United States District Court, M.D. North Carolina
LLOYD BELL, individually and as Executor of the Estate of Betty Whitley Bell, Deceased, Plaintiff,
AMERICAN INTERNATIONAL INDUSTRIES, et al., Defendants.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
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.
PARTIES AND FACTUAL BACKGROUND
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.)
manufactured, designed, distributed, sold, and supplied
asbestos-containing products. (Id. ¶ 11.) Bell
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.)
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.)
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).
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).
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.)
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.
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
Timeliness of Motion to Dismiss
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,