Murphy et al v. Rohm and Haas Company et al

Filing 118

ORDER and REASONS denying 58 , 76 Motions to Dismiss. IT IS FURTHER ORDERED that Plaintiffs are to file a Fourth Amended Complaint, no later than fifteen (15) days from entry of this Order and Reasons, providing a more detailed explanation of th e specific factual bases for their claims against Defendants to this action. IT IS FINALLY ORDERED that responsive pleadings to the Fourth Amended Complaint are to be filed no later than fifteen (15) days from the filing date of the Fourth Amended Complaint, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 2/16/2017. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBIN MURPHY, ET AL.

CIVIL ACTION

VERSUS

NO. 15-5566

ALCATEL-LUCENT USA INC., ET AL.

SECTION "N" (5)

ORDER AND REASONS
In this action, Plaintiff Robin Murphy ("Murphy") sued Defendants for damages
arising from his alleged occupational exposure to asbestos-containing materials between 1964 and
2000.1 During that time, Murphy was employed by Defendants Bellsouth and AT&T at various
locations owned, leased, or operated by them in and around New Orleans, Louisiana.2 He worked
in varying roles including, but not limited to, frameman, installer, switchman, foreman, electronics
technician, and computer system maintenance.3 Following Murphy's death, Carolyn Murphy,
Murphy's surviving spouse, and his children (collectively, "Plaintiffs") were added as plaintiffs.4
Following the Court's denial of Plaintiffs' previously filed motion for remand,5
Defendants Rohm and Hass Company ("RH") and Honeywell International, Inc. ("Honeywell") filed
1

See Third Amended Complaint ("TAC"), Rec. Doc. 47, ¶ 28.

2

Id. at ¶29 ( "Hancock/Riverside office[,] White Hall office, Seabrook office, Michoud
office, Chalmette office, Pointe a La Hache office, Delacroix office, St. Bernard office, Yscloskey
office, Metairie Road office, Poydras office, and Hammond office").
3

Id. at ¶28.

4

Id. at ¶¶ 20-22.

5

See Rec. Doc. 40.

the two motions to dismiss presently before the Court. Having carefully considered the parties'
submissions, the record in this matter, and applicable law, IT IS ORDERED that the motions to
dismiss (Rec. Docs. 58 and 76) are DENIED for the reasons stated herein.
Plaintiffs allege that Murphy's mesothelioma was caused by occupation exposure to
various asbestos-containing products that Defendants Alcatel-Lucent and/or AT&T distributed or
manufactured for use in his work at Bellsouth and AT&T facilities.6 Plaintiffs attribute that
exposure to products that RH, Allied Chemical, and other defendants “manufactured, sold, designed,
supplied, distributed, mined, milled, relabeled, resold, process, applied, or installed,"7 and/or
"supplied, distributed, applied, installed, removed, or manipulated."8 More specifically, Plaintiffs
allege that Defendants RH and Allied Chemical “manufactured and/or supplied asbestos-containing
phenolic molding compounds" to Defendants Alcatel-Lucent and/or AT&T. 9
RH's motion to dismiss (Rec. Doc. 58), filed pursuant to Rule 12(b)(2) of the Federal
Rules of Civil Procedure, contends that in personam jurisdiction over it is lacking because Plaintiffs'
allegations are impermissibly "general" and "conclusory," and because it "has never owned or
operated a business that manufactured or sold asbestos-containing phenolic molding compounds."10
Thus, RH argues that "it would be impossible for Robin Murphy’s claims to have 'arisen out of' or
'relate to' a product that [RH] has never manufactured or sold," such that Plaintiffs have not and can
6

See TAC, Rec. Doc. 47, ¶ 31.

7

See Rec. Doc. 47, ¶35; Id. at ¶36.

8

Plaintiffs' claims against Honeywell are asserted against it as "successor-in-interest
to Allied Chemical Corporation ("Allied Chemical")." See Rec. Doc. 47, ¶13.
9

Id. at ¶¶ 40 and 44 (emphasis added).

10

See Rec. Doc. 58-1, pp. 3 and 18.
2

not satisfy their burden of establishing the existence of personal jurisdiction.11 In support of these
assertions, RH points to several affidavits from current and former RH employees denying the
existence of asbestos in resins and/or other products produced by RH during their respective terms
of employment.12
If the affidavits submitted by RH are correct, Plaintiffs seemingly will not easily
establish the factual connexity necessary for specific personal jurisdiction to exist. At the same
time, however, is not apparent that Plaintiffs have thus far had adequate access to pertinent
information known or held by only one or more of the defendants, and/or been in a position to test
the credibility and knowledge of the affiants on which RH has relied. For that reason, considering
the preliminary posture of this matter, and the nature of the evidentiary showing made, RH's motion,
as stated above, is denied.13 IT IS FURTHER ORDERED that Plaintiffs shall have sixty (60) days
to conduct jurisdictional discovery.14
Unlike RH's motion, Honeywell's motion to dismiss (Rec. Doc. 76) is not asserted
on personal jurisdiction grounds. Rather, it was filed pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, and asserts that Plaintiffs have failed to allege facts sufficient to state a legally
viable claim against it. Specifically, Honeywell contends:

11

Id., p. 18.

12

See Rec. Doc. 58-2, pp. 1-7.

13

This ruling is without prejudice to RH's right to re-urge its request for dismissal (by
properly supported motion) upon completion of this preliminary discovery.
14

The parties are to confect a mutually acceptable limited discovery schedule that will
ensure that the necessary discovery is completed within this time period. They likewise are to
promptly seek the assistance of the assigned magistrate judge with discovery disputes that cannot
be amicably resolved in a timely manner.
3

The Third Amended Complaint contains boilerplate language
and conclusory allegations, but provides no specific facts or details
regarding Honeywell’s liability in this matter, nor does it demonstrate
that plaintiffs have a factual basis for their claims.
No facts are pled identifying the brand, trade name, product
number, product identifier, or other description of the molding
compound(s) allegedly sold by Allied to Alcatel-Lucent or AT&T.
No facts are plead which demonstrate that Plaintiffs have any
evidence that the alleged molding compounds contained asbestos
instead of cellulose, wood, glass, fiberglass, or other non-asbestos
filler materials more commonly used by Allied in the manufacture of
molding compounds.
No facts are plead identifying the end-product(s) allegedly
manufactured by Alcatel-Lucent and/or AT&T utilizing Allied
molding compound(s). In fact, plaintiffs’ Third Amended Complaint
does not even generically describe the type of products allegedly
manufactured by Alcatel-Lucent and/or AT&T with Allied molding
compound(s).
No facts are plead regarding the dates of manufacture,
location of manufacture, or any other manufacturing details that
might take the guesswork out of the operative pleading.
No facts are plead indicating the manner, method, or
circumstances of any alleged exposure to friable asbestos as the result
of the handling of end-product molded components that were
manufactured using Allied molding compounds that may or may not
have been asbestos-containing.
In sum, plaintiffs have alleged no specific facts to support the
conclusion that Honeywell caused or contributed to Robin Murphy’s
alleged exposure to asbestos and/or asbestos-containing products, or
any resulting injuries. For the reasons more fully discussed below,
Honeywell’s motion should be granted, and plaintiffs’ claims against
Honeywell should be dismissed.15
On the present showing made by Honeywell, it is not apparent to the Court that
Plaintiffs necessarily would or should have known or had access to the entirety of the specific

15

See Rec. Doc. 76, pp. 3-4.
4

information referenced by Honeywell at the pleading stage of this proceeding. Thus, as set forth
above, Honeywell's motion to dismiss is also denied. On the other hand, at least some of this
information is likely now known, or is such that Plaintiffs have (or should have) a reasonable basis
for believing further investigation and discovery will provide the requisite evidentiary support.16
Accordingly, to facilitate Defendants' preparation of responsive pleadings and to
streamline and focus discovery and motion practice in this matter, IT IS FURTHER ORDERED
that Plaintiffs are to file a Fourth Amended Complaint, no later than fifteen (15) days from entry of
this Order and Reasons, providing a more detailed explanation of the specific factual bases for their
claims against Defendants to this action.17 The Fourth Amendment Complaint is to address, at a
minimum:
(1) to the best of Plaintiffs' present knowledge, information, and belief, the
approximate order and time period(s) during which Murphy worked at various facilities set forth in
paragraph 29 of the Third Amended Complaint;
(2) to the best of Plaintiffs' present knowledge, information, and belief, the
approximate order and time period(s) during which Murphy worked in the varying roles set forth
in paragraph 28 of the Third Amended Complaint, as well as a brief description of the alleged
asbestos-containing products to which Murphy would have been exposed in the course of each of
those roles and the manner in which that exposure likely occurred;

16

See Fed. R. Civ. P. 11(b)(3)(filing attorney's certification regarding evidentiary
support for factual assertions in pleadings).
17

In short, the Fourth Amended Complaint is intended to provide a more definite
statement of the factual bases for the claims asserted herein as contemplated by Rule 12(e) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(e).
5

(3) to the best of Plaintiffs' present knowledge, information, and belief, the alleged
role and connection of Defendants relative to the phenolic molding compounds bearing the trade
names PLENCO, DUREZ, and ROGERS referenced in paragraph 31(c) of the Third Amended
Complaint; and
(4) to the best of Plaintiffs' present knowledge, information, and belief, the factual
bases for Plaintiffs' assertions that phenolic molding compounds not bearing the trade names
identified in paragraph 31(c) of the Third Amended Complaint, i.e., PLENCO, DUREZ, and
ROGERS, were manufactured and/or supplied by, or otherwise associated with, Defendants RH
and/or Honeywell.
Given the foregoing, IT IS FINALLY ORDERED that responsive pleadings to the
Fourth Amended Complaint are to be filed no later than fifteen (15) days from the filing date of the
Fourth Amended Complaint; and upon the filing of responsive pleadings, a scheduling conference
with Section "N" Case Manager Cherie Stouder shall be promptly scheduled and held.
New Orleans, Louisiana, this 16th day of February 2017.

__________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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