Smith v 3 M Company, et al

Filing 68

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that all pending motions to dismiss the petition [#6-#20] and the motion to transfer venue [#21] are denied as moot. IT IS FURTHER ORDERED that all pending motions to dismiss the amended petition [#33, #3 7, #38, #39, #40, #41, #42, #49] are denied. IT IS FURTHER ORDERED that all pending motions for summary judgment [#49,#51, #52, #53, #54, #55, #56, #57, #58, #59, #60, #61, #62] are denied without prejudice. IT IS FURTHER ORDERED that the motion for institution of denials under FederalRule 5(c)(1)(B) [#66] is granted. Signed by District Judge Catherine D. Perry on July 22, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BIRLIE SMITH,
Plaintiff,
vs.
BOEING AEROSPACE OPERATIONS,
INC., et al.,
Defendants.

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Case No. 4:14CV1200 CDP

MEMORANDUM AND ORDER
This recently removed asbestos case is before me on my review of the file. Defendant
Boeing Company asserts an independent right to removal under the federal officer removal
statute, 28 U.S.C. § 1442(a)(1), based on allegations that decedent Ronald Smith, Sr. was
exposed to asbestos from military aircraft while employed at Boeing. Defendant’s right to
removal has not been challenged by a motion a remand, but the time for doing so has not yet
expired.
Numerous motions to dismiss to the petition were filed in state court by various
defendants. As a first amended petition was filed in state court, these motions are moot and will
be denied as such.1 I have also reviewed the numerous motions to dismiss the amended petition
filed in state court by various defendants. These are all bare bones motions, unsupported by any
legal memoranda. For the most part, these motions all seek dismissal of part or all of plaintiff’s
claims for failure to state a claim. In the alternative, many of these motions also seek a more
definite statement of the claims against them. I have reviewed plaintiff’s complaint in light of

1

The motion to transfer venue to St. Louis County [#21] is also mooted by removal.

the governing federal standards,2 and I find that plaintiff’s complaint adequately states claims
against the defendants seeking dismissal. I also find that plaintiff is not required to file a more
definite statement of her claims against these defendants, as I do not find the complaint so
unintelligible, vague, or ambiguous such that the defendants cannot reasonably frame a response.
To the extent other defendants move for summary judgment, the motions are denied without
prejudice to being refiled in accordance with federal and local rules after I have set a schedule in
this case. I warn all parties, however, that I will not tolerate generic, baseless motion practice
designed to delay or to multiply the proceedings, so any motion must accord with Federal Rule of
Civil Procedure 11, the local rules of this court, and counsel’s attendant ethical obligations to this
Court.
2

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is to the test the legal sufficiency of the complaint. The factual allegations of a
complaint are assumed true and construed in favor of the plaintiff, “even if strikes a savvy judge
that actual proof of those facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S. Ct. 1955, 1965 (2007). The issue is not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to present evidence in support of his claim. Id. A viable
complaint must include “enough facts to state a claim to relief that is plausible on its face.” Id. at
1974. “Factual allegations must be enough to raise a right to relief above the speculative level.”
Id. at 1965.
Under Fed. R. Civ. P. 12(e), “[a] party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response.” Because of “liberal notice pleading and the
availability of extensive discovery, motions for a more definite statement are universally
disfavored.” Tinder v. Lewis Cnty. Nursing Home Dist., 207 F. Supp. 2d 951, 959 (E.D. Mo.
2001) (collecting cases). “A motion under Rule 12(e) is designed to strike at unintelligibility in a
pleading rather than want of detail.” Patterson v. ABS Consulting, Inc., Case No. 4:08CV697,
2009 WL 248683, at *2 (E.D. Mo. Feb. 2, 2009). The notice pleading standard “relies on liberal
discovery rules and summary judgment motions to define disputed facts and issues and to
dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). But
when a “pleading fails to specify the allegations in a manner that provides sufficient notice, a
defendant can move for a more definite statement under Rule 12(e) before responding.” Id. at
514.
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Finally, defendant Pneumo Abex has filed a motion asking this Court to apply Fed. R.
Civ. P. 5(c)(1)(B), which provides that, in cases involving a large number of defendants, “any
crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to
them will be treated as denied or avoided by all other parties.” Given the number of defendants
and the voluminous size of the state court file, I believe it is appropriate to grant this motion.
Accordingly,
IT IS HEREBY ORDERED that all pending motions to dismiss the petition [#6-#20]
and the motion to transfer venue [#21] are denied as moot.
IT IS FURTHER ORDERED that all pending motions to dismiss the amended petition
[#33, #37, #38, #39, #40, #41, #42, #49] are denied.
IT IS FURTHER ORDERED that all pending motions for summary judgment [#49,
#51, #52, #53, #54, #55, #56, #57, #58, #59, #60, #61, #62] are denied without prejudice.
IT IS FURTHER ORDERED that the motion for institution of denials under Federal
Rule 5(c)(1)(B) [#66] is granted.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 22nd day of July, 2014.

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