Byrd et al v. Consolidation Coal Company et al

BRIEF in Opposition re Motion to Dismiss, Motion for More Definite Statement, Motion to Strike

W.D. Pa.April 12, 2017

IN THE UNITED STATE DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Arnold Byrd and Tina Byrd, husband and wife, Plaintiffs, Civil Action No. 2:16 cv 01542 v. CIVIL ACTION - LAW JURY TRIAL DEMANDED Consol Pennsylvania Coal Company LLC; CONSOL Energy Inc.; CNX Coal Resources, LP; Strata Products Worldwide, LLC; Caterpillar Inc.; RM Wilson Company; THIELE GmbH & Company KG; KWS Inc.; John and Jane Does 1 through 10, John Doe Corporations 1 through 10, and other John Doe Entities 1 through 10 Defendants. ________________________________________________________________________ BRIEF IN SUPPORT OF PLAINTIFF’S RESPONSE TO DEFENDANT STRATA WORLDWIDE LLC’S MOTION TO DISMISS, MOTION FOR A MORE DEFINITE STATEMENT, AND MOTION TO STRIKE AND NOW, come Plaintiffs, Arnold Byrd and Tina Byrd, by and through their attorneys the Pisanchyn Law Firm, and set forth the following Brief in Support of Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 1 of 12 Plaintiff’s Response to Defendants’ Motion to Dismiss, Motion for a More Definite Statement, and Motion to Strike: Facts and Procedure Plaintiff Arnold Byrd, who was severely injured at Consol Energy’s Enlow Fork mine on or about December 28, 2014, filed an Amended Complaint on December 5, 2016 (Document 8) as a matter of course pursuant to Fed. R. Civ. P. 15. In his Amended Complaint, the Plaintiffs allege that, while working for non-party employer GMS Mining, Arnold Byrd was injured using a long wall can-setter machine when a chain on the machine snapped. Defendant Strata Worldwide LLC (hereinafter “Strata”) is named in Count 1 (Negligence) and Count 4 (Loss of Consortium). Amended Complaint at ¶67-171. The details surrounding this machine are unclear. Plaintiff was not provided with evidence surrounding this machine after his injury by Consol, or any other Defendants.1 Despite being in a much better position to provide information relating to the details surrounding this incident, Defendants have chosen to file preliminary objections rather than an Answer. The facts of the instant case are not as complicated as the Defendants have made them: The Plaintiff was struck by a chain that snapped off of a machine in Consol’s mine. The chain severed an artery in his groin, and severed his testicles. The Amended Complaint alleges that Strata personnel were present in the mine and, inter alia, were aware of the defect with the machine, took responsibility for 1 Defendant Caterpillar and Plaintiff have exchanged some preliminary discovery documents related to the description of the machine in question and whether Caterpillar manufactured it. Plaintiff subsequently followed up with additional questions that must be answered but has not received a response. Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 2 of 12 training and being sure that the machinery was safe, and failed to follow procedure, which resulted in the Plaintiff’s injury. Id. at ¶27, 50, 54, 57. With regard to subject matter jurisdiction, the Plaintiffs have alleged in their Amended Complaint that diversity jurisdiction is present since they are the only residents of Pennsylvania. All three Consol Defendants are residents of Delaware,2 Strata Products is a resident of Georgia, Caterpillar is a resident of Illinois, R.M. Wilson is a resident of West Virginia, Thiele is a resident of Germany, and KWS Inc. is a resident of Oklahoma. ARGUMENT A. Subject matter jurisdiction exists in this case since all Defendants are from different states than all Plaintiffs. The Plaintiffs agree in part with Strata’s argument that subject matter jurisdiction must be decided first. Per the telephone conference hearing on April 7, 2017, Plaintiffs will conduct a corporate designee deposition as to Consol Energy’s principal place of business. The Constitution provides that the “judicial Power shall extend” to “Controversies . . . between Citizens of different States.” Art. III, §2. The Supreme Court of the United States has held that Article III generally requires a federal court to satisfy itself of its subject-matter jurisdiction before it considers the merits of a case. Steel Co v. 2 The Amended Complaint alleges that the Consol entities have business addresses in Canonsburg, PA, for purposes of personal jurisdiction. Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 3 of 12 Citizens for better Environment, 523 U.S. 83 (1998); Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007). The Defendants have each argued that since Consol and its related entities have a principal place of business in Canonsburg, Pennsylvania, it is a resident of Pennsylvania. The Amended Complaint states that the Consol entities are a Delaware Corporation, Limited Liability Company, and Limited Partnership, for purposes of subject matter jurisdiction, and have addresses in Canonsburg, Pennsylvania, for purposes of personal jurisdiction. (Amended Complaint at ¶ 13, ¶14, ¶15). When challenged, it is incumbent upon the party alleging subject matter jurisdiction to prove that it exists. Here, Plaintiffs have referenced in prior briefs, Consol’s SEC filing and corporate bylaws indicating that it is a Delaware Corporation. The April 20, 2017 deposition of Consol Energy will yield the proper jurisdiction for this case. If it is fact obvious that Consol is a Pennsylvania resident, this honorable Court should dismiss this case on subject matter jurisdiction grounds to allow Plaintiffs to proceed under 42 Pa.C.S. §5103(b). B. The Plaintiffs’ Amended Complaint adequately states a claim upon which relief may be granted under F.R.C.P. 12(b)(6) and under Fowler re: Twombly and Iqbal In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6) the Court must accept all well-pled allegations in the complaint as true and ask whether, under any reasonable interpretation, the plaintiff states a claim that would entitle her to relief. Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir. 2006). Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 4 of 12 Reversing the District Court’s 12(b)(6) dismissal upon claims of insufficient specificity, the Third Circuit held the United State Supreme Court in Twombly and Iqbal (in accord with Phillips) merely requires that the Complaint “set out ‘sufficient factual matter’ to show that the claim is sufficiently plausible… [allowing] the reasonable inference that the defendant is liable for the misconduct alleged.” Fowler v. UPMC Shadyside, 578 F. 3d 203, (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1955 (2009)); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 230 (C.A.3 2008). Fowler reiterated the appropriate Motion to Dismiss standard, as elucidated in Phillips, remaining: “courts [must] accept all factual allegations as true, construe the Complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the Complaint, the plaintiff may be entitled to relief.” Fowler, supra (quoting Phillips, at 233) (emphasis added). “Although Fowler’s Complaint is not as rich with detail as some might prefer, it need only set forth sufficient facts to support plausible claims.” Fowler (citing Twombly, at 564, n.8). “Even post-Twombly, it has been noted that a plaintiff is not required to establish the elements of a prima facie case but instead, need only put forth allegations that ‘raise a reasonable expectation that discovery will reveal evidence of the necessary element.’” Fowler, supra; (quoting Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL 231 2671 (W.D. Pa. 2008) Phillips, at 234. Thus, courts should not dismiss a complaint for failure to state a claim if it “contain[s] either direct or inferential allegations respecting all the Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 5 of 12 material elements necessary to sustain recovery under some viable legal theory.” Montville Twp. v. Woodmont Builders LLC, No. 05-4888, 2007 WL 2261567, at *2 (3d Cir. 2007) (quoting Twombly, at 1969). In fact, a Plaintiff need not plead any causes of action (merely facts with request for relief). See 2 James Wm. Moore et al., Moore's Federal Practice P 8.04[3]. “Under the Federal Rules of Civil Procedure, an evidentiary standard is not a proper measure of whether a complaint fails to state a claim.” Fowler, supra “…[S]tandards of pleadings are not the same as standards of proof.” Id. “[A] well- pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts alleged is improbable and that a recovery is very remote and unlikely.” Id. (quoting Twombly, at 556). Here, the Plaintiffs have alleged in their Amended Complaint that a machine repaired, refurbished,designed, manufactured, and/or sold by the Defendant, Strata was defective, and caused the Plaintiff severe injuries. Plaintiff understands the plausibility pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Plaintiff’s Amended Complaint is long, but it is not redundant. Plaintiff necessarily had to cover all of its bases with its Amended Complaint since, without conducting discovery, the facts of this case remain concealed. At this stage, the facts alleged in Plaintiff’s Amended Complaint must be taken as true. The facts allege that Strata sold, refurbished, and/or repaired the subject machine , was aware of the conditions, defects, and issues with the machinery, and Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 6 of 12 breached its duty to Plaintiff which resulted in his injury. If discovery reveals that Strata was not negligent in its involvement in this incident which injured the Plaintiff, Strata will no doubt be successful in this argument at the summary judgment stage. At this point, without having more evidence regarding the repair, supervision, or ownership of the machine, as well as the directions given to Plaintiffs,Plaintiff must plead all plausible causes of action against all plausible defendants, lest the liable party be absolved on technicality. i. Recent Developments re: Standard In Connelly v. Lane Construction Corp., No. 14-3792 (C.A.3 2015), the Third Circuit reversed the District Court’s dismissal of the operative complaint secondary to the District Court’s 12(b)(6) analysis of that complaint secondary to the pleading standard consistent with Twombly/Iqbal, Fowler, supra., and Runnion, infra: (“… [d]etailed pleading is not generally required.”) In Connelly, supra, the District Court’s point-by- point consideration of the elements of a prima facie case was incorrect; “… a complaint need not establish a prima facie case in order to survive a Motion to Dismiss.” Id. A prima facie case is “an evidentiary standard, not a pleading requirement,” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002), and hence is “not a proper measure of whether a complaint fails to state a claim. (citing Fowler, supra). “Instead of requiring a prima facie case,” the post-Twombly pleading standard “simply [requires] enough facts to reach a reasonable expectation that discovery will Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 7 of 12 reveal evidence of the necessary element[s].” Id. (quoting Phillips, supra.) (internal quotation omitted). Therefore, at [the] early stage of the proceedings, it is enough for [the Plaintiff] to allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of [the] claims.” Id. In a Monell context, the 11th Circuit held similarly. Hoefling, Jr. v. City of Miami, 14-12482 (C.A.11 January 25, 2016). In analyzing the pleading on allegations that there defendants did not “… follow established law and procedures intended to safeguard against the unlawful destruction of private property[,] …instead choosing to remove and destroy [his] property without the process … as a matter of policy, custom, and/or practice, ignored [his] fundamental rights, as well as the fundamental rights of other vessel owners” - the 11th Circuit held these District Court found bare averments enough to satisfy the federal pleading requirement. Id. Towards the above end (i.e., federal pleading requirements in light of the Twombly/Iqbal), Plaintiff notes the 7th Circuit’s like recent extrapolation. Runnion v. Girls Scouts of Greater Chicago and Northwest Indiana., No. 14-1729 (C.A. 7 May 8, 2015). In a historical context, Runnion illustrates a 12(b)(6) movant’s difficult burden as well as the constrictions upon a District Court: a Plaintiff need only plead that which is in his knowledge therein minimally giving notice to Defendants consistent with FRCP 8 (distinguishing between “code” and “notice” pleading in light of Twombly/Iqbal) (accord Fowler, supra.) Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 8 of 12 In light of the 3rd Circuit’s mandate as well as other above-cited Circuits reaffirmation of federal notice pleading requirements in light of Iqbal/Twombly, Defendant’s Motion should be denied. Simply, Defendant’s hyper-parsing is inconsistent with the Third Circuit’s 12(b)(6) analysis. Defendant’s request for this Court to apply the contra-standard should be rejected. Plaintiff’s allegations do not demonstrate the mere possibility of misconduct, it directly alleges misconduct by Strata. Plaintiff’s Complaint is sufficient to recover against Strata on all counts alleged against them. C. Amended Pleadings allowed, and a more Definite Statement should not be required Defendant Strata argues that it cannot respond to Plaintiff’s Complaint because it is pleaded in the alternative as to Plaintiff’s relationship with Strata, and because Strata is referred to generally as a Defendant during paragraphs which Plaintiff believes applies to each Defendant. In an Answer, Defendants have the ability to simply write “denied” to any paragraph that they do not believe should be admitted, or to any paragraph that does not apply to them. Instead however, they’ve elected to attempt to muddle the issues as to what is generally a simple case: Strata is involved with mine safety and equipment where the Plaintiff was injured. A Plaintiff should be provided an opportunity to file an Amended Complaint if it appears that the deficiencies can be corrected. Twombly, supra.; See, 2A J. Moore, Moore’s Federal Practice ¶12.07 [2.-5], P.12-99 (2d ed. 1994); accord, In re Spree.com Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 9 of 12 Corp., 2001 WL 1518242 (Bankr. E.D. Pa. 2001). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The Court should freely give leave to amend a Complaint “when justice so requires.” FRCP 15(a)(2); Fowler, supra. (“we note that the District Court inexplicably foreclosed Fowler from an opportunity to amend her Complaint so as to provide further specifics…” Though the deadline for amended pleadings had not yet expired, the District Court dismissed Fowler’s Complaint with prejudice in error). The Court should grant Plaintiffs leave to amend their Complaint unless futile or prejudicial, even if not requested. Adams v Gould, Inc., 739 F.2d 858, 868-870 (C.A.3 1984) (reversing district court denial of motion to amend a complaint to assert a new legal theory); Arthur V. Maersk, Inc., 434 F.3d 196, 204-2017 (C.A.3 2006) (reversing district court denial of motion to amend to add a new party approximately one year after initiation); Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (C.A.3 1993) (finding no prejudice three years after action and two years after complaint was amended for second time); Estate of Frank P. Lagano v. Bergen County Prosecutor's Office, No. 13-3232 (C.A.3. 2014) (citing Alston v. Parker, 363 F.3d 229, 235 (C.A.3 2004)) (reversing a district court for not sua sponte granting leave to amend). “Prejudice” is often used as a misnomer - prejudice is not defined by the requirement of ongoing litigation or defense but instead results from an inability to Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 10 of 12 defend. Lorenz, supra. "Futility" invokes the 12(b)(6) standard upon the district court's notice of the complaint's deficiencies. Davis v. Abington Memorial Hospital, 765 F.3d 236, 244-245 (C.A.3 2014) (citing Krantz v. Prudential Investments Fund Management, LLC, 144 F.3d 140, 144 (C.A.3 2002). The Defendants hope that by requiring Plaintiff to narrow its pleading before conducting discovery that they can later point the blame elsewhere. Without engaging in discovery, there is no way for Plaintiff to separate the specific actions of each defendant-if indeed they did not act in concert. Plaintiff needs to be able to conduct discovery before crafting a more specific pleading. As it stands, each of the allegations in Plaintiff’s Amended Complaint is necessary. When applying the correct standard, Plaintiff’s Complaint is sufficiently specific and Defendant’s Motion should be denied. In the alternative, Plaintiff should be granted leave to amend as this Honorable Court is respectfully directed to allow. Otherwise, state law claims should be dismissed without prejudice and transferred to the state court. Defendants’ Motion’s attachments should be stricken. D. Punitive damages were properly pleaded, and are valid in this case. Plaintiffs have alleged that Strata’s: “conduct in requiring its workers to utilize refurbished, poorly maintained, and inadequate machines and parts which it knew or should have known were inadequate and dangerous constituted a reckless indifference to human life.” Amended Complaint at 65. The Amended Complaint is laden with averments that support this claim. It further alleges that Strata knew the machine was inadequate, and would cause injury. Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 11 of 12 Taken as true, these allegations support a claim for punitive damages. If discovery reveals that Strata did not act with reckless indifference to human life, then this claim will be defeated on summary judgment. At this point however, the claim is properly pleaded, and valid. CONCLUSION WHEREFORE, Plaintiffs, Arnold Byrd and Tina Byrd respectfully request that this Honorable Court rule in their favor, and against the Defendants, and deny Defendants’ Motion to Dismiss and Motion for a more Definite Statement. In the alternative, Plaintiffs should be allowed to Amend their Complaint or have their case dismissed based on subject matter jurisdiction only so that they can pursue their case in State Court. Date: April 12, 2017 Respectfully submitted, /s/___________________________ The Pisanchyn Law firm Attorneys for Plaintiffs Arnold Byrd and Tina Byrd Nick Indovina, Esq. Pa. I.D. # 317036 241 Fourth Ave Pittsburgh, PA 15222 (412) 261-1212 Case 2:16-cv-01542-JFC Document 57 Filed 04/12/17 Page 12 of 12 IN THE UNITED STATE DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Arnold Byrd and Tina Byrd, husband and wife, Plaintiffs, Civil Action No. 2:16 cv 01542 v. CIVIL ACTION - LAW JURY TRIAL DEMANDED Consol Pennsylvania Coal Company LLC; CONSOL Energy Inc.; CNX Coal Resources, LP; Strata Products Worldwide, LLC; Caterpillar Inc.; RM Wilson Company; THIELE GmbH & Company KG; KWS Inc.; John and Jane Does 1 through 10, John Doe Corporations 1 through 10, and other John Doe Entities 1 through 10 Defendants. ________________________________________________________________________ ORDER AND NOW, this _____ day of ________, 2017, upon consideration of Plaintiff’s Response to Defendants’ Motion to Dismiss, it is hereby ORDERED, ADJUDGED, and Case 2:16-cv-01542-JFC Document 57-1 Filed 04/12/17 Page 1 of 2 DECREED that said Motion to Dismiss, Motion for a More Definite Statement, and Motion to Strike are DENIED. Defendants shall file an Answer to Plaintiff’s Amended Complaint within 20 days of this ORDER. BY THE COURT: ____________________J. Chief Judge Joy Flowers Conti Case 2:16-cv-01542-JFC Document 57-1 Filed 04/12/17 Page 2 of 2 IN THE UNITED STATE DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Arnold Byrd and Tina Byrd, husband and wife, Plaintiffs, Civil Action No. 2:16 cv 01542 v. CIVIL ACTION - LAW JURY TRIAL DEMANDED Consol Pennsylvania Coal Company LLC; CONSOL Energy Inc.; CNX Coal Resources, LP; Strata Products Worldwide, LLC; Caterpillar Inc.; RM Wilson Company; THIELE GmbH & Company KG; KWS Inc.; John and Jane Does 1 through 10, John Doe Corporations 1 through 10, and other John Doe Entities 1 through 10 Defendants. ________________________________________________________________________ CERTIFICATE OF SERVICE I, Nicholas J Indovina, Esquire, certify that on the date indicated below, I electronically submitted the foregoing document with the Clerk of the Court for the United States District Case 2:16-cv-01542-JFC Document 57-2 Filed 04/12/17 Page 1 of 2 Court for the Western District of Pennsylvania, using the electronic case filing system of the Court. The electronic case filing system sent a “Notice of Electronic Filing” to all counsel of record who, by rule, have consented to accept the Notice as service of this document by electronic means. /s/______________________________ Date: April 12, 2017 Nicholas J Indovina, Esquire 241 4th Avenue Pittsburgh PA 15222 Attorney for Plaintiff Case 2:16-cv-01542-JFC Document 57-2 Filed 04/12/17 Page 2 of 2