Aguirre et al v. A.P. Green Industries Incorporated et al

Filing 103

ORDER granting #46 General Electric Company's Motion to Dismiss; and granting #64 Plaintiff's Motion for expedited discovery, Discovery will close on 5/11/2012. Plaintiffs shall have up to and including May 25, 2012 to file a motion to amend the complaint. If a motion to amend is not timely filed, this action shall be dismissed with prejudice. Scheduling Conference re-set for 7/13/2012 at 02:00 PM in Courtroom 506, 401 West Washington Street, Phoenix, AZ 85003 before Judge Frederick J Martone. Signed by Judge Frederick J Martone on 3/7/12.(LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17

Linda Aguirre; Norma J. Garcia,

)
)
Plaintiffs,
)
)
vs.
)
)
)
Amchem Products Inc.; Certainteed Corp.;)
DB Riley Inc.; Foster Wheeler Corp.;)
General Electric Co.; Georgia Pacific)
Corp.; Goulds Pumps Inc.; Honeywell)
International Inc.; Ingersoll-Rand Co.;)
Owens-Illinois Inc.; Union Carbide Corp.,)
)
Defendants.
)
)
)

CV 11-01907-PHX-FJM
ORDER

18
19

The court has before it defendant General Electric’s (“GE”) motion to dismiss (doc.

20

46), plaintiffs' response (doc. 86), and GE's reply (doc. 92). All other defendants joined in

21

the motion to dismiss.1 We also have before us plaintiffs' second motion for expedited

22

discovery (doc. 64), GE's response (doc. 75), and plaintiffs' reply (doc. 91).2 Although

23
24
25
26
27
28

1

Joining are Goulds Pumps (doc. 50), DB Riley (doc. 59), Amchem Products (doc.
68), Certainteed (doc. 69), Union Carbide (doc. 70), Owens-Illinois (doc. 74), Ingersoll-Rand
(doc.76), Honeywell (doc. 77), Georgia Pacific (doc. 80), and Foster Wheeler (doc. 88).
2

The following defendants joined in GE's response: Ingersoll-Rand (doc. 78),
Honeywell (doc. 79), Georgia Pacific (doc. 81), Certainteed (doc. 82), Amchem Products
(doc. 83), Union Carbide (doc. 84), Owens-Illinois (doc. 85), DB Riley (doc. 87), and Foster
Wheeler (doc. 89).

1

defendants originally objected to plaintiff’s motion, the parties recently filed a stipulation

2

asking us to permit plaintiffs to conduct early discovery and reschedule the Rule 16

3

scheduling conference, which is currently set for March 16, 2012 (doc. 101).

4

I

5

Plaintiffs are the children of Johnny Griego, who died on October 11, 2010. Griego

6

worked as a laborer in Arizona for several years. Plaintiffs filed this action on September

7

27, 2011, alleging that defendants sold or distributed asbestos products, and that Griego's

8

exposure to dust from asbestos products caused him to develop cancer and die. Plaintiffs

9

assert five counts for relief. The counts are not identified, but appear to be claims relating

10

to failure to test and to warn; products liability; allegations of conspiracy; and breach of

11

warranty.

12

II

13

Defendants move to dismiss the complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P.

14

Plaintiffs filed their response two days late without first requesting an extension of time.

15

Defendants object to the late filing, but do not argue that they have been prejudiced by the

16

delay. We grant plaintiffs' request for leave to file their response after the deadline nunc pro

17

tunc.

18

When considering a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., we accept

19

well-pleaded facts as true and "construe the complaint in the light most favorable to the

20

plaintiff." Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). The complaint must

21

contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp.

22

v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). A claim is facially plausible

23

if the facts pled permit a court to "draw the reasonable inference that the defendant is liable

24

for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949

25

(2009). If a complaint's allegations are merely consistent with liability, it stops short of being

26

plausible. Id. at __, 129 S. Ct. at 1949. Defendants contend that the complaint fails under

27

Twombly and Iqbal. They argue that the causes of action are not identified, the only factual

28

allegations in the complaint refer to companies that are not defendants, and no information
-2-

1

regarding the time period, location, or objects of Griego’s exposure is provided.

2

Plaintiffs argue that their allegations that each defendant placed asbestos products into

3

the stream of commerce and that Griego was exposed to these products, developed cancer,

4

and died render their claims plausible.3 Plaintiffs argue that requiring more facts as to "when,

5

where and how" Griego was exposed to asbestos "would improperly impose burdensome and

6

hyper-technical requirements." Response at 5. We disagree. Although Rule 8, Fed. R. Civ.

7

P. does not require plaintiffs to plead every single factual detail, it nevertheless demands that

8

plaintiffs present enough information to "permit the court to infer more than the mere

9

possibility of misconduct." Iqbal at __, 129 S. Ct. at 1950. Plaintiffs' complaint is factually

10

threadbare. They allege that their father worked as a laborer "at various locations" in

11

Arizona "for many years." Compl. at ¶ 5. They do not provide any additional detail, such

12

as what industries he worked in, what types of activities he performed, or even during what

13

decades their father worked. Plaintiffs allege that defendant Owens-Illinois did not advise

14

purchasers that its product, Kaylo, caused asbestosis in animals. Id. at ¶ 10(i). But plaintiffs

15

do not allege any link between Kaylo and Griego, and do not allege in their complaint that

16

Griego developed asbestosis. See id. at ¶ 5 (exposure to asbestos caused Griego "to develop

17

an asbestos-related disease, cancer").

18

Without any facts suggesting a temporal or geographic link between the asbestos

19

products that Griego was exposed to and the asbestos products manufactured and sold by

20

defendants, we cannot draw a reasonable inference that defendants - as distinguished from

21

any other asbestos manufacturers - are liable for Greigo's death. See Iqbal at __, 129 S. Ct.

22

at 1949. Although the facts pled are arguably consistent with liability, they stop short of

23

being plausible. See id.; see also Bulanda v. A.W. Chesterton Co., 11-C-1682, 2011 WL

24

2214010, at *2 (N.D. Ill. June 7, 2011) (plaintiff's allegations that defendants sold asbestos

25

products that caused decedent's death failed to state a claim for products liability and

26
27
28

3

Plaintiffs also argue that their action is timely. Because defendants did not argue that
the complaint was untimely, we do not address the issue of timeliness here.
-3-

1

wrongful death when the complaint only stated the names of two places decedent worked and

2

the years he worked there).

3

Plaintiffs' fourth count pleads facts outlining a conspiracy to cover up information

4

regarding the hazards of asbestos. Compl. at ¶¶ 18-21. Although plaintiffs make reference

5

to various corporations and individuals within this count, and claim that Griego "was exposed

6

to the asbestos products manufactured by one or more of the [d]efendants named in

7

paragraph 20," id. at ¶ 19, none of the "defendant conspirators" named in this paragraph

8

were sued by plaintiffs. Plaintiffs have not alleged any link between the actions of these

9

conspirators and the defendants they chose to sue. Thus, plaintiffs have also failed to state

10

a plausible claim for relief in count four.

11

In sum, plaintiffs' complaint includes nothing more than "a sheer possibility" that

12

defendants acted unlawfully. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949. The accusations fall

13

short of the plausibility required to survive a Rule 12(b)(6) motion to dismiss. Id.

14

III

15

Plaintiffs request leave to file an amended complaint. They have not filed a formal

16

motion, but instead make their request within their response to the motion to dismiss. Under

17

Rule 15(a)(2), Fed. R. Civ. P., a party may only amend its complaint, other than as a matter

18

of course, with an opposing party's written consent or with the court's leave. LRCiv 15.1

19

provides that a party seeking leave to amend must attach a copy of the proposed complaint

20

to the motion. An amendment must not prejudice an opposing party, be sought in bad faith,

21

produce undue delay, or be futile. AmerisourceBergen Corp. v. Dialysist West, Inc., 465

22

F.3d 946, 951 (9th Cir. 2006). Here, plaintiffs have not properly sought leave to amend

23

because they have not filed a motion attaching a copy of the proposed amended pleading.

24

See LRCiv. 15.1. Absent that, we cannot evaluate whether amendment would be futile.

25

Plaintiffs also move for expedited discovery in this case to discover the cause of

26

Griego's death. They renew a previous motion seeking pre-service discovery that was denied

27

without prejudice by the magistrate judge (doc. 7). The parties stipulate to allow plaintiffs

28

a period of sixty days to conduct limited discovery into the cause of decedent's death.
-4-

1

Given that the parties have stipulated to permit early discovery and that plaintiffs seek

2

an opportunity to amend their complaint, we grant plaintiffs' motion for expedited discovery

3

and dismiss the complaint without prejudice. Plaintiffs shall file a motion to amend the

4

complaint in accordance with the schedule set forth below.

5
6
7

IV
IT IS ORDERED GRANTING General Electric Company’s motion to dismiss (doc.
46). The complaint is dismissed against all defendants without prejudice.

8

IT IS ORDERED GRANTING plaintiffs’ motion for expedited discovery pursuant

9

to stipulation (doc. 64). Plaintiffs may immediately commence discovery limited to the cause

10

of death of the decedent, Johnny Griego. This limited period of discovery will close on May

11

11, 2012.

12

Plaintiffs shall have up to and including May 25, 2012 to file a motion to amend the

13

complaint that complies with LRCiv 15.1. If a motion to amend is not timely filed, this

14

action shall be dismissed with prejudice.

15

IT IS FURTHER ORDERED CONTINUING the Rule 16 scheduling conference

16

set for March 16, 2012 to July 13, 2012 at 2:00 p.m.

17

DATED this 7th day of March, 2012.

18
19
20
21
22
23
24
25
26
27
28
-5-