Rhoades v. Allen-Bradley Company et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.January 5, 2017

ME1 23976685v.1 In the Unit ed States Dist r ict Court Eastern Dist r ict of Pennsylvania Leona V. Rhodes, Individually and as Executor of the Estate of Dewey Rhodes Plaint iff, vs. Civil Act ion No. 16-CV-5844 Allen-Bradley, Co. , et al. , ORDER Defendants. AND NOW, this _____ day of ___________, 2016, upon consideration of Defendant Owens-Illinois, Inc.’s Rule 12(b)(6) Motion to Dismiss For Failure to State a Claim and Plaintiff’s Response thereto, it is hereby ORDERED and DECREED that Plaintiff’s Complaint is DISMISSED WITH PREJUDICE. BY THE COURT: ____________________________ J. Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 1 of 12 -1- OWENS-ILLINOIS, INC.’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 In the Unit ed States Dist r ict Court Eastern Dist r ict of Pennsylvania Leona V. Rhodes, Individually and as Executor of the Estate of Dewey Rhodes, Plaint iff, vs. Civil Act ion No. 16-CV-5844 Allen-Bradley, Co. , et al. , Defendants. OWENS-ILLINOIS , INC. ’S RULE 12(B)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM This is an asbestos case removed to this Court by United Technologies Corporation (“UTC”) on federal officer grounds. Owens-Illinois, Inc. (“O-I”) moves under Federal Rule of Civil Procedure 8(a), 8(d), and 12(b)(6) to dismiss Plaintiff’s Amended Complaint [ECF 85] for the following reasons: 1. The Amended Complaint does not contain any averments as to O-I, nor does the pleading identify any causes of action stated against any defendant. Instead, the Amended Complaint purports to rely on incorporation by reference of “the prior complaint as if fully set out herein.” (Amd. Cmplt. at ¶ 1). 2. The only other complaint in the record is the state court complaint (“State Court Complaint”) attached to UTC’s notice of removal [ECF 1-1, Exhibit A]. Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 2 of 12 -2- OWENS-ILLINOIS, INC.’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 a. The State Court Complaint contains specific averments about 36 defendants, including specific details about the products manufactured and other information, but none specific to O-I. (St. Ct. Cmplt. at ¶¶ 10(a)-(aj). b. The State Court Complaint does not identify the causes of action asserted against any defendant, including O-I. Instead, the State Court Complaint incorporates by reference the entirety of five separate 1980s-era state court complaints filed in the Philadelphia Court of Common Pleas. (St. Ct. Cmplt. at ¶ 8-9). “All allegations against the defendants named in this lawsuit which were made in the Complaints filed in the lawsuits annotated in Paragraph 8 above or in the Master Complaint are incorporated by reference.” (Id. at ¶ 9). 3. Federal Rules of Civil Procedure 8(a) and 8(d) require a short and plain statement of a claim relief. Plaintiff cannot discharge this obligation by making sweeping, non-specific incorporations by reference. Rule 10(c) allows incorporation by reference of other pleading from the same case and only if the incorporations are specific. The incorporation by reference of an incorporation by reference of five separate complaints, all of which are from different, 30-year-old state court proceedings, does not meet federal pleading standards under Rule 8 or comply with Rule 10(c). Plaintiff’s Amended Complaint fails to state a claim on which relief can be granted against O-I. Plaintiff’s attempt to incorporate by reference five separate pleadings that are outside the record does not comply with Rule 8 or Rule 10(c). Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 3 of 12 -3- OWENS-ILLINOIS, INC.’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 Accordingly, O-I respectfully requests that the court grant this motion and dismiss Plaintiff’s Complaint. Respectfully submitted, McCARTER & ENGLISH, LLP By: _/s/ Ingrid H. Graff__________ Ingrid H. Graff, Esq. PA Attorney ID No. 91401 1600 Market Street, Suite 3900 Philadelphia, PA 19103 Phone: 215-979-3874 igraff@mccarter.com Attorneys for Owens-Illinois, Inc. Dated: January 5, 2017 Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 4 of 12 -1- OWENS-ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 In the Unit ed States Dist r ict Court Eastern Dist r ict of Pennsylvania Leona V. Rhodes, Individually and as Executor of the Estate of Dewey Rhodes, Plaint iff, vs. Civil Act ion No. 16-CV-5844 Allen-Bradley, Co. , et al. , Defendants. OWENS-ILLINOIS , INC. ’S MEMORANDUM IN SUPPORT OF ITS RULE 12(B)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM This is an asbestos case removed to this Court by United Technologies Corporation (“UTC”) on federal officer grounds. Plaintiff has not moved to remand. Plaintiff’s Amended Complaint contains seven paragraphs and fails to make factual allegations or identify the applicable legal theories or grounds for relief against Owens-Illinois, Inc. (“O-I”). Instead, Plaintiff adopts by reference the entirety of the “prior complaint” as a proxy for re-pleading. However, the only other complaint in the record is the state court complaint (“State Court Complaint”) attached to UTC’s notice of removal [ECF 1-1, Exhibit A]. The State Court Complaint does not make any factual allegations against O-I specifically or identify the legal theories entitling Plaintiff to relief against O-I (or any defendant). Like the Amended Complaint, the State Court Complaint relies on adoption by reference; it adopts the entirety of four separate state court complaints filed in the 1980s state court actions and a fifth complaint described as the Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 5 of 12 -2- OWENS-ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 “Master Complaint” allowed in the Philadelphia Court of Common Pleas. (St. Ct. Cmplt. at ¶ 8-9). The averments in the Amended Complaint and the State Court Complaint do not discharge Plaintiff’s obligations under Rule 8(a) or 8(d) and therefore do not state a claim on which relief can be granted against O-I. Plaintiffs sweeping, non-specific incorporations by reference of other pleadings from other cases filed nearly 30 years ago in other courts are impermissible under the federal rules. Accordingly, with no factual or legal averments against O-I, this Court should grant this motion and dismiss Plaintiff’s Amended Complaint under Rule 12(b)(6). I. Background Defendant UTC removed this case on November 10, 2016 based on federal officer grounds [ECF 1]. Plaintiff has not moved to remand. On November 17, 2016, Defendant Ford Motor Company filed a motion to dismiss under Rule 12(b)(6). [ECF 18]. In response, on November 28, 2016, Plaintiff requested leave to amend [ECF 57]. On December 16, 2016, this Court denied Ford’s motion, without prejudice, and granted Plaintiff’s request to amend. [ECF 80]. Plaintiff filed an Amended Complaint on December 23, 2016. [ECF 85]. The Amended Complaint contained six paragraphs of specific factual allegations against Ford. The Amended Complaint, however, amended no allegations against any other defendant. Nor did the amendment identify or describe the legal theories applicable to Ford or any other defendant. Instead, the Amended Complaint purports to reassert all “prior” allegations (ostensibly made against all defendants) and amend them only with regard to the six paragraphs applicable to Ford. “Plaintiff repeats … the allegations of the Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 6 of 12 -3- OWENS-ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 prior complaint as if fully set out herein except where Amended by this Amended Complaint.” (Amd. Cmplt. at ¶ 1). Thus, with leave to amend, Plaintiff chose to stand on the existing allegations and statements of legal theories and supply only six paragraphs of factual details regarding Ford. The only other complaint in the record from which allegations could be ascertained is the state court complaint (“State Court Complaint”) attached to UTC’s notice of removal [ECF 1-1, Exhibit A]. Like the Amended Complaint, the State Court Complaint contains no identification or description of the legal theories entitling the Plaintiff to relief against any defendant. Additionally, while the State Court Complaint contains specific averments about 36 defendants, it contains none about O-I. (St. Ct. Cmplt. at ¶¶ 10(a)-(aj)). Like the Amended Complaint, the State Court Complaint purports to incorporate by reference allegations made in four separate state court complaints filed in the 1980s and from the so-called “Master Complaint” on file in the Philadelphia Court of Common Pleas-also of 1980s vintage. (St. Ct. Cmplt. at ¶ 8-9). “All allegations against the defendants named in this lawsuit which were made in the Complaints filed in the lawsuits annotated in Paragraph 8 above or in the Master Complaint are incorporated by reference.” (Id. at ¶ 9). Not only are these complaints nearly 30 years old, all of them are from separate cases, from state court, and are not a part of the record in this case. From the documents in the record, it is impossible to determine what legal theories are at issue or what facts apply vis-à-vis those theories that give rise to liability against O-I-or any defendant for that matter. Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 7 of 12 -4- OWENS-ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 II. Legal Standard 1. Failure to State a Claim. Rules 8(a) and 8(d) require a pleader to provide a short and plain statement of the grounds for relief. To state a claim under the Federal Rules of Civil Procedure, the plaintiff must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[A] formulaic recitation of the elements of a cause of action will not do” nor will “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations omitted). The Third Circuit uses a three-step analysis to evaluate a pleading under Twombly and Iqbal. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011): 1) identify the elements needed, 2) identify allegations that are mere conclusions, and 3) determine whether well-pleaded facts give rise to a plausible claim for relief. Id. at 221. The obligation to provide short and plain statements for relief cannot be discharged by sweeping, non-specific incorporations by reference-even from pleadings in the same case. Heintz & Co. v. Provident Tradesmens Bank & Trust Co., 29 F.R.D. 144, 145 (E.D. Pa. 1961) (“This defect is not remedied by the equally defective incorporation by reference of certain paragraphs and exhibits of the original complaint.”). 2. Incorporation by Reference. Federal Rule of Civil Procedure 10(c) allows a pleader to adopt statements made in prior pleadings. However, these adoptions must be specific. While Rule 10(c) specifically authorizes adoption by reference in a later pleading of matter (including exhibits) contained in previous pleadings, it must be done with a degree of clarity which enables Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 8 of 12 -5- OWENS-ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 the responding party to ascertain the nature and extent of the incorporation. Heintz & Co. v. Provident Tradesmens Bank & Trust Co., 29 F.R.D. 144, 145 (E.D. Pa. 1961); see also B & E Dimensional Stoneworks, LLC v. Wicki Wholesale Stone, Inc., 3:11-CV-1297, 2012 WL 511519, at *4 (M.D. Pa. Feb. 15, 2012)(“the adoption in the later pleading must provide a degree of clarity which enables the responding party to ascertain the nature and extent of the incorporation.”)(citations and quotations omitted). “A pleading incorporating allegations from other documents must clarify which statements are to be incorporated.” Shelter Mut. Ins. Co. v. Pub. Water Supply Dist. No. 7 of Jefferson County, Mo., 747 F.2d 1195, 1198 (8th Cir. 1984). The adoptions by reference also cannot come from separate proceedings. Muttathottil v. Gordon H. Mansfield, 381 Fed. Appx. 454, 457 (5th Cir. 2010)(no rule allows adoption of affirmative claims in a “separate action in a different court by mere reference.”). “The parties' attempt to incorporate by reference numerous documents filed in separate cases and dealing with separate parties is improper.” Hudson Associates Consulting, Inc. v. Weidner, 06-2461-EFM, 2010 WL 1980291, at *2 (D. Kan. May 18, 2010); see also Daniel v. Nat'l Cas. Ins. Co., CIV.A. MJG-13-1519, 2014 WL 4955402 at *2 (D. Md. Sept. 29, 2014). Rule 10(c) thus requires any incorporations by reference to be specific and to come from pleadings in the same case. III. Argument Plaintiff’s Amended Complaint, without reference to other pleadings, fails on its face to meet the standards of Twombly and Iqbal-as to O-I or any defendant. It contains factual statements about alleged asbestos exposure to Ford products, but none that give Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 9 of 12 -6- OWENS-ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 rise to liability. Nor does it articulate what legal theory forms the basis for any claim of relief. Plaintiff’s attempted incorporation by reference of the State Court Complaint, while probably permitted by Rule 10(c) because it appears in the record, does not overcome the pleading deficiencies of the Amended Complaint. First, Plaintiff’s adoption is not specific. Second, the State Court Complaint fails to identify any legal theory or basis for liability against any defendant, and certainly not O-I. Finally, even if Plaintiff’s adoptions were specific and identified legal theories, the State Court Complaint contain no allegations about O-I whatsoever. Nothing in the record enables the court, O-I, or any party to ascertain what legal theories are at issue against O-I or what product, conduct, or circumstances give rise to liability under those theories. Plaintiff’s decision to rely on adoption by reference of five complaints from separate state court actions, all of which were filed nearly 30 years ago, does not discharge the pleading obligations of Rule 8. Rule 10(c) permits adoption by reference but only if the adoption is specific and comes from pleadings filed in the same case. Plaintiff’s incorporations by reference do not meet these requirements and therefore fail to state a claim against O-I. IV. Conclusion Plaintiff’s Amended Complaint, on its face, fails to state a claim on which relief can be granted against O-I. Plaintiff’s decision to amend and then rely on incorporations by reference of five separate pleadings that are outside the record is not permitted and does not discharge Plaintiff’s pleading obligations under Rule 8. Accordingly, O-I Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 10 of 12 -7- OWENS-ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ME1 23976685v.1 respectfully requests that the court grant this motion and dismiss Plaintiff’s Complaint with prejudice. Respectfully submitted, McCARTER & ENGLISH, LLP By: _/s/ Ingrid H. Graff__________ Ingrid H. Graff, Esq. PA Attorney ID No. 91401 1600 Market Street, Suite 3900 Philadelphia, PA 19103 Phone: 215-979-3874 igraff@mccarter.com Attorneys for Owens-Illinois, Inc. Dated: January 5, 2017 Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 11 of 12 ME1 23976685v.1 In the Unit ed States Dist r ict Court Eastern Dist r ict of Pennsylvania Leona V. Rhodes, Individually and as Executor of the Estate of Dewey Rhodes, Plaint iff, vs. Civil Act ion No. 16-CV-5844 Allen-Bradley, Co. , et al. , Defendants. CERTIFICATE OF SERVICE I, the undersigned counsel, do certify that on this 5 th day of January, 2017, I did electronically file via the CM/ECF system and caused to be served on all counsel of record, pursuant to the rules and procedures of the United States District Court for the Eastern District of Pennsylvania, Defendant Owens-Illinois, Inc.’s Rule 12(b)(6) Motion to Dismiss For Failure to State a Claim, Memorandum in Support of its Rule 12(b)(6) Motion to Dismiss For Failure to State a Claim, and proposed form of Order. By: _/s/ Ingrid H. Graff__________ Ingrid H. Graff, Esq. Case 2:16-cv-05844-ER Document 90 Filed 01/05/17 Page 12 of 12