Rhodes et al v. MCIC, Inc et al

Filing 403

MEMORANDUM AND ORDER granting 190 Motion for Judgment on the Pleadings; granting 193 MOTION for Judgment Ingersoll-Rand Company's Motion for Judgment on the Pleadings. Signed by Judge James K. Bredar on 1/3/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ESTHER RHODES et al.,

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Plaintiffs

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v.

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MCIC, INC., et al.,

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Defendants
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CIVIL NO. JKB-16-2459

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MEMORANDUM AND ORDER
Pending before the Court are motions for judgment on the pleadings by Defendants
Honeywell International, Incorporated, and Ingersoll Rand Company. (ECF Nos. 190, 193.)
The motions have been briefed (ECF Nos. 196 & 201), and no hearing is required, Local
Rule 105.6 (D. Md. 2016). The motions will be granted, but Plaintiffs will be permitted to file
an amended complaint.
I. Standard for Motion for Judgment on the Pleadings
A motion for judgment on the pleadings under Rule 12(c) is assessed under the same
standard applicable to motions to dismiss under Rule 12(b)(6). See Walker v. Kelly, 589 F.3d
127, 139 (4th Cir. 2009). A complaint must contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility
exists “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An
inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at

679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to
relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ . . . Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although
when considering a motion to dismiss a court must accept as true all factual allegations in the
complaint, this principle does not apply to legal conclusions couched as factual allegations.
Twombly, 550 U.S. at 555.
II. Allegations of the Complaint
Before this case was removed to federal court, Plaintiffs filed a “Short Form Asbestos
Complaint” in the Circuit Court for Baltimore City, Maryland. Therein, Plaintiffs alleged the
following, in pertinent part:
The deceased plaintiff, EARL J. RHODES, was in the U.S. Navy and worked as a
laborer and boilermaker from 1952 to 1956 onboard including, but not limited to,
the USS Tarawa CV40. He was then employed as a laborer, welder and
boilermaker on board numerous ships from 1956 to 1959 at Bethlehem Steel
Sparrows Point Shipyard and from 1959 to 1963 as a laborer at Eastern Stainless
Steel. From 1963 to 1972, the deceased Plaintiff worked as a laborer and
mechanic at James Gibbons Trucking, Hess Oil Company and Strescon Industries,
Inc. He was also employed as a laborer, truck mechanic and salesman from 1972
to the late 1970s at Earl’s Luber-Finer & Sons Sales & Service.
The deceased plaintiff, EARL J. RHODES, suffered from mesothelioma and
asbestos-related diseases . . . diagnosed in October, 2015.
(Compl. ¶ 1, ECF No. 2.) The complaint also
incorporates paragraphs one (1), two (2) and three (3) as well as Count I
(Negligence), Count II (Strict Liability), Count III (Loss of Consortium), Count
IV (Survival Action – Negligence), Count V (Survival Action – Strict Liability),
Count X (Conspiracy) and Count XI (Fraud) of The Law Offices of Peter T.
Nicholl Master Complaint CT-2.
(Id. unnumbered paragraph, p. 11.) In addition,
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Plaintiffs reallege and incorporate herein by reference the allegations and claims
asserted in Count VI, paragraphs 25-31 (Wrongful Death) and Count VII,
paragraphs 32-34 (Wrongful Death – Strict Liability) of the CT Master
Complaint.
(Id. ¶ 1 [sic], p. 12.) Otherwise, Plaintiffs made bare allegations of negligence and strict liability.
(Id. ¶ 4, p. 12.)
In their opposition to the instant motions, Plaintiffs argued the Short Form Complaint and
the CT-2 Master Complaint, read together, plausibly allege their claims for relief. (Pls.’ Opp’n
Supp. Mem. 2-3.) After the Court directed them to do so, Plaintiffs docketed a copy of the CT-2
Master Complaint. (ECF No. 199.)
In the Master Complaint, Plaintiffs allege as to negligence, in part,
The plaintiff was exposed to and worked around asbestos and asbestoscontaining products during the course of his working years.
During said periods of time and at all times hereinafter mentioned, the
defendants and each of them were manufacturers, suppliers, and sellers of
asbestos and asbestos insulation products, and did engage in the business of
manufacturing, supplying and selling said products; that each of said defendants
did manufacture, supply or sell asbestos and asbestos insulation products with
which the plaintiff came in daily contact; as result whereof, he suffered and
suffers from an asbestos-related disease.
(Id. ¶¶ 4-5.) The Master Complaint also alleges Defendants were negligent because they failed
to warn and inform of the dangers of asbestos and safe methods of handling their products. (Id.
¶ 7.)
For the strict liability count, the Master Complaint alleges, in part,
. . . at the time the defendants and each of them placed the asbestos and
asbestos insulation products on the market, such products contained defects which
created an unreasonable risk of harm to those likely to use or be exposed to the
product, to wit: (a) exposure to the product caused cancer and lung diseases [and]
(b) no warning was given to users or persons exposed to the product.
That at the time of the happening complained of, the products were being
used for the purpose for which they were intended, that the products were in
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substantially the same condition at the time of the happening complained of as
when they left the control of each of the defendants and the plaintiff had no
knowledge of the defects and no reason to suspect a defective condition.
(Id. ¶¶ 10-11.)
In the Short Form Complaint—the operative one in this action—Plaintiffs assert only one
wrongful death count, but base it upon theories of both negligence and strict liability. (ECF
No. 2.) It is not clear from the Short Form Complaint’s “incorporation” of paragraphs and
counts in the Master Complaint, including conspiracy and fraud, if the Court is expected to
regard those theories as also being included in the single, wrongful death count. To the extent
Plaintiffs are relying upon conspiracy and fraud theories, the Master Complaint alleges,
. . . Defendants, in wanton and reckless disregard for human life and
health, deliberately, and in concert with one another, intentionally and purposely
withheld and concealed such information from users of their products.
Defendants further conspired together to deceive the plaintiff and the
public and suppress existing information regarding the health and safety interests
of those exposed to asbestos.
(ECF No. 199, ¶¶ 41, 42.) As for fraud, the Master Complaint alleges,
. . . [P]rompted by pecuniary motives, each of the defendant asbestos
suppliers, individually and collectively, failed and refused to act upon . . . medical
and scientific data, to warn users of their products and those who worked in close
proximity thereto of the life and health-threatening dangers of exposure to and the
breathing of asbestos fibers and dust, and to take such other reasonable
precautions necessary to lessen the dangers and potentially lethal and dangerous
characteristics of their asbestos products. Defendants, in wanton and reckless
disregard for human life and health, deliberately, intentionally, and purposely
withheld and concealed such information from users of and those exposed to their
products.
Plaintiff, unaware of the dangers to life and health resulting from exposure
to defendants’ asbestos products and not possessing the degree of technical
knowledge and expertise of the defendants concerning asbestos and its use,
continued to work with and around their products and was deprived by the abovedescribed acts and omissions of defendants of the free and informed opportunity
to remove himself from exposure to defendants’ asbestos products and otherwise
to protect himself from exposure thereto. The defendants’ fraudulent and
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misleading conduct of concealment was a direct and proximate cause of plaintiff’s
asbestos-related disease.
(Id. ¶¶ 53-54.)
III. Analysis
Plaintiffs’ complaint, incorporating both the Short Form Complaint and the Master
Complaint, is insufficient to state a claim for relief under Rule 8(a), as construed by the Supreme
Court in Iqbal and Twombly. The complaint is “required to allege facts to satisfy the elements of
a cause of action.” See McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 585 (4th Cir.
2015), cert. denied, 136 S. Ct. 1162 (2016). Thus, as to each Defendant, Plaintiffs must allege
sufficient factual content to permit a reasonable inference that such Defendant engaged in
actionable misconduct.

But Plaintiffs have, instead, relied upon broad conclusions and a

formulaic recitation of the elements of negligence and strict liability. Further, they have lumped
all Defendants together generally and have made no effort to allege facts particular to any
Defendant. Nor have Plaintiffs narrowed the relevant time period as to each Defendant; as the
complaint currently stands, any Defendant’s offending conduct could have occurred any time
between 1952 and December 4, 1980.
In addition, Plaintiffs have alleged no facts to satisfy the “frequency, regularity,
proximity” test required under Maryland law to establish causation in asbestos claims. See
Arbogast v. A.W. Chesterton Co., Civ. No. JKB-14-4049, __ F. Supp. 3d __, 2016 WL 3997292,
at *1-2, 2016 U.S. Dist. LEXIS 97062, at *13-15 (D. Md. July 25, 2016) (citing Eagle-Picher v.
Balbos, 604 A.2d 445, 460 (Md. 1992)).
Finally, if Plaintiffs are advancing causes of action based upon conspiracy and fraud, then
their complaint also fails to state claims for relief under those theories. As to fraud, Plaintiffs are
required to plead that cause of action with particularity—who, what, where, when, how, etc.—
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pursuant to Rule 9(b). Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783-84 (4th
Cir. 1999) (The “circumstances constituting fraud” include time, place, and contents of the
fraudulent representation, the identity of the person making the misrepresentation, and what that
person obtained.)
IV. Conclusion
Plaintiffs’ complaint fails to state plausible claims for relief.

Accordingly, IT IS

HEREBY ORDERED that Defendants’ motions for judgment on the pleadings (ECF Nos. 190 &
193) ARE GRANTED.

Plaintiffs, however, ARE GRANTED the opportunity to file an

amended complaint that corrects the deficiencies noted supra.1 Any amended complaint shall be
filed on or before January 31, 2017.
DATED this 3rd day of January, 2017.

BY THE COURT:

_____________/s/_____________________
James K. Bredar
United States District Judge

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Although motions for judgment on the pleadings were filed by only two Defendants, the amended
complaint to be filed by Plaintiffs must provide appropriate specific factual content as to all Defendants,
individually.

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