Lee v. AK Steel Corp., et al
Filing
131
ORDER granting #114 Motion to Dismiss for Failure to State a Claim and #116 Motion to Dismiss for Failure to State a Claim - Dismissal of plaintiffs' false representation/fraud cause ofaction (Fourth Cause) against these two defendants is necessary for failure to state a claim. Signed by District Judge Louise Wood Flanagan on 01/26/2015. (Baker, C.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-cv-826-FL
LARRY WINSLOWE LEE and SUSAN
PROVOST LEE,
Plaintiffs,
v.
CERTAINTEED CORPORATION; DANA
COMPANIES LLC; FORD MOTOR
COMPANY; FORMOSA PLASTICS
CORPORATION U.S.A., sued individually and
as parent, alter ego and successor-in-interest to
J-M Manufacturing Company and to J-M A/C
Pipe Corporation; GENUINE PARTS
COMPANY, d/b/a National Automotive Parts
Association (a.k.a. NAPA); HAJOCA
CORPORATION, sued individually and as
successor-in-interest to Hughes Supply;
HONEYWELL INTERNATIONAL, INC.,
sued individually and as successor-in-interest to
Bendix Corporation f/k/a Allied-Signal, Inc.; JM MANUFACTURING COMPANY, INC.,
sued individually and as parent and alter ego to
J-M A/C Pipe Corporation; KAWASAKI
MOTORS CORP., U.S.A.; METROPOLITAN
LIFE INSURANCE COMPANY; PFIZER
INC.; PNEUMO ABEX LLC, sued individually
and as successor-in-interest to Abex
Corporation and as succesor-in-interest to
American Brakeblok; and YAMAHA MOTOR
CORPORATION, U.S.A.;
Defendants.
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ORDER
This matter comes before the court on motions to dismiss, pursuant to Rules 9(b) and
12(b)(6) of the Federal Rules of Civil Procedure, filed by defendants J-M Manufacturing
Company (“J-M Manufacturing”) (DE 114) and Formosa Plastics Corporation U.S.A.
(“Formosa”) (DE 116). Plaintiffs have not responded within the deadline set by the court, and
issues raised are ripe for ruling. For reasons that follow, the court grants the motions to dismiss.
STATEMENT OF THE CASE
Plaintiffs, residents of Wake County, North Carolina, bring this action alleging a number
of claims related to personal injury and loss of consortium. Plaintiff Larry Winslowe Lee
(“Larry Lee”) was diagnosed with mesothelioma on September 13, 2013. Plaintiffs allege that
his condition resulted from exposure to asbestos during his employment as mechanics’ helper,
maintenance laborer, inspector, construction worker, and salesman, in addition to automotive
maintenance work performed on his own personal vehicles and those of his family.
In complaint filed December 2, 2013, plaintiffs assert claims against a multitude of
defendants:
1) AK Steel Corp. (“AK Steel”); 2) Briggs & Stratton Corporation (“Briggs &
Stratton”); 3) Certainteed Corporation; 4) Clow Valve Company (“Clow Valve”); 5) Dana
Companies LLC (“Dana Companies”); 6) Deere & Company; 7) Eckler’s Corvette; 8) Ford
Motor Company; 9) Formosa; 10) Genuine Parts Company; 11) Grinnell LLC (“Grinnell”); 12)
Hajoca Corporation; 13) Hammer & Steel, Inc. (“Hammer & Steel”); 14) Honeywell
International, Inc.; 15) J-M Manufacturing; 16) Kawasaki Motors Corp., U.S.A.; 17) McWane
Inc. (“McWane”); 18) Metropolitan Life Insurance Company (“MetLife”); 19) Pfizer Inc.; 20)
Pneumo Abex LLC; 21) Special Electric Company, Inc. (“Special Electric Company”); 22)
Union Carbide Corporation (“Union Carbide”); and 23) Yamaha Motor Corporation, U.S.A.
All defendants, except MetLife, are alleged to have acted negligently in putting asbestos
or asbestos-containing products into interstate commerce (First Cause), to have breached implied
warranties that asbestos materials were of good and merchantable quality and fit for their
intended use (Second Cause), to have acted willfully and wantonly in exposing plaintiff Larry
Lee to asbestos (Third Cause), to have committed false representation and fraud regarding the
dangers of asbestos exposure to plaintiff Larry Lee (Fourth Cause), and to have failed to warn
plaintiff Larry Lee of the dangers associated with asbestos exposure (Fifth Cause). Defendant
MetLife is alleged to have engaged in a conspiracy and to be liable for punitive damages, where
it is asserted that Metlife aided and abetted the negligence and marketing of asbestos-containing
products (Sixth Cause). Conspiracy and punitive damages liability are also alleged against
defendants Formosa and J-M Manufacturing for the manufacture and sale of asbestos-containing
products (Seventh Cause).
Defendants AK Steel, Briggs & Stratton, Clow Valve, Dana Companies, Deere &
Company, Eckler’s Corvette, Grinnell, Hammer & Steel, McWane, Special Electric Company,
and Union Carbide have been dismissed from the action. All twelve (12) remaining defendants
have filed answers, generally denying plaintiff’s allegations and raising a myriad of defenses,
including, without limitation, failure to state a claim; superseding, intervening and contributory
negligence; assumption of risk; compliance with state of the art; industry practice; statutes of
limitations and repose; res judicata; and failure to join necessary parties.
On April 11, 2014, the court granted motions to dismiss filed by defendants Ford and
Kawasaki, dismissing plaintiffs’ claims against those defendants arising out of out of false
representation/fraud (Fourth Cause).
Defendants J-M Manufacturing and Formosa filed the instant motions to dismiss on
September 3, 2014, likewise seeking to dismiss plaintiffs’ claims arising out of false
representation/fraud (Fourth Cause). Deadlines to respond expired September 27, 2014, without
plaintiffs filing response to either motion.
STATEMENT OF FACTS
The facts as alleged by plaintiffs generally are as follows. From 1963 through the
present, plaintiff Larry Lee held the following positions:
POSITION
EMPLOYER/WORK
APPROXIMATE DATES
SITE
Mechanics’ Helper
Standard Oil Gas
Station (Vero Beach,
FL)
1963-1964
Part-time Mechanics’
Helper (Id.)
Pure Oil Co. Gas
Station (Vero Beach,
FL)
1963-1964
Laborer/Helper
(Compl. ¶ 26(b))
State of Florida,
Entomology
Research Laboratory
Approximately 1964- (unspecified date)
Inspector/Surveyor
(Compl. ¶ 26(c))
Florida Department
of Transportation
(Indian River
County, FL)
Approximately 1968-1970
Bridge Construction
Superintendent (Id.)
(Id.)
Perini Corporation
(Indian River
County, FL)
Approximately 1971-1972
Head of Layout
Design (Compl.
26(d))
Gorham Construction
(unspecified
location)
Approximately 1973-1976
Pipe Salesman
(Compl. 26(e))
Davis Water &
Waste Supply n/k/a
HD Supply
(unspecified
location)
Approximately 1976-1981, 1985-present
Pipe Salesman (Id.)
Underground Supply
(unspecified
location)
Approximately 1982-1985
(Compl. ¶ 26(a))
In addition, plaintiff Larry Lee performed automotive maintenance work on his personal
vehicles and on the vehicles of family members from approximately the late 1950s through the
2000s. (Compl. ¶ 26(f))
Plaintiff Larry Lee was exposed to asbestos through products that were present in these
various positions.
(Compl. ¶ 26)
Defendants manufactured, supplied and distributed the
products that exposed plaintiff Larry Lee to asbestos, leading him to contract mesothelioma.
(Compl. ¶¶ 25, 28)
COURT’S DISCUSSION
A. Standard of Review
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted is to eliminate claims that are factually or legally insufficient. Fed. R. Civ.
P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). To survive a motion to dismiss, a pleading must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In evaluating whether a claim is stated, “a
court accepts all well-pled facts as true and construes these facts in the light most favorable” to
the plaintiff, but does not consider “legal conclusions, elements of a cause of action, and bare
assertions
devoid
of
further
factual
enhancement.”
Nemet
Chevrolet,
Ltd.
v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Nor must the court accept
“unwarranted inferences, unreasonable conclusions, or arguments.” Id.
B. Analysis
J-M
Manufacturing
and
Formosa
challenge
plaintiffs’
claim
for
false
representation/fraud, arguing that plaintiffs have failed to meet requirements to plead fraud with
adequate specificity. Federal courts sitting in diversity apply federal procedural law and state
substantive law. Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 261 n.3 (4th
Cir. 2013). Plaintiffs in diversity cases asserting a claim of fraud must meet the heightened
pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 9(b); see
Anderson v. Sara Lee Corp., 508 F.3d 181, 189 (4th Cir. 2007).
Under ordinary principles of federal pleading practice, a party is required only to make “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a).
However, Rule 9(b) requires parties pleading fraud or mistake to “state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The Fourth
Circuit has noted that such circumstances include “the time, place, and contents of the false
representations, as well as the identity of the person making the misrepresentation and what he
obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.
1999). A court should hesitate to dismiss a complaint under Rule 9(b) if the defendant has been
made aware of the particular circumstances for which she will have to prepare a defense at trial,
and the plaintiff has substantial prediscovery evidence of those facts. Id. However, failure to
meet the particularity rule may be cause for dismissal. United States ex rel. Goldstein v.
Fabricare Draperies, Inc., 84 F. App’x 341, 344-45 (4th Cir. 2004). Lack of compliance with
Rule 9(b)’s pleading requirements is treated as a failure to state a claim under Rule 12(b)(6).
Harrison, 176 F.3d 776, 782 n. 4.
Plaintiffs’ complaint does not include any of the details necessary to reach the heightened
pleading standard of Rule 9(b). There is no allegation of specific time, place or contents of any
specific misrepresentation by either defendant J-M Manufacturing or defendant Formosa.
Defendants cannot determine from this pleading the particular circumstances they will need to
respond to at trial. Accordingly, dismissal of plaintiffs’ false representation/fraud cause of
action (Fourth Cause) against these two defendants is necessary for failure to state a claim.
CONCLUSION
For the reasons set forth above, the court GRANTS the motions to dismiss filed by
defendants J-M Manufacturing (DE 114) and Formosa (DE 116).
SO ORDERED, this the 26th day of January, 2015.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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