Rothchild v. Crane Co. (S.D. Fla., Aug. 1, 2014, as to Union Carbide)

Our plain-English summary of Rothchild v. Crane Co. (U.S. District Court, Southern District of Florida, August 1, 2014).

Herbert Rothchild and his wife Audrey sued several companies, including Union Carbide, in Florida state court, and the case was removed to federal court. They alleged that he developed mesothelioma from exposure to asbestos-containing products made, sold or distributed by all the defendants. Union Carbide asked the court to dismiss the claims against it, arguing that the amended complaint never said what product it made, what conduct made it liable, or when and where any exposure happened. The Rothchilds responded that the complaint met the federal pleading rule and that discovery would bring out the facts. The court noted that exposure sheets filed earlier in state court named a Union Carbide product, Bakelite, and a Florida workplace. Because neither side raised them and the complaint did not mention them, the court did not consider them. The court found that the complaint had no facts specific to Union Carbide and that waiting for discovery was not enough. It dismissed the claims against Union Carbide without prejudice and allowed 30 days to amend.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Southern District of Florida
• Decided: August 1, 2014
• Docket: Case No. 14-80271-CIV-MARRA
• Stage: Motion to dismiss
• State: Florida

Outcome. The court granted Union Carbide's motion to dismiss the amended complaint as to Union Carbide only, without prejudice, and gave the Rothchilds 30 days to amend with more specific allegations.

What the court held. A complaint must plead factual content specific to each defendant that supports a reasonable inference of that defendant's liability; the expectation that discovery will supply those facts does not satisfy Rule 8 pleading standards.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Herbert Rothchild: mesothelioma

The defendants

• Union Carbide Corporation (manufacturer)
• Crane Co.
• Foster Wheeler Energy Corporation
• Lorillard Tobacco Company
• Owens-Illinois, Inc. · its asbestos trust

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Rothchild v. Crane Co. (August 1, 2014). The court denied Lorillard Tobacco Company's motion to strike two allegations from the plaintiffs' amended complaint, so the Rothchilds' allegations stayed in the complaint.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

HERBERT ROTHCHILD and AUDREY ROTHCHILD, his wife, Plaintiffs,

v.

CRANE CO., FOSTER WHEELER ENERGY CORPORATION; LORILLARD TOBACCO COMPANY;

OWENS-ILLINOIS, INC., f/k/a OWENS BOTTLE MACHINE CORP., f/k/a OWENS BOTTLE CO., f/k/a

OWENS-ILLINOIS GLASS CO.; UNION CARBIDE CORPORATION, Defendants.

Case No. 14-80271-CIV-MARRA.

August 1, 2014.

United States District Court, S.D. Florida.

OPINION AND ORDER

KENNETH A. MARRA, District Judge.

This cause is before the Court upon Defendant Union Carbide's Motion to Dismiss and Incorporated Memorandum of Law [DE 23]. The motion is ripe for this Court's review. The Court has reviewed all submissions relating to this motion and is otherwise duly advised in the premises.

A. BACKGROUND

This is an asbestos case in which the Amended Complaint alleges that Herbert Rothchild contracted mesothelioma as a result of his exposure to asbestos-containing products manufactured, sold, supplied and/or distributed by all of the Defendants. [DE 4 at 2, ¶3]. Union Carbide argues that the Amended Complaint is fatally vague as to Union Carbide. It notes that the Amended Complaint "never asserts what product Union Carbide manufactured or distributed, what conduct forms the basis of Union Carbide's asserted liability, what products allegedly caused the asserted injuries, or when, how, or where any such products allegedly did so." [DE 23 at 2]. It argues that all claims have been asserted against all Defendants without any specific factual support. Union Carbide says, "Simply put, what made Plaintiffs sue Union Carbide, as opposed to the countless other defendants sued in connection with asbestos litigation?" [DE 30 at 2].

In response, Plaintiffs assert that their Amended Complaint satisfies the pleading requirements of Fed. R. Civ. P. 8(a)(2) and that the facts will be elicited during discovery. [DE 28 at 3-5].

Neither Party has referred to the Exposure Sheets that were filed in the state court action prior to the removal to this Court. These identify Union Carbide's product Bakelite, which is stated to contain asbestos. They further indicate that Herbert Rothchild was exposed to this product at the Polyplastic Packaging Co., Inc. in Boynton Beach, Florida between 1961 and 2003. [DE 1-2 at 24]. Since neither Party raised this, and this information does not appear anywhere in the Amended Complaint, the Court has not taken this information into account in rendering this decision.

B. Legal Standard

With respect to a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court observes first that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has held that "[w]hile a complaint attacked by a 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above a speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

"To survive a motion to dismiss, 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, 129 S. Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950.

When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). As a general rule, the Court must "limit[] its consideration to the pleadings and exhibits attached thereto" when deciding a Rule 12(b)(6) motion to dismiss. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)(internal quotation marks and citation omitted).

C. DISCUSSION

Under even the most liberal interpretation of Rule 8(a)(2), Plaintiffs' Amended Complaint fails to state a claim against Union Carbide. The Amended Complaint contains no factual content as to Union Carbide that would allow this Court to draw the reasonable inference that Union Carbide is liable for the misconduct alleged. Plaintiffs' argument that discovery will uncover these facts is misplaced. As recently noted by the Eleventh Circuit, "why should parties wait until discovery to identify, with precision, the subject of the litigation? That is exactly backward. Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading." Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014).

Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendant Union Carbide's Motion to Dismiss [DE 23] is GRANTED. Plaintiffs' Amended Complaint is DISMISSED WITHOUT PREJUDICE as to Union Carbide only. Plaintiffs are given thirty (30) days from the date this Order is entered to further amend their complaint to assert their case against Union Carbide with more specificity. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 1st day of August, 2014.

Sources

• The opinion on Google Scholar
• Florida asbestos laws
• Florida asbestos exposure sites