Viera v. BASF Catalysts LLC et al

Filing 65

ORDER: Defendant BASF Catalysts LLC's ("BASF") Partial Motion to Dismiss 18 19 is GRANTED. Counts II and IV are DISMISSED without prejudice. Within fourteen (14) days of the date of this Order, Plaintiff may file a second amended complaint. Signed by Judge James S. Moody, Jr on 4/8/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

CARMEN VIERA, individually and as
Personal Representative of the Estate of
PEDRO ROSADO-RIVERA,
Plaintiff,
v.

Case No: 5:16-cv-1-Oc-30PRL

BASF CATALYSTS LLC,
SUPERIOR MATERIALS, INC., and
WHITTAKER, CLARK & DANIELS,
INC.,
Defendants.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant BASF Catalysts LLC’s
(“BASF”) Partial Motion to Dismiss (Docs. 18, 19), 1 Plaintiff’s response in opposition
(Doc. 23), and BASF’s reply (Doc. 27). The Court, having reviewed the motion, response,
reply, and relevant pleadings, and being otherwise fully advised in the premises, concludes
that BASF’s partial motion to dismiss should be granted.
BACKGROUND
Originally, Plaintiff initiated this action in the Southern District of New York in her
individual capacity and as representative for the estate of her deceased husband, Pedro

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Defendants Whittaker, Clark & Daniels, Inc. (“Whittaker”) and Superior Materials, Inc. (“Superior”) joined
BASF’s partial motion to dismiss. (Docs. 21, 22).

Rosado-Rivera. (Doc. 1). Plaintiff alleges that Rosado-Rivera developed mesothelioma
due to exposure to an asbestos-containing auto-body filler distributed by Superior and
containing asbestos-laced talc manufactured and distributed by BASF and Whittaker.
Plaintiff contends that Rosado-Rivera used the auto-body filler for more than four decades
while working at auto shops in New York, Puerto Rico, and Florida. She alleges,
specifically, that Rosado-Rivera used the filler in New York between 1959 and 1968; in
Puerto Rico between 1968 and 1992; and in Florida thereafter. Rosado-Rivera developed
mesothelioma in April 2014 and died on May 23, 2014.
As a result of her husband’s death, Plaintiff filed an amended complaint asserting
six claims against Defendants under New York law, 2 including (1) negligence,
(2) intentional and negligent misrepresentation, (3) strict liability, (4) concerted acts,
(5) wrongful death, and (6) loss of consortium. (Doc. 9). BASF, joined by Superior and
Whittaker, moved to transfer the case to the Middle District of Florida on September 1,
2015, and the Southern District of New York granted the motion. (Doc. 45).
BASF now moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss
Plaintiff’s claims for intentional and negligent misrepresentation and concerted acts,

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BASF asserts that it is not “clear” whether New York law applies to Plaintiff’s claims. (Doc. 19 at 4 n.3).
Nevertheless, BASF applies New York law in its motion to dismiss and argues that the Court can analyze its motion
under New York law as pled by Plaintiff without conducting a choice-of-law analysis. (Id.). As an initial matter,
whether New York law applies is not pertinent in deciding the motion to dismiss, as New York and Florida law do not
differ significantly with respect to a claim of intentional or negligent representation. Compare Liberty Mut. Ins. Co.
v. Palace Car Servs. Corp., No. 06-cv-4881 (FB)(CLP), 2007 WL 2287902, at *2 (E.D.N.Y. Aug. 8, 2007); Abu
Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 910 F. Supp. 2d 543, 546 (S.D.N.Y. 2012); with Jovine v.
Abbott Labs., Inc., 795 F. Supp. 2d 1331, 1338 (S.D. Fla. 2011); Linville v. Ginn Real Estate Co., LLC, 697 F. Supp.
2d 1302, 1307 (M.D. Fla. 2010). Additionally, given the fact intensive inquiry required to determine the applicable
law, a choice-of-law determination at this stage would be premature. See Hughes v. Ester C Co., 930 F. Supp. 2d 439,
451 n.6 (E.D.N.Y. 2013). The parties should be ready, however, to address the choice-of-law issue at a later stage of
the litigation.

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arguing that Plaintiff has not established a prima facie case for these claims. (Docs. 18,
19).
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed
for failure to state a claim upon which relief can be granted. In considering a motion to
dismiss under Rule 12(b)(6), a court must accept the factual allegations of the complaint
as true and evaluate all inferences derived from those facts in the light most favorable to
the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Conclusory allegations,
unwarranted factual deductions, or legal conclusions masquerading as facts, however, are
not entitled to the assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009);
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
As to Plaintiff’s claim for concerted acts (Count IV), Plaintiff did not respond to
BASF’s contention that the claim is insufficiently pled. (Doc. 23). Rather, Plaintiff states,
“if the court finds BASF carried the burden on its motion to dismiss . . . , Plaintiff requests
that the dismissal of that cause as to BASF be entered without prejudice.” (Id. at 1 n.1).
By failing to address BASF’s arguments, Plaintiff appears to abandon her claim for
concerted acts. See Pelfresne v. Village of Williams Bay, 917 F. 2d 1017, 1023 (7th Cir.
1990) (“A litigant who fails to press a point by supporting it with pertinent authority, or by
showing why it is sound despite a lack of supporting authority or in the face of contrary
authority, forfeits the point. [The court] will not do his research for him.” (citations
omitted)). Because Plaintiff essentially concedes BASF’s arguments as to her claim for

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concerted acts, Plaintiff’s claim should be dismissed. However, the dismissal is without
prejudice; Plaintiff may amend the claim.
As to Plaintiff’s claim for intentional or negligent representation (Count II), BASF
argues that Plaintiff has not identified any factual details of the alleged misrepresentations,
including who made them, when and how they were made, and how Rosado-Rivera came
to rely upon them. (Doc. 19 at 5). Where a plaintiff’s claims sound in fraud, as does
Plaintiff’s claim for intentional or negligent misrepresentation, 3 a plaintiff must also satisfy
the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires
that “a party must state with particularity the circumstances constituting fraud.” See also
Abraham v. Am. Home Mortg. Servicing, Inc., 947 F. Supp. 2d 222, 234 (E.D.N.Y. 2013)
(discussing Rule 9(b)’s requirements).
“To comport with Rule 9(b), a plaintiff must not only give the who, what, and when
with regard to an alleged false or misleading statement, but also must ‘give particulars as
to the respect in which plaintiff contends the statements were fraudulent.’” Ressler v. Liz
Claiborne, Inc., 75 F. Supp. 2d 43, 52 (E.D.N.Y. 1998) (quoting Cosmas v. Hassett, 886
F.2d 8, 11 (2d Cir. 1989)). The Second Circuit has explained:
The purpose of Rule 9(b) is threefold—it is designed to provide a defendant
with fair notice of a plaintiff’s claim, to safeguard a defendant’s reputation
from improvident charges of wrongdoing, and to protect a defendant against
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To state an intentional misrepresentation (or fraud) claim under New York law, a “plaintiff must establish
that: ‘(1) the defendant made a material false representation; (2) the defendant intended to defraud the plaintiff thereby;
(3) the plaintiff reasonably relied upon the representation; and (4) the plaintiff suffered damage as a result of such
reliance.’” Liberty Mut. Ins. Co., 2007 WL 2287902, at *2 (quoting Indep. Order of Foresters v. Donald, Lufkin &
Jenrette, Inc., 157 F.3d 933, 940 (2d Cir. 1998)). Similarly, a claim of negligent misrepresentation requires a plaintiff
to demonstrate “(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart
correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the
information.” Abu Dhabi Commercial Bank, 910 F. Supp. 2d at 546.

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the institution of a strike suit. Thus, although Rule 9(b) permits knowledge
to be averred generally, we have repeatedly required plaintiffs to plead the
factual basis which gives rise to a strong inference of fraudulent intent.
Essentially, while Rule 9(b) permits scienter to be demonstrated by
inference, this must not be mistaken for license to base claims of fraud on
speculation and conclusory allegations. An ample factual basis must be
supplied to support the charges.
O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991) (citations
omitted).
Here, Plaintiff makes the following factual allegations as to each defendant (Doc.
9): 4
BASF owned or operated a talc mine in Johnson, Vermont, from 1967 until 1983. 5
(Doc. 9 at ¶ 17). The talc ore from that mine contained asbestos or asbestiform fibers and
was processed or manufactured into talc products, including auto-body filler. (Id. at ¶¶ 19,
20, 21). In the 1970s and 1980s, BASF and various third parties conducted tests and assays
on its talc ore and products and on the environment in which the ore was mined and
determined that the talc ore and products contained asbestos or asbestiform fibers. (Id. at
¶¶ 23, 24). Even though BASF was aware of these results, BASF represented to its
customers, industry trade groups, and the federal government that its talc was asbestos free
and marketed the talc as a viable asbestos substitute. (Id. at ¶ 25). BASF manufactured,

4
For the purposes of resolving BASF’s motion to dismiss, the Court accepts the factual allegations of
Plaintiff’s complaint as true. See Erickson, 551 U.S. at 94.
5
Plaintiff’s claims against BASF are asserted in its capacity as a successor-in-interest to predecessor
corporations: Engelhard Corporation, Engelhard Industries, Engelhard Minerals & Chemicals Corporation, Minerals
& Chemicals Phillip Corporation, Eastern Magnesia Talc Company, Porocel Corporation, and Pita Realty Limited.
(Doc. 9, ¶ 2). For ease of reference, these parties are collectively referred to as BASF.

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supplied, distributed, and sold asbestos-containing talc, which was an ingredient in
auto-body filler used by Rosado-Rivera. (Id. at ¶ 26).
From 1960 until 1990, Whittaker supplied, distributed, and sold talc containing
asbestos or asbestiform fibers that was used as an ingredient in auto-body fillers. (Id. at
¶¶ 27, 28, 29). Whittaker conducted tests and assays on its talc products and the results
revealed that the talc products contained asbestos or asbestiform fibers. (Id. at ¶ 33).
Although Whittaker knew that its talc products contained asbestos or asbestiform fibers, it
did not place a warning label regarding the hazards of asbestos on its talc products sold to
customers. Whittaker manufactured, supplied, distributed, and sold asbestos-containing
talc products, which were ingredients in auto-body filler used by Rosado-Rivera. (Id. at ¶
35).
Superior was a regional distributor of the auto-body filler used by Rosado-Rivera,
and the auto-body filler did not have a warning label regarding the hazards of asbestos.
(Id. at ¶¶ 37, 38). Rosado-Rivera was exposed to asbestos from the auto-body filler
distributed, supplied, and sold by Superior. (Id. at ¶ 39). Plaintiff does not assert that
Superior was aware or should have been aware that the auto-body filler contained asbestos
or asbestiform fibers.
Based on these allegations, Plaintiff has not satisfied Rule 9(b)’s particularity
requirement because her allegations lack the necessary specificity. For example, as to
BASF, Plaintiff alleges that BASF represented to customers, industry trade groups, and the
federal government that its talc was asbestos free and a viable asbestos substitute when it
was aware that its talc contained asbestos (the “what”), but Plaintiff does not explain the
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“where” or “how” of these misrepresentations. Unlike In re Frito-Lay N. Am., Inc. All
Natural Litig., No. 12-MD-2413 (RRM)(RLM), 2013 WL 4647512, at *23-24 (E.D.N.Y.
Aug. 29, 2013), where the plaintiffs alleged that the misrepresentation was placed
prominently on the packaging of the defendants’ products, Plaintiff has not demonstrated
how the misrepresentations were made or how Rosado-Rivera came to rely upon them. Cf.
Hughes, 930 F. Supp. 2d at 472-76 (concluding that the plaintiff met Rule 9(b)’s
particularity requirement as to claims for intentional and negligent misrepresentation).
Additionally, Plaintiff generally avers that the conduct occurred in the 1970s and 1980s,
over almost two decades, which is not sufficient to put BASF on notice as to the “when.”
The same is true as to Plaintiff’s allegations against Whittaker.
As to Superior, Plaintiff has not alleged with specificity the actions constituting the
misrepresentation (the “what”), how, when, or where the misrepresentation occurred, and
whether Rosado-Rivera relied upon the misrepresentation.
BASF also argues that Plaintiff’s claim is insufficient because she pled it generically
as to all defendants and does not explain which defendant made a particular
misrepresentation. (Doc. 19 at 6). This is not precisely accurate. While the allegations
contained in the count for negligent or intentional misrepresentation refer to Defendants
collectively (Doc. 9, ¶¶ 66-70), Plaintiff’s factual allegations attempt to distinguish which
acts were allegedly taken by each defendant (Id. at ¶¶ 17-39). The cases relied on by BASF
are distinguishable in that they involve allegations significantly more deficient than
Plaintiff’s. See Ritchie v. N. Leasing Sys., Inc., 14 F. Supp. 3d 229, 235 (S.D.N.Y. 2014)
(distinguishing Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001)). While
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Plaintiff’s claim is deficient in that it lacks specificity, this particular argument does not
constitute an appropriate basis for dismissal of Plaintiff’s claim.
Because Plaintiff’s claim for intentional or negligent misrepresentation as to BASF,
Whittaker, and Superior is insufficient under Rule 9(b), it should be dismissed. However,
Plaintiff will be given an opportunity to amend this claim.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Defendant BASF Catalysts LLC’s (“BASF”) Partial Motion to Dismiss (Docs.
18, 19) is GRANTED.
2. Counts II and IV are DISMISSED without prejudice.
3. Within fourteen (14) days of the date of this Order, Plaintiff may file a second
amended complaint.
DONE and ORDERED in Tampa, Florida, this 8th day of April, 2016.

Copies furnished to:
Counsel/Parties of Record

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