Elorreaga et al v. ABB, Inc., et al., No. 4:2021cv05696 - Document 138 (N.D. Cal. 2022)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 78 MOTION TO DISMISS by Judge Haywood S. Gilliam, Jr. (bns, COURT STAFF) (Filed on 7/7/2022)
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Elorreaga et al v. ABB, Inc., et al. Doc. 138 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERTO ELORREAGA, et al., Plaintiffs, 8 v. 9 10 ROCKWELL AUTOMATION, INC., et al., ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS Re: Dkt. No. 78 Defendants. 11 United States District Court Northern District of California Case No. 21-cv-05696-HSG 12 Pending before the Court is the motion to dismiss filed by Defendants General Electric 13 14 Company and ViacomCBS. Dkt. No. 78. The Court finds this matter appropriate for disposition 15 without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons 16 detailed below, the Court GRANTS IN PART and DENIES IN PART the motion. 17 I. BACKGROUND In September 2020, Roberto Elorreaga and Rosemary Elorreaga initially filed this asbestos 18 19 action in San Francisco Superior Court against approximately twenty-five Defendants. See Dkt. 20 No. 1-1. Defendants then removed the case to federal court. See Dkt. No. 1-1. Roberto Elorreaga 21 died in October 2021, Dkt. No. 55, and his family is now pursuing this case, see Dkt. No. 66 22 (“SAC”).1 As relevant to this motion, Plaintiffs allege that Mr. Elorreaga was exposed to asbestos 23 from Defendants’ products, and that he died from malignant pleural mesothelioma as a result. See, 24 e.g., id. at ¶¶ 3, 8–18. Plaintiffs allege six causes of action against Defendants, including loss of 25 consortium under federal maritime law. See id. at ¶¶ 88–91. Plaintiffs also seek punitive 26 27 28 1 Plaintiffs are Rosemary Elorreaga, individually and as successor-in-interest to Roberto Elorreaga; Robert Paul Elorreaga; Richard Andrew Elorreaga; and Ronald Edward Elorreaga. See generally SAC. Dockets.Justia.com 1 damages. See id., “Damages.” The parties appear to agree that Mr. Elorreaga’s alleged asbestos exposure occurred while 2 3 he was serving in the United States Navy aboard the USS Rupertus and USS Cowell. See Dkt. 4 No. 78 (“Mot.”) at 3; Dkt. No. 78-2, Ex. C at 59; id. at Ex. D at 64, 70–71; Dkt. No. 85 at 3–4. 5 Defendants now move to dismiss Plaintiffs’ request for punitive damages and loss of consortium 6 damages, arguing that they are precluded under federal maritime law.2 See Mot. at 2. 7 II. To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state 8 United States District Court Northern District of California 9 LEGAL STANDARD a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 10 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court 11 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 12 v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the plausibility of a complaint, courts “accept 13 factual allegations in the complaint as true and construe the pleadings in the light most favorable 14 to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th 15 Cir. 2008). Nevertheless, courts do not “accept as true allegations that are merely conclusory, 16 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 17 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 18 (9th Cir. 2001)). 19 III. DISCUSSION 20 A. 21 At bottom, the parties disagree about what damages are available under federal maritime 22 law. Defendants argue that the Supreme Court held in Miles v. Apex Marine Corp., 498 U.S. 19, 23 37 (1990), that seamen may not recover non-pecuniary damages, regardless of whether the claim 24 arises under general maritime law or a federal maritime statute. See Dkt. No. 86 (“Rep.”) at 4, 7– Maritime Causes of Action 25 26 27 28 2 In reviewing the parties’ briefs, it is apparent that the parties have not consistently complied with Civil L.R. 3-4(c), which requires 12-point type for all text, including footnotes. The Court expects the parties to scrupulously comply with the Local Rules and the Court's standing orders in all future filings. To the extent the parties fail to do so in future, the Court may strike the brief in its entirety. 2 1 9. Plaintiffs respond that their requests for punitive damages and loss of consortium damages are 2 based on general maritime law. See Dkt. No. 85 (“Opp.”) at 1–2, & n.3. Plaintiffs further argue 3 that in the years since Miles, the Supreme Court has held that under certain circumstances injured 4 seamen may recover non-pecuniary damages under general maritime law. See id. at 8–13. United States District Court Northern District of California 5 A brief overview of federal maritime law is necessary to frame the parties’ arguments. 6 Historically, federal courts have developed an “amalgam of traditional common-law rules, 7 modifications of those rules, and newly created rules that forms the general maritime law.” The 8 Dutra Grp. v. Batterton, 139 S. Ct. 2275, 2278 (2019). Beginning in the 20th century, Congress 9 began enacting federal maritime statutes to provide more adequate protection for seamen. See 10 Miles, 498 U.S. at 23, 27. In 1920, for example, Congress enacted the Jones Act, which created a 11 statutory cause of action for seamen to sue their employers for negligence. See Atlantic Sounding 12 v. Townsend, 557 U.S. 404, 415–416 (2009). However, the Jones Act did not explicitly eliminate 13 the pre-existing causes of action or remedies under general maritime law. Id. Rather, an injured 14 seaman has “a choice of actions,” and may “elect” to proceed under the Jones Act. Id. As such, 15 plaintiffs can, and often do, bring claims under both general maritime law and federal maritime 16 statutes. See id. at 33. This dual system has led to questions about what relief is available to 17 plaintiffs. 18 The Supreme Court first addressed the conflict between remedies available under general 19 maritime law and federal maritime statutes in Miles v. Apex. In Miles, a seaman was stabbed 20 repeatedly and killed by a fellow seaman while aboard a ship docked in Washington. 498 U.S. at 21 21–22. The decedent’s mother brought a wrongful death claim against the ship’s owners and 22 operators under both general maritime law and the Jones Act. 498 U.S. at 21–22. She alleged 23 negligence under the Jones Act and breach of the warranty of seaworthiness under general 24 maritime law, claiming the defendants had “hir[ed] a crew member unfit to serve.” Id. at 21. One 25 of the questions before the Court was whether the plaintiff could recover for loss of society and 26 punitive damages based on her general maritime law claim, even though non-pecuniary damages 27 are precluded under the Jones Act. Id. at 21–22, 32. 28 In holding that Plaintiff could not recover such damages, the Supreme Court held that it 3 1 would be “inconsistent with our place in the constitutional scheme” to award greater damages for 2 claims brought under causes of action created by judges under general maritime law than for 3 claims brought under the Jones Act. Id. at 31–33 (“Congress has spoken directly to the question 4 of recoverable damages on the high seas, and when it does speak directly to a question, the courts 5 are not free to ‘supplement’ Congress’ answer so thoroughly that the Act becomes meaningless.” 6 (quotation omitted)); see also id. at 27 (“Congress retains superior authority in these matters, and 7 an admiralty court must be vigilant not to overstep the well-considered boundaries imposed by 8 federal legislation.”). The Court emphasized the need to “restore a uniform rule applicable to all 9 actions for the wrongful death of a seaman, whether under [The Death on the High Seas Act 10 United States District Court Northern District of California 11 (“DOHSA”)], the Jones Act, or general maritime law.” Id. at 33. Subsequent decisions interpreted Miles broadly, holding that non-pecuniary damages were 12 never allowed in wrongful death cases, regardless of whether they were brought under general 13 maritime law or maritime statutory law. See, e.g., Davis v. Bender, 27 F.3d 426, 430 (9th Cir. 14 1994). Defendants appear to rely on this line of reasoning in arguing that non-pecuniary damages 15 should be precluded here. See Mot. at 2; Rep. at 10. 16 In Atlantic Sounding v. Townsend, however, the Supreme Court clarified the scope of 17 Miles. There, an injured seaman sued his employer for willful failure to provide maintenance and 18 cure under general maritime law, i.e., “the vessel owner’s obligation to provide food, lodging, and 19 medical services to a seaman injured while serving the ship.” See 557 U.S. at 407–08. The 20 plaintiff sought punitive damages. Id. The Supreme Court held that punitive damages are 21 recoverable in maintenance and cure claims under general maritime law. Id. at 407–08, 419–20 22 (confirming that the reasoning in Miles “remains sound,” but did not involve maintenance and 23 cure claims). Id. at 419–20. 24 The Court identified a two-step framework for determining whether a plaintiff can seek 25 certain relief under general maritime law. See id. at 407. First, the court must consider whether 26 the relief sought has been historically available under general maritime law. See id. Second, the 27 court must determine whether any statute explicitly precludes the requested relief. See id. 28 At step one, the Supreme Court concluded that historically courts have awarded punitive damages 4 1 for maintenance and cure claims under general maritime law. See id. at 409. The Court 2 emphasized the long history of awarding punitive damages prior to the Jones Act, including 3 damages awards with “some punitive element” in maintenance and cure claims. Id. at 409–10, 4 411–14. At step two, the Court recognized that punitive damages are unavailable under the Jones 5 Act, but noted that the statute was passed to expand—not limit—recovery for seamen. Id. at 415. 6 The Supreme Court concluded that there was nothing in the case law or text of the Jones Act that 7 precluded the recovery of punitive damages for maintenance and cure claims under general 8 maritime law. Id. at 418. Most recently, in The Dutra Group v. Batterton, the Supreme Court confirmed this United States District Court Northern District of California 9 10 framework, adding a third step based on whether “policy grounds” nevertheless compel the 11 requested damages. 139 S. Ct. at 2283. The Court further clarified that the analysis about what 12 relief is available is “based on the particular claims involved.” Id. at 2278. This Court therefore 13 applies this three-step framework to determine whether Plaintiffs’ request for punitive damages 14 and loss of consortium are precluded in this case.3 15 i. Punitive Damages Plaintiffs suggest that the Supreme Court’s ruling in Atlantic Sounding is dispositive here, 16 17 and that “punitive damages are clearly recoverable in this case.” See Opp. at 8–13. Plaintiffs 18 point out that in Atlantic Sounding the Court held that punitive damages remain available for 19 maintenance and cure claims “under the appropriate factual circumstances,” and argue that they 20 should be available here. See id. at 8 (citing Atlantic Sounding, 557 U.S. at 415). Plaintiffs do not 21 attempt to address the framework in Atlantic Sounding. Instead, they state that there is 22 “uncertainty in this area of the law,” and urge that “until some binding authorities clarify this area 23 of the law” the Court should find that punitive damages are available here. Id. at 10. The Court is 24 not persuaded. As explained above, the Supreme Court in Atlantic Sounding held that punitive damages 25 26 27 28 3 To the extent Plaintiffs argue that their claims do not arise under the Jones Act, see Opp. at 5–7, this does not appear to be disputed, see Rep. at 5. Rather, the question is what relief is available to Plaintiffs under general maritime law. As discussed above, the Supreme Court has provided some guidance in answering this question. 5 1 may be available for certain claims, but not for all claims under general maritime law. The 2 Supreme Court’s opinion in The Dutra Group v. Batterton further underscores this nuance. United States District Court Northern District of California 3 In Batterton, a seaman who was injured while working as a deckhand and crew member 4 sought punitive damages for an unseaworthiness claim, arguing “that he was injured as a result of 5 the unseaworthy condition of the vessel.” 139 S. Ct. at 2278. Unseaworthiness claims arise under 6 general maritime law, not federal statute. See id. at 2283–84. The Supreme Court nevertheless 7 held that punitive damages were unavailable for unseaworthiness claims. See id. at 2283–87. In 8 applying the Atlantic Sounding framework, the Court concluded that there was no historical basis 9 for allowing punitive damages for unseaworthiness claims. Id. at 2279–80. At step one of the 10 Atlantic Sounding framework, the Court concluded that punitive damages were not “traditionally 11 available for breach of the duty of seaworthiness.” See id. at 2283. The Court explained that the 12 unseaworthiness cases the plaintiff cited appeared to award strictly compensatory—not punitive— 13 damages. See id. at 2283–84. Although the Supreme Court acknowledged that punitive damages 14 were historically available under the common law generally, this was not enough. Id. at 2284. 15 Unlike the maintenance and cure claims in Atlantic Sounding, the Supreme Court found that there 16 was no evidence that courts “traditionally allow[ed] recovery of punitive damages” for 17 unseaworthiness claims. See id. 18 The Court also considered whether this “novel remedy” would be “required to maintain 19 uniformity with Congress’s clearly expressed policies” under maritime statutory law. Id. at 2284– 20 85. But the Court found it significant that non-pecuniary damages are not available under the 21 Jones Act. Id. Finally, the Court rejected the plaintiff’s arguments that punitive damages should 22 still be permitted on “policy grounds,” instead emphasizing the importance of ensuring a uniform 23 maritime law. See id. at 2286 (“[I]t would exceed our current role to introduce novel remedies 24 contradictory to those Congress has provided in similar areas.”). 25 Plaintiffs argue that Miles and Batterton are distinguishable because in those cases the 26 plaintiffs also brought statutory claims against their employers. See Opp. at 12–13. Plaintiffs 27 contend that the Court is therefore free “to decide whether punitive damages are appropriate,” 28 without regard for the limitations of any maritime statutes. See id. at 13. However, the Supreme 6 United States District Court Northern District of California 1 Court in Miles and Batterton did not limit the holdings of the cases in this way. As the Ninth 2 Circuit has noted, “there is nothing in Miles’ reasoning to suggest that the decision turned upon the 3 identity of the defendant.” See, e.g., Davis, 27 F.3d at 430. And although the Supreme Court has 4 expressed concern for maintaining uniformity in maritime claims, the Court has not conditioned 5 its conclusions on whether a plaintiff has brought a parallel statutory claim. Rather, the Court has 6 suggested a reluctance to expand general maritime law at all, given “the increased role that 7 legislation has taken over the past century of maritime law.” Batterton, 139 S. Ct. at 2286, & n.9 8 (“[W]e think it wise to leave to the political branches the development of novel claims and 9 remedies.”); accord Mullinex v. John Crane Inc., No. 418CV00033RAJDEM, 2022 WL 2110693, 10 at *3–4 (E.D. Va. June 10, 2022) (applying Batterton framework to negligence claims brought by 11 plaintiffs against third-party manufacturers for death of seaman from asbestos exposure); Spurlin 12 v. Air & Liquid Sys. Corp., 537 F. Supp. 3d 1162, 1179–81 (S.D. Cal. 2021) (same). 13 In any event, Plaintiffs argue that the Court should apply Atlantic Sounding here. See Opp. 14 at 8–9, 12–13. But Plaintiffs do not offer any evidence that punitive damages were historically 15 available for any of their claims under general maritime law. See SAC at ¶¶ 30–87 (asserting 16 negligence and strict liability claims). As the Supreme Court has stated, this dearth of historical 17 evidence “is practically dispositive.” Batterton, 139 S. Ct. at 2275. In short, Plaintiffs have 18 offered no evidence that punitive damages were historically available for their specific claims, or 19 that there is any other reason why the Court should find them available under general maritime 20 law under these circumstances. The Court therefore GRANTS Defendants’ motion on this basis. 21 Accord Rogers v. A.O. Smith Corp., No. CV 19-573, 2022 WL 1488039, at *11 (E.D. Pa. May 10, 22 2022); Mullinex v. John Crane Inc., No. 4:18-CV-00033, 2021 WL 8129699, at *2 (E.D. Va. Oct. 23 5, 2021), report and recommendation adopted, No. 418CV00033RAJDEM, 2022 WL 1607907 24 (E.D. Va. May 20, 2022); Spurlin, 537 F. Supp. 3d at 1179–81. 25 26 ii. Loss of Consortium Defendants argue that damages for loss of consortium are unavailable to a decedent’s 27 family under general maritime law, such that the Court should dismiss Plaintiffs’ claim. See Mot. 28 at 5–6; Rep. at 10. As discussed above, the Supreme Court in Miles held explicitly that a plaintiff 7 1 may not recover for loss of society in wrongful death actions under general maritime law. Miles, 2 498 U.S. at 33. And consistent with Miles, the Ninth Circuit has similarly held that actions for 3 loss of consortium are precluded both under the Jones Act and under general maritime law.4 Smith 4 v. Trinidad, 992 F.2d 996 (9th Cir. 1993). Defendants submit that Smith remains good law, and 5 precludes Plaintiffs’ loss of consortium claim here. See Rep. at 10. Plaintiffs do not address the Ninth Circuit’s opinion in Smith directly. See Opp. at 13–16. United States District Court Northern District of California 6 7 Rather, in a footnote Plaintiffs suggest that the reasoning of Smith—and Miles—did not survive 8 the Supreme Court’s opinion in Atlantic Sounding. See id. at 9, & n.8. However, the Supreme 9 Court itself confirmed in Atlantic Sounding that “[t]he reasoning of Miles remains sound.” See 10 Atlantic Sounding, 557 U.S. at 420. And other Circuits have continued, even after Atlantic 11 Sounding, to find that loss of consortium damages are unavailable under general maritime law. 12 See, e.g., McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, 391 (5th Cir. 2014) (en banc) (finding 13 damages still limited under both Jones Act and general maritime law to pecuniary damages); 14 Doyle v. Graske, 579 F.3d 898, 906–08 (8th Cir. 2009), as amended (Oct. 21, 2009) (holding 15 “there is no well-established admiralty rule . . . authorizing loss-of-consortium damages as a 16 general matter”). This Court is bound to follow Ninth Circuit law. The Ninth Circuit has cautioned that only 17 18 in cases of “clear irreconcilability” can district courts “consider themselves bound by the 19 intervening higher authority and reject the prior opinion of [the Ninth Circuit] as having been 20 effectively overruled.” Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). 21 “This is a high standard,” which “requires [the district court] to look at more than the surface 22 conclusions of the competing authority.” Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 23 979 (9th Cir. 2013) (quotation omitted); accord Close v. Sotheby’s, Inc., 894 F.3d 1061, 1074 (9th 24 Cir. 2018) (holding that even where a prior panel opinion’s “reasoning would be suspect today, [] 25 it is not clearly irreconcilable with intervening higher authority”). Plaintiffs have not made any 26 effort to explain how this high standard is met here. The Supreme Court has continued to cite 27 28 As Plaintiffs acknowledge, loss of consortium claims “encompasses loss of society.” See Opp. at 14 (quoting Barrette v. Jubilee Fisheries, Inc., 2011 WL 3516061 (W.D. Wa. Aug. 11, 2011)). 8 4 1 Miles, even as it has laid out a framework for resolving other conflicts between general maritime 2 law and maritime statutory law. Smith is thus not clearly irreconcilable with Atlantic Sounding or 3 Batterton.5 Accordingly, the Court continues to apply Smith, as it must, and GRANTS the motion to 4 United States District Court Northern District of California 5 dismiss on this basis. 6 B. 7 Lastly, Defendants briefly argue in their motion to dismiss that Plaintiffs’ California claims California Causes of Action 8 for negligence and strict liability should also be dismissed as redundant because Plaintiffs have 9 brought the same claims under maritime law. See Mot. at 5. In their opening brief, Defendants 10 offer no more than a sentence of analysis to buttress their request to dismiss these allegedly 11 redundant causes of action. Id. In reply, Defendants urge that all Mr. Elorreaga’s exposure “were 12 ship-based exposures.” See Rep. at 11. Plaintiffs appear to agree that these causes of action may 13 be duplicative, and that they cannot recover under both California law and maritime law for these 14 claims. See Opp. at 17. However, Plaintiffs argue that it is premature to dismiss the California 15 claims because they do not yet know for certain whether Mr. Elorreaga’s asbestos exposure 16 occurred while serving on Navy ships at sea or on land while working at the shipyard. See id. 17 Plaintiffs contend that further factual development is necessary to confirm whether maritime law 18 in fact applies to this case. Id. Defendants suggest that “based on the current facts, even while in 19 port, Decedent’s alleged exposures to Defendants’ products occurred shipboard and therefore fall 20 under maritime law . . . .” Rep. at 11. Yet Defendants’ argument merely highlights why dismissal 21 of these claims is inappropriate at this stage: discovery remains ongoing, and Plaintiffs have not 22 yet determined with certainty where Mr. Elorreaga’s exposure took place. The Court therefore 23 DENIES Defendants’ motion to dismiss on this ground. 24 IV. CONCLUSION Accordingly, the Court GRANTS Defendants’ motion to dismiss as to Plaintiffs’ request 25 26 27 28 5 To the extent one of the district court cases cited by Plaintiffs held that it could disregard Miles and Smith because of Atlantic Sounding, that case predated Batterton, and in any event the Court respectfully does not find its reasoning on this issue persuasive. See Barrette, 2011 WL 3516061, at *5–6. 9 1 for punitive damages and loss of consortium damages under general maritime law. The Court 2 DENIES the motion to dismiss Plaintiffs’ California causes of action. This order also terminates 3 Dkt. No. 94. 4 5 6 7 IT IS SO ORDERED. Dated: 7/7/2022 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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