Dickens v. Autozone, Inc. et al

Filing 208

ORDER granting #179 Motion to Dismiss Signed by District Judge Louis Guirola, Jr on 02/08/2019 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
WILLIAM DICKENS and
KARLA DICKENS

PLAINTIFFS

v.

CAUSE NO. 1:18CV162-LG-RHW

A-1 AUTO PARTS & REPAIR, INC., ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS OF DEFENDANT DETROIT DIESEL CORP.
BEFORE THE COURT is the [179] Motion to Dismiss Certain Causes of
Action in Plaintiffs’ Complaint filed by Defendant Detroit Diesel Corporation
pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs have not filed a response. After due
consideration of the Motion and the relevant law, it is the Court’s opinion that the
Motion should be granted. Accordingly, Detroit Diesel’s Motion to Dismiss will be
granted.
DISCUSSION
In this products liability case, Plaintiffs allege that William Dickens
developed mesothelioma as a result of his exposure to asbestos from use of certain
products in his work as a mechanic and his use of talcum powder products. Detroit
Diesel is included among the defendants because from 1980 to 2010, William
worked on boats using Diesel Detroit Engines. (Compl. 8-9, ECF No. 1-2.) Detroit
Diesel requests dismissal of certain claims alleged in the Complaint.
1. The Legal Standard
“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
‘enough facts to state a claim to relief that is plausible on its face.’” In re Katrina

Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of [his or her] entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks, brackets,
and citation omitted). “Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” In re Katrina Canal, 495 F.3d at 205
(quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). “The court
accepts all well-pleaded facts as true, viewing them in the light most favorable to
the plaintiff.” Id. (quoting Martin K. Eby Const. Co., Inc. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
2. Alternative Methods of Showing Causation
Detroit Diesel’s motion seeks dismissal of the causes of action set out in the
following paragraph:
In the event that Plaintiffs are unable to identify each injurious
exposure to Defendants’ Products, Plaintiffs would show the Court that
the Defendants named herein represent or represented a substantial
share of the relevant market of Defendants’ Products at all times
material to this cause of action. Consequently, each Defendant should
be held jointly and severally liable under the doctrines of enterprise
liability, market-share liability, concert of action and alternative
liability, among others.
(Compl. 18 (¶29), ECF No. 1-2.)
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Detroit Diesel argues that the four theories of recovery set out in this
paragraph, although adopted by a few jurisdiction in limited circumstances, have
never been recognized in Mississippi. The Court agrees. Plaintiffs’ claims based on
alternative methods of showing causation set out in paragraph twenty-nine of the
Complaint have been previously dismissed with prejudice as a matter of law. (See
Nov. 1, 2018 Order granting Ford Motor Company Motion to Dismiss 4, ECF No.
190.)
3. Fraud and Civil Conspiracy Claims
Plaintiffs include Detroit Diesel in claims alleging concealment, conspiracy,
and fraud. Detroit Diesel argues that Plaintiffs have not pled these fraud-based
claims with the particularity required by both the Federal and Mississippi Rules of
Civil Procedure. Federal Rule of Civil Procedure 9(b) requires that “[i]n alleging
fraud . . . a party must state with particularity the circumstances constituting
fraud.” Mississippi’s Rule 9(b) is essentially the same. In order to meet the Rule
9(b) standard in the Fifth Circuit, a plaintiff must “‘specify the statements
contended to be fraudulent, identify the speaker, state when and where the
statements were made, and explain why the statements were fraudulent.’” Flaherty
& Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th Cir.
2009) (quoting Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997)); see
also Howard v. Estate of Harper, 947 So. 2d 854, 861 (Miss. 2006) (“The
circumstances of the alleged fraud such as the time, place and contents of any false
representations or conduct must be stated.”).
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The plaintiffs’ fraud-based claims appear in Paragraphs 71 through 75 of
their Complaint as Count XIII – “Fraudulent
Concealment/Misrepresentation/Alteration of Medical Studies/Conspiracy/Aid and
Abet Conspiracy.” (Compl. 30-34, ECF No. 1-2.) The allegations generally provide
that “the Defendants” and two undefined subsets of Defendants or non-parties
called “the conspirators” engaged in a fraudulent conspiracy to withhold
information concerning the alleged hazards of asbestos. The only entities
specifically mentioned as having participated in this alleged conspiracy are
non-parties, identified as the Cosmetic Toiletry and Fragrance Association (now
Personal Care Products Council), Quebec Asbestos Mining Association, the Asbestos
Textile Institute, and the Industrial Hygiene Foundation. There is no indication
that Detroit Diesel was a member of or had contact with any of these entities.
Plaintiffs generally allege acts that these “conspirators” committed, but there is no
reference to specific dates or times (other than “for many decades”), parties, meeting
places (other than “a series of industry trade meetings”), or content of any allegedly
fraudulent communications. Similarly, there is no allegation Detroit Diesel was a
participant in this conspiracy, or of Detroit Diesel’s relationship with the
conspirators. There are no allegations that Detroit Diesel engaged in fraudulent
concealment or misrepresentation by withholding any information, what that
information was, or during what time period. Instead, Plaintiffs generally allege
that “the Defendants” and some unidentified group of non-parties conspired with
each other to suppress information. These allegations do not meet the specificity
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requirements of Rule 9. Plaintiffs’ claims for fraud – Fraudulent Concealment,
Misrepresentation, Alteration of Medical Studies – alleged in Count XIII against
Detroit Diesel will be dismissed without prejudice pursuant to Fed. R. Civ. P.
12(b)(6).
4. Aiding and Abetting
Detroit Diesel argues that the fraud-based aiding and abetting claim asserted
in Count XIII should be dismissed because there is no “aiding and abetting” claim in
Mississippi. Federal courts in this district have concluded that Mississippi courts
would recognize a claim of aiding and abetting fraud or civil conspiracy under the
Restatement (Second) of Torts § 876(b). See Dale v. ALA Acquisitions, Inc., 203 F.
Supp. 2d 694, 700-01 (S.D. Miss. 2002) (aiding and abetting fraud); Fikes v. WalMart Stores, Inc., 813 F. Supp. 2d 815, 822 (N.D. Miss. 2011) (aiding and abetting
civil conspiracy). Assuming that Mississippi would recognize Plaintiffs’ aiding and
abetting civil conspiracy claim under § 876(b) of the Restatement of Torts, then the
Plaintiffs must show knowledge of the conduct constituting the civil conspiracy and
substantial assistance or encouragement to the conspiring party in furtherance of
the conspiracy.1 There are no allegations of this nature concerning Detroit Diesel.
The Complaint only alleges that William was exposed to asbestos while working on

1

The provision reads: “For harm resulting to a third person from the
tortious conduct of another, one is subject to liability if he knows that the other’s
conduct constitutes a breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself.” Restatement (Second) of Torts §
876(b).
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boats with Detroit Diesel engines. These allegations fall far short of stating that
Detroit Diesel knew about conduct constituting a conspiracy regarding asbestos, or
that it took action to encourage the others to carry out the conspiracy. The Court
therefore concludes that Plaintiffs’ claim for aiding and abetting a civil conspiracy
against Detroit Diesel should be dismissed without prejudice for failure to state a
claim pursuant to Rule 12(b)(6).
CONCLUSION
After reviewing the allegations of the Complaint, the Court finds that they
are insufficient to state the claims against Detroit Diesel that Detroit Diesel has
challenged under Rule 12(b)(6). Although the Court will grant Detroit Diesel’s
Motion to Dismiss, the plaintiffs should be given an opportunity to amend the
claims against Detroit Diesel that were dismissed without prejudice. “[D]istrict
courts often afford plaintiffs at least one opportunity to cure pleading deficiencies
before dismissing a case, unless it is clear that the defects are incurable or the
plaintiffs advise the court that they are unwilling or unable to amend in a manner
that will avoid dismissal.” Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002). Therefore, Plaintiffs will be granted an
opportunity to seek leave to file an amended complaint, should they wish to do so.
IT IS THEREFORE ORDERED AND ADJUDGED that the [179] Motion
to Dismiss Certain Causes of Action in Plaintiffs’ Complaint filed by the defendant
Detroit Diesel Corporation is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiffs may file a
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motion for leave to file an amended complaint within fourteen (14) days of the date
of this Order, attaching the proposed amended complaint as an exhibit.
SO ORDERED AND ADJUDGED this the 8th day of February, 2019.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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