Phlypo v. BNSF Railway Co
Filing
19
ORDER signed by Judge J.P. Stadtmueller on 7/7/2017 DENYING 4 Defendant's Motion for More Definite Statement. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLENE M. PHLYPO and
ESTATE OF DAVID L. DEFORGE,
Plaintiffs,
Case No. 17-CV-472-JPS
v.
BNSF RAILWAY CO., formerly known as
BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY,
ORDER
Defendant.
In this action, Plaintiffs allege that David L. DeForge (“DeForge”)
died from exposure to various toxic substances during his 37-year
employment with Defendant, BNSF Railway Co. (“BNSF”). Specifically,
Plaintiffs assert that DeForge was exposed, by touch, inhalation, or
consumption, at varying levels throughout his long career, to “various toxic
substances and carcinogens including but not limited to chemicals,
solvents, diesel fuel/exhaust, benzene, heavy metals, creosote, manganese
and rock/mineral dust and fibers.” (Docket #1 ¶¶ 5–7). As a result, he
developed non-Hodgkin’s lymphoma and related diseases. Id. ¶ 8.
Plaintiffs claim damages under the Federal Employers Liability Act
(“FELA”), 45 U.S.C. § 51 et seq.
BNSF has filed a motion for more definite statement pursuant to
Federal Rule of Civil Procedure 12(e), which provides that “[a] party may
move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party
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cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). The objective
of this Rule is to ensure that a party has the minimum amount of
information required by Rule 8 to enable him to craft a responsive pleading.
See Coleman v. Majestic Star Casino, LLC, Cause No. 2:11–CV–391–PPS–PRC,
2012 WL 1424396, at *1 (N.D. Ind. Apr. 24, 2012). It is not a substitute for
discovery. Id.
BNSF says that Plaintiffs’ complaint is deficient because it alleges a
non-exhaustive list of conditions, caused by exposure to a huge number of
substances at various unspecified times, locations, and levels, throughout a
37-year period. (Docket #4 at 2). Plaintiffs counter that they have been as
specific as they can and that BNSF, as his former employer, is in a superior
position to know the particular substances DeForge was exposed to, when,
and in what amounts. (Docket #15 at 3).
The Court finds that Plaintiffs’ pleading is sufficient to put BNSF on
notice of the claim against it. Plaintiffs provided decedent’s identity, his
dates of employment, and general details about the work he performed
while employed. They listed the toxic substances to which he was allegedly
exposed and claimed that BNSF’s negligence led to that exposure. They
connected that exposure to the conditions that ostensibly caused his death.
Nothing more is required under the Federal Rules, which demand only a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a); Coleman, 2012 WL 1424396, at *1.
BNSF may want more specificity as to what DeForge was exposed to
and when, but these matters can be addressed in discovery. The present
lack of detail does not render the complaint so vague, ambiguous, or
confusing that BNSF cannot answer it. See MacNeil Auto. Prods, Ltd. v.
Cannon Auto. Ltd., 715 F. Supp. 2d 786, 790 (N.D. Ind. 2010); U.S. for Unse of
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Argyle Cut Stone Co., Inc. v. Paschen Contractors, Inc., 664 F. Supp. 298, 303
(N.D. Ill. 1987) (Rule 12(e) motions are disfavored and should be granted
“only when the pleading is so unintelligible that the movant cannot draft a
responsive pleading”). Certainly, Plaintiffs’ allegations far surpass those in
Slinski v. CSX Transp., No. 07-CV-10270-DT, 2007 WL 1377931, at *1 (E.D.
Mich. May 8, 2007), cited by BNSF, in which the plaintiff filed a 5-paragraph
complaint that did not identify the purported injury with meaningful
specificity. By contrast, here Plaintiffs have alleged a claim “plausible on its
face,” and included factual allegations that “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). As a result, BNSF’s motion will
be denied.1
Accordingly,
IT IS ORDERED that Defendant’s motion for more definite
statement (Docket #4) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 7th day of July, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
In its reply, BNSF complains that Plaintiffs’ Rule 26(a) disclosures do not
make up the perceived gap in Plaintiffs’ complaint. (Docket #18 at 3–5). Because
the Court does not share BNSF’s view that the complaint is deficient, it need not
discuss the contents of Plaintiffs’ Rule 26(a) disclosures.
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