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Stephens v. Union Pacific Railroad Co.

United States District Court, D. Idaho

October 1, 2018



          B. Lynn Winmill Chief Judge


         The 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.


         Plaintiff 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.

         The 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.

         The 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.


         Rule 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. Id.

         In 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”).

         “Factual 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 Cir. 1988).

         If the 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).

         Dismissal 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”).

         A 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).


         Summary 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.

         The 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. 1988).

         The 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 ...

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