Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Varney v. Air & Liquid Systems Corp.

United States District Court, W.D. Washington, Tacoma

March 28, 2018

DONALD VARNEY and MARIA VARNEY, Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

          ORDER ON DEFENDANT TACO, INC.'S MOTION TO DISMISS AND MOTION TO STRIKE AND DEFENDANT AURORA PUMP COMPANY'S MOTION TO DISMISS AND MOTION TO STRIKE

          ROBERT J. BRYAN United States District Judge

         PENDING BEFORE the Court are two matters: the Motion to Dismiss and Motion to Strike of Defendant Taco, Inc. (Dkt. 66), and the Motion to Dismiss and Motion to Strike of Aurora Pump Company (Dkt. 72). The Court has considered the pleadings filed in support of and in opposition to both motions and the file herein. The Court deems oral argument unnecessary.

         Defendant Taco and Defendant Aurora Pump (collectively, “Defendants”) filed identical motions that make identical arguments. The Complaint does not allege facts particular to either defendant. This Order therefore addresses both motions together. All findings apply equally to both defendants.

         BACKGROUND

         A. The Complaint.

         The Complaint alleges the following facts, which “[t]he Court accepts . . . as true.” Balitreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).

         Defendants manufactured, distributed, “and/or” sold asbestos-containing brakes, clutches, gaskets, and grinders. Dkt. 1-2 at 3. Plaintiff Donald Varney developed mesothelioma, an asbestos-caused condition, from ambient exposure from Defendants' products while working as a marine machinist, mechanical instrument mechanic and auto mechanic. Id. at 5. Plaintiff D. Varney was exposed to asbestos from Defendants' products at the Puget Sound Naval Shipyard in Bremerton, Washington, and the Hunters Point Naval Shipyard in San Francisco, California, between 1957 and 1972. Id. at 5. He was also exposed to asbestos from Defendants' products during personal auto repair from 1939 to 1957, and he had secondary exposure from his father, an auto mechanic in Seattle, Washington, during the 1940's and 1950's. Id. at 5. Plaintiff D. Varney has sustained economic and non-economic harm from his mesothelioma condition, while his wife, Plaintiff Maria Varney, has sustained a loss of consortium. Id. at 6. Plaintiffs seek, inter alia, general and special damages, costs, and prejudgment interest. Id.

         B. Defendants' motion.

         Defendants seeks dismissal: (1) for failure to state a claim under Fed.R.Civ.P. 12(b)(6); (2) for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2); and (3) for lack of standing as to Plaintiff D. Varney's claims, because he is now deceased, and his claims can only be prosecuted by his estate. Dkt. 66 at 3-6; Dkt. 72 at 3-6. Defendants also move to strike the request for pre-judgment interest. Id. at 6, 7; id. at 6, 7.

         DISCUSSION

         A. Dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

         Under Fed.R.Civ.P. 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be granted. “The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, ” N. Star Int'l v. Ariz. Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983), considering the lack of a cognizable legal theory or the absence of sufficient facts. Balistreri v. Pacifica Police Department, 901 F.2d at 699. Material allegations are taken as true and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). “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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (internal citations omitted). “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 555. The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 547.

         Applied here, the Complaint states a claim upon which relief can be granted. The Complaint gives Defendants notice that Plaintiff D. Varney sustained an asbestos-caused disease, mesothelioma, the “what”; the timeframe of asbestos exposure, 1957-1972, the “when”; the location of the harm, two naval shipyards, the “where”; and a theory of causation, ambient exposure from an enumerated list of asbestos-containing products, the “how.” Fed.R.Civ.P. 8(a)(2) requires only that the Complaint be a “short and plain statement of the claim showing that the pleader is entitled to relief.” Under this standard, viewed in light of Iqbal and Twombly, the pleadings are sufficient. Because the Complaint states a claim upon which relief can be granted, Defendants' motions to dismiss for failure to state a claim should be denied.

         B. Dismissal for lack of personal jurisdiction under ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.