162, p. 15; Selfors, Doc. 186, p. 12. Plaintiffs also assert the Trust Transparency Act is "in derogation of North Dakota substantive law providing for several liability[—]not joint and several liability[.]" Kotalik, Doc. 162, p. 20; Selfors, Doc. 186, p. 17.
Moving defendants reply the Trust Transparency Act is constitutional, does not conflict with applicable procedural or evidentiary rules, and does not conflict with several liability. Kotalik, Doc. 163, pp. 1-7; Selfors, Doc. 190, pp. 1-7. After the motions were fully briefed, plaintiffs and certain moving defendants filed joint requests for a hearing on the motions. Kotalik, Doc. 165; Selfors, Doc. 191.
In Kotalik, only the following moving defendants request a hearing on the motion: A.W. Kuettel & Sons, Inc.; Border States Industries, Inc.; Cleaver Brooks; Goodin Company; Riley Power, Inc.; Singer Safety Company; Weil McLain Company; Zurn Industries, LLC; and Rockbestos-Suprenant Cable Corporation. In Selfors, only the following moving defendants request a hearing on the motion: AWT Air Company, Inc.; Border States Industries, Inc.; Carol Cable Corporation; Cleaver Brooks; Goodin Company; RCH Newco II, LLC; Riley Power, Inc.; Rockbestos-Suprenant Cable Corp.; Singer Safety Company; Weil McLain Company; and Zurn Industries, LLC.
Additionally, plaintiffs move this court to "certify the question of the constitutionality of North Dakota Century Code Chapter 32-46.1 to the Supreme Court of North Dakota for a determination of whether this statutory package is violative of ... the North Dakota Constitution." Kotalik, Doc. 166, p. 1; Selfors, Doc. 188, p. 1. In support of their motions, plaintiffs have filed briefs nearly identical to their briefs opposing moving defendants' motions for compliance. Responding defendants claim certification of a question to the North Dakota Supreme Court "is unnecessary for several reasons." Kotalik, Doc. 170, p. 1; Selfors, Doc. 202, p. 1. Responding defendants assert the constitutionality of the Trust Transparency Act does not present a complex or novel issue, any conflict between the Trust Transparency Act and state procedural or evidentiary rules is irrelevant to the determination of this action because federal procedural and evidentiary rules apply, and the North Dakota Supreme Court would not issue an opinion on the question because its opinion would be only advisory. Kotalik, Doc. 170, pp. 1-2; Selfors, Doc. 202, pp. 1-2. Plaintiffs have not replied, and their time to do so has ended. See D.N.D. Civ. L.R. 7.1(B).
The defendants responding to plaintiffs' motions to certify a question to the North Dakota Supreme Court are the same as those listed in footnote 4.
Discussion
As a preliminary matter, this court first addresses whether moving defendants' motions should be considered a discovery dispute, which would require the parties to follow the procedures described in Civil Local Rule 37.1. Moving defendants state their motions seek "the enforcement of a statute, up to and including dismissal of this case" and therefore contend they are not discovery motions. Kotalik, Doc. 159, p. 1 n.1; Selfors, Doc. 183, p. 1 n.1. In Kotalik, plaintiff's response—which was filed on April 17, 2020—claims the "[m]otion ... clearly is, in its substance, a ‘discovery motion’ " and asserts the "motion should be summarily denied" because the parties have not followed the requirements of Rule 37.1. (Doc. 162, p. 2).
That rule provides parties may not file a discovery motion until they have first conferred in person or by phone (written requests are not sufficient) in an attempt to resolve the dispute without court involvement. D.N.D. Civ. L.R. 37.1(A). If the parties are not able to resolve the issue at that point, they must then participate in a telephone conference with the assigned magistrate judge. D.N.D. Civ. L.R. 37.1(B). Only if the issue remains unresolved after a conference with the magistrate judge may the parties file a discovery motion. Id.
On April 29, 2020, this court held a discovery dispute conference in Selfors. (Doc. 180). While that conference primarily concerned other matters, defendants also addressed the motions at bar to note they did not consider them to be discovery motions. Id. The court asked plaintiffs' counsel whether they viewed the instant motions as discovery motions. Id. One of plaintiffs' counsel conceded, "I really don't," adding the instant motions extend "to a far greater perimeter than simply discovery." Id. This court noted plaintiffs' counsel's response satisfied defense counsels' concern as to whether the instant motions required compliance with Rule 37.1. Id.
An audio recording of the conference is available through the court's computer network.
Indeed, Selfors' response brief, which was filed later in the same day as the discovery dispute conference, does not contend—as Kotalik's response brief does—moving defendants' motions are discovery motions. Additionally, the court notes the issue does not involve any recognized mode of discovery—interrogatories, depositions, requests for production of documents or for admissions, or subpoenas. In light of the statement of plaintiffs' counsel during the Selfors conference, this court will not further consider the issue. The court then turns its attention to plaintiffs' motions for certification of a question to the North Dakota Supreme Court.
1. Plaintiffs' Motions to Certify a Question
North Dakota Rule of Appellate Procedure 47 permits the North Dakota Supreme Court to answer questions of law certified to it by federal courts and appellate courts of other states when the following conditions are met:
(1) questions of law of this state are involved in any proceeding before the certifying court which may be determinative of the proceeding;
(2) it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
Use of a state's certification procedure " ‘rests in the sound discretion of the federal court.’ " Anderson v. Hess Corp., 733 F. Supp. 2d 1100, 1104 (N.D. 2010) (quoting Perkins v. Clark Equip. Co., 823 F.2d 207, 209 (8th Cir. 1987) ). The Eighth Circuit has noted, "As the D.C. Circuit has stated: ‘The most important consideration guiding the exercise of this discretion ... is whether the reviewing court finds itself genuinely uncertain about a question of state law ....’ " Johnson v. John Deere Co., 935 F.2d 151, 153 (8th Cir. 1991) (quoting Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C. Cir. 1988) ). Further, the Eighth Circuit has expressly held that, without a "close" question of state law or a lack of state sources, a federal court should "not avoid its responsibility to determine all the issues before it." Perkins, 823 F.2d at 209.
Plaintiffs argue the Trust Transparency Act's provisions, "if enforced by the ... federal court, may be determinative of the instant proceedings, and there currently exists no controlling precedent in the decisions of the North Dakota Supreme Court." Kotalik, Doc. 167, p. 2 (punctuation altered); Selfors, Doc. 189, p. 2 (same). By alleging "there currently exists no controlling precedent in the decisions of the North Dakota Supreme Court[,]" plaintiffs definitively allege the second condition is met. Indeed, defendants identify no controlling North Dakota Supreme Court precedent, and this court's research identifies none. But, as to the first condition, plaintiffs assert only that questions regarding the Trust Transparency Act's provisions "may be determinative of the instant proceedings[.]" Kotalik, Doc. 167, p. 2 (emphasis and punctuation altered); Selfors, Doc. 189, p. 2 (same). Plaintiffs, however, fail to explain how any portion of the Trust Transparency Act may be determinative of these proceedings. In this court's view, interpretation of the Trust Transparency Act could be determinative of these proceedings only if plaintiffs' failures to comply with section 32-46.1-02 resulted in dismissal of their cases. Plaintiffs nonetheless ask the court to "certify the question of the constitutionality of North Dakota Century Code Chapter 32-46.1 to the Supreme Court of North Dakota for a determination of whether this statutory package is violative of Article VI, § 3, and Article XI, § 26 of the North Dakota Constitution." Kotalik, Doc. 166, p. 1; Selfors, Doc. 188, p. 1.
While plaintiffs ask this court to certify a question regarding constitutionality of an entire chapter of the North Dakota Century Code to the North Dakota Supreme Court, plaintiffs note "one of the operative statutes" for purposes of moving defendants' motions is section 32-46.1-02, which pertains to plaintiffs' disclosures. Kotalik, Doc. 167, p. 3; Selfors, Doc. 189, p. 3. Plaintiffs add that moving defendants' motions also "mention" section 32-46.1-04, which relates to use of discovery materials at trial. Kotalik, Doc. 167, p. 4; Selfors, Doc. 189, p. 4. Plaintiffs admit they have not complied with the disclosure requirements of the Trust Transparency Act but contend filing claims with bankruptcy trusts "by this point in plaintiff[s'] proceedings is not required by any asbestos bankruptcy trust, nor by federal bankruptcy law, in order to proceed with the eventual filing of trust claims on behalf of the plaintiff[s]." Kotalik, Doc. 167, p. 4; Selfors, Doc. 189, p. 4.
A. Constitutional Arguments
Plaintiffs state article XI, section 26 of the North Dakota Constitution formalizes the separation of powers doctrine, which the North Dakota Supreme Court has recognized in several cases. Kotalik, Doc. 167, pp. 9-10; Selfors, Doc. 189, pp. 9-10. Plaintiffs' briefs include lengthy quotations from North Dakota Legislative Assembly v. Burgum, 916 N.W.2d 83 (N.D. 2018), which discusses the three branches of government and cites article XI, section 26 as vesting each branch "with a distinct form of power" and "keep[ing] those powers separate." Kotalik, Doc. 167, pp. 9-10; Selfors, Doc. 189, pp. 9-10. While that general statement may be true, this court notes Burgum relates to the constitutionality of certain executive branch vetoes and certain legislative bill provisions; therefore, that case is not instructive here.
Plaintiffs also include a lengthy quotation from State v. Hanson, 558 N.W.2d 611 (N.D. 1996), which discusses both article XI, section 26 and article VI, section 3—relating to the North Dakota Supreme Court's authority to promulgate procedural rules—and which states a procedural rule adopted by the North Dakota Supreme Court must prevail if it conflicts with a statutory procedural requirement. Kotalik, Doc. 167, pp. 10-11; Selfors, Doc. 189, pp. 10-11. However, this court notes that, in Hanson, the plaintiff specifically argued one section of the North Dakota Century Code conflicted with a rule of state criminal procedure. Here, plaintiffs generally argue the North Dakota Supreme Court has adopted case management and discovery rules—including North Dakota Rules of Civil Procedure 16, 26, 30, 33, 36, 37, and 45 —claiming the Trust Transparency Act "operates in direct conflict with multiple court rules" and "seriously infringes upon the exclusive authority of North Dakota District Courts to manage civil actions[.]" Kotalik, Doc. 167, pp. 12-13; Selfors, Doc. 189, pp. 12-13. Plaintiffs contend the Trust Transparency Act "represents statutory procedural rule-making of the precise type which is prohibited and proscribed under the Separation of Powers analysis required by Article XI, § 26 and Article VI, § 3 of the North Dakota Constitution." Kotalik, Doc. 167, p. 13; Selfors, Doc. 189, p. 13.
Plaintiffs further argue the Trust Transparency Act conflicts with North Dakota Rule of Evidence 408, which governs admissibility of evidence regarding compromise offers and negotiations. Kotalik, Doc. 167, p. 13; Selfors, Doc. 189, p. 13. Plaintiffs then quote a state district court order—issued more than four years before the Trust Transparency Act took effect—which concluded that evidence regarding bankruptcy trust settlement claims with non-parties was inadmissible under North Dakota Rule of Evidence 408. Kotalik, Doc. 167, pp. 14-15 (quoting Hoffman v. 999 Quebec, Inc., Cass Cty. Case No. 09-2010-CV-2724, Index #534); Selfors, Doc. 189, pp. 14-15 (same). Plaintiffs assert a portion of the Trust Transparency Act, section 32-46.1-04, is "in direct contradiction to these principles" of earlier state case law and Rule 408. Kotalik, Doc. 167, p. 15; Selfors, Doc. 189, p. 15. Plaintiffs contend moving "defendants' overriding purpose in seeking a requirement that ... plaintiff[s] produce these trust documents ... is to confuse the jury ... [and] give a false impression that the plaintiff has already received fair compensation in connection with [their] claims," adding the discovery sought is "confusing and meaningless[.]" Kotalik, Doc. 167, p. 17; Selfors, Doc. 189, p. 17. Plaintiffs allege consideration of moving defendants' motions "would place this federal district Court in the position of having to ‘predict’ how North Dakota state courts would decide the issues presented[.]" Kotalik, Doc. 167, p. 19 (emphasis omitted); Selfors, Doc. 189, p. 19 (same).
Plaintiffs also cite an Ohio Court of Appeals case, Werts v. Goodyear Tire & Rubber Co., No. 91403, 2009 WL 1564816, at *7-8 (Ohio Ct. App. June 4, 2009), describing the case as "exemplar" because that court concluded a bankruptcy trust proof of claim form was not admissible under Ohio Rule of Evidence 408. Kotalik, Doc. 167, pp. 16-17; Selfors, Doc. 189, pp. 15-17. However, plaintiffs neglect to acknowledge that the Ohio Court of Appeals further determined admission of the proof of claim form at issue was harmless error. Werts, 2009 WL 1564816 at *8. Also—in addition to Ohio case law not being binding—this court notes the Werts decision was issued in 2009, and Ohio enacted a statute in 2013 with disclosure requirements similar to North Dakota's Trust Transparency Act. See Ohio Rev. Code § 2307.952. In other words, the Werts court's discussion of admissibility of proof of claim forms may no longer bind Ohio trial courts.
Responding defendants contend it is unnecessary to certify a question to the North Dakota Supreme Court. Kotalik, Doc. 170, p. 1; Selfors, Doc. 202, p. 1. They note first the only portion of the Trust Transparency Act currently before this court in their motions is section 32-46.1-02(1) —the trust claims disclosure requirements, which moving defendants seek to enforce. Kotalik, Doc. 170, p. 2; Selfors, Doc. 202, p. 2. Responding defendants assert that, while plaintiffs claim the entire Act is unconstitutional, "none of these arguments appear particularly directed at the trust filing and disclosure provision of the Trust Transparency Act[.]" Kotalik, Doc. 170, p. 2; Selfors, Doc. 202, p. 3. Further, responding defendants allege plaintiffs have not explained why potential invalidity of other sections of the Trust Transparency Act would invalidate the disclosure provision. Kotalik, Doc. 170, p. 3; Selfors, Doc. 202, p. 3.
Responding defendants then state that, although plaintiffs contend the Trust Transparency Act is unconstitutional because it conflicts with North Dakota Rules of Civil Procedure and a North Dakota Rule of Evidence, plaintiffs make no arguments the Trust Transparency Act conflicts with any federal rules. Kotalik, Doc. 170, p. 3; Selfors, Doc. 202, p. 3. Responding defendants note this court first obtained jurisdiction over the cases pursuant to the federal officer statute, and the court continues to exercise supplemental jurisdiction over the remaining claims after dismissal of the removing defendants; therefore, they claim the court's role "is similar to a court sitting in diversity." Kotalik, Doc. 170, p. 3 (citing Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) ; Winters v. Diamond Shamrock Chem. Co., 941 F. Supp. 617, 620 (E.D. Tex. 1996) ); Selfors, Doc. 202, p. 3 (same). Accordingly, responding defendants contend this court must apply state substantive law and federal procedural law. Kotalik, Doc. 170, p. 3 (citing In re Baycol Prod. Litig., 616 F.3d 778, 785 (8th Cir. 2010) ); Selfors, Doc. 202, p. 3 (same).
Responding defendants thus contend the Federal Rules of Civil Procedure and Federal Rules of Evidence apply to plaintiffs' cases, rather than the North Dakota Rules. Kotalik, Doc. 170, p. 3; Selfors, Doc. 202, p. 3. Responding defendants conclude that whether there is a conflict between the Trust Transparency Act and state procedural rules is therefore irrelevant. Kotalik, Doc. 170, p. 4; Selfors, Doc. 202, p. 4. They allege an opinion from the North Dakota Supreme Court would be advisory as the constitutional challenge is "purely academic and does not represent a real dispute because it is based on an alleged conflict between the Trust Transparency Act and procedural rules that do not apply to this action." Kotalik, Doc. 170, p. 4; Selfors, Doc. 202, p. 4.
Responding defendants add plaintiffs' arguments as to the Trust Transparency Act conflicting with North Dakota Rule of Evidence 408 are not ripe. Responding defendants note plaintiffs have not even disclosed the materials the Trust Transparency Act requires produced; therefore, the proposed certified question might require the North Dakota Supreme Court to speculate about how defendants would use evidence at trial—"before Defendants have indicated an intent to use [it] in an allegedly inappropriate manner." Kotalik, Doc. 170, p. 6; Selfors, Doc. 202, p. 6.
Responding defendants correctly state that, when sitting in federal officer jurisdiction, the court's role is similar to its role when exercising diversity jurisdiction. See, e.g., Manypenny, 451 U.S. at 241, 101 S.Ct. 1657 ; Kolibash v. Comm. on Legal Ethics of W. Va. Bar, 872 F.2d 571, 576-77 (4th Cir. 1989) ; Gallelli v. Prof'l Ins. Mgmt., No. 92-5812, 1994 WL 45729, at *3 (E.D. Pa. Feb. 10, 1994). Although the defendants who removed these cases pursuant to the federal officer statute have now been dismissed, the federal court continues to exercise supplemental jurisdiction over the remaining claims. It is well-settled the federal courts apply federal procedural law and state substantive law in the context of pendent jurisdiction over supplemental state law claims. See Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (citing Mangold v. Cal. Pub. Util. Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995) ("The Erie principles apply equally in the context of pendent jurisdiction."); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ; Klade v. Altru Health Sys., No. 2:15-cv-72, Doc. 33, pp. 4-5 (D.N.D. July 29, 2016) (in a diversity suit, the court applied a North Dakota law regarding the statute of limitations in a medical malpractice action). Thus, the Federal Rules of Civil Procedure and the Federal Rules of Evidence clearly govern procedural and evidentiary matters, respectively, in these cases.
Responding defendants also correctly state plaintiffs have not asserted any portion of the Trust Transparency Act conflicts with any federal rule. Further, plaintiffs do not explain why they seek certification of a question regarding the validity of an entire chapter of the North Dakota Century Code, rather than a specific section. And this court agrees with responding defendants' statement that, even if the federal court were to certify the proposed question, the North Dakota Supreme Court would likely decline to address the question because its opinion would be purely advisory at this stage of the proceedings. Furthermore, this court notes plaintiffs did not file reply briefs—which could be viewed as acknowledging shortcomings in their motions. In this court's opinion, plaintiffs' constitutional arguments do not raise a "close" question of state law. See Perkins, 823 F.2d at 209. This court therefore turns to consider whether plaintiffs' arguments regarding joint and several liability raise a "close" question of state law.
B. Joint and Several Liability Arguments
Plaintiffs contend the Trust Transparency Act is erroneously based on a presumption that joint and several liability still exists in North Dakota asbestos litigation. Kotalik, Doc. 167, p. 5; Selfors, Doc. 189, p. 5. Plaintiffs refer to North Dakota Century Code section 32-03.2-02, which pertains to modified comparative fault, and assert "it is the percentage of fault, as opposed to the fact or amount of a settlement, which is determinative of liability of any other party." Kotalik, Doc. 167, p. 5 n.2; Selfors, Doc. 189, p. 5 n.5. Plaintiffs characterize the Trust Transparency Act as "nothing less than a ham-handed, ‘one-size-fits-all’, ‘cookie-cutter’ monstrosity concocted and peddled by asbestos product manufacturers, the notorious American Legislative Exchange Council (ALEC), and the United States Chamber of Commerce." Kotalik, Doc. 167, p. 5; Selfors, Doc. 189, p. 5. Plaintiffs claim moving defendants, in making their motions to compel, rely on case law from other jurisdictions and on law review articles that do not "take into account non-bankrupt defendants' liability under the law of several liability jurisdictions such as North Dakota[.]" Kotalik, Doc. 167, p. 6; Selfors, Doc. 189, p. 6. Next, plaintiffs generally discuss—in over two pages of briefing—asbestos bankruptcy trusts and the process for filing trust claims; however, plaintiffs do not provide any citations to support that discussion, nor do they explain how that discussion is relevant to their motions to certify. Kotalik, Doc. 167, pp. 6-8; Selfors, Doc. 189, pp. 6-8.
Plaintiffs also cite Bossert v. Keene Corp., 19 F.3d 1437 (8th Cir. 1994) (unpublished per curiam decision), arguing "the Eighth Circuit made clear ... it is the percentage of fault assigned by the fact finder to a settling or non-present party through which a judgment is reduced, or offset—not the dollar amount or terms of settlement." Kotalik, Doc. 167, p. 18; Selfors, Doc. 189, p. 18. Focusing on whether evidence is admissible, rather than subject to disclosure, plaintiffs contend "it is the relevant portion of fault of the settling party—not the fact or the amount of settlement—which is relevant and immaterial [sic]." Kotalik, Doc. 167, p. 18; Selfors, Doc. 189, p. 18. They claim defendants "have multiple avenues of discovery to determine to which now-bankrupt defendants' asbestos-containing products a plaintiff (or decedent) was exposed[.]" Kotalik, Doc. 167, p. 18; Selfors, Doc. 189, p. 18.
Responding defendants note their motions to compel are not related to the admissibility of trust claims materials but only to the disclosure of those materials. Kotalik, Doc. 170, p. 10; Selfors, Doc. 202, p. 10. With regard to plaintiffs' argument that defendants will attempt to use trust claims evidence to confuse a jury, responding defendants claim plaintiffs are effectively asking the court to rule on a motion in limine that has not yet been made, regarding trust claims evidence that has not yet been produced. Kotalik, Doc. 170, p. 11; Selfors, Doc. 189, p. 11. As to plaintiffs' joint and several liability arguments, defendants assert the Trust Transparency Act does not directly conflict with several liability; defendants add, "Exposure evidence is undoubtedly relevant to an accurate assessment of fault, including that of bankrupt entities ...." Kotalik, Doc. 163, p. 7; Selfors, Doc. 190, p. 7.
Defendants' response brief to plaintiffs' motions does not expressly address arguments regarding joint and several liability. However, as stated above, plaintiffs filed nearly identical briefs in connection with both the motions to compel and the motions to certify. Plaintiffs thus raise the same arguments in their briefs on both motions, and defendants' reply brief to the motions to compel addresses plaintiffs' joint and several liability arguments.
In this court's opinion, plaintiffs have not asserted a "close" question of state law—that the Trust Transparency Act's disclosure requirements conflict with North Dakota's modified comparative fault statute—so as to warrant certification of a question to the North Dakota Supreme Court. The court notes North Dakota's modified comparative fault statute provides, in relevant part:
When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.
N.D. Cent. Code § 32-03.2-02 (emphasis added).
The court notes the Trust Transparency Act's disclosure requirements mandate plaintiffs provide the following: (1) a sworn statement "indicating an investigation of all asbestos trust claims has been conducted and all asbestos trust claims that could be made by the plaintiff have been filed"; (2) "all trust claims materials, including materials related to the conditions other than those that are the basis for the asbestos action and any materials from all law firms connected to the plaintiff in relation to the plaintiff's exposure to asbestos"; and (3) "all available trust claims materials submitted to any asbestos trusts by other individuals if the plaintiff's asbestos trust claim is based on exposure to asbestos through those individuals." N.D. Cent. Code § 32-46.1-02(1). Presumably, the material required to be disclosed under the Trust Transparency Act would aid in determining sources of plaintiffs' asbestos exposure. But disclosure of that information would not impact defendants' several liability.
Paintiffs do not question that defendants are entitled to information about sources of asbestos exposure; instead, plaintiffs argue defendants should discover that information through other means. While the court recognizes defendants might obtain information regarding a decedent's asbestos exposure through other means of discovery, the North Dakota Legislature has enacted a law that requires plaintiffs to disclose that information to defendants. Moreover, regardless of how the information is obtained, all sources of asbestos exposure would likely be included on a verdict form for purposes of apportioning fault. Plaintiffs contend evidence of trust claims might give a jury the impression the plaintiff has already received fair compensation and therefore might somehow limit the jury's assignment of fault to the solvent defendants. But, at this stage of the proceedings, only the disclosure requirements are at issue—evidentiary issues will be decided at trial. In sum, the court cannot accept plaintiffs' reasoning that the Trust Transparency Act's disclosure requirements are somehow inconsistent with several liability. Accordingly, this court will deny plaintiffs' motions to certify the proposed question. This court then turns its attention to moving defendants' motions to enforce plaintiffs' compliance with the Trust Transparency Act's disclosure requirements.
2. Defendants' Motions to Enforce Compliance
Moving defendants note the Trust Transparency Act became effective on August 1, 2017, and Kotalik and Selfors commenced their actions in October 2018 and November 2018, respectively. Kotalik, Doc. 159, p. 2; Selfors, Doc. 183, p. 2. Moving defendants assert that, because plaintiffs' claims arise out of decedents' alleged asbestos exposure and were commenced after August 1, 2017, the Trust Transparency Act applies to their claims. Kotalik, Doc. 159, p. 2; Selfors, Doc. 183, p. 2.
A. Additional Background
As discussed above, moving defendants provide background information regarding enactment of the Trust Transparency Act, noting fifteen other states have passed similar legislation. Kotalik, Doc. 159, pp. 3-9; Selfors, Doc. 183, pp. 3-9. They claim North Dakota enacted the Trust Transparency Act "to curb the problems and abuses described above and foster transparency regarding the trust claim process[.]" Kotalik, Doc. 159, p. 9; Selfors, Doc. 183, p. 9. They point to the disclosure requirements of subsection 1 of North Dakota Century Code section 32-46.1-02, which are quoted in full above, and also to subsection 3, which provides, "The court may dismiss an asbestos action if the plaintiff fails to comply with this section." Kotalik, Doc. 159, pp. 9-10; Selfors, Doc. 183, pp. 9-10.
Moving defendants next cite section 32-46.1-04, which relates to discovery and the use of trust materials:
1. Trust claims materials and trust governance documents are presumed to be relevant and authentic and are admissible in evidence. A claim of privilege does not apply to any trust claims materials or trust governance documents.
2. A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege to bar discovery and shall provide consent or other expression of permission as required by the asbestos trust to release information and materials sought by the defendant.
3. Trust claims materials sufficient to entitle a claim to consideration for payment under the applicable trust governance documents may be sufficient to support a jury finding that the plaintiff may have been exposed to products for which the trust was established to provide compensation and that such exposure may be a substantial contributing factor in causing the plaintiff's injury.
Kotalik, Doc. 159, p. 11; Selfors, Doc. 183, p. 11. Moving defendants also cite the Trust Transparency Act's sanctions provision at section 32-46.1-06, which states, in pertinent part, "The court may impose any sanction provided by court rule or law upon the motion of a defendant or judgment debtor seeking sanctions or other relief for failure to comply with the requirements of this chapter." Kotalik, Doc. 159, p. 11; Selfors, Doc. 183, p. 11.
In support of their motions, moving defendants have filed transcripts from legislative hearings on the Trust Transparency Act. Kotalik, Doc. 160-13 to -16; Selfors, Doc. 184-13 to -16. Moving defendants argue the hearing transcripts "demonstrate that the purpose of the legislation was to help juries reach fully informed decisions when apportioning fault in asbestos injury cases" by enabling juries to consider evidence regarding the liability of both named defendants and "the typically most culpable parties—entities that have filed for bankruptcy protection for which trusts have been created to provide compensation." Kotalik, Doc. 159, p. 12; Selfors, Doc. 183, p. 12.
B. Substantive Versus Procedural Law
Moving defendants assert this court must apply the disclosure requirements of North Dakota's Trust Transparency Act, despite the federal forum, because that law is substantive, rather than procedural. Kotalik, Doc. 159, pp. 15-18; Selfors, Doc. 183, p. 15-18. As previously noted, plaintiffs' briefs in support of their motions to certify a question to the North Dakota Supreme Court are almost identical to their briefs responding to moving defendants' motions to enforce compliance with the Trust Transparency Act. This court detailed plaintiffs' arguments in section 1 above. Further, this court notes plaintiffs do not directly address defendants' position that the disclosure requirements of the Trust Transparency Act are substantive, and not procedural, law—although plaintiffs' briefs begin by referring to moving defendants' motions as involving a "North Dakota state substantive law[.]" Kotalik, Doc. 162, p. 1 (emphasis added); Selfors, Doc. 186, p. 1 (same). Thus, this court considers whether the Trust Transparency Act's disclosure requirements are substantive or procedural.
In addressing whether a law is one of procedure or substance, the United States Supreme Court has framed the operative question: "does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?" Guar. Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). That test has subsequently been referred to as the "outcome-determination" test. See Hanna v. Plumer, 380 U.S. 460, 466-68, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). The Supreme Court has added the "outcome-determination" test "cannot be read without reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." Id. at 468, 85 S.Ct. 1136 (footnote omitted).
Applying that test, this court concludes the Trust Transparency Act's disclosure requirements contained in North Dakota Century Code section 32-46.1-02 should indeed be construed as substantive law. If this court were to disregard those requirements—which would apply if the parties were proceeding in state court—it could significantly affect the results of the cases. Recognizing the Trust Transparency Act's disclosure requirements as substantive law also satisfies the twin aims of Erie: to discourage forum-shopping and to avoid inequitable administration of the law. Having concluded the disclosure requirements of section 32-46.1-02 are substantive, the court next considers interpretation and application of those requirements. C. Interpretation and Application of the Trust Transparency Act's Disclosure Requirements
Because defendants' motions seek to enforce plaintiffs' compliance with the disclosure requirements of section 32-46.1-02, Kotalik, Doc. 159, p. 3; Selfors, Doc. 183, p. 3, the court only concludes those portions of the statute are substantive. To the extent that other portions of the Trust Transparency Act purport to dictate procedural matters—for example, scheduling of trial—the court recognizes the Federal Rules of Civil Procedure would govern.
Moving defendants state the "interpretation of a statute is a question of law, requiring the court to look at the language of the statute, giving words their plain, ordinary, and commonly understood meaning, and construing the statute as a whole." Kotalik, Doc. 159, p. 18; Selfors, Doc. 183, p. 18. They add that words must be construed in context and following grammar rules. Kotalik, Doc. 159, p. 19; Selfors, Doc. 183, p. 18. This court notes defendants correctly state the considerations for statutory interpretation. See, e.g., Palmer v. Gentek Building Prods., Inc., 936 N.W.2d 552, 559 (N.D. 2019) (quoting In re N.A., 879 N.W.2d 82, 84 (N.D. 2016) ); N.D. Cent. Code § 1-02-02 ("Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained."); N.D. Cent. Code § 1-02-03 ("Words and phrases must be construed according to the context and the rules of grammar and the approved usage of the language. Technical words and phrases and such others as have acquired a peculiar and appropriate meaning in law, or as are defined by statute, must be construed according to such peculiar and appropriate meaning or definition.").
Moving defendants assert that, although neither the North Dakota Supreme Court nor any federal appellate courts have yet addressed the requirements of the Trust Transparency Act, this court "may glean insight from other states, as well as from the Supreme Court's own past interpretations concerning similar statutes." Kotalik, Doc. 159, p. 19 (citing State v. Morsette, 924 N.W.2d 434, 439 (N.D. 2019) ; Weasel v. St. Alexius Med. Ctr., 230 F.3d 348, 353 (8th Cir. 2000) (holding "we are bound by the intent of the [state] legislature as expressed in the plain wording of the statute")); Selfors, Doc. 183, pp. 18-19 (same). As an example, moving defendants discuss a North Dakota statute requiring medical malpractice plaintiffs to serve an affidavit substantiating their claims. Kotalik, Doc. 159, p. 19 (discussing N.D. Cent. Code § 28-01-46 ); Selfors, Doc. 183, p. 19 (same). Under that statute, moving defendants add a plaintiff must, within three months of commencing a medical malpractice suit, serve the defendant "with an expert affidavit containing, inter alia , an admissible expert opinion supporting a prima facie case of professional negligence; failure to do so within the stated time frame obligates the district court to dismiss the case without prejudice." Kotalik, Doc. 159, p. 19; Selfors, Doc. 183, p. 19.
Moving defendants allege the North Dakota Supreme Court has upheld that statute, holding it was "designed to minimize frivolous or nuisance claims against physicians, ... acts as a preliminary screening device[ ] to rid the court of totally unsupported cases, and seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim." Kotalik, Doc. 159, p. 20 (internal quotation marks omitted) (citing Greenwood v. Paracelsus Health Care Corp. of N.D., Inc., 622 N.W.2d 195, 199 (N.D. 2001) ); Selfors, Doc. 183, p. 19 (same). Moving defendants argue the Trust Transparency Act's disclosure requirements address similar concerns in that the purpose is "to help juries reach fully informed decisions when apportioning fault in asbestos injury cases .... [T]he Trust Transparency Act promotes the integrity of the justice system by providing a more accurate picture for the jury to assign fault, prohibiting double dipping, and facilitating a process that is open and fair." Kotalik, Doc. 159, p. 20; Selfors, Doc. 183, p. 20. Moving defendants also assert one North Dakota state district court found the Trust Transparency Act's disclosure requirements applicable in "a nearly-identical case," Wallock v. A.H. Bennett Co., Cass Cty. Case No. 09-2018-CV-2167. Kotalik, Doc. 159, p. 2; Selfors, Doc. 183, p. 2. Moving defendants assert the Wallock court "ordered the plaintiff—who is represented by the same counsel as Plaintiff[s] herein—to comply with the disclosure requirements in Section 32-46.1-02(1), or face dismissal of the action." Kotalik, Doc. 159, p. 2; Selfors, Doc. 183, p. 2. In support of their motions, moving defendants included a copy of the Wallock court's order. Kotalik, Doc. 160-1; Selfors, Doc. 184-1.
Moving defendants discuss the state district court's findings in Wallock after hearing "lengthy argument[,]" adding plaintiffs raised arguments "identical in all material respects" to the motions before this court. Kotalik, Doc. 159, pp. 12-13; Selfors, Doc. 183, pp. 12-13. Moving defendants assert the state court "expressly adopted the reasoning and rationale of defense counsels['] filings," stating the state court "found that the Trust Transparency Act passed constitutional muster under both a facial and as-applied basis" and that the Trust Transparency Act's disclosure requirements were clear and plain. Kotalik, Doc. 159, pp. 13, 21; Selfors, Doc. 183, pp. 13, 20. They note the Wallock court ordered plaintiffs to provide a sworn statement regarding investigation of trust claims and to provide all trust claims materials related to the plaintiff. Kotalik, Doc. 159, p. 21; Selfors, Doc. 183, pp. 20-21. Moving defendants add the Wallock court ordered that, if the plaintiff did not fully comply within thirty days, the case would be dismissed upon motion; however, the plaintiff timely complied with the court's order. Kotalik, Doc. 159, p. 21; Selfors, Doc. 183, p. 21.
Moving defendants conclude "there is simply no authority authorizing or permitting Plaintiff[s], or any other plaintiff, to willfully and deliberately ignore validly-enacted North Dakota law; law which the Cass County District Court found contained clear, specific (and constitutional) obligations." Kotalik, Doc. 159, p. 22; Selfors, Doc. 183, p. 21. Moving defendants thus request an order directing plaintiffs to comply with North Dakota Century Code section 32-46.1-02(1)'s disclosure provisions within thirty days of the court's order. Kotalik, Doc. 159, p. 22; Selfors, Doc. 183, p. 21. They further request that, if plaintiffs fail to follow the court's order, plaintiffs' complaints be dismissed with prejudice under North Dakota Century Code section 32-46.1-02(3). Kotalik, Doc. 159, p. 22; Selfors, Doc. 183, p. 21.
Plaintiffs do not directly respond to moving defendants' arguments regarding the purposes and interpretation of the Trust Transparency Act's disclosure requirements. Instead, plaintiffs contend the Trust Transparency Act is unconstitutional and "has no place in North Dakota" because defendant liability has been "restricted ... to being several[—]rather than joint and several ... by the North Dakota Legislative Assembly during its 1987 Session[.]" Kotalik, Doc. 162, p. 6 (emphasis omitted); Selfors, Doc. 186, p. 5 (same). Furthermore, plaintiffs do not directly respond to moving defendants' statements regarding the state court's decision in Wallock, nor do they directly respond to moving defendants' comparison of the Trust Transparency Act's disclosure requirements to a medical malpractice statute that has been upheld by the North Dakota Supreme Court.
The court has carefully reviewed the sections at issue in the Trust Transparency Act, along with the record evidence of its legislative history, which moving defendants have correctly summarized. See generally Kotalik, Doc. 160-13 to -16; Selfors, Doc. 184-13 to -16. Additionally, this court considers persuasive moving defendants' arguments that liken the Trust Transparency Act's disclosure requirements to certain statutory requirements in medical malpractice cases. Moreover, the court considers the same attorneys have raised essentially the same arguments previously in state district court, the state district court expressly stated it "adopted the reasoning[/]rational[e] of defense counsels' briefs ... as the Court's own[,]" Kotalik, Doc. 160-2, p. 89; Selfors, Doc. 184-2, p. 89, and the state district court ordered plaintiff's compliance with the Trust Transparency Act's disclosure requirements.
The court notes David Thompson, one of plaintiffs' counsel, testified before the North Dakota Legislature that, after a portion of the proposed bill—which was not included in the final bill—was stricken, he did not oppose the bill. Kotalik, Doc. 160-13, p. 35; Selfors, Doc. 184-13, p. 35. Before the House Judiciary Committee, Thompson testified, "I think that the proposal is a good win for both sides, and I think that it benefits everyone.... I ... understand legal issues that are implicated by this bill, and I think this is a good resolution for both sides." Kotalik, Doc. 160-13, pp. 37-39; Selfors, Doc. 184-13, pp. 37-39. Before the Senate, Thompson was introduced as "in neutral support" of the bill, to which Thompson replied, "Yeah, that's -- that's a good way of putting it." Kotalik, Doc. 160-15, p. 41; Selfors, Doc. 184-15, p. 41. Referring to the portion stricken from the proposed bill, Thompson further testified "we reached an agreement with the proponents of the bill, and we were pleased to do that." Kotalik, Doc. 160-15, p. 41; Selfors, Doc. 184-15, p. 41.
This court concludes section 32-46.1-02(1) clearly and plainly requires plaintiffs to provide a statement verifying "an investigation of all asbestos trust claims has been conducted and all asbestos trust claims that could be made by the plaintiff have been filed." That disclosure—in the form of a sworn statement signed by plaintiffs and their counsel—should have been provided to the court and parties within thirty days of the cases being filed. Id. Plaintiffs do not dispute they have not done so, nor have they responded to defense counsel's numerous requests to do so. Therefore, this court will grant moving defendants' motions and order plaintiffs to comply with section 32-46.1-02(1) within thirty days of the court's order. If plaintiffs fail to do so, their cases might be subject to a sanction, up to dismissal, pursuant to section 32-46.1-02(3).
3. Joint Motions for a Hearing
The parties' briefs having been sufficient, the court will deny the joint motions for a hearing.
Conclusion
For the reasons discussed above, it is ORDERED that:
(1) plaintiffs' motions to certify a question to the North Dakota Supreme Court, Kotalik, Doc. 166; Selfors, Doc. 188, are DENIED ;
(2) moving defendants' motions to enforce plaintiffs' compliance with the Trust Transparency Act's disclosure requirements, Kotalik, Doc. 158; Selfors, Doc. 182, are GRANTED , and plaintiffs must comply with those requirements within thirty days of the date of this order; and
(3) the joint motions for a hearing on moving defendants' motions, Kotalik, Doc. 165; Selfors, Doc. 191, are DENIED .