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Abner v. United States Pipe & Foundry Co. LLC

United States District Court, N.D. Alabama, Southern Division

March 31, 2017

WILLIE ABNER, et al., Plaintiffs,



         These 14 consolidated cases involve Plaintiffs' allegations that Defendants operated a pipe-making facility in Birmingham, Alabama that released harmful chemical contaminants into areas occupied or frequented by Plaintiffs, causing personal injury and property damage. They are before the court on Defendants United States Pipe & Foundry Company, LLC and Mueller Water Products, Inc.'s 14 Motions to Dismiss and Motions for More Definite Statement. (Doc. 7 in 2:15-cv-02040-KOB, Doc. 8 in 2:15-cv-02045-KOB, Doc. 5 in 2:15-cv-02046-KOB, Doc. 8 in 2:15-cv-02047-KOB, Doc. 7 in 2:15-cv-02048-KOB, Doc. 7 in 2:15-cv-02049-KOB, Doc. 7 in 2:15-cv-02050-KOB, Doc. 7 in 2:15-cv-02051-KOB, Doc. 7 in 2:15-cv-02052-KOB, Doc. 8 in 2:15-cv-02054-KOB, Doc. 8 in 2:15-cv-02055-KOB, Doc. 7 in 2:15-cv-02056-KOB, Doc. 7 in 2:15-cv-02057-KOB, Doc. 5 in 2:17-cv-00136-KOB).

         The court directed the parties to brief the Motions in a single response and reply brief. (Doc. 74). Plaintiffs filed a response (doc. 77) and Defendants filed a reply. (Doc. 81). All docket references are to the lead case, 2:15-cv-02040-KOB, except where otherwise noted.

         I. Standard of Review

         A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. Generally, the Federal Rules of Civil Procedure require only that the complaint provide “‘a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule 8 generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal 556 U.S. 662, 678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards nor do pleadings suffice that are based merely upon “labels or conclusions” or “naked assertions” without supporting factual allegations. Twombly, 550 U.S. at 555, 557.

         The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570). To be plausible on its face, the claim must contain enough facts that “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).

         The Supreme Court has identified “two working principles” for the district court to use in applying the facial plausibility standard. The first principle is that, in evaluating motions to dismiss, the court must assume the veracity of well-pleaded factual allegations; however, the court does not have to accept as true legal conclusions even when “couched as [] factual allegation[s]” or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. The second principle is that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus, under prong one, the court determines the factual allegations that are well-pleaded and assumes their veracity, and then proceeds, under prong two, to determine the claim's plausibility given the well-pleaded facts. That task is “context-specific” and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claim must be dismissed. Id.

         II. Discussion

         Pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), Defendants move to dismiss Plaintiffs' claims of Nuisance; Concealment, Misrepresentation, and Fraud; Conspiracy; Battery; and Trespass.[1] Defendants move for a more definite statement of Plaintiffs' claims for Negligence; Wrongful Death; Wantonness; Negligence Per Se; and Punitive Damages. Plaintiffs concede that they have failed to state a claim for battery, so the court will dismiss those claims for every Plaintiff.[2]

         A. Fraud

         Plaintiffs' allegations of “Concealment, Misrepresentation, and Fraud” in their Complaints apparently aim to state claims of fraudulent suppression and fraudulent misrepresentation. Under Alabama law, a plaintiff claiming fraudulent suppression must show: “(1) that [the defendant] had a duty to disclose the existing material fact; (2) that [the defendant] suppressed this material fact; (3) that [the defendant's] suppression of this fact induced [the plaintiff] to act or to refrain from acting; and (4) that [the plaintiff] suffered actual damage as a proximate result.” LaFerrera v. Camping World RV Sales of Birmingham, 171 F.Supp.3d 1257, 1269 (N.D. Ala. 2016) (quoting State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 837 (Ala. 1998)); see Ala. Code § 6-5-102.

         In the absence of a statutory duty or other duty imposed by law, as here, whether the defendant had a duty to disclose depends on several factors: “(1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff's opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.” See Ex parte Ford Motor Credit Co., 717 So.2d 781, 786 (Ala. 1997); State Farm, 729 So.2d at 834 (internal citations omitted).

         Fraudulent misrepresentation, which involves an affirmative act or statement as opposed to suppression of information, consists of “(1) a false representation (2) concerning a material existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result.” See Fisher v. Comer Plantation, Inc., 772 So.2d 455, 463 (Ala. 2000) (quoting Baker v. Bennett, 603 So.2d 928, 935 (Ala.1992)); see Ala. Code § 6-5-101.

         Federal Rule of Civil Procedure 9(b) requires plaintiffs to plead the circumstances constituting fraud with particularity. A plaintiff may satisfy the requirements of Rule 9(b) in one of two ways. Traditionally, “a plaintiff must allege: ‘(1) the precise statements, documents, or misrepresentations [or omissions] made; (2) the time, place, and person responsible for the statement [or omission]; (3) the content and manner in which these statements [or omissions] misled the [p]laintiff; and (4) what the defendants gained by the alleged fraud.'” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)). A plaintiff may also plead fraud by “alternative means, ” such as by submitting documents demonstrating the circumstances of the alleged fraud. Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1512 (11th Cir. 1998) (finding adequate pleading where plaintiffs alleged mail fraud and submitted affidavit asserting receipt of documents in the mail); see ...

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