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SMITH v. BOEING AEROSPACE OPERATIONS, INC.

Case No. 4:14CV1200 CDP.

BIRLIE SMITH, Plaintiff, v. BOEING AEROSPACE OPERATIONS, INC., et al., Defendants.

United States District Court, E.D. Missouri, Eastern Division.

July 22, 2014.

Attorney(s) appearing for the Case

Birlie Smith, Plaintiff, represented by Benjamin R. Schmickle , SWMK LAW, Matthew C. Morris , SWMK LAW, LLC & Stephanie L. Gold , SWMK LAW.

Boeing Aerospace Operations, Inc., Defendant, represented by William R. Irwin , SEGAL AND MCCAMBRIDGE.

The Boeing Company, Defendant, represented by William R. Irwin , SEGAL AND MCCAMBRIDGE.

BP Amoco Chemical Company, Defendant, represented by Lizabeth M. Conran , GREENSFELDER AND HEMKER, PC.

Brand Insulations Inc., Defendant, represented by Thomas L. Orris , WILLIAMS AND VENKER, LLC.

BTL Specialty Resins Corp., Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

BTLSR Toledo Corp., Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Certain-Teed Corporation, Defendant, represented by Brett M. Mares , HEYL AND ROYSTER & Kent L. Plotner , HEYL AND ROYSTER.

Chevron USA, Inc., Defendant, represented by Gregory T. Goldberg , STAMOS & TRUCCO LLP.

Cooper Industries, LLC, Defendant, represented by Amy K. Shasserre , FOLEY AND MANSFIELD, P.L.L.P. & Joshua N. Worthington , FOLEY AND MANSFIELD, P.L.L.P..

Eastman Chemical Company, Defendant, represented by Raymond R. Fournie , ARMSTRONG TEASDALE, LLP, Anita Maria Kidd , ARMSTRONG TEASDALE, LLP, Julie Fix Meyer , ARMSTRONG TEASDALE, LLP & Melanie R. King , ARMSTRONG TEASDALE, LLP.

Exxon Mobil Chemical Corporation, Defendant, represented by David F. Fanning , JOHNSON AND BELL & H. Patrick Morris , JOHNSON AND BELL.

General Electric Company, Defendant, represented by Raymond R. Fournie , ARMSTRONG TEASDALE, LLP, Anita Maria Kidd , ARMSTRONG TEASDALE, LLP, Julie Fix Meyer , ARMSTRONG TEASDALE, LLP & Melanie R. King , ARMSTRONG TEASDALE, LLP.

General Gasket Corporation, Defendant, represented by Albert J. Bronsky , BROWN AND JAMES, P.C..

Genuine Parts Company, Defendant, represented by Clayton E. Dickey , RASMUSSEN AND WILLIS.

Georgia-Pacific LLC, Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Hercules, Inc., Defendant, represented by Raymond R. Fournie , ARMSTRONG TEASDALE, LLP, Anita Maria Kidd , ARMSTRONG TEASDALE, LLP, Julie Fix Meyer , ARMSTRONG TEASDALE, LLP & Melanie R. King , ARMSTRONG TEASDALE, LLP.

Industrial Holdings Corporation, Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Ingersoll-Rand Company, Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

KCG, Inc., Defendant, represented by David J. Page , VOGLER LAW FIRM, P.C..

Mendenhall Rebuilders, Defendant, represented by Kurtis B. Reeg , REEG LAWYERS, LLC.

Plastics Engineering Company, Defendant, represented by Alexa L. Newton , FOLEY AND MANSFIELD, P.L.L.P. & Joshua N. Worthington , FOLEY AND MANSFIELD, P.L.L.P..

Pneumo Abex, LLC, Defendant, represented by Ross S. Titzer , WILLIAMS AND VENKER, LLC & Thomas L. Orris , WILLIAMS AND VENKER, LLC.

Reichhold, Inc., Defendant, represented by Tracy J. Cowan , HAWKINS AND PARNELL, LLP, John L. Wright , HAWKINS AND PARNELL, LLP & Reno R. Cova, III , HAWKINS AND PARNELL, LLP.

Rogers Corporation, Defendant, represented by William R. Irwin , SEGAL AND MCCAMBRIDGE.

Saint-Gobain Abrasives, Inc., Defendant, represented by Kent L. Plotner , HEYL AND ROYSTER.

Sprinkmann Sons Corporation, Defendant, represented by Marcie J. Vantine , KERNELL LAW KIRM, PC, Thomas J. Kernell , KERNELL LAW FIRM, PC & Megan J. Bricker , KERNELL LAW KIRM, PC.

Trane U.S. Inc., Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Trane US, Inc.,, Defendant, represented by Alex Belotserkovsky , HEPLER BROOM.

Welco Manufacturing Company, Defendant, represented by Mary A. Hatch , HERZOG CREBS LLP, Gary L. Smith , HERZOG CREBS LLP & Tracy Beckman Phipps , HERZOG CREBS LLP.

Young Insulation Group of St. Louis, Inc., Defendant, represented by James R. Williams , SEGAL AND MCCAMBRIDGE.

Yarway Corporation, Defendant, represented by Brady Sherrod Edwards .

Pneumo Abex, LLC, as, Cross Claimant, represented by Ross S. Titzer , WILLIAMS AND VENKER, LLC & Thomas L. Orris , WILLIAMS AND VENKER, LLC.

Pneumo Abex, LLC, as, Cross Defendant, represented by Ross S. Titzer , WILLIAMS AND VENKER, LLC & Thomas L. Orris , WILLIAMS AND VENKER, LLC.

BP Amoco Chemical Company, Cross Defendant, represented by Lizabeth M. Conran , GREENSFELDER AND HEMKER, PC.

BTL Specialty Resins Corp., Cross Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

BTLSR Toledo Corp., Cross Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Boeing Aerospace Operations, Inc., Cross Defendant, represented by William R. Irwin , SEGAL AND MCCAMBRIDGE.

Brand Insulations Inc., Cross Defendant, represented by Thomas L. Orris , WILLIAMS AND VENKER, LLC.

Certain-Teed Corporation, Cross Defendant, represented by Brett M. Mares , HEYL AND ROYSTER & Kent L. Plotner , HEYL AND ROYSTER.

Chevron USA, Inc., Cross Defendant, represented by Gregory T. Goldberg , STAMOS & TRUCCO LLP.

Cooper Industries, LLC, Cross Defendant, represented by Amy K. Shasserre , FOLEY AND MANSFIELD, P.L.L.P. & Joshua N. Worthington , FOLEY AND MANSFIELD, P.L.L.P..

Eastman Chemical Company, Cross Defendant, represented by Raymond R. Fournie , ARMSTRONG TEASDALE, LLP, Anita Maria Kidd , ARMSTRONG TEASDALE, LLP, Julie Fix Meyer , ARMSTRONG TEASDALE, LLP & Melanie R. King , ARMSTRONG TEASDALE, LLP.

Exxon Mobil Chemical Corporation, Cross Defendant, represented by David F. Fanning , JOHNSON AND BELL & H. Patrick Morris , JOHNSON AND BELL.

General Electric Company, Cross Defendant, represented by Raymond R. Fournie , ARMSTRONG TEASDALE, LLP, Anita Maria Kidd , ARMSTRONG TEASDALE, LLP, Julie Fix Meyer , ARMSTRONG TEASDALE, LLP & Melanie R. King , ARMSTRONG TEASDALE, LLP.

General Gasket Corporation, Cross Defendant, represented by Albert J. Bronsky , BROWN AND JAMES, P.C..

Genuine Parts Company, Cross Defendant, represented by Clayton E. Dickey , RASMUSSEN AND WILLIS.

Georgia-Pacific LLC, Cross Defendant, represented by Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Hercules, Inc., Cross Defendant, represented by Raymond R. Fournie , ARMSTRONG TEASDALE, LLP, Anita Maria Kidd , ARMSTRONG TEASDALE, LLP, Julie Fix Meyer , ARMSTRONG TEASDALE, LLP & Melanie R. King , ARMSTRONG TEASDALE, LLP.

Industrial Holdings Corporation, Cross Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Ingersoll-Rand Company, Cross Defendant, represented by Benjamin John Wilson , HEPLER BROOM, Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Mendenhall Rebuilders, Cross Defendant, represented by Kurtis B. Reeg , REEG LAWYERS, LLC.

Plastics Engineering Company, Cross Defendant, represented by Alexa L. Newton , FOLEY AND MANSFIELD, P.L.L.P. & Joshua N. Worthington , FOLEY AND MANSFIELD, P.L.L.P..

Reichhold, Inc., individually and as, Cross Defendant, represented by Tracy J. Cowan , HAWKINS AND PARNELL, LLP, John L. Wright , HAWKINS AND PARNELL, LLP & Reno R. Cova, III , HAWKINS AND PARNELL, LLP.

Rogers Corporation, Cross Defendant, represented by William R. Irwin , SEGAL AND MCCAMBRIDGE.

Saint-Gobain Abrasives, Inc., Cross Defendant, represented by Kent L. Plotner , HEYL AND ROYSTER.

Sprinkmann Sons Corporation, Cross Defendant, represented by Marcie J. Vantine , KERNELL LAW KIRM, PC, Thomas J. Kernell , KERNELL LAW FIRM, PC & Megan J. Bricker , KERNELL LAW KIRM, PC.

The Boeing Company, Cross Defendant, represented by William R. Irwin , SEGAL AND MCCAMBRIDGE.

Trane U.S. Inc., Cross Defendant, represented by Rebecca A. Nickleson , HEPLER BROOM & Alex Belotserkovsky , HEPLER BROOM.

Trane US, Inc.,, individually and as, Cross Defendant, represented by Alex Belotserkovsky , HEPLER BROOM.

Welco Manufacturing Company, Cross Defendant, represented by Gary L. Smith , HERZOG CREBS LLP, Mary A. Hatch , HERZOG CREBS LLP & Tracy Beckman Phipps , HERZOG CREBS LLP.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, District Judge.

This recently removed asbestos case is before me on my review of the file. Defendant Boeing Company asserts an independent right to removal under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), based on allegations that decedent Ronald Smith, Sr. was exposed to asbestos from military aircraft while employed at Boeing. Defendant's right to removal has not been challenged by a motion a remand, but the time for doing so has not yet expired.

Numerous motions to dismiss to the petition were filed in state court by various defendants. As a first amended petition was filed in state court, these motions are moot and will be denied as such.1 I have also reviewed the numerous motions to dismiss the amended petition filed in state court by various defendants. These are all bare bones motions, unsupported by any legal memoranda. For the most part, these motions all seek dismissal of part or all of plaintiff's claims for failure to state a claim. In the alternative, many of these motions also seek a more definite statement of the claims against them. I have reviewed plaintiff's complaint in light of the governing federal standards,2 and I find that plaintiff's complaint adequately states claims against the defendants seeking dismissal. I also find that plaintiff is not required to file a more definite statement of her claims against these defendants, as I do not find the complaint so unintelligible, vague, or ambiguous such that the defendants cannot reasonably frame a response. To the extent other defendants move for summary judgment, the motions are denied without prejudice to being refiled in accordance with federal and local rules after I have set a schedule in this case. I warn all parties, however, that I will not tolerate generic, baseless motion practice designed to delay or to multiply the proceedings, so any motion must accord with Federal Rule of Civil Procedure 11, the local rules of this court, and counsel's attendant ethical obligations to this Court.

Finally, defendant Pneumo Abex has filed a motion asking this Court to apply Fed. R. Civ. P. 5(c)(1)(B), which provides that, in cases involving a large number of defendants, "any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties." Given the number of defendants and the voluminous size of the state court file, I believe it is appropriate to grant this motion.

Accordingly,

IT IS HEREBY ORDERED that all pending motions to dismiss the petition [#6-#20] and the motion to transfer venue [#21] are denied as moot.

IT IS FURTHER ORDERED that all pending motions to dismiss the amended petition [#33, #37, #38, #39, #40, #41, #42, #49] are denied.

IT IS FURTHER ORDERED that all pending motions for summary judgment [#49, #51, #52, #53, #54, #55, #56, #57, #58, #59, #60, #61, #62] are denied without prejudice.

IT IS FURTHER ORDERED that the motion for institution of denials under Federal Rule 5(c)(1)(B) [#66] is granted.

FootNotes


1. The motion to transfer venue to St. Louis County [#21] is also mooted by removal.
2. The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to the test the legal sufficiency of the complaint. The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, "even if strikes a savvy judge that actual proof of those facts is improbable." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965.

Under Fed. R. Civ. P. 12(e), "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Because of "liberal notice pleading and the availability of extensive discovery, motions for a more definite statement are universally disfavored." Tinder v. Lewis Cnty. Nursing Home Dist., 207 F.Supp.2d 951, 959 (E.D. Mo. 2001) (collecting cases). "A motion under Rule 12(e) is designed to strike at unintelligibility in a pleading rather than want of detail." Patterson v. ABS Consulting, Inc., Case No. 4:08CV697, 2009 WL 248683, at *2 (E.D. Mo. Feb. 2, 2009). The notice pleading standard "relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). But when a "pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding." Id. at 514.

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