Carlson v. Armstrong World Industries, Inc.

• Decision Date: 22 October 1987
• Docket Number: No. 87-0291-CIV.,87-0291-CIV.
• Citation: 693 F. Supp. 1073
• Parties: Ragnar CARLSON and Mercedes Carlson, etc., Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., etc., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

693 F. Supp. 1073

Ragnar CARLSON and Mercedes Carlson, etc., Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., etc., et al., Defendants.

No. 87-0291-CIV.

United States District Court, S.D. Florida, Miami Division.

October 22, 1987.

David Lipman, Steve Ruud, Lipman & Weisberg, Miami, Fla., for plaintiffs.

Roger Welcher, Welcher & Clark, Miami, Fla., for United States Mineral.

ORDER ON UNITED STATES MINERAL PRODUCTS CO.'S MOTIONS TO DISMISS, STRIKE, AND FOR A MORE DEFINITE STATEMENT

HOEVELER, District Judge.

THIS CAUSE is before the court on the motions of Defendant United States Mineral Products Co. ("U.S. Mineral") to dismiss the complaint; strike punitive damages claims; and for a more definite statement.

Background

Plaintiff Ragnar Carlson (hereinafter "Carlson") was employed for twenty-nine years, between 1947 and 1976, as a painter. In April 1986, he was diagnosed as having pleural disease. Mr. Carlson asserts that he contracted the disease from exposure to asbestos and inhalation of asbestos fibers during his employment as a painter. He and his wife, plaintiff Mercedes Carlson, bring this lawsuit against numerous defendants who they allege mined, manufactured, or distributed the asbestos-containing products to which Mr. Carlson was exposed. Their complaint states claims for (I) negligence; (II) strict liability; (III) breach of warranty; (IV) and (V) civil conspiracy; and (VI) loss of consortium. Plaintiffs seek compensatory and punitive damages, and demand a jury trial.

Defendant U.S. Mineral moves to dismiss the complaint for lack of personal jurisdiction, insufficiency of process, and failure to state a claim under counts I-V. U.S. Mineral also moves for a more definite statement as to the dates of plaintiff's exposure to its products and as to plaintiff's allegations of conspiracy. Finally, U.S. Mineral moves to strike all claims for punitive damages. Having considered the motions, and being otherwise fully advised in the premises, the court gives its disposition as follows.

Motion to Dismiss

1. Jurisdiction

U.S. Mineral asserts that the complaint fails properly to state the basis of the court's in personam jurisdiction over U.S. Mineral, and that it also fails to allege any "connexity" between plaintiff's injuries and this defendant's products and activities in Florida. The court disagrees.

Plaintiffs invoked the court's diversity jurisdiction, which obliges the court to apply Florida substantive law and federal procedural law. 28 U.S.C. § 1332; Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Under the "notice pleading" requirements of the Federal Rules of Civil Procedure, a plaintiff must give a "short and plain statement" of the court's jurisdiction and of the pleader's claims. Fed.R.Civ.P. 8(a). When a motion to dismiss under Rule 12(b)(2) is determined on the basis of the pleadings alone, the party asserting jurisdiction must make only a prima facie showing. See, e.g., Brown v. Flowers Industries, Inc., 688 F.2d 328, 332 (5th Cir.1982), rehearing and rehearing en banc denied, 691 F.2d 502 (1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983); 2A Moore's Federal Practice ¶ 12.072.-2 (2d ed. 1985). The allegations of the complaint, except as controverted by defendant's affidavits, are presumed to be true. Brown, 688 F.2d at 332; Bracewell v. Nicholson Air Services, 748 F.2d 1499, 1504 (11th Cir.1984).

Determining whether a diversity court has in personam jurisdiction over a nonresident defendant involves a two-part inquiry, first into the applicable state statute, and then into the requirements of federal due process. Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1521 (11th Cir.1985). Plaintiffs have adequately stated the grounds for the court's jurisdiction over U.S. Mineral, a foreign corporation, in compliance with Florida's long arm statute. Fla.Stat.Ann. § 48.193 (West Supp.1987). See Oriental Imports & Exports v. Maduro & Curiel's Bank, 701 F.2d 889, 890 (11th Cir.1983). They have alleged that all named defendants have transacted substantial revenue-producing business in the state of Florida since 1942, complaint ¶ 24, which means that they are "engaged in substantial and not isolated activity" within the state. Fla.Stat. §§ 48.181, 48.193(2). Plaintiffs need not do more at this stage. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (motion to dismiss may be granted only if it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim). In the absence of affidavits controverting plaintiffs' jurisdictional claims, those claims are taken as true. Bracewell, 748 F.2d at 1504.

U.S. Mineral maintains that "connexity," or a connection between plaintiffs' claim and a foreign corporation's activities within a state, is a further jurisdictional requirement that plaintiffs have failed to plead. Plaintiffs are correct in noting, however, that "connexity" is no longer required by virtue of an amendment to the Florida long-arm statute effective April 25, 1984. See Polskie Linie Oceaniczne v. Seasafe Transport, 795 F.2d 968, 970 (11th Cir. 1986); American Motors Corp. v. Abrahantes, 474 So.2d 271, 273 (Fla. 3d Dist.Ct. App.1985). The amendment makes a defendant "who is engaged in substantial and not isolated activity" within the state subject to the jurisdiction of Florida's courts "whether or not the claim arises from that activity." Fla.Stat. § 48.193(2) (emphasis supplied). The amendment applies in this case because the claim accrued when plaintiff's pleural disease was diagnosed in April 1986 (Complaint ¶ 3), which was after the amendment's effective date. See Polskie, 795 F.2d at 970; Wildenberg v. Eagle-Picher Industries, Inc., 645 F.Supp. 29, 30-31 (products liability cause of action accrues when injury is discovered or should have been discovered).

U.S. Mineral also argues that because the complaint fails to allege dates necessary to determine which long-arm statute applies in this case, the "doing business" and "connexity" requirements are not met, and therefore long-arm service of process was insufficient in this case. The court has noted that the date of diagnosis in this case is the date when the claim accrued, and this fact is sufficiently pled. Thus, Florida's long-arm statute applied for purposes of service of process, and defendant's argument that process was insufficient because the applicable long-arm statute is unknown fails.

Turning to the constitutional aspect of the jurisdictional inquiry, the court must find that the complaint alleges such minimum contacts with Florida that plaintiffs' suit against U.S. Mineral does not offend "traditional notions of fair play and substantial justice." Pesaplastic, 750 F.2d at 1522 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). The court believes that plaintiffs have met the burden. They have alleged both continuous and systematic activities by U.S. Mineral in Florida (Complaint ¶ 20) and a relationship between the cause of action on the one hand and the nature and quality of defendant's activities on the other hand. Complaint ¶¶ 1, 26. See Pesaplastic, 750 F.2d at 1516. Accordingly, the court finds that plaintiffs have established their prima facie case for personal jurisdiction over U.S. Mineral. See Bracewell, 748 F.2d at 1504. This ruling does not, of course, relieve plaintiffs of the burden of ultimately proving, by a preponderance of the evidence, that personal jurisdiction exists. 2A Moore's Federal Practice, ¶ 12.07 (2.-2) at 12-57 (2d ed. 1985); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899 (2d Cir.1981).

2. Negligence

Defendant moves to dismiss plaintiffs' negligence cause of action for failure to state a claim, in that plaintiffs have not alleged any duty owed by U.S. Mineral to these particular plaintiffs. Specifically, defendant urges that plaintiffs have not alleged that they used a product manufactured by defendant, as required by Florida law. See Vecta Contract, Inc. v. Lynch, 444 So.2d 1093 (Fla. 4th Dist.Ct.App.1984), review denied, 453 So.2d 44 (Fla 1984); Matthews v. GSP Corp., 368 So.2d 391 (Fla. 1st Dist.Ct.App.1979). The Court finds that plaintiffs have alleged that plaintiff Ragnar Carlson "was exposed to asbestos-containing products mined, manufactured or distributed by Defendants...." Complaint para. 26. The Court finds that this allegation of exposure is sufficient to establish a duty on the part of defendant, since at this stage of the proceedings plaintiffs are not required to specify the defendants' products, nor the times or places in which he was exposed to those products. See, e.g., Rubley v. Keene Corp., 480 So.2d 675, 676 (Fla. 1st Dist.Ct.App.1985); Copeland v. Celotex, 447 So.2d 908, 915 (Fla. 3rd Dist.Ct.App.1984), rev'd on other grounds, 471 So.2d 533 (Fla.1985) (plaintiff not required on opposing motion for summary judgment to plead specificity of time and place).

The defendant also urges that it had no duty to warn plaintiff of the dangers of its product since it did know of the dangers at the time the product was sold. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973), cert. denied 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974). Plaintiffs have alleged that the defendant knew or should have known that the use of its products was hazardous to the health of workers such as the plaintiff. Complaint, ¶ 30. The court finds this allegation sufficient to impose a duty to warn plaintiffs of the hazards of using defendant's product. Tampa Drug Co. v. Wait, 103 So.2d 603, 607 (Fla.1958). Accordingly, defendant's motion to dismiss Count I is denied.

3. Strict Liability

Defendant argues that plaintiffs fail to state a claim because they allege a failure to warn, not a defective product. Plaintiffs state quite plainly that defendant manufactured products containing...