Phillips et al v. ABB Combustion Engineering, Inc. et al
Filing
62
ORDER & REASONS denying 22 Motion for More Definite Statement and granting 22 Motion to Dismiss for Failure to State a Claim. Party Robert Lee Phillips (Estate of ) dismissed. Signed by Judge Martin L.C. Feldman on 6/19/2013. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROL PHILLIPS, ET AL.
CIVIL ACTION
v.
NO. 13-594
ABB COMBUSTION ENGINEERING, INC., ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is Associated Electric Cooperative, Inc.’s
Rule 12(e) motion for a more definite statement and Rule 12(b)(6)
motion to dismiss.
For the reasons that follow, the 12(e) motion
is DENIED, and the 12(b)(6) motion is GRANTED.
Background
This negligence and wrongful death lawsuit arises from a
widow’s claim that her husband was exposed to asbestos during the
course of employment at several companies over many years.
On November 26, 2012 Carol Phillips (wife of Robert Lee
Phillips) and the Estate of Robert Lee Phillips sued Associated
Electric Cooperative, Inc. (AECI); ABB Combustion Engineering,
Inc.; Centerpoint Energy, Inc.; Nebraska Public Power District
(NPPD); and Grand Island City in state court. On April 2, 2013
NPPD, with the other defendants’ consent, removed the case to this
Court, invoking the Court’s diversity jurisdiction1.
1
•
•
Plaintiffs allege complete diversity of citizenship:
Carol Phillips is domiciled in St. John Parish, Louisiana.
ABB Combustion Engineering, Inc. is a corporation organized
1
The plaintiffs allege that Robert Lee Phillips, who lived in
St. John Parish before his death, was exposed to asbestos while
working at various times for each of the defendants. Mr. Phillips’
employment timeline:
•
•
•
•
•
Phillips worked for ABB Combustion Engineering from 1956
to 1962.
Phillips worked for Centerpoint Energy from 1962 to 1968.
Phillips worked for City of Grand Island from 1969 to
1974.
Phillips worked for Nebraska Public Power District from
1974 to 1977.
Phillips worked for AECI from 1977 to 1980.
Plaintiffs allege that Mr. Phillips “worked with and/or was exposed
to asbestos containing products while working at certain premises
owned, operated or controlled by [each defendant].” The petition
also provides that the wrongful conduct occurred in the Parish of
St. John.
The plaintiffs allege that Mr. Phillips worked for AECI from
1977 to 1980, and during that time he was “exposed to asbestos or
asbestos containing products in connection with performance of his
occupation(s) performed for Defendants at facilities owned and/or
operated by Defendants.” Furthermore, the plaintiffs allege that
•
•
•
•
in Delaware with its principal place of business in
Connecticut.
Centerpoint Energy, Inc. is a corporation organized in Texas
with its principal place of business in Texas.
AECI is a corporation organized in Missouri with its
principal place of business in Missouri.
NPPD is a corporation organized in Nebraska with its
principal place of business in Nebraska.
City of Grand Island is a corporation organized in Nebraska
with its principal place of business in Nebraska.
2
each defendant “knew or should have known through industry and
medical studies...of the health hazards inherent in the asbestos
containing products they were using.” Moreover, plaintiffs contend
that the defendants “ignored or concealed such information” from
Mr. Phillips, and as a result of his exposure, Mr. Phillips
suffered from asbestos related Mesothelioma, and other physical and
mental injuries.
In light of those allegations, the plaintiffs seek damages for
negligence, premises liability, and wrongful death and survival
claims.
The plaintiffs allege “negligent, grossly negligent, and
wanton misconduct on behalf of Defendants in failing to provide
and/or ensure a safe workplace for their employees or invitees,
free
of
hazardous
concentrations
of
asbestos
and
asbestos
containing dust.” Plaintiffs then go on to list specific duties
that
the
defendants
negligently
failed
to
perform,
mostly
pertaining to safe working conditions.
The plaintiffs add that the defendants’ “facilities were
defective in that the asbestos and asbestos containing materials in
the
facilities
created
an
unreasonable
risk
of
harm
to
Phillips....” Furthermore, they contend that Mr. Phillips “was an
invitee
at
the
premise
of
Defendants’
facilities”
and
the
“defective condition of the facilities was a proximate cause of
Phillips’ asbestos related injuries and damages.”
3
Finally, the plaintiffs list specific damages that both Mr.
and Mrs. Phillips suffered as a result of the alleged wrongful
conduct,
including:
physical
pain;
mental
anguish;
medical
expenses; loss of wages; and funeral expenses.
AECI now seeks a more definite statement pursuant to Rule
12(e). AECI also seeks dismissal of any claims asserted by “the
Estate of Robert Lee Phillips” on the ground that the claims are
only properly asserted by Mr. Phillips’ surviving spouse.
I.
Rule 12(e), allows a party to seek a more definite statement
if a complaint is “so vague or ambiguous that the party cannot
reasonably prepare a response.” Fed.R.Civ.P. 12(e). The motion
“must point out the defects complained of and the details desired.”
Id. The standard for evaluating a 12(e) motion is whether the
complaint
is
“so
excessively
vague
and
ambiguous
as
to
be
unintelligible and as to prejudice the defendant seriously in
attempting to answer it.” Babcock & Wilcox Co. V. McGriff, Seibels
& Williams, Inc., 235 F.R.D. 632, 633 (E.D. La. 2006)(Barber, J.).
Rule 12(e) motions are disfavored because, in light of the liberal
pleading standard established in Rule 8 of the Rules of Civil
Procedure, “it is clearly the policy of the Rules that Rule 12(e)
should not be used to frustrate this policy by lightly requiring a
plaintiff to amend his complaint which under Rule 8 is sufficient
to withstand a motion to dismiss.” Id. (quoting Mitchell v. E-Z Way
4
Towers Inc., 269 F.2d 126, 132 (5th Cir. 1959). Accordingly, to
determine
whether
a
12(e)
motion
is
appropriate,
the
Court
considers whether the complaint is sufficient to withstand a motion
to dismiss according to the appropriate pleading standard. Because
the complaint was initially filed in state court and later removed
to this Court, the parties dispute whether Louisiana’s factpleading standard2 or the standard found in Rule 8 governs the
complaint.
Rule
81
of
the
Federal
Rules
of
Civil
Procedure
addresses this issue.
Rule 81 provides in part that “[a]fter removal, repleading is
unnecessary unless the court orders it.” Fed.R.Civ.P. 81(c). In
applying that rule, the Fifth Circuit has instructed that if the
state pleading standard differs from the standard of Rule 8, the
plaintiff need not spontaneously replead to conform the complaint
to Rule 8 upon removal to federal court. See White v. State Farm
Mutual Auto Insurance Co., 479 Fed. Appx. 556, 561 (5th Cir. 2012).
However, the Federal Rules of Civil Procedure “apply to a civil
action after it is removed from a state court.” Fed.R.Civ.P. 81(c).
Therefore, any challenge to the sufficiency of a complaint after
removal must be considered in accordance with the Rule 8 standard.
2
Louisiana law does not require that the “theory of the
case” be pled, rather, “[s]o long as the facts constituting the
claim or defense are alleged or proved, the party may be granted
any relief to which he is entitled under the fact-pleadings and
evidence.” Greemon v. City of Bossier City, 65 So.3d 1263, 1268
(La. 2011).
5
See Freeman v. Bee Machine Co., 319 U.S. 448, 454 (1943)(noting
“Congress has directed the District Court after a case has been
removed to proceed therein as if the suit had been originally
commenced in said district court.”)(internal quotations omitted).
Rule 8 of the Federal Rules of Civil Procedure requires a
complaint to contain “a short plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P 8(a)(2).
Providing further guidance, the Supreme Court has established that
“[d]etailed factual allegations” are not required, but the Rule
does demand “sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Aschcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)(citations omitted). “A claim has
facial plausibility when the plaintiff pleads factual content that
allows
the
court
to
draw
the
reasonable
inference
that
the
defendant is liable for the misconduct alleged.” Id. A complaint
must “give the defendant fair notice of what the plaintiff’s claim
is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.
A., 534 U.S. 506, 512 (2002)(quoting Conley v. Gibson, 355 U.S. 41,
47 (1957). The Rule 8 standard “relies on liberal discovery rules
and summary judgment motions to define disputed facts and issues
and to dispose of unmeritorious claims.” Id.
II.
A.
In accordance with Rule 12(e), AECI points to four alleged
6
defects for which it seeks clarification:
First, AECI requests the Court to compel the plaintiffs to
amend their complaint so that it can “determine whether any alleged
‘wrongful conduct’ actually occurred in Louisiana,” primarily, to
assess whether this action has been brought in the proper venue.
This request is inconsistent with Rule 8. The plaintiffs are not
required
to
prove
whether
misconduct
actually
occurred
in
Louisiana. Rather, Rule 8 requires that a plaintiff merely allege
enough facts to state a claim to relief that gives the defendant
fair notice of what the plaintiff’s claim is. The plaintiffs have
met that standard.
Second, AECI seeks clarification on whether the plaintiffs
have stated an action in fraud or conspiracy. AECI’s concerns arise
from a sentence that it extracted from the plaintiffs’ complaint
that asserts AECI “ignored or concealed” information from Mr.
Phillips concerning the dangers of asbestos. AECI suggests that
this allegation tracks the language of Louisiana statutes creating
causes of action in fraud, conspiracy, or punitive damages. AECI
contends that if Mrs. Phillips is alleging fraud, she should be
held to the higher pleading standard of Rule 9(b).
Aside from one line that may or may not hint at fraud or
conspiracy, the rest of the complaint plainly points to only two
theories of relief:
negligence and premises liability.
Third, AECI seeks clarification on what theories of recovery
7
the
plaintiffs
are
attempting
to
assert
when
they
allege:
“[n]egligent, grossly negligent, or wanton misconduct on behalf of
Defendants in failing to provide and/or ensure a safe workplace for
their employees....”
That allegation, for pleading purposes,
satisfies the Rule.
Finally, AECI contends that the plaintiffs’ complaint is
prejudicially vague and ambiguous because it does not provide the
date
of
Mr.
Phillips
death.
AECI
insists
that
it
cannot
be
reasonably expected to evaluate its defenses prior to pleading
because, without the date of death, it is unable to evaluate
whether Plaintiffs’ claims are time-barred under Louisiana law and
thus subject to a 12(b)(6) motion to dismiss.
While the inclusion of the date of Mr. Phillips’ death in the
complaint certainly would have provided clarity, the plaintiffs
submit that they provided AECI with Mr. Phillips’ date of death,
Social Security records, and medical records in a certified letter
before filing the complaint.
B.
AECI has also filed a motion to dismiss under Rule 12(b)(6) of
the
Federal
Rules
of
Civil
Procedure.
A
12(b)(6)
motion
is
appropriate when a party has failed to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6).
Here, AECI contends, and plaintiffs concede, that “the Estate
of Robert Lee Phillips” is an improper party to the plaintiffs’
8
action because, under the circumstances, Louisiana law prohibits
the decedent’s estate from recovering for the pleaded claims. The
Court finds that dismissal of the Estate is appropriate.
Accordingly, the defendant’s Rule 12(e) motion is DENIED, and
the defendant’s Rule 12(b)(6) motion is GRANTED.
New Orleans, Louisiana, June 19, 2013
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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