United States District Court, W.D. Washington, Tacoma
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
J. BRYAN United States District Judge
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.
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.
Complaint alleges the following facts, which “[t]he
Court accepts . . . as true.” Balitreri v. Pacifica
Police Dept., 901 F.2d 696, 699 (9th Cir.
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.
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.
Dismissal for failure to state a claim under Fed.R.Civ.P.
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.
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.
Dismissal for lack of personal jurisdiction under