United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss Plaintiffs' Second Amended Complaint, [Doc. #7.].
Plaintiffs have responded in opposition. Defendant has filed
a Reply. For the reasons set forth below, the Motion is
matter was commenced on September 9, 2016, by the filing of a
Complaint. Plaintiff alleges while working at a neighboring
property, he was exposed to harmful substances allegedly
emitted from Dyno Nobel's ammonium nitrate manufacturing
plant in Louisiana, Missouri. He alleges the harmful
substances were discharged from the smokestack of Dyno Nobel.
As direct and proximate result of this conduct, he sustained
serious and permanent personal injuries. Melanie Scott
alleges loss of consortium resulting from these serious and
permanent injuries sustained by her husband Teddy Scott.
Count I, Plaintiff Teddy Scott alleges that Defendant had a
duty to manage and operate its manufacturing facility in a
reasonable manner and in a manner so as to avoid discharge of
highly toxic substances from its smokestacks when it was
foreseeable that the discharge of those substances could
drift into the working environment of workers at the Calumet
facility. Plaintiff further alleges that defendant breached
its duty and as a direct and proximate cause Plaintiff was
damaged. In Count III Plaintiff alleges that Defendant should
be held strictly liable for the personal and emotional
injuries of Plaintiff. It is further alleged that Plaintiff
sustained serious, permanent and debilitating injuries
resulting from the highly hazardous and toxic chemicals and
substances from the Defendant's manufacturing facility.
Counts II and IV are alleged Loss of Consortium claims
prosecuted by Melanie Scott, in her capacity as the spouse of
Plaintiff Teddy Scott.
Complaint alleges: Plaintiff was working for Ardent on
property of Calumet. This property was adjacent to Defendant
property. Scott was an electrical foreman for and an employee
of Ardent. Calumet Lubricants Co. (“Calumet”)
owned and operated a synthetic lubricants manufacturing
facility located at the property where Plaintiff Scott was
working. While he was working at that location, there was a
sudden and unexpected discharge of a reddish-looking cloud
from the Dyno smokestacks. The discharge turned out to be
nitric acid. Plaintiff inhaled the nitric acid into his
respiratory system and sustained serious and permanent
personal injuries. Melanie Scott alleges that due to Mr.
Scott experiencing these injuries, she lost the consortium
and services of her husband.
12(b)(6) provides for a motion to dismiss based on the
“failure to state a claim upon which relief can be
granted.” To survive a motion to dismiss a complaint
must show “‘that the pleader is entitled to
relief, ' in order to ‘give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.'” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). See also Erickson v.
Pardus, 127 S.Ct. 2197, 2200 (2007). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to defeat a
motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (citing Twombly, 550 U.S. at 555).
“[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at
1950 (citing Twombly, 550 U.S. at 556). The pleading
standard of Rule 8 “does not require ‘detailed
factual allegations, ' but it demands more than an
accusation.” Id. at 1949 (quoting
Twombly, 550 U.S. at 555).
with regard to a Rule 12(b)(6) motion, the Supreme Court
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations,
[citations omitted] a plaintiff's obligation to provide
the “grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do, see Papasan v. Allain, 478 U.S. 265,
286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to relief
above the speculative level, see 5 C. Wright &
A. Miller, Federal Practice and Procedure § 1216, pp.
235-236 (3d ed.2004) ... see, e.g., ... Neitzke
v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104
L.Ed.2d 338 (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, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974) (a well-pleaded complaint may proceed even if it
appears “that a recovery is very remote and
Twombly, 550 U.S. at 555-56. See also Gregory v.
Dillard's, Inc., 565 F.3d 464, 473 (8th Cir.2009)
(en banc) (“[A] plaintiff ‘must assert facts that
affirmatively and plausibly suggest that the pleader has the
right he claims ..., rather than facts that are merely
consistent with such a right.' ”) (quoting
Stalley v. Catholic Health Initiative, 509
F.3d 517, 521 (8th Cir.2007)).
“a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable .” Twombly, 550 U.S. at 556
(citation omitted). “The issue is not whether plaintiff
will ultimately prevail but whether the claimant is entitled
to offer evidence to support [its] claims.” Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974).
Count I of his complaint, Plaintiff alleges, in Paragraph 18,
that Defendant breached and violated its duty to manage and
operate its ammonia nitrate manufacturing facility in a
reasonable manner, and was otherwise negligent in the
discharge on March 15, 2015. This assertion is a legal
conclusion, not a factual statement. Plaintiff has not
alleged any facts consistent with the view of
Twombly and Iqbal. See Robbe, 98
F.Supp.3d at 1034. (“[A] plaintiff ‘must assert
facts that affirmatively and plausibly suggest that the
pleader has the right he claims ..., rather than facts that
are merely ...