United States District Court, D. Maryland
Robert C. Fish, et al.
Air & Liquid Systems Corporation, et al.
MEMORANDUM TO COUNSEL
before the Court is Defendant’s, Wayne Manufacturing
Corporation (“Wayne”), unopposed Motion to
Dismiss or, alternatively, Motion for Summary Judgment (ECF
No. 105). The Motion is ripe for disposition. No hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For
the reasons stated below, the Court will grant the Motion.
January 6, 2016, Plaintiffs Robert C. Fish and Helen
Thomas-Fish commenced this lawsuit against Wayne, as well as
many others, alleging injuries sustained as a result of Mr.
Fish’s purported exposure to asbestos-containing
products at New York Shipbuilding and Drydock in the early
nineteen sixties. (ECF No. 2). Plaintiffs also allege Mr.
Fish was exposed to asbestos-containing products when working
with and around cars and automotive parts in the nineteen
sixties and seventies. (Id.) On February 22, 2016,
Defendant Crane Co. removed the lawsuit to this Court. (ECF
No. 1). On February 29, 2016, Wayne filed its Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(6) or,
alternatively, Motion for Summary Judgment under Rule 56 (ECF
No. 105); it is unopposed.
Motion implicates the Court’s discretion under Rule
12(d). See Kensington Vol. Fire Dept., Inc. v. Montgomery
Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011),
aff’d sub nom. Kensington Volunteer Fire
Dep’t, Inc. v. Montgomery Cty., Md., 684 F.3d 462
(4th Cir. 2012). Pursuant to Rule 12(d), when “matters
outside the pleadings are presented to and not excluded by
the court, the [Rule 12(b)(6)] motion must be treated as one
for summary judgment under Rule 56.” The Court
“has ‘complete discretion to determine whether or
not to accept the submission of any material beyond the
pleadings that is offered in conjunction with a Rule 12(b)(6)
motion and rely on it, thereby converting the motion, or to
reject it or simply not consider it.’”
Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927,
at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller,
Federal Practice & Procedure § 1366, at 159
(3d ed. 2004, 2012 Supp.)). Because the Court can resolve the
Motion without considering Wayne’s extra-pleading
material, the Court will construe the Motion as a Rule
12(b)(6) motion to dismiss.
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint, ” not to “resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999) (quoting
Republican Party v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992)). A complaint fails to state a claim if it does
not contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 555
U.S. at 556). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen,
684 F.3d 435, 439 (4th Cir. 2012)), aff’d sub
nom., Goss v. Bank of Am., NA, 546
F.App’x 165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm’rs of Davidson Cty., 407 F.3d 266, 268 (4th
Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). But, the court need not accept unsupported or
conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at
list Wayne in the caption to their Amended Complaint, but the
body of their Amended Complaint is wholly devoid of any
allegations against Wayne. (See ECF No. 4).
Consequently, Plaintiffs fail to state a plausible claim
against Wayne because they do not plead “factual
content that allows the [C]ourt to draw the reasonable
inference that [Wayne] is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 555 U.S. at 556); see Weller v.
Dep’t of Soc. Servs. for City of Balt., 901 F.2d
387, 397 (4th Cir. 1990) (affirming dismissal for failure to
state a claim as to two defendants because there were no
allegations against them). Accordingly, the Court will grant
foregoing reasons, Wayne’s unopposed Motion to Dismiss
or, alternatively, Motion for Summary Judgment (ECF No. 105)
is GRANTED. Plaintiffs’ Amended Complaint (ECF No. 4)
is DISMISSED WITH PREJUDICE as to Wayne. Despite the informal
nature of this memorandum, it shall constitute an Order of
the Court, and the Clerk is directed to docket it accordingly
and terminate Wayne from this case.
L. Russell, III United States District Judge.
 Plaintiffs allege negligence (Count
I), strict products liability (Count II), breach of warranty
(Count III), aiding and abetting and conspiracy (Count IV),
willful and wanton conduct (Count V), and loss ...