Belue et al v. A.O. Smith Electrical Products Company et alMOTION to Dismiss , or in the Alternative, Motion to Sever and For More Definite Statement and Supporting Memorandum of LawM.D. Ala.May 16, 2008IN THE UMTED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA ROBERT D. BELUE, et al. Plaintiffs VS. A.O. SMITH ELECTRICAL PRODUCTS,S COMPAIIY, a division of A.O. SMITH $ CORPORATION, et al. Defendants $ $ $ $ $CML ACTION NO.12:06CV1034-WKW-WC s s $ s MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION TO SEVERAND FORMORE DEFINITE STATEMENT AND SUPPORTING MEMORANDUM OFLAW COMES NOW, Sunbeam Products Incorporated ("Sunbeam Products") pursuantto Federal Rules of Civil Procedure 8 and 12(b)(6) and requests that the Court dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted because the Complaint fails to satisf! the requirements ofthe Rules. In the altemative, Sunbeam Products requests that the Court enter an order severing the claims of the Plaintiffs and ordering the Plaintiffs to provide more definite statements oftheir claims pursuant to Federal Rules ofCivil Procedure 20 and 12(e), respectively. Finally, Sunbeam Products requests that the Court dismiss Plaintiffs' fraud claims as to Sunbeam Products for failure to plead fraud with particularity as provided by Federal Rule of Civil Procedure 9(b). Alternatively, Srurbeam Products requests that the Court require Plaintiffs' to plead the fraud claims with particularity. In support, Sunbeam Products states as follows: Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 1 of 10 I. The Complaint Fifteen Plaintiffs filed a personal injury action against sixty-three (63) Defendants including Sunbeam Products. See Complaint. Plaintiffs allege generally that they or their decedents have been "continually exposed to asbestos containing products, produced, manufactured, specified for use, installed, distributed, sold and/or placed into tle stream of commerce by defendants . . ." See Complaint at fltf 1-15. Among other things, Plaintiffs contend that they or their decedents worked around "fumaces, boilers, turbines, and other industrial equipment in his workplace, which contained significant amounts of asbestos-containing products and materials." 1d. il. Failure to State a Claim Federal Rule ofCivil Procedures 12(b)(6) requires dismissal ofa complaint hat fails to state a claim upon which relief can be granted. The allegations in the Complaint in this case are inadequate without clarification and constitute "blanket pleadings" to which Sunbeam Products cannot meaningfully respond. A complaint which on its face is vague and ambiguous does not constitute a well-pled complaint. See, generully, Byrnev. Nezyhat,26IF.3d 1075, i128-1131(ilth Cir. 2001). The Complaint in this case fails to speciff where, when or how the Plaintiffs and/or their decedents were allegedly exposed to asbestos or which of tle numerous defendants are responsible for the alleged exposure and alleged injuries. Stating where Plaintiffs and/or their decedents worked and the dates of employment with a general averment that there were "significant amounts of asbestos-containing products and materials" is not enough. As such, the Complaint fails to state a claim upon which relief may be granted and should be dismissed. Plaintiffs' Complaint fails to state a claim on which relief can be granted because the Complaint fails to suffrciently assert "a short and plain statement of the claim showing that the Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 2 of 10 pleader is entitled to relief." FRCP 8(a). Moreover, the Complaint fails to satis$ the requirement of Rule I that each averment of a pleading "shall be simple, concise, and direct." FRCP 8(e). "However, conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss." Jffirson v. Lead Indust. Ass'n, Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) (citations omitted);Bell Atlantic Corp. v. Twornbly,127 5.Ct.1955, 1965 (U.S.2007) ("Factual allegations must be enough to raise a right to relief above the speculative level."). Where a plaintiffs complaint fails to support any claims as to the defendants, it is proper to dismiss the defendants from the action. In this matter, Plaintiffs have failed to meet their burden and have chosen instead to employ the "shotgun" approach to pleading which is disfavored by the judiciary. See Magluta tt. Samples, 256 F.3d 1282,1284 (llth Cir. 2001). ln Magluta,the Court described ashotgun complaint as one that ignores the requirement ofa " short and plain statement." Id Instead, the "shotgun" complaint identifies multiple defendants and charges each defendant with the same conduct, "though geographic and temporal realities make plain that all ofthe defendants could not have participated in every act complained of." 1d Plaintiffs' Complaint does the very thing that the Eleventh Circuit condemns. \n Sydney Chancellor, et al. v. Air Liquide America Corp., efal, Case No. CV-04-BE-2554- S (N.D. Ala., Oct. 8, 2004), (unpublished) Judge Karon O. Bowdre sua sponre dismissed asimilar "shotgun" complaint, without prejudice, due to plaintiffs' failure to state a claim upon which relief could be granted and failure to plead with t}te required particulwity. See Exhibit "A ' (October 8, 2004 Order Dismissing the Case). The court stated the complaint, "[a]t best . . . suggests only that plaintiffs have respiratory illnesses, that plaintiffs were exposed to silica during all or part of [their] Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 3 of 10 working lives . . . while working at various worksites in Alabama and other states, and that all seventy-five named defendants were in some way participants in the sandblasting industry." See Exhibit A at 2. Furthermore, "the Complaint forces t}re defendants to guess at what they each may have done to injure the plaintiffs, and when, where and how." 1d. In holding that dismissal was the correct approach, the court stated, "[t]he court is acutely aware of its duty to dispose of shotgun complaints at the earliest opportunity. . . . Rather than wait until justice has been obstructed by the inadequacies of this complaint and 'scarce judicial and parajudicial resources' are further wasted, the courl sua sporle dismisses this case as to all defendants without prejudice and with leave to refile a complaint that complies with all of the requirements of the Federal Rules of Civil Procedure." 1d at2-3. ln Skip Palmer, et al., v. Aearo Corp., et al., Case No. 7.04-CV-3262-UWC (N.D. Ala., May 31, 2005) (unpublished), Chief Judge U.W. Clemon ordered saa sponte the case be dismissed on similar grounds as Sydney Chancellor. Chief Judge Clemon noted: Neither the defendants nor the Court can discem from plaintiff s complaint a fair idea of what the plaintiffs are complaining. The complaint suggests that the plaintiffs have occupational lung disease, that plaintiffs were exposed to silica "while working at various work -sites in Alabama," and that all twenty-three (23) defendants in some way participated in the sand blasting industry. However, it is not clear what defendants produced which products, and the resulting causes of action related to those products. The complaint alleges that different groups ofdefendants negligently manufactured equipment, failedto inform ofpossible danger, elc. However, the complaint does not state when, where, or how the defendants have injured the plaintiffs. Furthermore, the plaintiffs do not explain which causes of action apply to which defendants. Therefore, the plaintiffs do not allowthe defendants to adequately defend themselves in response to the complaint. Sae Exhibit "B" (May 31, 2005 Order of Dismissal at 2). Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 4 of 10 In this case Plaintiffs have named numerous products allegedly manufactured by over sixty- three (63) Defendants which may have caused harm to Plaintiffs or their decedents. As in Chqncellor, the Complaint is so vague as to cause all Defendants, including Sunbeam Products, to guess "what each may have done to injure the plaintiffs, and when, where, and how." ,See Exhibit A at 2. The Complaint lists general descriptions ofproducts produced or distributed by Defendants and fails to make clear "the resulting causes of action related to those products." ,See Exhibit B at 2. Plaintiffs have failed to give sufficient detail to apprise Defendants and the Court of what Plaintiffs are complaining and ofthe legal basis for any recovery. 1d Plaintiffs' Complaint not only fails to provide a short and plain statement ofPlaintiffs' claims against Defendants, but it also fails to state a claim upon which relief may be granted and should be dismissed. Plaintiffs' "shotgun" approach to pleading is additionally evident in paragraph 18 of the Complaint wherein Plaintiffs use the label "Producer Defendants" to refer to Defendants generally, stating, "[t]he asbestos-containing products produced by each defendant hat have been identified at plaintiffs workplace, during their employment years there, are set out herein below." See Complaint at fl 18. Defendants are not made aware of which Plaintiff'their" refers as there are fifteen (15) named Plaintiffs. Plaintiffs then proceed to list generic tlpes ofproducts for each ofthe Defendants, including allegations against Sunbeam Products. Id. atl72. Indeed, Plaintiffs do not provide information regarding which workplace or time frame each Plaintiffwas allegedly exposed to a Sunbeam Products product, nor do they provide how or when the Plaintiffs or their decedents were allegedly exposed to an asbestos containing product manufactured by Sunbeam Products. Further, the remaining paragraphs of the Complaint go on to allege four (4) causes ofaction against all Defendants. Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 5 of 10 ChiefJudge U.W. Clemon ofthe Northem District ofAlabama previously dismissedthe case of Vera Beavers, et al. v. A.O. Smith Electrical Products Company, et al.,Ctvil Action No. 2:06-CV- 899UWC (N.D. Ala. May 8, 2006), on several grounds, including the fact that the plaintifls' complaint did "not specifically link specific causes ofaction to a specific defendants."r See Exhibits "C" (August 31,2006 Order of Dismissal) and "D" (August 31,2006 Memorandum Opinion on Motions to Dismiss at 2 ). Similarly, Plaintiffs in this case have failed to link specific causes of action to specific Defendants, and consequently, Plaintiffs' and their claims should be dismissed. ilI. Improper Joinder of Claims Rule 20 ofthe Federal Rules ofCivil Procedure provides in peninent part, that "[a]ll persons may join in one action as plaintiffs if they assert any right to reliefjointly, severally, or in the altemative in respect ofor arising out of the same transaction, occrurence, or series oftransactions or occurrences and if any question of law or fact common to all these persons will arise in the action." FRCP 20(a). While Plaintiffs allege they or their decedents have been exposed to asbestos or asbestos containing products, they do not allege any facts indicating that the exposure arises out of the same transactions or occrurences. As a result, Sunbeam Products seeks severance of Plaintiffs' claims. Plaintiffs ask for different Wpes of relief in their Complaint. Plaintiffs' allegations are a mix of personal injury claims and wrongful death claims. It is well settled that wrongful death plaintiffs in Alabama are only entitled to punitive damages and not to compensatory damages available to personal injury plaintiffs. Cherokee Elec. Coop. v. Cochran,706 So.2d I188, 1193 (Ala. 1997). ' The District Court's dismissal ofthis action is currently on appeal in the Eleventh Circuit. o Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 6 of 10 Wrongful death ciaims must be severed from the personal injury claims, making severance of the Plaintiffs' claims here proper. IV. A More Definite Statement Rule 12(e) ofthe Federal Rules of Civil Procedwe provides that "[i]f a pleading to which a responsive pleading is permiued is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing a responsive pleading." FRCP 12(e). A defendant like Sunbeam Products must be made aware ofthe claims brought against it, so that it is able to file a responsive pleading in good faith. If a petition is ambiguous or does not contain sufficient information to allow a responsive pleading to be ftamed, the defendant may file a motion for more definite statement. See Sisk v. Texas Park and lYildlife Dept.,644 F.2d 1056, 1059 (5th Cir. l98l). Plaintiffs' Complaint fails to put Sunbeam Products on notice as to the transactions or occurrences that form the basis oftheir claims. Further, Plaintiffs fail to aver any dates, worksites, or other facts sunounding their alleged use of a Sunbeam Products product or how the use ofsuch products contributed to their alleged injuries. Sunbeam Products lacks sufficient facts on which to properly respond to Plaintiffs' allegations, amore definite statement is required. As such, Sunbeam Products altematively requests an order requiring Plaintiffs to provide a more definite statement of their claims pursuant to Rule i2(e). V. Fraud At least with respect to Sunbeam Products, Plaintiffs have not pleaded fraud with particularity as set forth in the Rule 9(b) ofthe Federal Rules of Civil Procedure. See Complaint at 'l]fl 100 -110. Plaintiffs have not provided Defendants, including Sunbeam Products, the identities Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 7 of 10 of the parties who allegedly concealed information from Plaintiffs along with the time ftame of the alleged concealment. Having failed to satis$' the particularity requirement for pleading fraud, Plaintiff s claims of fraud ought to be dismissed. In the altemative, Sunbeam Products requests that the Court order Plaintiffs to plead the fraud claims with particularity. VI. Conclusion WHEREFORE, PREMISES CONSIDERED, SUNBEAM PRODUCTS INCORPORATED prays that this Honorable Court will dismiss the Complaint filed against it for failure to state a claim upon which relief can be glanted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and for failure to sufficiently assert a claim by filing a short and plain statement showing that the pleader is entitled to relief under Rule 8 ofthe Federal Rules of Civil Procedure. Altematively, Sunbeam Products requests that this Honorable Court sever the claims improperly joined in violation of Rule 20 of the Federal Rules of Civil Procedure and require Plaintiffs to file a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure and order the Plaintiffs to amend their complaints and provide the following averments: (1) the products of Sunbeam Products, if any, which are claimed to be defective; (2) when, where and under what conditions Plaintiffs aadlor Plaintiffs' decedents were allegedly exposed to such products; (3) the names of Plaintiffs and,/or Plaintiffs' decedents employers at the time ofalleged exposure; (4) the addresses ofthe work sites in issue; (5) the type of work being performed by the Plaintiffs and./or Plaintiffs' decedents at the time oftheir alleged exposure to Sunbeam Products; and (6) when, how and under what circumstances Plaintiffs and/or Plaintiffs' decedents were diagnosed with an asbestos -related condition. Sunbeam Products also prays that this Honorable Court require Plaintiffs and/or Plaintiffs' decedents Io appt'.ze Sunbeam Products of the nature of the claims Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 8 of 10 against it as well as the nature of the disease which Plaintiffs and/or Plaintiffs' decedents contend they have incurred and to plead with particularity any fraud claims in accordance with Rule 9(b) of the Federal Rules of Civil Procedure. Sunbeam Products specifically reserves and does not waive all other available defenses it may have in this cause, and prays for such other relief as this Court may deem appropriate. Respectfully submitted, SUNBEAM PRODUCTS INCORPORATED BY: /s/ Randi Peresich Mueller RANDI PERESICH MUELLER, ASB# 7546-R71M PAGE, MANNINO, PERESICH & MCDERMOTT, P,L.L.C, 460 BRIARWOOD DRrvE, SUITE 415 POST OFFTCE BOX 16450 JACKSON. MS 39236 (601) 896-0114/T'AX (601) 8e6-014s Case 2:06-cv-01034-WKW-WC Document 258 Filed 05/16/2008 Page 9 of 10 CERTIFICATE OF SERVICE I, RANDI PERESICH MUELLER, of the law firm of Page, Mannino, Peresich & McDermott, P.L.L.C., have this day filed by the ECF filing system, a true and correct copy of the above and foregoing MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION TO SEVERAIID FORMORE DEFINITE STATEMENTAND SUPPORTING MEMORAI\DUM OF LAW and have served the Plaintiffs' counsei and all Defense counsel a copy ofthe sarne by notification through the ECF filing notification system. THIS. the l6h davofMay. 2008. /s/ Randi Peresich Mueller RANDI PERESICH MUELLER PAGE, MAI{NINO, PERESICH & MCDERMOTT, P.L.L.C. 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