Category: Motion to Dismiss

Mississippi / Motion to Dismiss / Pleadings Challenge
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Brake Manufacturer Obtains Dismissal on Alternative Theories of Liability in Lieu of Product Identification & Proximate Cause

MISSISSIPPI – The plaintiffs William Dickens and Karla Dickens (plaintiffs) allege that the plaintiff William Dickens’s (Mr. Dickens) mesothelioma was caused by exposure to asbestos within products he used while employed as a mechanic, and within talcum powder products he used.  Ford Motor Company (Ford) was named as one of the defendants since it, “designed its braking systems for asbestos-containing brake linings such that no other material could be utilized as brake linings in those systems.”  Ford moved to dismiss, under Rule 12(b)(6): (i) the …

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Motion to Dismiss / North Carolina / Pleadings Challenge
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Court Partially Denies Talc Manufacturer’s Motion to Dismiss as to Plausible Gross Negligence and Punitive Damages Claims, but Grants Motion as to Speculative Conspiracy Claim

NORTH CAROLINA – The plaintiffs Everett VanHoy and Lucille VanHoy (plaintiffs) filed this personal-injury action against multiple defendants, including American International Industries (AII), alleging the plaintiff Everett VanHoy’s (Mr. VanHoy) mesothelioma was caused by his exposure to a variety of asbestos-containing products throughout his life. AII moved to dismiss, under Rule 12(b)(6), the plaintiffs’ complaint on the following bases: (i) failure to state a gross-negligence claim; (ii) the plaintiffs’ inability to recover punitive damages resulting from a failure prove AII acted with “fraud, malice, or …

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Case Decisions / Motion to Dismiss / North Carolina
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Loss of Consortium Claim Dismissed Where Wrongful Death Statute Controls

The plaintiff filed suit against multiple defendants, alleging her decedent developed mesothelioma as a result of exposure to asbestos containing products. Within the complaint, Ms. Stewart added a count for loss of consortium. The defendant moved to dismiss the loss of consortium count pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff filed no response.

The court quickly analyzed its review of a case while sitting in diversity. The court noted that “if state substantive law has denied a plaintiff a remedy for his …

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Case Decisions / Motion to Dismiss / Rhode Island
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Plaintiff’s Motion to Voluntarily Dismiss Denied with Respect to Two Defendants

The plaintiff filed for voluntary dismissal in order to re-file in the State of Pennsylvania. Various defendants had filed motions to dismiss for lack of personal jurisdiction. Two defendants, Evenheat Kiln and Sargent Art, objected to the plaintiff’s motion to dismiss without prejudice. The court denied the plaintiff’s motion to dismiss with respect to Evenheat and Sargent.

The case had progressed through the discovery phase, and the plaintiff was deposed over six days. Evenheat never contested jurisdiction in Rhode Island. After discovery, both Evenheat and …

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Case Decisions / Louisiana / Motion to Dismiss
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Port Commission’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Granted Where Plaintiff’s Work was Predominantly Land Based

Mr. Genusa developed mesothelioma as a result of his work as a longshoreman, truck loader, and warehouse worker from 1963-1999. Mr. Genusa passed away and a claim was paid by Baton Rouge Marine Contractors (BRMC) and Signal Mutual Indemnity under the Longshore and Harbor Worker’s Compensation Act.

The plaintiffs instituted this action against 13 defendants that allegedly “designed, tested, evaluated, manufactured, packaged, furnished, stored, handled, transported, installed, supplied and/or sold asbestos containing products to recover the benefits paid to Mr. Genusa’s wife. The last standing …

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