Chism v. Chemring North America Group, PLC

Filing 17

ORDER DENYING MOTION TO DISMISS BY DEFENDANT, CHEMRING NORTH AMERICA GROUP, INC. 14 . Signed by Chief Judge J. Daniel Breen on 12/7/15. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
KATHERINE A. CHISM, Individually,
As Next-of-Kin and the Surviving Spouse
of MICHAEL LEWIS CHISM, Deceased,
and On Behalf of the Wrongful Death
Beneficiaries of MICHAEL LEWIS
CHISM, Deceased,
Plaintiff,
v.

No. 15-1033

CHEMRING
NORTH
AMERICA
GROUP, INC., d/b/a CHEMRING
COUNTERMEASURES
(USA)
and
CHEMRING
COUNTERMEASURES,
LTD. f/k/a ALLOY SURFACES AND
KILGORE FLARES, in its Assumed or
Common Name, as a Business Group and
Operating Company of CHEMRING
GROUP, PLC, a British Company, and as
the Parent Company of KILGORE
FLARES, CO., LLC,
Defendant.
_____________________________________________________________________________
ORDER DENYING MOTION TO DISMISS BY DEFENDANT,
CHEMRING NORTH AMERICA GROUP, INC.
_____________________________________________________________________________

On February 2, 2015, Plaintiff, Katherine A. Chism, individually, as next-of-kin and
surviving spouse of Michael Lewis Chism, deceased, brought this diversity action for wrongful
death against Defendants, Chemring North America, d/b/a/ Chemring Countermeasures (USA)
and Chemring Countermeasures, LTD, f/k/a Allow Surfaces and Kilgore Flares, in its assumed
or common name, as a business group and operating company of Chemring Group, PLC, a
British company, and as the parent company of Kilgore Flares, Co., LLC (“Kilgore”). (Docket
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Entry (“D.E.”) 6.) In the complaint, Chism contends that Defendant’s conduct rose to the level
of negligence, gross negligence, and willful, egregious, reckless, wanton and/or intentional
conduct. Moreover, Plaintiff alleges that Chemring North America Group (“Chemring”): 1)
voluntarily and independently assumed the duty to ensure the “health, safety, and welfare of, and
prevent injuries to” the employees of its wholly owned subsidiary and 2) breached that duty
when the deceased was injured. (D.E. 6 ¶ 47.) Chism points to twenty-five acts that were either
direct and proximate causes or contributing factors to his injuries.
Plaintiff seeks recovery of compensatory and punitive damages for “excruciating thermal
burns, significant pain and suffering, mental and emotion anguish, lost wages, and premature,
wrongful death.” (D.E. 6 ¶ 55.) In addition, on behalf of herself and the other wrongful death
beneficiaries, she claims damages for, among other things, loss of care, maintenance, love, and
companionship pursuant to the Tennessee Wrongful Death statute, Tennessee Code Annotated
sections 20-5-106, -107, and -113.
On June 3, 2015, Plaintiff filed her first amended complaint, to which Defendant
responded with a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss all of claims
with prejudice. (D.E. 6, 14.) As bases for its motion, Chemring relies on the following grounds:
1) the Tennessee Worker’s Compensation Act (“TWCA”) provides Chism’s sole and exclusive
remedies against Chemring, and, thus, precludes any negligence claims; 2) Chemring, as a
member-owner of a limited liability corporation (“LLC”), cannot be held liable for claims
against the LLC, Kilgore; 3) Chemring did not assume a duty towards Decedent, and, thus,
cannot be held responsible; and 4) Plaintiff’s pleadings are insufficient to establish a basis for
punitive damages under Tennessee law.

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I. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When
considering such a motion, a district court should “construe the allegations and facts in the
complaint in the light most favorable” to the non-moving party and accept all “well-pl[eaded]
factual allegations as true.” Terry v. Tyson Farms, Inc., 604 F.3d 272, 274 (6th Cir. 2010) (citing
Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)). A claim is well-pleaded when “it
contains either direct or inferential allegations respecting all material elements necessary for
recovery under a viable legal theory.” Phil. Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645,
649 (6th Cir. 2013) (quoting Terry, 604 F.3d at 275-76).

The complaint, therefore, must

“contain[] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face,” Reilly v. Vadlamudi, 680 F.3d 617, 622-23 (6th Cir. 2012) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)),1 but the Court “need not accept as true legal conclusions or
unwarranted factual inferences, and conclusory allegations or legal conclusions masquerading as
factual allegations.” Youth Alive, Inc., 732 F.3d at 649 (quoting Terry, 604 F.3d at 275-76).
Nevertheless, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

1

Chemring argues that this Court should only consider the facts alleged in the First
Amended Complaint (D.E. 6) for this Motion to Dismiss. As it is true that “[a]n amended
complaint, once filed, normally supersedes the antecedent complaint,” Bituminous Cas. Corp. v.
Tindle Enters., Inc., No. 07-1158 B, 2009 WL 2843375, at *4 (W.D. Tenn. Aug. 31, 2009)
(quoting Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008)), the Court agrees with
the Defendant’s position and will refer only to the facts set forth in the amended complaint.
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Under the doctrine of Erie R.R. Company v. Tompkins, 304 U.S. 64 (1938), federal
courts, when adjudicating claims based on diversity jurisdiction, apply federal procedural law,
but employ the state substantive law of the state in which the acts occurred that gave rise to the
claims. See also Williams v. United States, 754 F. Supp. 2d 942, 948 (W.D. Tenn. 2010). As the
accident in this case occurred in Tennessee, that state’s law controls the substantive claims, while
federal law governs the procedural issues.
II. FACTS ALLEGED
Plaintiff made the following allegations in her amended complaint. Michael Chism
worked for Kilgore Flares Co., a wholly owned subsidiary of Chemring in Toone, Tennessee.
(D.E. 6 at ¶¶ 12, 13.) Around 10:50 a.m., on February 22, 2014, an industrial fire ignited,
leading to an explosion in the manufacturing plant. (Id. at ¶ 15.) Chism caught fire and suffered
critical thermal burns. (Id. at ¶16.) He was taken to the Regional Medical Center in Memphis
where he passed away two days later. (Id. at ¶¶ 24, 25.) Three days after the accident, the
Tennessee Department of Labor and Workforce Development, Division of Occupational Safety
and Health (“TOSHA”) undertook an investigation of the facility. (Id. at ¶ 28.) As a result,
TOSHA cited Kilgore for several “serious” safety violations and found that the “severity of
injuries, the probability for composition ignition, and the severity of the fire/explosion event
were increased by inadequate and poorly implemented procedures.”2 (Id. at ¶ 30, 34-38.) In
general, TOSHA cited Kilgore for failures to “implement procedures,” to “develop reliable data
for hazard analysis,” and to “conduct adequate hazard analysis and control hazards.” (Id. at ¶
32.)

2

According to the citations, these were violations of the Occupational Safety and Health
Standards of the Occupational Safety and Health Administration (“OSHA”). 29 C.F.R §§
1910.106, 1910.119, 1010.132.
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Over five years before, on August 20, 2008, Chemring’s Managing Director had issued a
lengthy statement, published on the company’s public website that, among other things, ensured
that the company believed that “all accidents are avoidable” and “accept[ed] full responsibility
for ensuring the health, safety and welfare of all its employees and those persons affected by its
activities.”

(D.E.

6-2);

Chemring

Countermeasures,

Health

and

Safety

Policy,

http://www.chemringcm.com/about-us/health-and-safety-policy.aspx (last visited Aug. 27, 2015)
[perma: http://perma.cc/KRC7-TLV7] [hereinafter “the Health and Safety Policy”].

The

statement went on to say, “[t]he company will ensure that all processes and systems of work are
designed and managed to take account of Health and Safety.” Id.
III. ANALYSIS
In its motion, Chemring presents four theories for dismissal of this action either in whole
or in part. Each one will be addressed in turn.
A. Parent Company Liability
Chemring, a Delaware corporation, first asserts that it cannot be held liable for Kilgore’s
acts under Tennessee and Delaware laws on corporations. “It is a general principle of corporate
law deeply ingrained in our economic and legal systems that a parent corporation (so-called
because of control through ownership of another corporation’s stock) is not liable for the acts of
its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998) (quoting Willian O. Douglas
& Carrol M. Shanks, Insulation from Liability through Subsidiary Corporations, 39 Yale L.J.
193 (1929)). Thus, “the exercise of the control which stock ownership gives to the stockholders
will not [automatically] create liability beyond the assets of the subsidiary.” Id. at 61-62.
“These principles are equally applicable when the shareholder is, in fact, another corporation,
and hence, mere ownership of a subsidiary does not justify the imposition of liability on the

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parent [company].” Pearson v. Component Tech. Corp., 247 F.3d 471, 484 (3d Cir. 2001)
(emphasis added) (citing Bestfoods, 524 U.S. at 69). Thus, a parent company will ordinarily not
be liable for the “debts and obligations of the [subsidiary] itself” solely by reason of being a
member, even if it is the only member. See Wierbicki v. Advatech, LLC, No. 1:06-CV-269, 2007
WL 2725944, at *4 (E.D. Tenn. Sept. 17, 2007); see also Del. Code Ann. tit. 6, § 18-303 (2015).
This general statement of law, that parent companies will not be held liable for the
obligations of their subsidiaries, is tempered by some exceptions: (1) a parent company may be
held liable for the acts of its subsidiary under certain circumstances through the mechanism of
piercing the corporate veil; and (2) a parent company can always be held liable for its own
actions—even if those actions relate to the subsidiary. See, e.g., Bestfoods, 524 U.S. at 51;
Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 663 (6th Cir. 1979); Hinkle v. Delavan Indus.,
Inc., 24 F. Supp. 2d 819, 821 (W.D. Tenn. 1998); Gaines v. Excel Indus., Inc., 667 F. Supp. 569
(M.D. Tenn. 1987). For example, in Bestfoods, the United States Supreme Court held that parent
companies could be held directly liable for their own actions related to a subsidiary’s violation of
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(“CERCLA”). Bestfoods, 524 U.S. at 64 (“[N]othing in [CERCLA’s] terms bars a parent
corporation from direct liability for its own actions in operating a facility owned by its
subsidiary.”).
As to the first exception, Defendant contends that piercing the corporate veil would
automatically provide the parent company protection as an employer under the TWCA.
However, Chism has not requested that this Court pierce the corporate veil in order to hold
Chemring liable for Kilgore’s torts. Instead, she relies on the separate nature of the corporate
entities for her argument. (D.E. 15-1 at ¶ 6-8.) Moreover, the Court notes that the analyses for

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veil piercing and for protection under the exclusive remedy provision of the TWCA are distinct.
One does not necessarily implicate the other. Compare Pamperin v. Streamline Mfg., Inc., 276
S.W.3d 428, 437 (Tenn. Ct. App. 2008) (quoting Mfrs. Consol. Serv., Inc. v. Rodell, 42 S.W.3d
846, 866 (Tenn. Ct. App.2000)) (stating that a corporate veil may be pierced for either of two
reasons: when the two companies are identical or when justice requires it), with Stigall v. Wickes
Mach., a Div. of Wickes Corp., 801 S.W.2d 507, 507 (Tenn. 1990) (inquiring only whether the
two companies are “one” such that the parent company could gain protection under the Workers’
Compensation exclusive remedy provision).
Next, the Court turns to the issue of parent company liability.

Kilgore is a

Delaware-based LLC that has only one member: Chemring. Tennessee Code Annotated section
48-246-101 provides, “the laws of the jurisdiction under which a foreign LLC is formed or
organized govern its formation or organization and internal affairs and the liability of its
members and representatives.”

Tenn. Code Ann. § 48-246-101 (2015).

Thus, Delaware

substantive law controls the issue of Defendant’s liability for Kilgore’s torts. The relevant
Delaware law provides, “no member or manager of a limited liability company shall be obligated
personally for any . . . debt, obligation or liability of the limited liability company [arising in
contract, tort, or otherwise] solely by reason of being a member or acting as a manager of the
limited liability company.” Del. Code Ann. tit. 6, § 18-303(a) (emphasis added). Nevertheless,
the fact remains that any entity, including a member of an LLC, may be held liable for either its
own independent tortious acts or its role in the alleged tortious conduct of the LLC. See, e.g.,
Pepsi-Cola Bottling Co. of Salisbury, Md. v. Handy, No. 1973-S, 2000 WL 364199, at *3 (Del.
Ch. Mar. 15, 2000) (quoting R. Franklin Balotti and Jesse A. Finkelstein, The Delaware Law of
Corporations & Business Organizations 20-6 (3rd ed.1998)) (“The word ‘solely,’ which is used

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in Section 18-303, indicates that a member or manager will not be liable for the debts,
obligations, or liabilities of a Delaware LLC only by reason of being a member or manager;
however, other acts or events could result in the imposition of liability upon or assumption of
liability by a member or manager.”); see also Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872,
882 (Del. Ch. 2009).
Plaintiff insists that Chemring, through its assurances of safety stated in the Policy,
undertook the duty of ensuring the health and safety of its employees and all other people
affected by its operations. After assuming this duty, Chism alleges that Defendant ignored the
safety conditions of the plant despite the many safety violations. Much like in Best Foods, where
the United States Supreme Court held a parent corporation liable for its own actions in operating
a subsidiary-owned facility, Plaintiff does not ask the Court to hold Defendant liable for
Kilgore’s torts because it is the subsidiary’s parent company. 524 U.S. at 64. Instead, she points
to Chemring’s alleged independent failure to monitor the safety of the employment environment
as a basis for liability. However, as the Court found in Bestfoods, holding a parent company
directly liable for activities occurring during the operations of its subsidiary is a fact-intensive
inquiry that requires a court to look at to the amount of parental participation in the subsidiary’s
activities, among other things. Id.
The Plaintiff has alleged that the company, despite the public statements insuring employee
safety, failed to “adequately provide the very processes, sufficiency of information,
communication, training and supervision explicitly ensured by Chemring . . . .” (D.E. 6 ¶ 42).
The facts alleged, taken as true, state a plausible basis for relief under the direct liability theory,
and the LLC formation would not automatically insulate Defendant from liability. See Smartt v.
NHC Healthcare/McMinnville, LLC, No. M200702026COAR3CV, 2009 WL 482475, at *5

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(Tenn. Ct. App. Feb. 24, 2009) (“[D]irect liability can be imputed to a parent entity as a result of
the parent’s control over a subsidiary”). Accordingly, the Court holds that Plaintiff has pleaded
enough facts to survive dismissal under Rule 12(b)(6). Dismissal of the claims on this ground is
DENIED.
B.

The TWCA’s Exclusive Remedy Provision
Chemring next asserts that Chism cannot hold the company liable because the TWCA is

the exclusive remedy available to employees who sue their employers for injuries incurred
within the course and scope of the employment. See Tenn. Code Ann. § 50-6-108(a) (“The
rights and remedies granted to an employee subject to this chapter, on account of personal injury
or death by accident, . . . shall exclude all other rights and remedies of the employee, the
employee’s personal representative, dependents or next of kin, at common law or otherwise, on
account of the injury or death.”); see generally Tenn. Code Ann. § 50-6-101 to -921.
Since the TWCA was passed in 1919, it has “provided compensation for injured
employees, eliminated employers’ potential defenses, set attorney’s fees, provided for a system
of adjudication, abrogated the right of employees to pursue common law negligence actions, and
capped employees’ potential recovery.” Yardley v. Hosp. Housekeeping Sys., 2015 WL 5545620
(Tenn. 2015) (citing Act of Feb. 5, 1919, ch. 123 § 2, 1919 Tenn. Pub. Acts 369). Thus, the
TWCA serves as a “comprehensive [legal] system that reflects a compromise between the
interests of employers and employees,” id. (quoting Clanton v. Cain-Sloan Co., 677 S.W.2d 441,
443 (Tenn. 1984)), and is a quid pro quo system. It offers workers a streamlined, no-fault
system for obtaining compensation for work-related injuries in return for employer tort
immunity.

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This system, however, operates exclusively within the employer/employee relationship.
See Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 950 (Tenn. 1985) (“The basis
of liability under the [TWCA] is the employer-employee relationship.”); Hammett v. Vogue, Inc.,
165 S.W.2d 577 (1942). For this reason, parent companies do not normally fall within the scope
of the TWCA; they are not “employers” under the TWCA’s definitions. See Tenn. Code Ann. §
50-6-102 (12) (“‘Employer’ includes any individual, firm, association or corporation, [or the
legal representative or receiver thereof,] using the services of not less than five (5) persons for
pay . . . .”) Moreover, courts generally decline to “extend the scope of exclusivity [of remedy]
beyond the quid pro quo expressly created by the legislature and accepted by the legislature and
accepted by the parties.” Gaines, 667 F. Supp. at 575. As a non-employer of the deceased, the
TWCA would not normally protect Defendant from liability.
Nevertheless, courts in Tennessee have found that, in some instances, certain parent
companies are alter egos of their subsidiaries, and, thus, protected from liability by the
exclusivity provision of the TWCA. The burden rests on the Defendant to prove that it is
immune under the TWCA once a prima facie negligence case is established. See Gaines, 667 F.
Supp. at 576; see also Watson v. Borg-Warner Corp., 228 S.W.2d 1011, 1014 (1950); Pikeville
Fuel Co. v. Marsh, 232 S.W.2d 789, 793 (Tenn. Ct. App. 1948) disapproved of on other grounds
by Archie v. Yates, 325 S.W.2d 519 (Tenn. 1959).
In Stigall, the Tennessee Supreme Court applied the exclusive remedy provision of the
TWCA to a parent company after finding that the wholly owned subsidiary and parent company
were essentially the same entity. Stigall, 801 S.W.2d at 510. To arrive at this holding, the court
considered the following documents: plaintiff’s employment application, payroll records, payroll
checks, W-2 forms, the injury report filed with the State Workers’ Compensation Department,

10

insurance policies, disability payments, and a pre-employment physical examination. Id. In
Gaines, the United States District Court for the Middle District of Tennessee similarly looked at
whether a parent company was entitled to invoke statutory employer immunity under the TWCA
against negligence claims brought by a subsidiary’s employee. 667 F. Supp. at 575. The court
held that such questions are ones of fact to be decided by the factfinder. Id. at 577.
In the instant case, Plaintiff does not claim that Kilgore is simply an alter ego of
Chemring, and Defendant concedes, “Kilgore, not Chemring, was in fact Decedent’s ‘statutory
employer.’” (D.E. 14-1 at 19.) Moreover, as Defendant notes, there has been no allegation that
Chemring historically intervened in or controlled any of Kilgore’s operations.

As well,

Defendant has not established that it is entitled to immunity under the TWCA. Given the
absence of such information, further fact development is needed to ascertain whether, at the time
of the accident, the two companies were integrated enough to afford Defendant TWCA
protection. Accordingly, dismissal of the claims on this ground is DENIED.
C.

Undertaking of a Duty for Negligence Liability
Next, Chemring seeks dismissal on the ground that the company never assumed a duty to

the deceased, and, thus, cannot be held liable for negligently failing to: 1) protect Chism from
harm by providing safety “processes, sufficiency of information, communication, training and
supervision”; and 2) ensure the safety and welfare of Kilgore’s employees.
In Tennessee, “persons do not ordinarily have a duty to act to protect others from dangers
or risks except for those that they themselves have created.” Satterfield v. Breeding Insulation
Co., 266 S.W.3d 347, 357 (Tenn. 2008). Thus, passive actions, i.e. the failure to act, are
normally not grounds for tort liability. Id. at 356-57. The Second Restatement of Torts provides,

11

One who, being under no duty to do so, takes charge of another who is
helpless adequately to aid or protect himself is subject to liability to the other for
any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety
of the other while within the actor's charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves
the other in a worse position than when the actor took charge of him.
Restatement (Second) of Torts § 324(A) (1965). This is commonly referred to as the Good
Samaritan theory of liability. This theory can be extended to the corporate context by inquiring
whether a company has assumed a certain duty to its employees or the community, but
negligently failed to undertake that responsibility. See Patentas v. United States, 687 F.2d 707,
716 (3d Cir. 1982); see also Sagan v. United States, 342 F.3d 493, 498 (6th Cir. 2003); Myers v.
United States, 17 F.3d 890, 903 (6th Cir. 1994). This negligence can manifest itself in one act or
an entire course of conduct that creates risks of harm. See Satterfield, 266 S.W.at 356. For
example, a parent company may incur liability for injuries to its subsidiary’s employees “if it has
undertaken the duty to prevent injuries to [those] employees.” Hinkle v. Delavan Induss., 24 F.
Supp. 2d 819 (W.D. Tenn. 1998); see also Gaines, 667 F. Supp. 569 (holding that workers,
employees of subsidiary, could sustain an action against the parent company under the Good
Samaritan doctrine of liability). In determining whether a parent company has taken on this
duty, the relevant question is whether evidence exists to prove that the “parent corporation
assumed a duty to ensure safety.” Id.
Chism, in her amended complaint, maintained that Defendant’s Health and Safety Policy
constituted the undertaking of a duty to prevent risk of harm. (D.E. 6-2 at 2.) Taken as true, this
could establish the assumption of a duty to ensure safety. Accordingly, the Court holds Plaintiff
has presented sufficient facts to establish that Defendant undertook a duty of care to Kilgore
employees. Thus, dismissal of the claims on this ground is DENIED.

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D.

Punitive Damages
Chemring last argues that Plaintiff that because all counts should be dismissed, neither

compensatory nor punitive damages are appropriate. In the alternative, Defendant contends that
Plaintiff has failed to plead facts to establish that it acted in an intentional, fraudulent, malicious,
or reckless manner.
The Court denied the motion to dismiss the claims that would give rise to compensatory
damages, thus the first argument fails. As to the second point, in 1992, the Tennessee Supreme
Court stated that punitive damages were available in cases “involving only the most egregious of
wrongs.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). There are several
forms of such wrongs. “Although punitive damages may be available upon a showing of evil
motive or intent or callous indifference, punitive damages are also appropriate when a
defendant’s action involves even reckless disregard of the plaintiff’s rights.” Tillman v. Decatur
Cnty., 15-01068 JDB-EGB, 2015 WL 5675843, at *6 (W.D. Tenn. Sept. 25, 2015) (citing Smith
v. Wade, 461 U.S. 30, 56 (1983)). “A person acts recklessly when the person is aware of, but
consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard
constitutes a gross deviation from the standard of care that an ordinary person would exercise
under all the circumstances.” Id. (citing Tenn. Code Ann. § 39-11-302(c) (1991) (criminal
definition of “reckless”)).
Chism has submitted as exhibits to the amended complaint TOSHA safety reports
showing that Kilgore committed numerous serious safety violations. These violations were all
systemic safety deficiencies, including the failure to use adequate equipment and safety
procedures, deficiency in the written safety protocols for daily operations, inadequacy of the
process hazard analysis, and failure to provide adequate safety gear to workers. The amended

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complaint shows that 1) Chemring is, at least partially, in the business of fabricating flares, and
2) through the Health and Safety Policy, the company demonstrated awareness of the potentially
dangerous nature of its activities. Construing the complaint in the light most favorable to
Plaintiff, the safety failures—which constituted regulatory violations—combined with the
alleged awareness of the company as to safety concerns and the resulting harm that might occur,
could be deemed by a fact finder as constituting a gross deviation from the standard of care that
an ordinary company would exercise under all the circumstances. Cf. Sterling v. Velsicol Chem.
Corp., 855 F.2d 1188, 1216 (6th Cir. 1988) (finding that the district court was within its
discretion in considering violation of state safety regulations when awarding punitive damages).
Accordingly, Plaintiff has satisfied the pleading requirement to state a claim for punitive
damages, and Defendant’s motion to dismiss on that ground is DENIED.
IV. CONCLUSION
For the reasons discussed herein, the four grounds for Chemring’s motion to dismiss are
DENIED.
IT IS SO ORDERED this 7th day of December 2015.

s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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