Miller et al v. 3M Company et al

Filing 285

ORDER denying as moot #194 Motion to Dismiss, denying as moot #195 Motion to Dismiss, denying as moot #197 Motion to Dismiss, denying as moot #208 Motion to Dismiss, denying as moot #211 Motion to Dismiss, denying as moot #212 Motion to Dismiss, denying as moot #213 Motion to Dismiss, denying as moot #214 Motion to Dismiss, denying #229 Motion to Dismiss, denying #231 Motion to Dismiss, denying #233 Motion to Dismiss and granting #240 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge W. Earl Britt on 8/14/2013. (Marsh, K)

Miller et al v. 3M Company et al

Doc. 285

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-620-BR
JANE E. MILLER, individually and as
personal representative of the Estate of
Robert Wesley Miller,
Plaintiff,
v.
3M COMPANY a/k/a Minnesota Mining &
Manufacturing Company, et al.,
Defendants.

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ORDER

This matter is before the court on: (1) defendants Blackmer Pump Company’s
(“Blackmer”), Dover Corporation’s (“Dover”), Cummins, Inc.’s (“Cummins”), and AGCO
Corporation’s (“AGCO”) motions to dismiss cross-claims, (DE ## 194, 195, 197, 208, 211-214);
(2) defendants Blackmer’s, Dover’s, and Cummins’ motions to dismiss for improper venue, (DE
## 229, 231, 233); and (3) defendant Hennessy Industries Inc.’s (“Hennessy”) motion to dismiss
plaintiff’s loss of consortium claim, (DE #240).
I. BACKGROUND
Robert Wesley Miller, now deceased, and his wife, Jane E. Miller (“plaintiff”)
commenced this action on 21 September 2012, filing a complaint asserting claims against
movants and others for negligence, breach of implied warranty, willful and wanton conduct,
false representation/fraud, failure to warn, and loss of consortium, as a result of Mr. Miller’s
contracting an asbestos-related disease, mesothelioma, caused by his exposure to asbestos during
the times of his employment from the 1950s to 1990.1 (DE # 1.) Mr. Miller died on 9 November
2012 at the VA Medical Center, Durham, North Carolina. (DE # 168, Ex. A.) After Mr.

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Plaintiff asserts an additional claim for conspiracy against Metropolitan Life Insurance Company, Formosa Plastics
Corporation U.S.A., J-M Manufacturing Company, and J-M A/C Pipe Corporation, demanding punitive damages.

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Miller’s death, plaintiff filed a motion to substitute herself as personal representative of Mr.
Miller’s estate and a motion to amend the complaint. (DE ## 168, 169.) Both motions were
granted. (DE # 191). The amended complaint asserts the same claims as the original complaint
with the addition of a claim for wrongful death. (DE # 193.)
II. CROSS-CLAIMS
In their answers to plaintiff’s original complaint, Eaton Corporation (“Eaton”), Warren
Pumps, LLC (“Warren”), and IMO Industries, Inc. (“IMO”) cross-claimed against all
defendants, prompting the instant motions to dismiss the cross-claims. When Eaton and IMO
subsequently answered plaintiff’s amended complaint, they did not reassert their cross-claims.
(See DE ## 260, 281.) On joint motion, Warren was recently dismissed as a defendant. (DE #
271.) Therefore, movants’ motions to dismiss the cross-claims against Eaton, IMO, and Warren
will be denied as moot.
III. VENUE
“To survive a motion to dismiss for improper venue when no evidentiary hearing is held,
the plaintiff need only make a prima facie showing of venue.” Mitrano v. Hawes, 377 F.3d 402,
405 (4th Cir. 2004) (citation omitted). Venue in this action is governed by 28 U.S.C. § 1391(b),
which provides:
A civil action may be brought in— (1) a judicial district in which
any defendant resides, if all defendants are residents of the State in
which the district is located; (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the
action is situated; or (3) if there is no district in which an action
may otherwise be brought as provided in this section, any judicial
district in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
In this case, the pertinent venue issue in dispute is whether a “substantial part of the
events or omissions giving rise to the claim occurred” in this district to satisfy § 1391(b)(2).
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“Under [this] statute, it is possible for venue to be proper in more than one judicial district.”
Mitrano, 377 F.3d at 405 (citations omitted). Thus, the court does not consider whether the
current venue is the “best venue.” Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir.
1994). Rather, the court determines if there is a substantial connection between the venue and
the plaintiff’s claim. Id.
[I]n determining whether events or omissions are sufficiently
substantial to support venue under the [] statute, a court should not
focus only on those matters that are in dispute or that led directly
to the filing of the action. Rather, it should review “the entire
sequence of events underlying the claim.”
Mitrano, 377 F.3d at 405 (citations omitted).
Here, relying solely on the amended complaint, movants contend that Mr. Miller was
exposed to asbestos in North Carolina for only one year out of a 40-year period of exposure, and
therefore, substantially all of the events or omissions occurred elsewhere, namely Connecticut.
(Mem., DE # 229-1, at 2, 5; see also Reply, DE # 273, at 3-4.) In response, plaintiff disagrees
with movants’ characterization of her allegations. (See Resp., DE # 268, at 3 n.1, 6.) Because
neither party submitted any evidence in support of its position, the court is left to construe the
relevant allegations in the amended complaint, and the court views those allegations in the light
most favorable to the plaintiff, see Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 366 (4th
Cir. 2012) (“In assessing whether there has been a prima facie venue showing, we view the facts
in the light most favorable to the plaintiff.” (citation omitted)).
Plaintiff alleges that Mr. Miller’s exposure to asbestos occurred during his employment
at the places and times identified in the schedule attached to the amended complaint. (Am.
Compl., DE # 193, at 1-2.) According to that schedule, Mr. Miller was employed in Newtown,
Connecticut in the 1950s until he served in the U.S. Navy from 1962-1964 in California and

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onboard ships. (Id. at 20.) Mr. Miller then returned to Connecticut to work in various jobs into
the 1980s. (Id.) His most recent employment was with Miller Trucking in both Newtown,
Connecticut and Fayetteville, North Carolina from 1982-1990. (Id.)
The court does not read these allegations as narrowly as movants do. While the majority
of Mr. Miller’s roughly 40-year period of exposure to asbestos allegedly occurred in
Connecticut, Mr. Miller was allegedly exposed to asbestos in this district for part of eight years.
That period of exposure is not immaterial. The court finds that plaintiff has made a prima facie
showing of venue, and the motions to dismiss for improper venue will be denied.
IV. LOSS OF CONSORTIUM
Hennessy moves to dismiss plaintiff’s claim for loss of consortium pursuant to Federal
Rule of Civil Procedure 12(b)(6). (DE # 240.) Hennessy and plaintiff have since stipulated to
the dismissal without prejudice of that claim. (DE # 284.) However, that stipulation is not
signed by all parties who have appeared to be effective under Federal Rule of Civil Procedure
41(a)(1)(A)(ii). At any rate, the court agrees that dismissal of the claim is appropriate. See Keys
v. Duke University, 435 S.E.2d 820, 822 (N.C. Ct. App. 1993) (“[B]y the plain language of the
wrongful death statute, and in light of the statement made by our Supreme Court in Nicholson, [
] the North Carolina wrongful death statute encompasses a claim for loss of consortium . . . .”
(citing Nicholson v. Hugh Chatham Mem’l Hosp., Inc., 266 S.E.2d 818 (N.C. 1980))).

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V. CONCLUSION
Accordingly, moving defendants’ motions to dismiss cross-claims are DENIED as moot,
moving defendants’ motions to dismiss for improper venue are DENIED, and Hennessy’s
motion to dismiss plaintiff’s loss of consortium claim is ALLOWED.
This 14 August 2013.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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