Masephol, Richard v. 3M Company et al

Filing 84

ORDER granting 50 Motion to Dismiss; granting 57 Motion to Dismiss; granting 77 Motion for Leave to File; granting 80 Motion for Leave to File. Weyerhaeuser is dismissed from this action. Plaintiff may have until September 22, 2014, to file an amended complaint alleging specific facts necessary to state a claim against Owens-Illinois. Signed by District Judge William M. Conley on 8/22/14. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RICHARD MASEPHOL,
Plaintiffs,

ORDER

v.
14-cv-186-wmc
WEYERHAEUSER COMPANY, 3M COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, and OWENS-ILLINOIS INC.,
Defendants.
In this action, plaintiff Richard Masephol brings claims against defendants arising
out of his exposure to asbestos and a related disease, malignant mesothelioma. Before
the court are two motions to dismiss. In the first, defendant Weyerhaeuser Company,
the former owner of a door manufacturing plant where Masephol worked and asbestos
fireproofing products were produced, moves to dismiss negligent nuisance and intentional
nuisance claims brought against it on the theory that those claims are barred by
Wisconsin’s Workers’ Compensation Act. (Dkt. #57.) In the second motion, defendant
Owens-Illinois Company seeks dismissal of product liability claims premised solely on its
licensing of a patent claiming a fireproof door. (Dkt. #50.) The court will grant both
motions for the reasons set forth in its opinion and order in Boyer v. Weyerhaeuser, No.
14-cv-286 (W.D. Wis. August 22, 2014).1

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The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). Plaintiff
Richard Masephol is a citizen of Wisconsin. (1st Am. Compl. (dkt. #73-1) ¶ 1.) 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.

ORDER
IT IS ORDERED that:
1) defendant Weyerhaeuser Company’s motion for judgment on the pleadings
(dkt. #57) is GRANTED. Count III and IV of plaintiff’s 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. #50) is GRANTED.
Counts I and II of plaintiff’s first amended complaint premised on OwensIllinois’s role as a licensor are dismissed with prejudice;
3) plaintiff may have until September 22, 2014, to file an amended complaint
alleging specific facts necessary to state a claim against Owens-Illinois,
provided he can do so in good faith; and
4) plaintiff’s motions for leave to file sur-reply (dkt. ##77, 80) are GRANTED.
Entered this 22nd day of August, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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