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Little v. Budd Co.

United States District Court, D. Kansas

January 12, 2018

NANCY LITTLE, individually and as personal representative of the estate of ROBERT L. RABE, Plaintiff,
v.
THE BUDD COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         Plaintiff Nancy Little brings this action individually and as the personal representative of the estate of her father, Robert L. Rabe, against defendant The Budd Company. Plaintiff alleges that her father was exposed to asbestos-containing pipe insulation while working as a Pipefitter for the Atchison Topeka & Santa Fe Railroad (“ATSF”) from 1951 into the mid-to-late 1970s. She contends that this exposure caused her father to develop asbestos-related malignant mesothelioma, causing his death on December 28, 2012.

         Defendant allegedly manufactured passenger rail cars and sold them to ATSF. Plaintiff contends that defendant placed asbestos and asbestos-containing products into its railcars, thereby exposing her father to asbestos during his employment with ATSF. Plaintiff asserts Kansas state law claims for negligence, strict product liability/design defect, and strict product liability/warning defect. Alternatively, plaintiff asserts a state law claim against defendant for negligence per se based on defendant's alleged violation of two federal statutes: (1) the Locomotive Inspection Act (“LIA”), and (2) the Federal Safety Appliance Act (“SAA”).

         Defendant has filed a Motion for Judgment on the Pleadings under Fed.R.Civ.P. 12(c). Doc. 22. Defendant asks the court to dismiss plaintiff's state law claims because, it contends, Congress's enactment of the LIA and SAA preempt plaintiff from asserting state law claims based on alleged exposure to asbestos contained in train equipment. Defendant also seeks dismissal of the claim plaintiff pleads in the alternative-i.e., the negligence per se claim based on alleged LIA and SAA violations. Defendant argues that these federal statutes confer no private right of action on plaintiff and apply only to “railroad carriers.” Defendant also argues that plaintiff's Complaint never alleges that defendant violated a specific statutory standard. Thus, defendant contends, plaintiff's alternative claim fails to state a claim for relief against defendant.

         After considering the parties' arguments, the court denies defendant's Motion for Judgment on the Pleadings. The court explains why below.

         I. Procedural Background

         On July 27, 2016, plaintiff Nancy Little, individually and as personal representative of the Estate of Robert L. Rabe, deceased, filed this action against defendant The Budd Company in the District Court of Shawnee County, Kansas. Doc. 1-1. On October 6, 2016, plaintiff filed a “First Amended Original Petition.” Doc. 1-4. On November 2, 2016, defendant removed the action to our court, asserting diversity jurisdiction under 28 U.S.C. § 1332.

         The court agrees that diversity jurisdiction exists here. Plaintiff alleges that she is a Kansas citizen. Doc. 1-4 ¶ 1. She also asserts that her father was a life-long resident of Topeka, Kansas. Doc. 31 at 7. Plaintiff thus is a citizen of Kansas for diversity jurisdiction purposes. See 28 U.S.C. § 1332(c)(2) (“[T]he legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent[.]”). Defendant is a Michigan corporation with its principal place of business in Illinois. Doc. 1 at 2. Defendant thus is a citizen of Michigan and Illinois. See 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business[.]”). Diversity of citizenship is present here.

         The amount in controversy also exceeds the $75, 000 jurisdictional requirement. Although plaintiff never asserts an amount in controversy in either of her state court pleadings, defendant has established that the amount in controversy is satisfied based on plaintiff's alleged injuries and requested relief.[1] See McPhail v. Deer & Co., 529 F.3d 947, 955 (10th Cir. 2008) (“A complaint that presents a combination of facts and theories of recovery that may support a claim in excess of $75, 000 can support removal.”). Here, plaintiff alleges that defendant caused plaintiff's father “to suffer severe and permanent injury to his person, to wit; asbestos-related malignant mesothelioma resulting in his death . . . .” Doc. 1-4 ¶ 3; see also Id. ¶¶ 11, 13, 19, 21, 28, and 30. Plaintiff seeks general and special damages “including but not limited to, damages for survival and wrongful death claims that Plaintiff sustained both in her individual capacity and as heir to [her father's] estate.” Id. ¶ 38. And, plaintiff seeks punitive damages, costs, and “all other and further relief permitted by law.” Id. ¶ 38 and “Prayer for Relief.” Based on these allegations and demands for relief, the court finds that the $75, 000 amount in controversy requirement is satisfied. See McPhail, 529 F.3d at 957 (holding that defendant established the requisite amount in controversy because, even though plaintiff never pleaded a specific amount of damages, plaintiff's allegations of wrongful death and the nature of the damages sought supported a claim in excess of $75, 000).

         Because the parties are diverse and the amount in controversy exceeds $75, 000, the court has jurisdiction over this action under 28 U.S.C. § 1332.

         II. Factual Background

         The following facts are taken from plaintiff's “First Amended Original Petition” (Doc. 1-4), [2] accepted as true, and viewed in the light most favorable to her. Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000) (explaining that, on a motion for judgment on the pleadings, the court must “accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff” (citation omitted)).

         From 1951 until his retirement in 1979, Robert L. Rabe worked for the ATSF in Shawnee County, Kansas, as a Pipefitter and in other related capacities. As part of his job duties for ATSF, Mr. Rabe was required to work with and around asbestos-containing pipe insulation that defendant had incorporated into passenger railcars it manufactured and sold to ATSF. Mr. Rabe's exposure to asbestos caused him to sustain severe and permanent injury to his body and respiratory system. The asbestos exposure eventually caused Mr. Rabe to develop malignant mesothelioma, resulting in his death on December 29, 2012.

         III. Legal Standard

         A party may move for judgment on the pleadings under Fed.R.Civ.P. 12(c) after the pleadings are closed but early enough not to delay trial. Fed.R.Civ.P. 12(c). Courts evaluate a Rule 12(c) motion under the same standard that governs a Rule 12(b)(6) motion to dismiss. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002) (citing Atl. Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir. 2000)).

         The court will grant a motion for judgment on the pleadings only when the factual allegations in the Complaint fail to “state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009) (“The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” (citation omitted)).

         When considering whether a plaintiff has stated a plausible claim, the court must assume that the factual allegations in the complaint are true. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). But, the court is “‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Id. (quoting Twombly, 550 U.S. at 555). “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice'” to state a claim for relief. Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Also, the complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted).

         IV. Analysis

         Defendant seeks dismissal of plaintiff's state law tort claims based on a preemption theory. Defendant argues that the LIA and SAA preempt all regulation of train equipment under state law, including common law tort claims. So, defendant contends, these federal statutes preclude plaintiff's claims under Kansas law asserting negligence, strict product liability/design defect, and strict product liability/warning defect.

         Defendant next argues that plaintiff's alternative state law claim-one asserting negligence per se based on defendant's alleged violation of the LIA and SAA-fails to state a claim for relief. The court addresses each of defendant's arguments, in turn, below.

         A. Does Federal Law Preempt Plaintiff's State Law Tort Claims?

         Defendant asserts that the LIA and SAA preempt the entire field of state regulation over train equipment. Defendant thus contends that federal preemption bars plaintiff's state law tort claims because plaintiff bases these claims on her father's alleged exposure to asbestos in passenger railcars manufactured by defendant.

         The Supremacy Clause of the United States Constitution confers on Congress the power to preempt state law. U.S. Const. Art. VI, cl. 2. The clause provides that federal law is “the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Id. “Pre-emption of state law thus occurs through the ‘direct operation of the Supremacy Clause.'” Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 630 (2012) (quoting Brown v. Hotel Emps., 468 U.S. 491, 501 (1984)). The Supreme Court has explained that “Congress may, of course, expressly pre-empt state law, but ‘[e]ven without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances.'” Id. (quoting Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000)). “First, ‘state law is naturally preempted to the extent of any conflict with a federal statute.'” Id. (quoting Crosby, 530 U.S. at 372). Second, state law is pre-empted “‘when the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively.'” Id. at 630-31 (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)).

         The court's analysis here deals with the second type of preemption-field preemption. Defendant argues that Congress intended to occupy the entire field of train equipment regulation when it enacted the LIA and SAA. The court disagrees. Neither of these two acts broadly preempts the entire field of train equipment regulation. The court explains its reasoning below, beginning with a description of the two federal acts' history and then turning to discuss each of the two statutes separately.

         1. The History of the SAA and LIA

         The Third Circuit recently summarized the history of these two federal statutes. In reAsbestos Prods. Liability Litig. (No. VI), 822 F.3d 125, 128-29 (3d Cir. ...


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