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Hicks v. The Boeing Co.

United States District Court, D. Delaware

March 21, 2014

THE BOEING COMPANY, et al., Defendant.


SHERRY R. FALLON, Magistrate Judge.


Presently before the court in this asbestos-related personal injury action is a Motion to Dismiss Plaintiffs Complaint ("Motion to Dismiss" or "Motion"), filed by The Boeing Company ("Boeing"), pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (D.I. 92) The Plaintiff, Mary J. Hicks ("Plaintiff'), opposes Boeing's Motion. (D.I. 95) For the reasons that follow, I recommend that the court GRANT IN PART and DENY IN PART Boeing's Motion to Dismiss.


Plaintiff filed this personal injury action against Boeing and other defendants on January 18, 2013, in the Superior Court of Delaware. (D.I. I, Ex. A) The Complaint alleges, in part:

a) Decedent ALVA N. HICKS, JR. experienced occupational and bystander exposure to asbestos while he served in the U.S. Army and U.S. Airforce [sic] from 1941 to 1963 as a Major Retired Flyer and while he worked as a self-employed construction worker from 1945 to 1947, at Dixie Bookbinding Co. in Jackson, Mississippi as a shipper, and for the State of Mississippi in Jackson, Mississippi as a Grain Inspector until he retired in 1973. Decedent ALVA N. HICKS, JR. was exposed to asbestos-containing products and equipment including, but not limited to, asbestos-containing pumps, valves, packing, gaskets, insulation, boilers, turbines, cooling towers, pipe, paint, HVAC equipment, engines, joint compound, brakes, clamps, and raw asbestos. 22. Decedent ALVAN. HICKS, JR. was exposed to asbestos and/or asbestos-containing products which were mixed, mined, manufactured, distributed, sold, removed, installed and/or used by the Defendants.

(D.I. 73 ¶ 21-22)

On March 11, 2013, the case was removed to this court by Defendant United Technologies Corporation, pursuant to 28 U.S.C. § 1442(a)(l), the federal officer removal statute.[1] (D.I. 1) On April 12, 2013, Plaintiff filed a Motion to Remand to State Court (D.I. 13), which this court subsequently denied. ( See D.I. 172)

Plaintiff filed her First Amended Complaint on July 11, 2013. (D.I. 73) On August 5, 2013, Boeing filed the pending Motion to Dismiss. (D.I. 91)


A complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell At. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (interpreting Fed.R.Civ.P. 8(a)) (internal quotations marks omitted). A complaint does not need detailed factual allegations; however, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id at 545 (alteration in original) (citation omitted). In other words, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

When presented with a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the court separates the factual and legal elements of a claim, accepting "all of the complaint's well-pleaded facts as true, but [disregarding] any legal conclusions." I d. at 210-11. Second, the court determines "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679). In assessing the plausibility of a claim, the court must "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, 578 F.3d at 210 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).


Boeing argues that the Complaint "exclusively consists of generalized, vague, and factually devoid allegations and legal conclusions." (D.I. 92 at 2) Boeing further contends that the Complaint is deficient under Rule 8 because it does not identify any Boeing product to which the Plaintiff was allegedly exposed or the location or time frame of such exposure. ( Id. at 15) Thus, Boeing maintains that the Complaint should be dismissed because it lacks sufficient factual content to allow the court to draw a reasonable inference that Boeing is liable for the misconduct alleged in the Complaint. ( Id. at 2, 5, 12)

Plaintiff counters that the Complaint provides adequate notice of the claims asserted against Boeing and, as such, it complies with the requirements of Rule 8. (D.I. 95 at 3) Plaintiff argues that she is not required at this stage of the proceedings to identify the specific asbestos-containing products in issue relative to each Defendant. ( Id at 4-5) Plaintiff further contends that Boeing's Motion should be denied because the Complaint meets the requirements of the Delaware Superior Court's Standing Order No. I. ( Id at 3 (citing Standing Order No. 1, In re: Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. Apr. 29, 2011))

As a preliminary matter, the court notes that "once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings." Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 427 (1974). Thus, the guidelines for asbestos actions in Delaware State courts are irrelevant in the context of the pending Motion to Dismiss, as are Plaintiffs assertions concerning the Complaint's adequacy under such guidelines.

Furthermore, the court is not persuaded by Boeing's argument that the Complaint should be summarily dismissed because it does not identify the specific Boeing product that is the subject of Plaintiffs claims.[2] See Coene v. 3M Co., 2011 WL 3555788, at *3 (W.D.N.Y. Aug. 11, 2011) ("[The defendants] ought to know whether they sold [the general type of product in issue] between [a specific time period]. Consequently, they can frame an answer to the Complaint. Additional information about the specific products at issue can be developed during discovery."); Coleman v. Boston Scientific Corp., 2011 WL 1532477 at *2-5 (E.D. Ca. Apr. 20, 2011) (denying motion to dismiss products liability complaint which alleged that defendant manufactured defective surgical "mesh product, " but did not identify a particular product: "Imposing on plaintiffs the burden of specifically identifying a device by reference to a specific product line or model number, without the benefit of discovery, could create an insurmountable pleading burden in some cases."); Winslow v. WL. Gore & Assoc, Inc., 2011 WL 866184, at *2 (W.D. La. Jan. 21, 2011) ("[T]his is a products liability case where almost all of the evidence is in the possession of defendant or other entities. Proof will necessarily be technical in nature and it is likely impossible for plaintiff to state more specific allegations regarding defects in manufacture and design without first having the benefit of discovery and of expert analysis, neither of which is required in order to file suit."); Hemme v. Airbus, S.A.S., 2010 WL 1416468, at *3 (N.D. Ill. Apr. I, 2010) (rejecting defendant's argument, in products liability action involving defective electrical components in passenger jet, that the complaint's use of the "generic word wiring'" was insufficient, and that plaintiff had to "identify the particular product that was allegedly defective").

Plaintiff's Complaint asserts several theories of liability, as set forth in Counts III through X, including: negligence (Count III), recklessness/punitive damages (Count IV), strict product liability (Count V), fraudulent concealment (Count VI), fraudulent misrepresentation (Count VII), conspiracy (Counts VIII and IX), and loss of consortium (Count X). It must be noted, however, that deciphering these claims was no easy task. Indeed, the claims that the counts of the Complaint purport to assert are not clearly pled. Furthermore, the briefs submitted by the parties offered little help, as both parties failed to analyze each count under the Jqbal/Twombly standard -a necessary step in resolving any Rule 12(b)(6) motion.

Plaintiff argues that the court should apply Mississippi law to the claims alleged in the Complaint. (D.I. 73 ¶ 23; D.I. 95 at 6) For purposes of the pending Motion, Boeing does not dispute Plaintiffs choice of law. ( See D.I. 92 at 2, 7) For the reasons that follow, the Complaint contains sufficient factual allegations to support only some of Plaintiffs ...

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