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Eller v. Stone Energy Corp.

United States District Court, N.D. West Virginia

May 15, 2018

RANDY ELLER and NANCY ELLER, Plaintiffs,
v.
STONE ENERGY CORP., Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS LOSS OF CONSORTIUM CLAIM WITH LEAVE TO AMEND AND GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE THIRD-PARTY COMPLAINT

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         This civil action involves personal injuries arising from a flash fire at a natural gas well pad located in New Martinsville, Wetzel County, West Virginia. The plaintiffs, Randy Eller and Nancy Eller, originally filed their complaint in the Circuit Court of Wetzel County, West Virginia on September 12, 2017, against defendant Stone Energy Corporation (hereinafter, "Stone"). ECF No. 1-1. The complaint alleges that as a consequence of the negligent conduct of defendant Stone, a flash fire occurred at the "Howell Pad" on October 28, 2016, which was owned, operated, and controlled by Stone, that caused serious and permanent injuries to the plaintiff, Randy Eller. ECF No. 1-1 at 3. The plaintiffs further assert that Nancy Eller, as a proximate result of Stone's negligence, has lost the care, comfort, services, and consortium of her husband Randy Eller. ECF No. 1-1 at 5. Defendant Stone removed the civil action to this Court on October 10, 2017. In the notice of removal (ECF No. 1), Stone asserts that this Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1332, 1441(b) and 1446 because the parties are of diverse citizenship and the amount in controversy exceeds $75, 000.00. Stone then filed under Federal Rule of Civil Procedure 12b (6) a motion to dismiss the loss of consortium claim filed by plaintiff Nancy Eller. ECF No. 5. Stone's motion to dismiss the loss of consortium claim (ECF No. 5) was stayed by this Court's order (ECF No. 11) following the proposed agreed order seeking to stay briefing until such time as this Court rules on the plaintiffs' pending motion to remand. ECF No. 10 at 1. The parties then submitted an agreed order voluntarily dismissing plaintiffs' motion to remand. ECF No. 22. This Court then entered an order (ECF No. 23) approving and supplementing the parties' agreed order, which resumed briefing on defendant's motion to dismiss. The motion to dismiss is now fully briefed and is ripe for consideration.

         In its motion to dismiss, Stone argues that plaintiff Nancy Eller "has failed to allege a valid cause of action for loss of consortium and has failed to allege facts upon which relief may be granted." ECF No. 5 at 1. Stone asserts that "[p]laintiff Nancy Eller's requested relief for loss of consortium should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because she failed to plead her claim as a cause of action and failed to allege more that the elements of the claim as required in Twombly/Iqbal, "[1](ECF No. 6 at 3) and that "in this case, the [p] laintiffs have failed to allege a valid cause of action for loss of consortium under West Virginia law" (ECF No. 6 at 4) and have "failed to present any factual allegations to support her conclusory allegations of injury." ECF No. 6 at 6.

         The plaintiffs filed a response in opposition. ECF No. 25. Plaintiffs assert that Stone's argument fails in that Nancy Eller is herself a plaintiff in this action. ECF No. 25 at 5. Further, plaintiffs argue that the consortium claim is properly plead considering the overlap between the facts that apply to liability and the underlying damage claims generally. ECF No. 25 at 5-6. Plaintiffs add that this Court's opinion in Councell v. Homer Lauqhlin China Co., 823 F.Supp.2d 370 (N.D. W.Va. 2011), is "in perfect alignment with the elements of a loss of consortium claim under West Virginia law." ECF No. 25 at 6. Alternatively, plaintiffs state that if this Court is inclined to grant defendant's motion to dismiss, the plaintiffs request leave to amend their complaint with respect to the consortium claim pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. ECF No. 25 at 7.

         Defendant Stone filed a reply (ECF No. 26) and argues that "[d]espite [p]laintiffs' protestations to the contrary, pursuant to Federal Rule of Civil Procedure 12(b) (6), [p]laintiff Nancy Eller's loss of consortium claim must be dismissed because she failed to plead her purported claim as a separate and distinct cause of action." ECF No. 26 at 2. Further, defendant asserts that plaintiffs' attempt to reserve a right to amend their complaint, contingent on this Court's ruling on the pending motion to dismiss should be disregarded. ECF No. 26 at 3. Defendant states that while Rule 15 provides that "[t]he court should freely give leave [to amend] when justice so requires[, ]" a party cannot wait to amend if the Court decides to dismiss the claim subject to a motion to dismiss. Stone argues that "because of [p]laintiffs' failure to timely seek amendment of their Complaint to cure the defect with their loss of consortium claim, dismissal is required." ECF No. 26 at 4-5.

         For the reasons stated below, the defendant's motion to dismiss the loss of consortium claim (ECF No. 5) is granted with leave for plaintiffs to amend and reassert that claim.

         Additionally, defendant Stone filed a motion for leave to file a third-party complaint. ECF No. 31. No response in opposition was filed. Defendant Stone has attached the proposed third-party complaint (ECF No. 31-1) in accord with the scheduling order (ECF No. 16 at 4) and pursuant to Local Rule of Civil Procedure 15.01.

         For the reasons stated below, the defendant's motion for leave to file a third-party complaint (ECF No. 31) is granted.

         II. Applicable Law

         In assessing a motion to dismiss for failure to state a claim under Rule 12(b) (6), a court must accept all well-pled facts contained in the complaint as true. Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009) . However, "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b) (6) purposes." Id. (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This Court also declines to consider "unwarranted inferences, unreasonable conclusions, or arguments." Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

         The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 1998) . The Rule 12(b) (6) motion also must be distinguished from a motion for summary judgment under Federal Rule of Civil Procedure 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. Id. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court's inquiry is directed to whether the allegations constitute a statement of a claim under Federal Rule of Civil Procedure 8(a). Id. § 1357.

         A complaint should be dismissed "if it does not allege 'enough facts to state a claim to relief that is plausible on is face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Facial plausibility is established once the factual content of a complaint 'allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129 S.Ct. at 1949) . Detailed factual allegations are not required, but the facts alleged must be sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

         Rule 14(a)(1) of the Federal Rules of Civil Procedure provides that a defendant may bring an action as a third-party plaintiff "on a nonparty who is or may be liable to it for all or part of the claim against it." (emphasis added). However, if the third-party plaintiff seeks to file its third-party complaint more than fourteen days after serving its original answer, it must first obtain the court's permission, by motion. Fed.R.Civ.P. 14(a) (1) . Granting leave to bring a third-party into an action pursuant to Rule 14(a) (1) falls within the sound discretion of the trial judge and should be liberally construed. Baltimore & Ohio R.R. Co. v. Saunders, 159 F.2d 481, 483-84 (4th Cir. 1947). See also Schwarzer, Tashima & Wagstaffe, Rutter Group Prac. Guide: Fed. Civ. Pro. Before Trial 7:333 (The Rutter Group ...


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