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 Warren
Pumps, LLC, to dismiss based on res judicata and collateral
estoppel. The plaintiffs have filed a response in opposition,
and the issues are fully briefed.
are the special personal representatives of decedent Berj
Hovsepian (Hovsepian). 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 in this case, including Warren Pumps.
December 2009, Hovsepian brought an action against Warren
Pumps and a number of other entities in the Superior Court
for the Commonwealth of Massachusetts. [Doc. #357-1]. In an
amended complaint, filed on April 11, 2012, Hovsepian
asserted claims of common law negligence,  breach of express
and implied warranties,  and “malicious, willful, wanton
and reckless conduct or gross
negligence.” [Doc. #357-1 at 17-24, 32-33]. Warren
Pumps moved for summary judgment, arguing that Hovsepian had
“failed to put forth sufficient evidence to demonstrate
that [he] was exposed to asbestos from a product
manufactured, sold, or supplied by Warren or that any such
exposure was a substantial contributing cause of his
injuries.” [Doc. #357-2 at 11]. The motion was
unopposed, and on July 27, 2012, the Massachusetts court
granted summary judgment in favor of Warren Pumps. [Doc.
#357-3; 357-2 at 3].
December 2015, Hovsepian initiated an action in the Circuit
Court of the City of St. Louis, Missouri, naming Warren Pumps
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. Upon Hovsepian's death, plaintiffs filed an amended
complaint, proceeding as special personal
representatives. In the instant motion, Warren Pumps argues
that plaintiffs' claims against it are barred by res
judicata and collateral estoppel. [Doc. #357].
Motion to Dismiss
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); see, e.g., Nance v. Humane Soc'y of
Pulaski Cty., No. 15-3512, 667 F. App'x 879 (8th
Cir. Aug. 4, 2016) (affirming a district court's 12(b)(6)
dismissal premised on collateral estoppel grounds).
“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).” C.H.
Robinson, 695 F.3d 758 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).
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, 453 (8th Cir. 1996) (internal
citations omitted) (abrogated on other 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. In Allen the
Supreme Court 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 449 U.S. at 96; 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, here, the law of Massachusetts will determine
the preclusive effect of the parties' previous