Dugas v. 3M Co.

101 F. Supp. 3d 1246, 2015 U.S. Dist. LEXIS 54861, 2015 WL 1911329
CourtDistrict Court, M.D. Florida
DecidedApril 27, 2015
DocketCase No. 3:14-cv-1096-J-39JBT
StatusPublished
Cited by4 cases

This text of 101 F. Supp. 3d 1246 (Dugas v. 3M Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dugas v. 3M Co., 101 F. Supp. 3d 1246, 2015 U.S. Dist. LEXIS 54861, 2015 WL 1911329 (M.D. Fla. 2015).

Opinion

ORDER

BRIAN J. DAVIS, District Judge.

THIS CAUSE is before the Court on Defendants’ Motions to Dismiss Plaintiffs’ Second Amended Complaint [Docs. 141, 145, 154, and 156; Motions]. Plaintiffs responded with their Consolidated Brief in Opposition [Doc. 159]. Accordingly, this matter is ripe for review.

I. BACKGROUND1

Plaintiffs’ Second Amended Complaint (“Second Amended Complaint”) sets forth four causes of action: (1) negligence; (2) strict liability; (3) fraudulent concealment; and (4) loss of consortium. The gravamen of Plaintiffs’ Second Amended Complaint is that Plaintiff, Darryl Dugas was exposed to asbestos fibers which led to his development of malignant mesothelioma. Mr. Du-gas’ exposure to asbestos came from his contact with asbestos-containing products during his tenure with the United States Navy. The products were either mined, processed, supplied, manufactured, or distributed by Defendants, or their predecessors.2 Following Mr. Dugas’s filing of his Second Amended Complaint, Defendants, 3M Company (“3M”), United Technologies Corporation (“UTC”), Shell Oil Company (“Shell”), and IMO Industries, Incorporated (“IMO”) (collectively, “Defendants”) filed motions to dismiss arguing that Plaintiffs’ Second Amended Complaint fails to state a claim upon which relief can be [1250]*1250granted, and fails to plead fraudulent concealment with the requisite level of specificity.

Specifically, Defendant UTC argues that Plaintiffs’ Second Amended Complaint fails to allege sufficient facts from which a plausible claim for relief can be ascertained as to all claims. Defendants 3M and Shell focus their Motions to Dismiss on Count Three, arguing that Plaintiffs’, factual allegations are inadequate to state a claim for fraudulent concealment.3 Defendant IMO also focuses its Motion to Dismiss on Count Three of Plaintiffs’ Second Amended Complaint, but adds the argument that Count Four should fail as a derivative claim, if Count Three fails.

II. DISCUSSION

1. Florida’s Asbestos and Silica Compensation Fairness Act

Preliminarily, the Court considers an argument raised by Honeywell International Incorporated (“Honeywell”) as adopted and incorporated in Defendants Shell’s and 3M’s Motions to Dismiss.4 The argument advanced by Honeywell is that Plaintiffs’ Second Amended Complaint should be dismissed for failure to comply with Section 774.205, Florida Statutes. Section 774.205 sets forth specific and heightened pleading requirements for plaintiffs alleging a claim involving asbestos or silica. Plaintiffs contend that Section 774.205 does not apply in this case because it conflicts with the concept of “notice pleading” contemplated by the Federal Rules of Civil Procedure (“Rule(s)”). This case was removed from state court pursuant to the federal officer removal statute, 28 U.S.C. § 1442. As with cases removed on the basis of diversity jurisdiction, cases removed on the basis of Section 1442 apply state substantive law and federal procedural law. Kolibash v. Comm. on Legal Ethics of W. Virginia Bar, 872 F.2d 571, 576-77 (4th Cir.1989) (“The federal officer removal statute permits a state action to be adjudicated on the merits in a federal court ‘free from local interests or prejudice,’ and a federal officer is therefore guaranteed a federal forum in which federal rules of procedure will be applied.”) (quoting Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)).

To aid courts in determining whether a law is substantive or procedural, “the Supreme Court developed a two-part test in Hanna.”5 Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1357 (11th Cir.2014) (quotation and citation omitted), Where a federal law sought to be applied is a Federal Rule of Civil Procedure, “the district court must first decide whether the [rule] is sufficiently broad to control the issue before the court.” Royalty Network, Inc., 756 F.3d at 1358 (quotation and citation omitted). “If the federal procedural rule is sufficiently broad to control the issue and conflicts with the state law, the federal procedural rule applies instead of the state law.” Id.

In this case, the state law, Section 774.205, requires that a plaintiff alleging asbestos exposure include with his complaint, among other things, “a written report and supporting test results constituting prima facie evidence of the exposed person’s asbestos-related ... physical impairment meeting the requirements of s. [1251]*1251774.204(2), (3), (5), or (6).” Fla. Stat § 774.205(2). Federal Rule of Civil Procedure 8, on the other hand, only requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” If this Court required Plaintiffs to meet Section 774.205’s dictates, it would require a heightened pleading requirement not contemplated by the Federal Rules of Civil Procedure. Such an approach has already been considered and rejected by the Eleventh Circuit relating to punitive damages. Cohen v. Office Depot, Inc., 184 F.3d 1292, 1298 (11th Cir.1999), vacated on other grounds, 204 F.3d 1069 (11th Cir.2000) (“A state law may conflict with a Federal Rule even where it violates no affirmative command or requirement of the rule, if the Federal Rule ‘occupies the statute’s field of operation.’ ”) (quoting Hanna, 380 U.S. at 470, 85 S.Ct. 1136). The Court in Cohen held that a conflict exists between Federal Rule of Civil Procedure 8, which allows a plaintiff to include in a complaint a request for all the relief sought and a state law that requires leave of the court before a request of punitive damages can be made. Id. Because the court in Cohen found that pleading rules such as Federal Rule of Civil Procedure Rule 8 “relate[ ] to the practice and procedure” of federal courts, the Court held that Rule 8 controlled and the state law did not apply. Id. at 1299 (quotation and citation omitted).

Indeed, another court in this district, relying on Cohen and Hanna held that a plaintiffs failure to meet the pleading requirements found in Section 774.205 did not doom his case because Section 774.205 conflicted “with the basic notice pleading requirements of Federal Rule of Civil Procedure 7 through 10 .... ” Hughes v. Am. Tripoli Inc., No.

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101 F. Supp. 3d 1246, 2015 U.S. Dist. LEXIS 54861, 2015 WL 1911329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dugas-v-3m-co-flmd-2015.