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Bell v. American International Industries Inc.

United States District Court, M.D. North Carolina

June 7, 2018

LLOYD BELL, individually and as Executor of the Estate of Betty Whitley Bell, Deceased, Plaintiff,
v.
AMERICAN INTERNATIONAL INDUSTRIES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., District Judge

         Presently before the court is Defendant American International Industries' (“Defendant AII's”) Motion to Dismiss Plaintiff's Claims for Willful and Wanton Conduct, Malice, Conspiracy, and Punitive Damages. (Doc. 45.) Defendant AII filed a brief in support of its motion, (Doc. 46), Plaintiff Lloyd Bell (“Bell”) filed a Response in Opposition, (Doc. 52), and Defendant AII filed a reply, (Doc. 53). This matter is ripe for resolution, and for the reasons stated herein, this court will grant in part and deny in part Defendant AII's Motion to Dismiss. Additionally, this court will deny Bell's request to amend his Complaint.

         I. PARTIES AND FACTUAL BACKGROUND

         At this stage in the case, the facts are presented in the light most favorable to Plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff Lloyd Bell is the executor of the estate of his wife, Betty Whitley Bell (“decedent”). (Am. Civil Action Compl. (“Am. Compl.”) (Doc. 44) at 1.) Decedent was exposed to asbestos by way of her personal use of talcum power products, her beauty school education, and her employment as a hairdresser. (Id. ¶ 9.) Decedent “was diagnosed with mesothelioma on or about June 18, 2015.” (Id. ¶ 8.) On June 3, 2017, decedent died. (Mot. by Executor to be Substituted for Deceased Pl., Ex. A, Death Certificate (Doc. 39-2) at 2.) The proximate cause of decedent's death was mesothelioma. (Am. Compl. (Doc. 44) ¶ 73.)

         Defendants manufactured, designed, distributed, sold, and supplied asbestos-containing products. (Id. ¶ 11.) Bell alleges that:

Decedent's illness, disability, and death were a direct and proximate result of the negligence, recklessness and willfulness of the defendants, jointly and severally . . . defendants knew, or in the exercise of ordinary care, should have known, that the asbestos, asbestos-containing materials and/or asbestos containing equipment were deleterious, poisonous and highly harmful to the decedent's body, lungs, respiratory system, skin and health . . . .

(Id. ¶ 73.)

         Bell alleges six causes of action against Defendants in the operative Complaint: (1) negligence; (2) product liability; (3) breach of implied warranty; (4) willful and wanton conduct; (5) failure to warn; and (6) wrongful death. (Id. ¶¶ 16-59, 70-78.) Bell seeks recovery for (1) loss of consortium and (2) compensatory and punitive damages. (Id. ¶¶ 65-69.)

         II. LEGAL STANDARD

         “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.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be facially plausible, a claim must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable” and must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). When ruling on a motion to dismiss, a court must accept the complaint's factual allegations as true. Id. Further, “the complaint, including all reasonable inferences therefrom, [is] liberally construed in the plaintiff's favor.” Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004) (citation omitted).

         Nevertheless, sufficient factual allegations must “raise a right to relief above the speculative level” so as to “nudge[] the[] claims across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 555, 570; see Iqbal, 556 U.S. at 680. A court cannot “ignore a clear failure in the pleadings to allege any facts which set forth a claim.” Estate of Williams-Moore, 335 F.Supp.2d at 646. Consequently, even given the deferential standard allocated to pleadings at the motion to dismiss stage, a court will not accept mere legal conclusions as true and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at 678 (citation omitted).

         III. ANALYSIS

         Defendant AII makes two primary arguments within its Motion to Dismiss. (Mem. in Supp. of Suppl. Mot. in Supp. of American International Industries' 12(b)(6) Mot. to Dismiss Pl.'s Claims for Willful and Wanton Conduct, Malice, Conspiracy and Punitive Damages (“Def.'s Mem.”) (Doc. 46) at 13.) First, Defendant AII argues that Bell has failed to state a claim for punitive damages. (Id. at 6-8.) Second, Defendant AII argues that Bell has failed to state a claim for civil conspiracy. (Id. at 8-10.)

         In response, Bell contends that Defendant AII's Motion to Dismiss is untimely as Bell's original complaint was filed in late 2015 in New Jersey State Court and Defendant did not raise 12(b)(6) arguments at that time. (Pl.'s Mem. in Opp'n to American International Industries' 12(b)(6) Suppl. Mot. to Dismiss Pl.'s Claims for Willful and Wanton Conduct, Malice, Conspiracy, and Punitive Damages (“Pl.'s Mem.”) (Doc. 52) at 3.) This court will take up each issue in turn.

         A. Jurisdiction

         While jurisdiction has not been challenged in the existing motions, the existence of jurisdiction is a “question the court is bound to ask and answer for itself[.]” Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884). This court has jurisdiction in the present case pursuant to 28 U.S.C. § 1332, as there is both complete diversity and an amount in controversy in excess of $75, 000.

         B. Timeliness of Motion to Dismiss

         Bell contends that because Defendant AII did not raise 12(b)(6) arguments during prior litigation before the New Jersey state court, and because the present action should be considered an amended complaint of the previously filed state action, the present 12(b)(6) motion should be disregarded as untimely. (Pl.'s Mem. (Doc. 52) at 4.) In support of this argument, Plaintiff cites to two non-binding district court cases. (Id. at 3 (citing Jaeger v. Howmedica Osteonics Corp, No. 15-cv-00164-HSG, 2016 WL 520985, at *11 (N.D. Cal. Feb. 10, 2016); Northstar Fin. Advisors Inc. v. Schwab Invs., 135 F.Supp.3d 1059 (N.D. Cal. 2015)).) Both of these cases are factually distinct. First, Jaeger found a Rule 12(b)(6) motion to be untimely where the defendant answered the original complaint in a different federal district court prior to the case being transferred. 2016 WL 520985, at *3, *11. Second, Northstar ...


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