Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:O4—cv-01294-JJF Document 61 Filed O3/O2/2006 Page 1 of 3
UNITED STATES DISTRICT COURT
FOR THE DISTRIC'T OF DELAWARE
FLOWSERVE CORPORATION, )
Plaintiff, g
v. ) C.A. No. 04-1294-JJF
BURNS INTERNATIONAL SERVICES g
CORPORATION and BORG-WARNER )
CORPORATION, )
Defendants. g
, PLAINTIFF/COUNTER-DEFENDANT FLOWSERVE CORPORATION’S
MOTION FOR LEAVE TO FILE ITS MOTION IN OPPOSITION
TO BURNS INTERNATIONAL SERVICE CORPORATION’S MOTION
FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiff/Counter-Defendant Flowserve Corporation ("Flowserve") hereby moves this
Court for entry of an Order allowing Flowserve leave to file its motion in opposition to Bums
Intemational Services’ Motion for Temporary Restraining Order and Preliminary Injunction,
together with supporting memorandum. In support hereof, Flowserve states as follows:
l. The present lawsuit involves claims and counterclaims pertaining to the parties’
respective rights and obligations with regard to the defense and indemnification of Flowserve in
connection with thousands of pending asbestos liability cases.
2. Burns’ present motion seeks extraordinary, unwarranted, and unnecessary relief.
Its motion requests an injunction barring Flowserve from terminating its attorney-client
relationship with certain national and local counsel who have, until now, been representing both
Bums and Flowserve. Bums argues, incorrectly, that it will suffer "irreparable harm" if
Flowserve is represented by separate counsel since that would result in "at least two sets of
attorneys involved in the same case defending the same claims" and thereby precipitate
"inconsistencies and confusion which will invariably interfere with the proper and efficient
defense of the claims." Burns’ motion, not surprisingly, is silent regarding significant conflict-

Case 1 :04-cv-01294-JJF Document 61 Filed O3/O2/2006 Page 2 of 3
of-interest issues that have arisen with respect to Flowserve’s continued representation by “the
national network of appointed defense counsel" to which Bums’ motion refers. The TRO and
preliminary injunction sought would place Flowserve into the untenable position of having to
allow conflicted counsel to continue with its representation. (In contrast, Burns will still be
represented by counsel of its own choosing.) Thus, Burns is incorrect in its assertion that
"Flowserve cannot reasonably contend that any harm will befall it if the requested injunctive
relief is granted." (Bums’ motion at p. 8) Furthermore, Burns’ argument regarding "irreparable
harm" resulting from separate representation is utterly specious.
Burns’ request for a restraining order and injunctive relief is further undermined by its
circular reasoning. On the one hand, Burns claims that its actions in forwarding asbestos cases
tendered by Flowserve for defense to BWC insurance carriers have been taken solely under the
terms of the Letter Agreement (Bums motion, exhibit B), not under the Stock Purchase
Agreement itself (Bums motion, exhibit A.) But the Letter Agreement does not confer upon
Burns the exclusive right to control designation of defense counsel. Nonetheless, Burns persists in
its argument that Flowserve "has no right to select or appoint its own counsel." (Burns motion at
p.5.) However, to support this statement, Burns then points to the language contained in
Paragraph 9.04(d) of the Stock Purchase Agreement, though it glosses over the requirement that
counsel must be reasonably satisfactory to the Indemnyied Party. Burns cannot have it both
ways here. To the extent it looks to the contract language as the basis for its purported control
over selection of counsel, it cannot engage in such a partial, selective reading. Flowserve clearly
has enforceable, contract—based rights to take its present actions consistent with all its remaining
rights under the contract documents. Flowserve will expand upon this in its written motion and
supporting memorandum.
3. In addition to seeking Court-sanctioned interference with Flowserve’s attorney
client relationships, Burns’ motion also seeks to prevent Flowserve from engaging in any effort to
negotiate a resolution of the underlying asbestos cases filed against it. This extraordinary request

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directly contravenes long-standing public policy favoring the resolution of lawsuits. None of the
materials submitted by Burns demonstrates a factual basis for its conclusion that it will be
irreparably harmed should Flowserve succeed in its contemplated negotiated resolution approach.
Furthermore, Burns is without standing to argue irreparable harm on behalf of "others who are
relying on the BWC coverage." (Burns’ motion at p. 6).
4. All the potential/anticipated/speculativeissues raised by Burns can be efficiently
litigated within the four comers of the relief sought by both parties in their pleadings. This case is
essentially a contract dispute, and any economic or consequential damages allegedly associated
with any breach by either side can be remedied through the balance of this litigation. Nothing
remotely approaching "irreparable harm" has been demonstrated.
5. For these, and other, reasons, Flowserve respectfully requests that the Court
refrain from any unwarranted "rush to judgment" and instead allow Flowserve leave to file its
motion in opposition, together with supporting memorandum, on or before March 13, so that the
Court may be more fully informed regarding the issues precipitating the present activity.
Segal McCambridge Singer & Mahoney, Ltd.
/
Gre E ogus, s .
330 N. Wabash Drive, uite 200
Chicago, IL 60611
312—645—’7800
Attorneys for Flowserve
TYBOUT, REDFEARN & PELL
/s/ Danielle K. Yearick
Danielle K. Yearick, 1.D. No. 3668
750 South Madison Street, Suite 400
P.O. Box 2092
Wilmington, DE 19899-2092
(302) 658-6901
Local counsel for Plaintiff Flowserve
Dated: March 2, 2006