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Garner v. DII Industries

February 4, 2010

GAIL GARNER, THE ESTATE OF ANGELO PALERMO, PLAINTIFF,
v.
DII INDUSTRIES, LLC, MARK M. GLEASON & MARCELLENE MALOUF, DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This product liability case is before the Court on Defendants' motion (Docket No. 32) to dismiss for failure to state a cause of action. For the reasons below, the application is granted.

BACKGROUND

Plaintiff filed her original complaint pro se and alleged that Defendants were liable to her father's estate for his death caused by exposure to asbestos. On November 14, 2008, the Court, interpreting Plaintiff's response to Defendants' first motion to dismiss as a request to proceed pro se as the representative of her father's estate, denied the request. Plaintiff subsequently hired counsel, and on March 27, 2009, filed an amended complaint (Docket No. 28). On April 17, 2009, Defendants again moved to dismiss, primarily on the ground that Plaintiff's claim against them was barred by the statute of limitations.*fn1

Viewing the allegations in the amended complaint as true, the following are the relevant facts for consideration of the present motion. The decedent, Angelo Palermo ("Palermo"), was a union insulation mason for twenty-nine years from 1937 through 1966 in the construction asbestos industry. He spray coated and handled asbestos-containing products while working for one or more of the Haliburton or Harbison-Walker entities. Palermo died on April 23, 1966, at the age of 51 years. (Am. Compl. ¶¶ 14 & 34.) His death certificate listed the immediate cause of death as acute liver failure due to "metastasis cancer due to primary stomach (place of origin)." (Am. Compl. ¶¶ 11--15.)

On June 6, 2003, Palermo was posthumously diagnosed with mesothelioma "by a tribunal of asbestos experts who were part of the Extraordinary Claims Panel of the Mansville Trust." (Am. Compl. ¶ 17.) On April 4, 2006, Plaintiff filed a claim with DII Industries, LLC, and, the following day, filed a claim with the DII Trust, with regard to her father's death. Defendants eventually rejected the claims, and a pro bono evaluator confirmed Defendants' denial. (Am. Compl. ¶¶ 18--27.)

In her amended complaint, Plaintiff asserts three causes of action. First, a claim that Defendants negligently caused Palermo's death; second, a claim that defendants Mark M. Gleason ("Gleason") and Marcellene Malouf ("Malouf") breached a fiduciary duty owed to Plaintiff; and third, a claim that defendant DII Industries, LLC Asbestos PI Trust ("Trust")*fn2 was negligent in hiring and supervising Gleason and Malouf. Gleason is described as a Trustee of the Trust, and Malouf is described as the Trust's Executive Director.

STANDARDS OF LAW

Motion to Dismiss

A motion to dismiss on the basis that an action is barred by the statute of limitations is analyzed under Federal Rule of Civil Procedure 12(b)(6), not 12(b)(1). Ghartey v. St John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be applied to a 12(b)(6) motion:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 2007 W L 1717803 (2d Cir. Jun. 14, 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.)

W hen applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable ...


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