United States District Court, D. Idaho
WILLIAM G. STEPHENS and NORMA STEPHENS Plaintiffs,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
Court has before it Union Pacific Railroad Company's
Motion for Judgment on the Pleadings (Dkt. 30), Union
Pacific's Motion for Summary Judgment and, in the
alternative, Motion for Partial Summary Judgment (Dkt. 39),
Union Pacific's Motion to Take Judicial Notice (Dkt. 31),
and William and Norma Stephens' Motion for Partial
Summary Judgment as to Affirmative Defenses (Dkt. 40). The
motions are fully briefed, and the Court heard oral argument
on July 17, 2018. The Court now issues the following
Memorandum Decision and Order.
William Stephens was born in 1944 in Weiser, Idaho, and
resided there until 1954. Compl. ¶ 7, Dkt. 1.
During that time, Union Pacific employed Stephens's
father, Rollie Stephens, at its Weiser roundhouse.
Id.; Coleman Letter at 1, Dkt. 46. The
Stephens allege Rollie Stephens was responsible for
performing maintenance work on steam engines, including the
removal of insulation which, along with other products used
at Union Pacific facilities, contained amosite asbestos.
Compl. ¶¶ 7, 8, Dkt. 1.
Stephens allege Rollie Stephens brought asbestos dust home on
his clothing and person from work at the Weiser roundhouse,
exposing his son to carcinogenic dust. Id. at ¶
9. They further allege Stephens's exposure to the
asbestos carried home from his father's work on steam
locomotives was a substantial factor in causing his
mesothelioma. Id. at ¶ 10.
Stephens brought suit against Union Pacific in September
2017. Id. at ¶ 3, pp. 19. The action is before
this court upon diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. The Complaint alleges four causes of actions:
(1) negligence, (2) gross negligence/recklessness, (3) strict
liability for an abnormally dangerous activity, and (4) loss
of consortium. Id. at ¶¶ 30-48. At oral
argument, the Stephens indicated they are forgoing Count
Three and proceeding on the remaining causes of action.
ON THE PLEADINGS LEGAL STANDARD
12(c) of the Federal Rules of Civil Procedure authorizes a
party to move for judgment on the pleadings “after the
pleadings are closed-but early enough not to delay
trial.” Judgment is appropriate when the moving party
establishes on the face of the pleadings that no material
issue of fact remains to be resolved and that it is entitled
to judgment as a matter of law. Hal Roach Studios, Inc.
v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550
(9th Cir. 1990). In ruling on such a motion, the court must
accept the allegations of the non-moving party as true.
determining whether a complaint states a cognizable claim
under Rule 12(c), courts apply the same legal standards
applicable to motions brought under Rule 12(b)(6).
Cafasso, U.S. ex rel. v. General Dynamics C4 Systems,
Inc., 637 F.3d 1047, 1054, n.4 (9th Cir. 2011)
(“we have said that Rule 12(c) is functionally
identical to Rule 12(b)(6) and that the same standard of
review applies to motions brought under either rule”).
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). Dismissal may be based on the lack of a
cognizable legal theory or on the absence of sufficient facts
alleged under a cognizable legal theory. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
court looks to evidence beyond the pleadings, the motion must
be converted into one for summary judgment. Fed. R. Civil P.
12(d). But the court may consider attachments to the
complaint and documents referred to in the complaint though
not attached to it, where authenticity is not in question.
Hal Roach Studios, 896 F.2d at 1555 n. 19;
Townsend v. Columbia Operations, 667 F.2d 844,
848-49 (9th Cir. 1982).
may be appropriate when the plaintiff has included sufficient
allegations disclosing some absolute defense or bar to
recovery. See Weisbuch v. County of L.A., 119 F.3d
778, 783, n. 1 (9th Cir. 1997) (stating that “[i]f the
pleadings establish facts compelling a decision one way, that
is as good as if depositions and other . . . evidence on
summary judgment establishes the identical facts”).
dismissal without leave to amend is improper unless it is
beyond doubt that the complaint “could not be saved by
any amendment.” Harris v. Amgen, Inc., 573
F.3d 728, 737 (9th Cir. 2009). The Ninth Circuit has held
that “in dismissals for failure to state a claim, a
district court should grant leave to amend even if no request
to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.” Cook, Perkiss and Liehe, Inc. v.
Northern California Collection Service, Inc., 911 F.2d
242, 247 (9th Cir. 1990). The issue is not whether plaintiff
will prevail but whether he “is entitled to offer
evidence to support the claims.” Diaz v. Int'l
Longshore and Warehouse Union, Local 13, 474 F.3d 1202,
1205 (9th Cir. 2007) (citations omitted).
JUDGMENT LEGAL STANDARD
judgment is appropriate where a party can show that, as to
any claim or defense, “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). One of the
principal purposes of the summary judgment “is to
isolate and dispose of factually unsupported claims . . .
.” Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). It is “not a disfavored procedural
shortcut, ” but is instead the “principal tool[ ]
by which factually insufficient claims or defenses [can] be
isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). There must be a
genuine dispute as to any material fact - a fact
“that may affect the outcome of the case.”
Id. at 248.
evidence must be viewed in the light most favorable to the
non-moving party, and the Court must not make credibility
findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie
v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On
the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.
moving party bears the initial burden of demonstrating the
absence of a genuine dispute as to material fact.
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need
not introduce any affirmative evidence (such as affidavits or
deposition excerpts) but may simply point out the absence of
evidence to support ...