Eller et al v. Stone Energy Corp.
Filing
32
MEMORANDUM OPINION AND ORDER GRANTING 5 DEFENDANT'S MOTION TO DISMISS LOSSOF CONSORTIUM CLAIM WITH LEAVE TO AMEND AND GRANTING 31 DEFENDANT'S MOTION FOR LEAVE TO FILE THIRD-PARTY COMPLAINT. The Clerk is DIRECTED to file defendant Stone Energy Corporations third-party complaint and the Clerk is DIRECTED to issue summons on the third-party complaint. Signed by Senior Judge Frederick P. Stamp, Jr. on 5/15/2018. (copy to counsel via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RANDY ELLER and NANCY ELLER,
Plaintiffs,
v.
Civil Action No. 5:17CV153
(STAMP)
STONE ENERGY CORP.,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS LOSS
OF CONSORTIUM CLAIM WITH LEAVE TO AMEND AND
GRANTING DEFENDANT’S MOTION FOR LEAVE
TO FILE THIRD-PARTY COMPLAINT
I.
Background
This civil action involves personal injuries arising from a
flash fire at a natural gas well pad located in New Martinsville,
Wetzel County, West Virginia.
The plaintiffs, Randy Eller and
Nancy Eller, originally filed their complaint in the Circuit Court
of Wetzel County, West Virginia on September 12, 2017, against
defendant Stone Energy Corporation (hereinafter, “Stone”). ECF No.
1-1.
The complaint alleges that as a consequence of the negligent
conduct of defendant Stone, a flash fire occurred at the “Howell
Pad” on October 28, 2016, which was owned, operated, and controlled
by Stone, that caused serious and permanent injuries to the
plaintiff, Randy Eller.
assert
that
Nancy
ECF No. 1-1 at 3.
Eller,
as
a
The plaintiffs further
proximate
result
of
Stone’s
negligence, has lost the care, comfort, services, and consortium of
her husband Randy Eller.
ECF No. 1-1 at 5.
Defendant Stone
removed the civil action to this Court on October 10, 2017.
In the
notice of removal (ECF No. 1), Stone asserts that this Court has
jurisdiction over the matter pursuant to 28 U.S.C. §§ 1332, 1441(b)
and 1446 because the parties are of diverse citizenship and the
amount in controversy exceeds $75,000.00.
Stone then filed under
Federal Rule of Civil Procedure 12b(6) a motion to dismiss the loss
of consortium claim filed by plaintiff Nancy Eller.
ECF No. 5.
Stone’s motion to dismiss the loss of consortium claim (ECF No. 5)
was stayed by this Court’s order (ECF No. 11) following the
proposed agreed order seeking to stay briefing until such time as
this Court rules on the plaintiffs’ pending motion to remand.
No.
10
at
1.
The
parties
then
submitted
an
voluntarily dismissing plaintiffs’ motion to remand.
agreed
ECF
order
ECF No. 22.
This Court then entered an order (ECF No. 23) approving and
supplementing the parties’ agreed order, which resumed briefing on
defendant’s motion to dismiss.
The motion to dismiss is now fully
briefed and is ripe for consideration.
In its motion to dismiss, Stone argues that plaintiff Nancy
Eller “has failed to allege a valid cause of action for loss of
consortium and has failed to allege facts upon which relief may be
granted.”
ECF No. 5 at 1.
Stone asserts that “[p]laintiff Nancy
Eller’s requested relief for loss of consortium should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) because she
failed to plead her claim as a cause of action and failed to allege
2
more that the elements of the claim as required in Twombly/Iqbal,”1
(ECF No. 6 at 3) and that “in this case, the [p]laintiffs have
failed to allege a valid cause of action for loss of consortium
under West Virginia law” (ECF No. 6 at 4) and have “failed to
present
any
factual
allegations of injury.”
allegations
to
support
her
conclusory
ECF No. 6 at 6.
The plaintiffs filed a response in opposition.
ECF No. 25.
Plaintiffs assert that Stone’s argument fails in that Nancy Eller
is herself a plaintiff in this action.
ECF No. 25 at 5.
Further,
plaintiffs argue that the consortium claim is properly plead
considering the overlap between the facts that apply to liability
and the underlying damage claims generally.
ECF No. 25 at 5-6.
Plaintiffs add that this Court’s opinion in Councell v. Homer
Laughlin China Co., 823 F. Supp. 2d 370 (N.D. W. Va. 2011), is “in
perfect alignment with the elements of a loss of consortium claim
under West Virginia law.”
plaintiffs
state
that
if
ECF No. 25 at 6.
this
Court
is
Alternatively,
inclined
to
grant
defendant’s motion to dismiss, the plaintiffs request leave to
amend their complaint with respect to the consortium claim pursuant
to Rule 15(a) of the Federal Rules of Civil Procedure.
ECF No. 25
at 7.
Defendant Stone filed a reply (ECF No. 26) and argues that
“[d]espite [p]laintiffs’ protestations to the contrary, pursuant to
1
Bell Atl. Corp. v. Twombly, 550 U.S. 544, (2007); Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009).
3
Federal Rule of Civil Procedure 12(b)(6), [p]laintiff Nancy Eller’s
loss of consortium claim must be dismissed because she failed to
plead her purported claim as a separate and distinct cause of
action.”
ECF No. 26 at 2.
Further, defendant asserts that
plaintiffs’ attempt to reserve a right to amend their complaint,
contingent on this Court’s ruling on the pending motion to dismiss
should be disregarded.
ECF No. 26 at 3.
Defendant states that
while Rule 15 provides that “[t]he court should freely give leave
[to amend] when justice so requires[,]” a party cannot wait to
amend if the Court decides to dismiss the claim subject to a motion
to dismiss. Stone argues that “because of [p]laintiffs’ failure to
timely seek amendment of their Complaint to cure the defect with
their loss of consortium claim, dismissal is required.” ECF No. 26
at 4-5.
For the reasons stated below, the defendant’s motion to
dismiss the loss of consortium claim (ECF No. 5) is granted with
leave for plaintiffs to amend and reassert that claim.
Additionally, defendant Stone filed a motion for leave to file
a third-party complaint.
was filed.
ECF No. 31.
No response in opposition
Defendant Stone has attached the proposed third-party
complaint (ECF No. 31-1) in accord with the scheduling order (ECF
No. 16 at 4) and pursuant to Local Rule of Civil Procedure 15.01.
For the reasons stated below, the defendant’s motion for leave
to file a third-party complaint (ECF No. 31) is granted.
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II.
Applicable Law
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.
Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”
Id.
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
This
Court
also
declines
to
consider
“unwarranted
unreasonable conclusions, or arguments.”
inferences,
Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
The purpose of a motion under Rule 12(b)(6) is to test the
formal sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or the
merits of the case.
5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (3d ed. 1998).
The Rule
12(b)(6) motion also must be distinguished from a motion for
summary judgment under Federal Rule of Civil Procedure 56, which
goes to the merits of the claim and is designed to test whether
there is a genuine issue of material fact.
Id.
For purposes of
the motion to dismiss, the complaint is construed in the light most
favorable to the party making the claim and essentially the court’s
inquiry
is
directed
to
whether
5
the
allegations
constitute
a
statement of a claim under Federal Rule of Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Facial
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
Detailed
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
level.”
Twombly, 550 U.S. at 555.
Rule 14(a)(1) of the Federal Rules of Civil Procedure provides
that a defendant may bring an action as a third-party plaintiff “on
a nonparty who is or may be liable to it for all or part of the
claim against it.” (emphasis added).
plaintiff
seeks
to
file
its
However, if the third-party
third-party
complaint
more
than
fourteen days after serving its original answer, it must first
obtain
the
14(a)(1).
court’s
permission,
by
motion.
Fed.
R.
Civ.
P.
Granting leave to bring a third-party into an action
pursuant to Rule 14(a)(1) falls within the sound discretion of the
trial judge and should be liberally construed.
Baltimore & Ohio
R.R. Co. v. Saunders, 159 F.2d 481, 483-84 (4th Cir. 1947).
See
also Schwarzer, Tashima & Wagstaffe, Rutter Group Prac. Guide: Fed.
6
Civ. Pro. Before Trial 7:333 (The Rutter Group 2008) (“The decision
whether to permit a third party claim under Rule 14 is addressed to
the sound discretion of the trial court and will not be overturned
on appeal absent an abuse of discretion.”).
III.
A.
Discussion
Motion to Dismiss Loss of Consortium Claim
Defendant Stone argues that the Court should dismiss plaintiff
Nancy Eller’s loss of consortium claim because the complaint
“recites inadequate conclusions of law.”
Court agrees.
ECF No. 5 at 1.
This
To survive a motion to dismiss, this claim must not
“merely repeat the elements for a loss of consortium claim rather
than pleading facts.”
Winkler v. Hartford Financial Services
Group, Inc., 2011 WL 1705559, *3 (D. Nev. 2011).
Since loss of
consortium is an independent claim, the complaint must include
factual allegations about that plaintiff’s losses.
See Bates v.
State Farm Mut. Ins. Co., 2015 WL 11714360, *4 (W.D. Wash. 2015).
In Bates, the defendants sought to dismiss a loss of consortium
claim because the complaint only alleged that Mr. Bates “is a
plaintiff and Ms. Bate’s Husband.”
Id.
The Court held that these
allegations were not “sufficient to permit the court to draw the
reasonable inference that Mr. Bates suffered a loss of consortium.”
Id.
Here, the complaint contains no factual support in relation to
the “loss of consortium” allegedly suffered by Ms. Eller as a
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result of the injuries to Mr. Eller. The loss of consortium claim,
namely Paragraph No. 18 of the plaintiffs’ complaint, asserts:
As a direct and proximate result of the negligence of the
Defendant, Stone Energy Corporation, the Plaintiff, Nancy
Eller, has suffered a loss of her husband’s care,
comfort, services, and consortium and she will continue
to suffer these losses in the future.
ECF No. 1-1 at 5.
This Court finds that the plaintiffs’ asserted claim merely
recites the elements of a loss of consortium claim and does not
meet the pleading requirements of Twombly, and is insufficient to
“raise a right to relief above the speculative level.”
Twombly,
550 U.S. at 555.
In their memorandum in opposition to defendant’s motion to
dismiss (ECF No. 25), plaintiffs include an alternative request for
leave to file an amended complaint should the motion to dismiss be
granted.
Under Federal Rule of Civil Procedure 15(a), a district
court has broad discretion concerning motions to amend pleadings.
This Court finds that leave should be granted absent some reason
“such as undue delay, bad faith, or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment or futility of the amendment.” Foman
v. Davis, 371 U.S. 178, 182 (1962); see also Ward Elec. Serv. v.
First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987); Gladhill
v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984).
This
Court has reviewed the record and finds no reason to deny the
8
plaintiffs’ requested relief for leave to amend their complaint as
to the loss of consortium claim.
Thus, for the reasons stated above, the defendant’s motion to
dismiss the plaintiffs’ loss of consortium claim (ECF No. 5) is
granted with leave for plaintiffs to amend and reassert that claim.
B.
Motion for Leave to File Third-Party Complaint
This Court has reviewed the defendant’s motion to file a
third-party complaint (ECF No. 31) and finds that the defendant’s
proposed third-party complaint meets the requirements of Rule
14(a)(1) of the Federal Rules of Civil Procedure in that it alleges
that “Island Operating Company, Inc., and Unknown Name(s)” a/k/a
certain underwriters at Lloyd’s may be liable for the plaintiffs’
claims.
ECF No. 31-1.
Furthermore, this Court notes that the
defendant’s motion for leave to file a third-party complaint was
timely filed.
Pursuant to the scheduling order entered by this
Court on November 16, 2017 (ECF No. 16), “[m]otions
to join
additional parties, motions to amend pleadings, and any crossclaim
or counterclaim, as well as any similar motions, shall be filed on
or before August 13, 2018.” (ECF No. 16 at 3-4, emphasis in
original).
Defendant filed its motion for leave to file a third-
party complaint on April 19, 2018.
Accordingly, for the reasons stated above, the defendant’s
motion for leave to file a third-party complaint (ECF No. 31) is
granted.
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IV.
Conclusion
For the reasons stated above, it is ORDERED as follows:
Defendant’s motion to dismiss plaintiffs’ loss of consortium claim
for failure to state a claim (ECF No. 5) is GRANTED as to that
claim only, with leave for plaintiffs to amend and reassert that
claim.
Defendant’s
motion
for
leave
complaint (ECF No. 31) is GRANTED.
to
file
a
third-party
The Clerk is DIRECTED to file
defendant Stone Energy Corporation’s third-party complaint (ECF No.
31-1).
Further, the Clerk is DIRECTED to issue summons on the
third-party complaint. The summons and third-party complaint shall
then be served upon the third-party defendant in accordance with
Federal Rule of Civil Procedure 14.
The party served with the summons and third-party complaint,
hereinafter the third-party defendant, shall make any defenses
pursuant
to
Federal
Rule
of
Civil
Procedure
12
and
any
counterclaims or crossclaims pursuant to Federal Rule of Civil
Procedure 13.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
DATED:
May 15, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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