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Thomas-Fish v. Avborne Accessory Group, Inc.

United States District Court, D. Delaware

February 1, 2019

HELEN THOMAS-FISH, Individually and as Executrix of the Estate of Robert C. Fish Plaintiff,


          Sherry R. Fallon, Judge


         Presently 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.[1] ("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 recommendation.[2]


         A. Procedural History

         On 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.[3] (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., [4] Roller Bearing, Sargent Aerospace, and Sargent Industries pursuant to 28 U.S.C. §§ 1331, 1442(a)(1), the federal officer removal statute, [5] and 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).[6] (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)

         B. Facts

         Plaintiff 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)

         Plaintiff 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.[7] (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 asbestos." (Id.)

         Mr. Fish was diagnosed with mesothelioma on September 23, 2015 and passed away on September 24, 2016. (D.I. 1, Ex. A)


         Rule 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).

         To 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.

         When determining whether dismissal is appropriate, the court must take three steps.[8] 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)).


         A. Choice of Law

         Prior 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).

         The 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.[9] (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.

         B. Count I

         i. Strict Liability ...

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