Adams et al v. Albany International et al

MOTION to Dismiss Pursuant to Fed R Civ P 12

M.D. Ala.January 7, 2008

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA MARTHA ADAMS, ET AL. ) ) PLAINTIFFS 1 ) CIVIL ACTION NUMBER: VS. 1 2:07CV01064WKW ) ALBANY INTERNATIONAL, ) ET AL., 1 ) DEFENDANTS ) MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6), OR IN THE ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT PURSUANT TO FED. R. CIV. P. 12(e); AND MOTION TO REQUIRE PARTICULARITY PURSUANT TO FED. R. CIV. P. 9(b) COMES NOW Defendants, Industrial Holdings W a The Carborundurn Company and Ingersoll- Rand Company mereinafter Certain Defendants], by and through their attorneys of record, Forman Perry Watkins Krutz & Tardy LLP, and would move this Honorable Court as follows: 1 . Certain Defendants submit that the allegations ofthe Complaint filed in this matter, a copy of which is attached as Exhibit "A," fails to state a claim upon which relief can be granted. 2. Specifically, the Complaint fails to allege which specific products manufactured, distributed or "contracted" by which particular Defendant to which the Plaintiffs andlor Plaintiffs' decedents were allegedly exposed, at which particular worksite(s) during which time period(s) of their approximately seventy-three (73) year work histories. 3. Moreover, no specific allegations are made against any particular Defendant, rather the Complaint broadly alleges that the Defendants were negligent, grossly negligent or otherwise manufactured Case 2:07-cv-01064-WKW-TFM Document 159 Filed 01/07/2008 Page 1 of 6 defective products. Plaintiffs' Complaint in this matter consists of nothing more than a series of conclusory allegations of law. See Complaint at paragraphs 74 - 124. It is well-established that such allegations should be dismissed for failure to state a claim. See Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 10 1,124 (Ala. 2003) ("Conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.") (citing Next Century Communications Corp. v. Ellis, 3 18 F. 3d 1023, 1025 (1 lth Cir, 2003)); Marsh v. Butler County, Ala., 268 F 3d 1014, 1036, n. 16 (1 1 th Cir. 200 1) ("in light of the usual pleading requirements of Federal Rules of Civil Procedure 8(a), unsupported conclusions of law or of mixed fact and law have long been recognized not to prevent aRule 12(b)(6) dismissal.") As Judge Bowdre explained in Sidney S. Chancelor, et al. v. Air Liquide America Corp., et al., in the United States District Court for the Northern District of Alabama, Southern Division, Civil Action No.: CV-04-BE-2554-S, where: . . . the Complaint alleges generally that different groups of Defendants negligently manufactured equipment, failed to inform of possible danger, etc., the Complaint forces the defendants to guess what they each may have done to injure the plaintiffs, and when, where or how. All seventy- five defendants must therefore answer with abandon, pleading every conceivable affirmative defense simultaneously risking the possibility that they may inadvertently fail to plead the one good defense relevant to whatever as-yet-unknown specific claims against them discovery may reveal. Exhibit "B" [October 8 Order], p. 2. 4. Generally speaking, the Complaint fails to put Certain Defendants, or any other Defendant, on notice as to the claims that they are to defend against. Accordingly, Plaintiffs' Complaint should be dismissed unless and until they replead with specific facts as to which of the Defendants' products injured Case 2:07-cv-01064-WKW-TFM Document 159 Filed 01/07/2008 Page 2 of 6 the Plaintiffs andor Plaintiffs' decedents, as well as specific facts regarding work sites, locations, and how Defendants' products allegedly injured Plaintiffs andor Plaintiffs' decedents. WHEREFORE, PREMISES CONSIDERED, Certain Defendants, Industrial Holdings WaThe Carborundum Company and Ingersoll-Rand Company, pray that this Honorable Court will dismiss the Complaint filed against them, for failing to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In the alternative: 5. Rule 12(e) of the Federal Rules of Civil Procedure requires that a party, who has filed a pleading that is so vague or ambiguous that the opposing party cannot reasonably be required to fiame a responsive pleading, correct the details complained of and provide the details desired. 6. Certain Defendants would most respectfully show unto this Honorable Court that for all of the reasons set forth and asserted above, it is impossible for Certain Defendants to adequately prepare a defense of the Plaintiffs' claims without knowing, inter alia: (1) the products of Certain Defendants, if any, which are claimed to be defective; (2) when, where, and under what conditions the Plaintiffs and/or Plaintiffs' decedents were allegedly exposed to such products; (3) the name of the Plaintiffs andor Plaintiffs' decedents employers at the time of alleged exposure; (4) the addresses of the work sites inissue; (5) the type of work being performed by the Plaintiffs andor Plaintiffs' decedents at the time of their alleged exposure to Certain Defendants' products; and, (6) when, how, and under what circumstances the Plaintiffs and/or Plaintiffs' decedents were diagnosed with an asbestos-related condition. 7. Certain Defendants are entitled to be fairly apprized as to the nature ofthe claims against it, the nature of the disease which the Plaintiffs andor Plaintiffs' decedents contend they have incurred, as 3 Case 2:07-cv-01064-WKW-TFM Document 159 Filed 01/07/2008 Page 3 of 6 well as the precise nature of the defects in the product(s) associated with Certain Defendants or the specific acts of negligence charged against them. 8. In a similar case, Charlotte Mae Fikes v. Aerofin Corporation, et al., in the United States District Court for theNorthern District of Alabama, Southern Division, Civil ActionNo.: 2:05-CV- 1 864-RDP, Judge R. David Proctor issued an order on September 30,2005, regarding this same issue in which he ordered that the plaintiff: include a separate count for each cause of action that specifically delineates which claims are asserted against which Defendant; assert a proper factual basis for each claim with sufficient detail to put Defendants on notice ofthe claims against them (e.g., identity of product(s), manufacturer(s), purchaser(s) or other user(s) of product(s), time frame of alleged exposure(s), location(s)/employer(s) where exposure(s) occurred, identification of how other Defendant(s) contributed to the alleged exposure(s)); plead with particularity any fraud claims in accordance with Rule 9(b) (e.g., identity of manufacture(s), purchaser(s) and any other party who allegedly concealed information, time frame of alleged concealment, and identity of person(s) who allegedly concealed information); and ensure that each claim pled has a proper legal basis. See Order attached as Exhibit "C." WHEREFORE, PREMISES CONSIDERED, Certain Defendants, Industrial Holdings W a The Carborundurn Company and Ingersoll-Rand Company, pray that this Honorable Court will order Plaintiffs to file a new Amended Complaint, setting forth a more definite statement of their claims such that Defendants are placed on notice as to the charges being made against them so that they might adequately Case 2:07-cv-01064-WKW-TFM Document 159 Filed 01/07/2008 Page 4 of 6 prepare a defense and responses to same, and to conduct meaningful discovery in order to appropriately frame the issues before this Honorable Court. 9. Certain Defendants would respectfblly show unto this Honorable Court that the Plaintiffs make vague and uncertain allegations as to these andlor other Defendants concerning fraud, without stating the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. WHEREFORE, PREMISES CONSIDERED, Certain Defendants, Industrial Holdings W a The Carborundum Company and Ingersoll-Rand Company, respectfully request that this Honorable Court require the Plaintiffs to amend their pleadings, in order to set forth specifically and in detail, with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure, sufficient averments. 10. Certain Defendants specifically reserve and do not waive all other available defenses they may have in this cause, and pray for such other relief as this court may deem appropriate in the premises. RESPECTFULLY SUBMITTED, this the 7th day of January, 2008. //s// Donald C. Partridge RICHARD M. CRUMP (CRUMR6839) DONALD C. PARTRIDGE (PARTD6713) JAMES G. HOUSE, III.,(HOUSJ2667) LAURA D. GOODSON (GOODL0579) ATTORNEYS FOR INDUSTRIAL HOLDINGS F W A THE CARBORUNDUM COMPANY AND INGERSOLL-RAND COMPANY Case 2:07-cv-01064-WKW-TFM Document 159 Filed 01/07/2008 Page 5 of 6 OF COUNSEL: FORMAN, PERRY, WATKINS, KRUTZ & TARDY LLP 200 South Lamar Street City Centre, Suite 100 Post Office Box 22608 Jackson, MS 39225-2608 (601) 960-8600; (60 1) 960-86 13 [facsimile] IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA MARTHA ADAMS, ET AL. ) ) PLAINTIFFS ) ) VS. ) ) ALBANY INTERNATIONAL, ET AL., ) ) DEFENDANTS ) CIVIL ACTION NUMBER: 2:07CVO1064WKW CERTIFICATE OF SERVICE I hereby certify that on January 7,200, I electronically filed the foregoing with the Clerk of the Court using the CMECF system which will send notification of such filing to the following: G. Patterson Keahey, Jr., Esq., counsel for the plaintiffs, and all counsel of record for Defendants, and I hereby certify that I have mailed by United States Postal Service the document to the following non-CMIECF participants: none at this time. Respectfully submitted, 11~11 Donald C. Partridge RICHARD M. CRUMP (CRUMR6839) DONALD C. PARTRIDGE (PARTD6713) JAMES G. HOUSE, III.,(HOUSJ2667) LAURA D. 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