Taylor v. Norfolk S. Ry. Co.

• Citation: 86 F.Supp.3d 448
• Decision Date: 06 February 2015
• Docket Number: No. 1:12cv688.,1:12cv688.
• Parties: Richard Eric TAYLOR, individually and as Executor for the Estate of Diane Grubb Taylor, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

86 F.Supp.3d 448

Richard Eric TAYLOR, individually and as Executor for the Estate of Diane Grubb Taylor, Plaintiff

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

No. 1:12cv688.

United States District Court, M.D. North Carolina.

Signed Feb. 6, 2015.

William Marc Graham, Wallace and Graham, P.A., Salisbury, NC, John E. Guerry, III, Motley Rice LLC, Mt. Pleasant, SC, for Plaintiff.

David A. Damico, Burns White LLC, Pittsburgh, PA, John S. Buford, Brooks Pierce McLendon Humphrey & Leonard, LLP, Greensboro, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This is a damages action that follows a prior personal injury action arising from the same alleged asbestos exposure but was dismissed for failure to timely substitute a personal representative upon the death of Plaintiff's decedent. Defendant Norfolk Southern Railway Company (“NSRC”) moves for judgment on the pleadings, arguing that the dismissal of the prior action under Rule 25 of the Federal Rules of Civil Procedure acts as res judicata against the present claims it contends arise out of the same transactions and core of operative facts. (Doc. 18.) For the reasons set forth below, the motion will be granted and the case will be dismissed.¹

I. BACKGROUND

The background of this case unfolded over many years and concerns wrongs from asbestos exposure allegedly committed half a century ago. It spawned two lawsuits, each of which was originally filed in a North Carolina trial court, removed to federal district court, and transferred by the Judicial Panel for Multidistrict Litigation (“JPML”) to the Eastern District of Pennsylvania, In re Asbestos Products Liability Litigation, MDL No. 875. The first of these cases, filed in 2010, was ultimately dismissed, and the second is the present lawsuit.

A. The 2010 Lawsuit

On October 28, 2010, Mr. Richard Eric Taylor and Mrs. Diane Grubb Taylor, husband and wife, filed a complaint in a North Carolina trial court against Defendant NSRC. (Doc. 18–1, “2010 Complaint.”) Mrs. Taylor brought claims against NSRC for her personal injuries due to asbestos exposure, while Mr. Taylor brought a derivative claim for loss of consortium.² NSRC removed the case to the United States District Court for the Western District of North Carolina. On January 11, 2011, the JPML transferred the case to the Eastern District of Pennsylvania, where it was consolidated for pretrial proceedings in MDL No. 875.

On April 24, 2011, Mrs. Taylor died, and on May 5, 2011, Mr. Taylor was appointed executor of her estate.³ (Compl. ¶ 3.) On May 26, 2011, Mr. Taylor filed a Statement of Death of a Party, noticing her death to the district court and NSRC. Suggestion of Death, Taylor v. Norfolk S. Ry. Co., No. 2:11–cv–60075 (E.D.Pa. May 26, 2011), ECF No. 15. On October 27, 2011, Mr. Taylor moved to substitute himself for Mrs. Taylor, as the personal representative of her estate, and to amend the complaint by adding a claim for wrongful death.

Mr. Taylor's motion to substitute was untimely. Under Federal Rule of Civil Procedure 25(a)(1), when a party dies, a substitution must be made “within 90 days after service of a statement noting the death.” The motion to substitute was therefore due on August 24, 2011, making Mr. Taylor's October 27 filing over a month late. See Order, Taylor v. Norfolk S. Ry. Co., No. 2:11–cv–60075 (E.D.Pa. May 29, 2012), ECF No. 44. Finding that the motion to substitute was inexcusably tardy, and given the failure to file a timely motion for an extension of time, the district court dismissed the entire case. See id. Mr. Taylor moved the court to reconsider the dismissal, but the court denied the motion over a year later. Order, Taylor v. Norfolk S. Ry. Co., No. 2:11–cv–60075 (E.D.Pa. October 4, 2013), ECF No. 47. Mr. Taylor did not appeal these rulings. (Doc. 19 at 4.)

B. The Current Lawsuit

On June 8, 2012, a few days before Mr. Taylor filed his motion for reconsideration, he filed the present action in a different North Carolina trial court, and NSRC removed the case to this court. In this complaint, Mr. Taylor brought Mrs. Taylor's prior personal injury claims now as apparent survival claims, his own claim for loss of consortium in his individual capacity and, as executor of Mrs. Taylor's estate, a claim for wrongful death predicated on Mrs. Taylor's personal injury claims from the first lawsuit.⁴ (Doc. 5.) On August 27, 2012, the JPML transferred the case to MDL No. 875. (Docs. 11, 12.) Over a year later, on March 14, 2014, the JPML remanded the case to this court. (Doc. 15.) On April 30, 2014, NSRC filed the present motion for judgment on the pleadings, contending that the dismissal of the 2010 lawsuit acted as res judicata of the claims in this action. (Doc. 18.) The motion has been fully briefed (Docs. 19, 23, 26) and is ready for resolution.

II. ANALYSIS

A. Standard of Review

NSRC moves for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The standard of review governing motions for judgment on the pleadings is the same as that employed on motions to dismiss for failure to state a claim under Rule 12(b)(6). Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir.2014). To survive either motion, “a complaint must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A motion under Rule 12(c) “tests only the sufficiency of the complaint and does not resolve the merits of the plaintiff's claims or any disputes of fact.” Drager, 741 F.3d at 474 (citing Butler v. United States, 702 F.3d 749, 752 (4th Cir.2012) ).

In adjudicating a motion under Rule 12(c), the court may consider the complaint, the answer, and any documents incorporated by reference into these pleadings. Mendenhall v. Hanesbrands, Inc., 856 F.Supp.2d 717, 724 (M.D.N.C.2012). Documents attached to an answer or a motion to dismiss can only be considered if they were integral to and explicitly relied on in the complaint, and if plaintiffs do not dispute their authenticity. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.2004). Furthermore, when considering a motion to dismiss on grounds of res judicata, the court “may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact.” Q Int'l Courier, Inc. v. Smoak, 441 F.3d 214, 216 (4th Cir.2006). In this case, no party has shown a disputed issue of fact concerning the prior lawsuit. Therefore, the court will take judicial notice of the litigants' filings and the court's orders in the prior lawsuit.

B. Background North Carolina Law

While federal law provides the framework for analyzing the motion before the court, North Carolina's law on survivorship and wrongful death under which the two lawsuits' claims are brought are central to its resolution.

Survivorship and wrongful death claims are each created by statute. Under N.C. Gen.Stat. § 28A–18–1(a), a decedent's right to prosecute or defend an action survives the decedent's death, with the right to sue or defend surviving only for the personal representative of the decedent's estate. This survivorship statute reverses the common law rule that claims abate upon death and simply permits the personal representative to step into the decedent's shoes to prosecute the decedent's cause of action. A judgment entered in a survivorship action “is an asset of the decedent's estate.” State Auto Ins. Co. v. Blind, 185 N.C.App. 707, 650 S.E.2d 25, 29 (2007). Survivorship actions can be affected by the statute of limitations. If the statute of limitations for the underlying claim has expired when the decedent dies, the survivorship action is barred. See N.C. Gen.Stat. § 28A–18–1(a) (preserving rights to defend against claims of decedent to claims made by decedent's personal representative); Camper v. Manning, No. 2:11CV157, 2011 WL 2550820, at *4 (E.D.Va. June 27, 2011) (applying North Carolina law and holding that statute of limitations defense could be raised against personal representative as it could have been raised against decedent). But if the decedent dies before the underlying claim expires, the personal representative may bring the survivorship claim after the running of the underlying statute of limitations, so long as the claim is brought within one year of the death. N.C. Gen.Stat. § 1–22.

A wrongful death claim is a “distinct and separate” cause of action created by N.C. Gen.Stat. § 28A–18–2. Dunn v. Pac. Employers Ins. Co., 332 N.C. 129, 418 S.E.2d 645, 648 (1992). The cause of action accrues upon the decedent's death and remedies misconduct causing death specifically. See Raftery v. Wm. C. Vick Const. Co., 291 N.C. 180, 230 S.E.2d 405, 407 (1976). As in survivorship claims, only the personal representative can bring a wrongful death claim. N.C. Gen. § 28A–18–2(a). Similarly, wrongful death remedies include compensation that would be owed the decedent, had he or she lived. Id. § 28A–18–2(b)(1)–(2). But unlike survivorship claims, wrongful death claims allow much broader recoverable damages for those the decedent has left behind as a result of the death, including reimbursement for the decedent's funeral expenses, the loss of decedent's income, and the loss of the decedent's society and companionship. See id. § 28A–18–2(b)(3)–(4). And again unlike survivorship claims, any recovery becomes not an asset of the estate, but is held in trust for the beneficiaries designated by the Intestate Succession Act. N.C. Gen.Stat. § 28A–18–2(a) ; Brown v. S. Ry....