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 cause of action, the district court must dismiss the complaint for failure to state a claim upon which relief may be granted.” An action sounded in wrongful death did not exist at common in law in North Carolina but vested pursuant to the state’s later statute for wrongful death. Any remedy found in common law now vested within the statute must now be brought under that statute according to the court. Relying on Nicholson, the court reminded that a loss of consortium claim which sought to protect marital rights “qualifies” as a common law claim. The Courts of North Carolina have found that the wrongful death statute contains loss of consortium claims. Consequently, any person seeking redress under loss of consortium must bring that claim pursuant to the state’s wrongful death statute.
Accordingly, the court granted the defendant’s motion to dismiss.