United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of defendant BW/IP,
Inc. (named in plaintiff's complaint as Flowserve
Corporation) to dismiss based on collateral estoppel. The
plaintiff has not filed a response and the time to do so has
Berj Hovsepian was a civilian employee of the United States
Navy from 1958 until 1964, in Boston, Massachusetts. He
contracted asbestos-related mesothelioma, allegedly as a
result of exposure to products that were manufactured, sold,
distributed or installed by the defendants, including BW/IP.
December 2009, plaintiff brought an action against defendant
BW/IP and other entities in the Superior Court for the
Commonwealth of Massachusetts. [Doc. #298-1, at 6, 12].
Plaintiff asserted claims of common law negligence,
breach of express and implied warranties,  “malicious,
willful, wanton and reckless conduct or gross
negligence.” In addition, plaintiff's wife asserted
a claim of loss of consortium. [Doc. #298-1, at 17-24,
32-35]. Defendant BW/IP moved for summary judgment, arguing
that plaintiffs failed to prove (1) the identity of the
injury causing product or (2) the manufacturer of the injury
causing product. [Doc. #298-2, at 9]. In July 2012, the
Superior Court granted defendant BW/IP's motion for
summary judgment. [Doc. #298 at 2].
December 2015, plaintiff alone initiated an action in the
Circuit Court of the City of St. Louis, Missouri, naming
BW/IP and others as defendants, and asserting claims
identical to those in the Massachusetts case. The action was
removed to this Court pursuant to 28 U.S.C. §§
1442(a)(1) and 1446. In the instant motion, defendant BW/IP
argues that plaintiff's claim against it is barred by
Motion to Dismiss
12(c) provides that “[a]fter the pleadings are closed -
but early enough not to delay trial - a party may move for
judgment on the pleadings.” Fed.R.Civ.P. 12(c). A Rule
12(c) motion is analyzed under the same standards as one
under Rule 12(b)(6). Clemons v. Crawford, 585 F.3d
1119, 1124 (8th Cir. 2009) (citing Ashley Cty., Ark. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)).
purpose of a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure is to test the legal
sufficiency of the complaint. The factual allegations of a
complaint are assumed true and construed in favor of the
plaintiff, “even if it strikes a savvy judge that
actual proof of those facts is improbable.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,
508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“Rule 12(b)(6) does not countenance . . .
dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (a well-pleaded
complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is
not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to present evidence in
support of his claim. Id. A viable complaint must
include “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic
Corp., 550 U.S. at 570; see also Id. at 563
(“no set of facts” language in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), “has earned its
retirement.”). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Id. at 555.
Eighth Circuit has “implicitly endorsed the use of a
motion to dismiss to raise res judicata.” C.H.
Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 763
(8th Cir. 2012). “For an affirmative defense such as
res judicata to provide a basis for dismissal under Rule
12(b)(6), the affirmative defense must be apparent on the
face of the complaint.” A.H. ex rel. Hubbard v.
Midwest Bus Sales, Inc., 823 F.3d 448, 453 (8th Cir.
2016) (internal citations and quotations omitted); see
also C.H. Robinson Worldwide, 695 F.3d at 763-64. This
means that a district court may consider public records or
other materials connected with the pleadings in its
evaluation. Noble Sys. Corp. v. Alorica Cent., LLC,
543 F.3d 978, 982 (8th Cir. 2008).
judicata encapsulates two preclusion concepts - issue
preclusion and claim preclusion. Lovilia Coal Co. v.
Harvey, 109 F.3d 445, 449 (8th Cir. 1997) (citing
Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 77 (1984)). Issue preclusion, or collateral estoppel
means that “‘once a court has decided an issue of
fact or law necessary to its judgment, ‘the
determination is conclusive in a subsequent action between
the parties, whether on the same or a different
claim.'” Lovilia Coal Co. v. Harvey, 109
F.3d 445, 449-50 (8th Cir. 1997) (quoting Tyus v.
Schoemehl, 93 F.3d 449, 452 (8th Cir. 1996) (internal
citations omitted); see also Montana v. United
States, 440 U.S. 147, 153 (1979). The same issues cannot
be re-litigated. Ideker v. PPG Indus., Inc., 788
F.3d 849, 852 (8th Cir. 2015). Collateral estoppel is
therefore critical for judicial efficiency and for
“promot[ing] the comity between state and federal
courts that has been recognized as a bulwark of the federal
system.” Allen v. McCurry, 449 U.S. 90, 95-96
(1980) (citing Younger v. Harris, 401 U.S. 37, 43-45
(1971)). Moreover, it “fosters reliance on judicial
action by minimizing the possibility of inconsistent
decisions.” Montana, 440 U.S. at 154.
U.S.C. § 1738 provides that “judicial proceedings
of any court of any such State . . . shall have the same full
faith and credit in every court within the United States . .
. as they have by law or usage in the courts of such
State.” 28 U.S.C. § 1738. Allen explained
how § 1738 interacts with common law res judicata
doctrine, reasoning that “though the federal courts may
look to the common law or to the policies supporting res
judicata and collateral estoppel in assessing the preclusive
effect of decisions of other federal courts, Congress has
specifically required all federal courts to give preclusive
effect to state-court judgments whenever the courts of the
State from which the judgments emerged would do so.”
Allen v. McCurry, 449 U.S. 90, 96 (1980); see
also Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466
(1982) (reaffirming that federal courts should “give
the same preclusive effect to state court judgments that
those judgments would be given in the courts of the State
from which the judgments emerged”). This rule still
holds when a federal question case (in federal court) follows
a state court proceeding, and even still when that federal
question was not or could not ...