Prust, Virginia v. Weyerhaeuser Company et al

Filing 62

ORDER granting 54 Motion to Dismiss by defendant Weyerhaeuser Company; granting 40 Motion to Dismiss by Defendant Owens-Illinois Inc. Counts III and IV of plaintiff's first amended complaint are dismissed with prejudice and defendant Weyerha euser is dismissed from this action. Counts I and II of plaintiff's first amended complaint premised on Owens-Illinois' role as a licensor are dismissed with prejudice. Plaintiff may have until 9/22/2014 to file an amended complaint asserting claims against Owens-Illinois as the manufacturer of Kaylo door cores, assuming they can do so in good faith. Signed by District Judge William M. Conley on 8/22/2014. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
VIRGINIA PRUST, Individually and as Special
Administrator on behalf of the Estate of Valmore Prust,
Plaintiff,

OPINION AND ORDER

v.
14-cv-143-wmc
WEYERHAEUSER COMPANY, 3M COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, and OWENS-ILLINOIS INC.,
Defendants.
In this civil action, plaintiff Virginia Prust bring claims against defendants arising
out of her late husband Valmore Prust’s exposure to asbestos and resulting lung cancer
and asbestosis. Before the court are two motions. In the first, defendant Weyerhaeuser
Company, the former owner of a door manufacturing plant where Valmore Prust worked
and asbestos fireproofing products were produced, moves for judgment on the pleadings
on the grounds that the claims brought against it are barred by Wisconsin’s Workers’
Compensation Act.

(Dkt. #54.)

In the second motion, defendant Owens-Illinois

Company seeks dismissal of product liability claims premised on Owens-Illinois’ licensing
of a patent claiming a fireproof door. (Dkt. #40.) The court will grant both motions for
the reasons set forth in Boyer v. Weyerhaeuser, No. 14-cv-286 (W.D. Wis. Aug. 22, 2014).1

1

The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). Plaintiff
Virginia Prust is, and her late husband Valmore Prust was, a citizen of Wisconsin. (1st
Am. Compl. (dkt. #32) ¶¶ 1-2.) As explained in the Boyer opinion the named defendants
are citizens of states other than Wisconsin. The court will dismiss the “unknown
insurers” as defendants for reasons also explained in Boyer.

Both defendants assert other bases for dismissing plaintiff’s claims, which the
court will address briefly.

Defendants contend that this action is: (1) barred by the

doctrine of claim preclusion because the MDL court previously dismissed the same action
on the merits; and (2) barred by the applicable statute of limitations. As for the first
argument, while the MDL court dismissed plaintiff’s cause of action, contrary to
defendants’ motion, it did so without citing to Fed. R. Civ. P. 41(b). In re: Asbestos
Products Liability (No. VI), Prust v. Various Defendants, MDL Docket No. 875, No. 1360021 (E.D. Pa. Feb. 26, 2014) (dkt. #25). The event that prompted the court’s order
was plaintiffs’ failure to file an amended complaint by the court-imposed deadline of
February 21, 2014, instead choosing to file a new complaint in this court on that date.
Whether the court treated the plaintiffs’ filing in this court six days before its order as a
request for dismissal, or was even aware of that filing, is unclear from the record, but
clearly this was the basis for the court’s refusal to reconsider its order:
Plaintiff did not refile her complaint in this Court despite
being granted leave to do so. Instead, Plaintiff filed a new
complaint in the Western District of Wisconsin. Plaintiff is
effectively asking to proceed with her case in two separate
jurisdictions. Accordingly, the Court did not err in closing
Plaintiff’s case in this Court as a new complaint was not filed
here, and Plaintiff has elected to proceed in the Western
District of Wisconsin.
Therefore, the Motion for
Reconsideration is denied.
Prust, supra (E.D. Pa. Mar. 31, 2014) (dkt. #26 at p.2). Accordingly, the MDL court’s
order is more properly characterized as issued pursuant to Rule 42(a)(2), which is
without prejudice unless “the order states otherwise.”

Even if the MDL’s original

dismissal order and order on plaintiff’s motion for reconsideration were issued pursuant
2

to Rule 41(b), it also contemplates that plaintiff would proceed in this court on her
claims, a statement wholly inconsistent with a presumption that the MDL court’s Rule
41(b) dismissal was with prejudice. Accordingly, the court rejects defendants’ challenge
based on claim preclusion.
Second, defendants also seek dismissal of plaintiff’s claims as barred by the statute
of limitations. Unlike the MDL complaint, however, plaintiff now expressly alleges a
discovery date of October 2013, well within the three year statute of limitations.
Defendants contend that plaintiff (or rather the deceased, Valmore Prust) should have
discovered the cause of his injury well in advance of that date, but this argument goes
beyond the scope of a motion to dismiss. See Hennekens v. Hoerl, 160 Wis. 2d 144, 172,
465 N.W.2d 812, 824 (1991) (“Applying the legal standard to the facts, even
undisputed facts, for purposes of the discovery rule is ordinarily an issue of fact for the
fact-finder.”).
Accordingly, while the court will grant both motions consistent with Boyer, it
rejects those other arguments posited by defendants specific to the Prust’s complaint.

ORDER
IT IS ORDERED that:
1) defendant Weyerhaeuser Company’s motion for judgment on the pleadings
(dkt. #54) is GRANTED. Count III and IV of plaintiffs’ first amended
complaint are dismissed with prejudice and defendant Weyerhaeuser is
dismissed from this action;
2) defendant Owens-Illinois Inc.’s motion to dismiss (dkt. #40) is GRANTED.
Counts I and II of plaintiff’s first amended complaint premised on OwensIllinois’s role as a licensor are dismissed with prejudice; and
3

3) plaintiff may have until September 22, 2014, to file an amended complaint
asserting claims against Owens-Illinois as the manufacturer of Kaylo door
cores, assuming they can do so in good faith.
Entered this 22nd day of August, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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