STEWART v. AURORA PUMP COMPANY et al

Filing 89

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 08/09/2017. IT IS RECOMMENDED that Defendant's Motion to Dismiss be granted as to Plaintiff's loss of consortium claim. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARY LOU STEWART,
Plaintiff,
v.
AURORA PUMP COMPANY, et al.,
Defendants.

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1:17CV79

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on Defendant Kelly-Moore
Paint Company, Inc.’s “Motion to Dismiss Plaintiff Mary Louise
Stewart’s

Loss

of

Consortium

Claim”

(Docket

Entry

23)

(the

“Motion”). Plaintiff filed no response to the Motion. (See Docket
Entries dated Feb. 27, 2017, to present.)1

For the reasons that

follow, the Court should grant the Motion.

1

This Court’s Local Rules permit treating an unopposed
motion as conceded. See M.D.N.C. LR 7.3(k) (“If a respondent fails
to file a response within the time required by this rule, the
motion will be considered and decided as an uncontested motion, and
ordinarily will be granted without further notice.”). However, the
United States Court of Appeals for the Fourth Circuit requires
substantive review of even unopposed motions to dismiss. See
Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3 (4th
Cir. 2014) (“Even though [the plaintiffs] did not challenge the
motions to dismiss, we note that the district court nevertheless
has an obligation to review the motions to ensure that dismissal is
proper.”).

BACKGROUND
Mary Lou Stewart (the “Plaintiff”), initiated a lawsuit under
the Court’s diversity jurisdiction against multiple defendants,
including Kelly-Moore Paint Company, Inc. (the “Defendant”), on
behalf of herself and as executrix of the estate of her deceased
husband Alexander Leroy Stewart, Jr. (the “Decedent”). (See Docket
Entry 1

(the

“Complaint”).)

The

Complaint

alleges

that the

defendants caused Decedent to develop mesothelioma through exposure
to asbestos, leading to his death.

(See id., ¶¶ 35-36, 52-53.)

As

its “Fifth Cause of Action,” the Complaint asserts a claim for loss
of consortium.

(See id., ¶¶ 77-79.)

Defendant has moved to

dismiss Plaintiff’s claim for loss of consortium pursuant to
Federal Rule of Civil Procedure 12(b)(6).

2

(Docket Entry 23 at 1.)2

In its brief in support of the Motion, Defendant argues for
dismissal of Plaintiff’s “claim for loss of consortium (see Compl.
¶¶ 77-79), and/or any other claim brought in her individual
capacity which is derivative of the claims brought by the Plaintiff
Estate.”
(Docket Entry 24 at 1.)
However, Defendant’s Motion
explicitly requests dismissal of only Plaintiff’s loss of
consortium claim.
(See Docket Entry 23 at 1 (“Now comes the
Defendant
.
.
.
and
hereby
moves
to
dismiss
Plaintiff[’s] . . . claim for loss of consortium . . . . [T]his
Defendant moves to dismiss Plaintiff[’s] . . . claim for loss of
consortium . . . .”).)
Indeed, the Motion’s title explicitly
limits the Motion to the loss of consortium claim.
(See id.)
Further, it remains unclear what, if any, claims other than for
loss of consortium Plaintiff pursues in her individual capacity.
(Compare Docket Entry 1, ¶¶ 77-79, with id., ¶¶ 52-53, 62-63, 6970, 75.) Under these circumstances, the undersigned Magistrate
Judge declines to expand the Motion beyond the specified loss of
consortium claim. See M.D.N.C. LR 7.3(b) (“All motions . . . shall
set forth the relief or order sought.”).
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DISCUSSION
“A federal court, sitting in North Carolina in a diversity
case, must apply the law as announced by the highest court of that
state or, if the law is unclear, as it appears the highest court of
that state would rule.”

Brendle v. General Tire & Rubber Co., 505

F.2d 243, 245 (4th Cir. 1974).

If an inquiry into the highest

court’s decision “proves unenlightening,” a federal court may “seek
guidance

from

an

intermediate

state

court.”

Assicurazioni

Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir. 1998); see
also West v. American Tel. & Tel. Co., 311 U.S. 223, 237 (1940)
(“Where an intermediate appellate state court rests its considered
judgment upon the rule of law which it announces, that is a datum
for ascertaining state law which is not to be disregarded by a
federal court unless it is convinced by other persuasive data that
the highest court of the state would decide otherwise.”).

In

diversity cases such as this one, “[i]f state substantive law has
denied a plaintiff a remedy for his cause of action, the district
court must dismiss the complaint for failure to state a claim upon
which relief may be granted.”

Goetzke v. Ferro Corp., 280 F.3d

766, 779 (7th Cir. 2002).
Defendant moves to dismiss Plaintiff’s loss of consortium
claim as “subsumed by and contained within a wrongful death claim.”
(Docket Entry 23, ¶ 2.)

More specifically, Defendant contends

that, under North Carolina law, “all claims made as a result [of]

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or arising from the death of a person . . . must be brought by the
deceased person’s estate under the Wrongful Death Act, N.C.G.S.
§ 28A-18-2.”

(Docket Entry 24 at 2-3.)

“there

no

is

allegation

in

the

Defendant maintains that
Complaint

that

any

defendant . . . ever harmed [Plaintiff] individually, or she ever
suffered any individual or personal damages which are separate and
apart from those allegedly suffered by the [D]ecedent.”

(Id. at

4.) Thus, Defendant argues, the relief Plaintiff seeks in bringing
her loss of consortium claim falls under N.C. Gen. Stat. Section
28A-18-2. (See id. at 4-5.) Defendant’s argument possesses merit.
In North Carolina, “[a]n action for wrongful death did not
exist at common law and rests entirely upon the [wrongful death]
statute. . . .

[A]ny common law claim which is now encompassed by

the wrongful death statute must be asserted under that statute.”
Christenbury v. Hedrick, 32 N.C. App. 708, 711-712, 234 S.E.2d 3,
5 (1977) (citations omitted).

Furthermore, loss of consortium

qualifies as a common law claim.

See Nicholson v. Hugh Chatham

Mem’l Hosp. Inc., 300 N.C. 295, 297, 266 S.E.2d 818, 819 (1980)
(“At common law, consortium embraced those marital rights a husband
had in respect to his wife.” (emphasis added)). Although the North
Carolina Supreme Court has not spoken directly on this issue, North
Carolina appellate courts have held that the wrongful death statute
encompasses loss of consortium in cases of a loved one’s death, and
therefore that a plaintiff in those circumstances must bring any

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individual loss of consortium claim under the wrongful death
statute.

See Keys v. Duke Univ., 112 N.C. App. 518, 522, 435

S.E.2d 820, 822 (1993) (“[T]he North Carolina wrongful death
statute encompasses a claim for loss of consortium, and we hold,
therefore, that [the] plaintiff’s claim [for loss of consortium in
her individual capacity] in the present action should have been
brought under that statute.”); Christenbury, 32 N.C. App. at 71112, 234 S.E.2d at 5 (holding that the wrongful death statute
precluded

the

plaintiff

from

asserting

common

law

loss

of

consortium claim).
Given the absence of “other persuasive data that the highest
court of the state would decide otherwise,”

West, 311 U.S. at 237,

the rule in Keys and Christenbury governs resolution of the Motion.
See Miller v. 3M Co., No. 5:12–CV–620, 2013 WL 4419351, at *3
(E.D.N.C. Aug. 14, 2013) (“[T]he court agrees that dismissal of the
claim [for loss of consortium] is appropriate.” (citing Keys, 112
N.C. App. at 522, 435 S.E.2d at 822)).
CONCLUSION
Plaintiff’s loss of consortium claim fails as a matter of
North Carolina law.

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IT IS THEREFORE RECOMMENDED that Defendant’s Motion to Dismiss
be granted as to Plaintiff’s loss of consortium claim.
This 9th day of August, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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