United States District Court, E.D. Missouri, Eastern Division
DIANE MACCORMACK, NANCY BROUDY and KAREN LOFTUS, as Special Personal Representatives of BERJ HOVSEPIAN, deceased, Plaintiffs,
THE ADEL WIGGINS GROUP, individually and as a wholly-owned subsidiary of the TRANSDIGM GROUP, INC., et al., Defendants.
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of defendant Crane
Co. to dismiss based on collateral estoppel. The plaintiffs
have filed a memorandum in opposition. The issues are fully
briefed and ripe for disposition.
are the special personal representatives of Berj Hovsepian
(Hovsepian), now deceased. 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 Crane Co.
December 2009, Hovsepian brought an action against defendant
Crane Co. and other entities in the Superior Court for the
Commonwealth of Massachusetts. He asserted claims of common
law negligence,  breach of express and implied warranties,
“malicious, willful, wanton and reckless conduct or
gross negligence.” Defendant Crane Co. moved for summary
judgment, arguing that plaintiff failed to (1) “present
evidence that Berj Hovsepian worked with or around a Crane
Co. product, ” (2) “present evidence that Berj
Hovsepian worked with or around asbestos-containing original
or replacement parts that were manufactured or
supplied by Crane Co., ” (3) “prove that
any materials used with a Crane Co. product actually
contained asbestos, ” (4) “prove that any work
with or around a Crane Co. product substantially contributed
to Berj Hovsepian's disease, ” among other
arguments. [Doc. #333-2 at 4-5 (emphasis in original)]. On
August 10, 2012, the Superior Court granted Crane Co.'s
motion for summary judgment.
December 2015, Hovsepian initiated an action in the Circuit
Court of the City of St. Louis, Missouri, against defendant
Crane Co. and others, 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.
After Hovsepian's death, the plaintiffs continued the
lawsuit as his special personal representatives.
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). “Indeed, [i]f an affirmative defense .
. . is apparent on the face of the complaint . . . that
[defense] can provide the basis for dismissal under Rule
12(b)(6).” Id. at 764 (internal quotation
marks and citations omitted). 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).
Plaintiffs challenge the use of a motion to dismiss to raise
collateral estoppel or res judicata. [Doc. #336 at 2]. They
cite no authority for this contention. But, ample Eighth
Circuit precedent demonstrates otherwise. See, e.g.,
Nance v. Humane Soc'y of Pulaski Cty., No. 15-3512,
2016 WL 4136972 (8th Cir. Aug. 4, 2016) (affirming a district
court's 12(b)(6) dismissal premised on collateral
estoppel grounds); A.H. ex. rel. Hubbard v. Midwest Bus
Sales, Inc., 823 F.3d 448 (8th Cir. 2016) (affirming a
district court's dismissal on the grounds of res
judicata); Johnson v. Vilsack, 833 F.3d 948, 951
n.4, 953-54 (8th Cir. 2016) (discussing whether an
administrative agency determination justified a motion to
dismiss on res judicata grounds, and noting that
“[e]ach of the documents the district court considered
was a public record, which a court can rely on even at the
motion to dismiss stage”); Jaakola v. U.S. Bank
Nat'l Trust Ass'n, 609 Fed.Appx. 877 (8th Cir.
2015) (affirming a district court's dismissal under Rule
12(b)(6) on res judicata grounds). Accordingly, the Court
disagrees with the plaintiffs' argument that a summary
judgment motion is required to assert a res judicata
argument, and the Court will proceed with its analysis.
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.'” Id. at 449-50 (quoting Tyus
v. Schoemehl, 93 F.3d 449, 452 (8th Cir. 1996) (internal
citations omitted) (abrogated on separate grounds)); 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 actually be litigated in state
court. See Migra v. Warren City Sch. Dist. Bd. Of
Educ., 465 U.S. 75, 85 (1984); see also Matsushita
Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996).
Accordingly, in the instant case, the law of Massachusetts
will determine the preclusive effect of the parties'