United States District Court, N.D. West Virginia
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
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
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.
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, "(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.
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.
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.
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.
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.
reasons stated below, the defendant's motion for leave to
file a third-party complaint (ECF No. 31) is granted.
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).
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. §
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.
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 ...