United States District Court, D. Delaware
HELEN THOMAS-FISH, Individually and as Executrix of the Estate of Robert C. Fish Plaintiff,
AVBORNE ACCESSORY GROUP, INC.; DOVER CORPORATION; DOVER ENGINEERED SYSTEMS, INC., f/k/a Dover Diversified, Inc.; RBC BEARINGS INCORPORATED, f/k/a Roller Bearing Holding Company, Inc.; RBC SARGENT AIRTOMIC; ROLLER BEARING COMPANY OF AMERICA, INC., f/k/a RBC Holdings Corp.; SARGENT AEROSPACE & DEFENSE, LLC, f/k/a Dover Sargent Aerospace & Defense, LLC; SARGENT INDUSTRIES, INC. Defendants.
REPORT AND RECOMMENDATION
R. Fallon, Judge
pending before the court in this asbestos-related personal
injury action is a motion to dismiss for failure to state a
claim upon which relief can be granted, pursuant to Federal
Rule of Civil Procedure 12(b)(6) filed by six existing or
dissolved Delaware entities. The moving defendants are as
follows: Avborne Accessory Group, Inc. ("Avborne"),
Dover Corporation, Dover Engineered Systems, Inc.
("Dover Engineered"), Roller Bearing Company of
America, Inc. ("Roller Bearing"), Sargent Aerospace
and Defense, LLC ("Sargent Aerospace"), and Sargent
Industries, Inc. ("Sargent Industries")
(collectively, "defendants"). (D.I. 50) For the
following reasons, I recommend GRANTING defendants'
motion, in the manner set forth in this report and
September 22, 2017, plaintiff Helen Thomas-Fish ("Mrs.
Thomas-Fish" or "plaintiff) originally filed this
personal injury action individually and as executrix of the
Estate of Robert C. Fish against ten defendants in the
Superior Court of New Jersey, asserting claims arising from
the decedent's alleged harmful exposure to
asbestos. (D.I. 1, Ex. A) On November 1, 2017, the
case was removed to the U.S. District Court for the District
of New Jersey (the "transferee court") by
defendants Avborne, Dover Corporation, Dover Engineered,
Sonic Industries, Inc.,  Roller Bearing, Sargent Aerospace, and
Sargent Industries pursuant to 28 U.S.C. §§ 1331,
1442(a)(1), the federal officer removal statute,
1446. (D.I. 1) On December 12, 2017, the transferee court
issued an Order to Show Cause as to why venue should not be
transferred to this court. (D.I. 21) During the pendency of
the Order to Show Cause, plaintiff filed a motion for remand,
which was denied on July 31, 2018. (D.I. 35; D.I. 41; D.I.
42) On August 7, 2018, the transferee court ordered that
plaintiffs claims be severed and transferred to this court
pursuant to 28 U.S.C. § 1404(a). (D.I. 45) On August 21,
2018, defendants filed their pending motion to dismiss,
alleging deficiencies in pleading each of the five counts of
the complaint. (D.I. 50)
alleges that Mr. Fish developed mesothelioma as a result of
exposure to asbestos-containing products that defendants
manufactured, supplied, distributed, or installed during his
service as a civilian at New York Shipbuilding and Drydock
("NY Ship") in Camden, New Jersey. (D.I. 1, Ex. A
at ¶¶ 4, 6) Plaintiff asserts claims for strict
liability, negligence, breach of express and implied
warranties (Count I), marketing of an ultra-hazardous product
(Count II), failure to warn (Count III), civil conspiracy
(Count IV), and loss of consortium (Count V). (Id.
at ¶¶ 9-30) In addition, plaintiff demands an award
of punitive damages in each count. (Id. at 4-9)
alleges that in 1960, Mr. Fish's work placed him in close
proximity on a frequent basis to joiners installing
asbestos-containing panels on the NS Savannah, which was
under construction. (Id.) The joiners' work
involved cutting panels to fit around fixtures for
installation, "which generated respirable dust in
Plaintiff['s] Decedent's presence and exposed him to
Fish was diagnosed with mesothelioma on September 23, 2015
and passed away on September 24, 2016. (D.I. 1, Ex. A)
STANDARD OF REVIEW
12(b)(6) permits a party to move to dismiss a complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). When considering a Rule 12(b)(6)
motion to dismiss, the court must accept as true all factual
allegations in the complaint and view them in the light most
favorable to the plaintiff. Umland v. PLANCO Fin.
Servs., 542 F.3d 59, 64 (3d Cir. 2008).
state a claim upon which relief can be granted pursuant to
Rule 12(b)(6), a complaint must contain a "short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth sufficient factual matter, accepted as true,
to "state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009). A claim is facially plausible when the
factual allegations allow the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Iqbal, 556 U.S. at 663; Twombly,
550 U.S. at 555-56.
determining whether dismissal is appropriate, the court must
take three steps. See Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010). First, the court must
identify the elements of the claim. Iqbal, 556 U.S.
at 675. Second, the court must identify and reject conclusory
allegations. Id. at 678. Third, the court should
assume the veracity of the well- pleaded factual allegations
identified under the first prong of the analysis, and
determine whether they are sufficiently alleged to state a
claim for relief. Id.; see also Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). The third
prong presents a context-specific inquiry that "draw[s]
on [the court's] experience and common sense."
Iqbal, 556 U.S. at 663-64; see also Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). As the
Supreme Court instructed in Iqbal, "where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not 'show[n]' - 'that the pleader is
entitled to relief" Iqbal, 556 U.S. at 679
(quoting Fed.R.Civ.P. 8(a)(2)).
Choice of Law
to being transferred to this District, this action was
removed to the District Court for the District of New Jersey
based on federal officer jurisdiction. (D.I. 1) A federal
court's role under federal officer jurisdiction is
"similar to that of a federal court sitting in
diversity." Introcaso v. Meehan, 2008 WL
161213, at *1 (E.D. Pa. Jan. 14, 2008). Thus, the court must
"apply the choice of law rule of the forum state to
determine the law applicable to this action, as it would in a
diversity action." Gallelli v. Prof I Ins.
Mgmt., 1994 WL 45729, at *3 (E.D. Pa. Feb. 10, 1994). In
tort actions such as this, Delaware has adopted the
'"most significant relationship'" test for
choice of law. ACCU Pers., Inc. v. Accu Staff, Inc.,
846 F.Supp. 1191, 1212 (D. Del. 1994) (quoting Travelers
Indent. Co. v. Lake, 594 A.2d 38, 47 (Del. 1991)).
"That is, the state law which 'has the most
significant relationship to the occurrence and the
parties' will govern." Id. (quoting
Travelers Indent. Co., 594 A.2d at 47).
parties dispute whether New Jersey or maritime law applies to
the plaintiffs claims. Defendants argue that maritime law
governs. (D.I. 51 at 11) Defendants further argue that, based
upon the deficiencies in the pleadings, dismissal is
warranted regardless of the choice of law
selection. (Id.) Here, it is alleged that
the decedent, Mr. Fish, was exposed to asbestos-containing
products for which defendants are responsible, solely while
working at the shipyard and drydock at NY Ship. (D.I. 1, Ex.
A at ¶ 4) Therefore, for the purposes of the pending
motion, the court will apply New Jersey law.
Strict Liability ...