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Hovsepian v. Adel Wiggins Group

United States District Court, E.D. Missouri, Eastern Division

November 8, 2016

BERJ HOVSEPIAN Plaintiff,
v.
THE ADEL WIGGINS GROUP, et al., Defendants.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This 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 expired.

         I. Background

         Plaintiff 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.

         In 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, [1] breach of express and implied warranties, [2] “malicious, willful, wanton and reckless conduct or gross negligence.”[3] 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].

         In 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 collateral estoppel.

         II. Legal Standards

         a. Motion to Dismiss

         Rule 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)).

         The 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.

         The 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).

         b. Collateral Estoppel

         Res 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.

         28 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 ...


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