United States District Court, E.D. Louisiana
ESSIE LEMIEUX, ET AL.
CSR LTD., ET AL.
ORDER AND REASONS
the Court is Defendant “American Optical
Corporation's Rule 12(b)(6) Motion to Dismiss.”
Rec. Doc. 9. Plaintiff timely filed a memorandum in response.
Rec. Doc. 13. Defendant then requested, and was granted,
leave to file a reply memorandum. Rec. Doc. 17. For the
reasons discussed below, IT IS ORDERED that the motion to
dismiss (Rec. Doc. 9) is GRANTED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
case arises out of the death of Raymond J. Lemieux, Sr.
(“Decedent”). From February 29, 1956 through
February 23, 1970, Decedent was employed by the
Johns-Manville Corporation at its Marrero, Louisiana
facility. Rec. Doc. 1 at ¶ 7. While employed under
various job titles, Decedent wore the R9100 respirator
designed by Defendant American Optical Corporation
(“Defendant”) and was exposed to asbestos
supplied by Defendant CSR Ltd. (“CSR”).
Id. at ¶¶ 7-8. As a result of this
exposure, Decedent “developed asbestos-related lung
cancer, which caused his death on December 18, 2015.”
Id. at ¶ 10.
Decedent was diagnosed with lung cancer on June 15, 2009, he
entered into settlement discussions with Defendant American
Optical. Rec. Doc. 1 at ¶¶ 19-20. Decedent's
wife and children were unaware of these discussions, but were
eventually asked to sign a release of their future claims as
a condition of Decedent's settlement with Defendant
American Optical. Id. at ¶¶ 21-22. Even
though they were not represented by their own counsel, did
not understand “the nature or value of their future
claims, ” and “receiv[ed] no compensation for
release of their claims, ” Decedent's wife and
children signed the release. Id. at ¶¶ 21,
23-24. Because they were not represented by their own
counsel, Decedent's wife and children now seek a
declaratory judgment under Louisiana Code of Civil Procedure
1871 that the release is null and void and vitiating their
consent thereto. Id. at ¶ 26.
November 22, 2016, Decedent's widow, Essie Lemieux, and
surviving children, Raymond J. Lemieux, Jr. and Dehon Lemieux
Callier, (“Plaintiffs”) filed suit against CSR
and American Optical. Rec. Doc. 1. As to Defendant American
Optical, Plaintiffs claimed that the R9100 was advertised
“as providing adequate respiratory protection against
the inhalation of pneumoconiosis-producing dust, including
asbestos, ” when it actually “allowed asbestos
fibers to penetrate into the breathing zone of the wearer,
causing dangerous amounts of asbestos fibers to be inhaled .
. . .” Id. at ¶ 15. Accordingly,
Plaintiffs argue that the R9100 was defectively designed and
contained an inadequate warning and that Defendant American
Optical fraudulently marketed the R9100 as approved by the
Bureau of Mines, in violation of Louisiana Civil Code article
1953 and 15 U.S.C. §§ 1125(1) and (2). Id.
at ¶¶ 15-16, 18. Plaintiffs claim damages for
funeral and burial expenses, loss of consortium, loss of love
and affection, loss of support, loss of services, and for
mental pain and anguish, as well as damages and
attorneys' fees for the fraudulent marketing and
advertising of the R9100. Id. at ¶¶
January 30, 2017, Defendant American Optical filed the
instant motion to dismiss for failure to state a claim upon
which relief can be granted. Rec. Doc. 9.
THE PARTIES' CONTENTIONS
argues that Decedent filed suit against it in Louisiana state
court and that this suit was resolved when Decedent and
Plaintiffs entered into a settlement agreement with Defendant
in February of 2011. Rec. Doc. 9-1 at 1. Pursuant to the
agreement, Defendant agreed to pay Decedent and Plaintiffs
“a confidential sum in exchange for a release that bars
all claims against [Defendant] relating to [Decedent's]
asbestos exposure, including ‘all wrongful death claims
or causes of action . . . that they may have in the future
upon the death of their husband and father, Raymond Lemieux,
Sr.'” Id. at 1-2 (citing Rec. Doc.
9-2).Defendant argues that (1) “Plaintiffs
are barred from seeking annulment of [this agreement] under
Louisiana Civil Code article 2032 because more than five
years have passed since the [a]greement was reached”;
and (2) even if they were not so barred, “the facts
that they allege are not grounds for voiding a settlement
agreement under settled Louisiana law.” Id. at
2 (citing Daigle v. Clemco Indus., 92-0604 (La.
2/1//93); 613 So.2d 619, 621).
LAW AND ANALYSIS
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
party can move to dismiss a complaint for failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); see also Twombly, 550 U.S. 544. Such
motions are viewed with disfavor and rarely granted.
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242,
247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1050 (5th Cir. 1982)). Nonetheless, “[t]o survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). 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. Further, when
reviewing a motion to dismiss, courts must accept all
well-pleaded facts as true and view them in the light most
favorable to the non-moving party. See Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
the Court may only consider the pleadings on a motion to
dismiss for failure to state a claim. See Fed. R.
Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) . .
., matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”).
“[d]ocuments that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are
referred to in the plaintiff's complaint and are central
to her claim.” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 499 (5th Cir. 2000) (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)) (other citations omitted)
(approving of the district court's consideration of
documents attached to a motion to dismiss in part because the
plaintiffs did not object to, or appeal, the district
court's consideration of the documents). “In so
attaching, the defendant merely assists the plaintiff in
establishing the basis of the suit, and the court in making
the elementary determination of whether a claim has been
stated.” Id.; see also Carter v. Target
Corp., 541 F. App'x 413, 417 (5th Cir. 2013) (where
the Fifth Circuit determined that the district court properly
considered two Equal Employment Opportunity Commission
(“EEOC”) charges attached to the defendant's
motion to dismiss, because the charges were essential to
determining whether they were filed within the applicable
statute of limitations and whether the allegations contained
in them alleged a colorable violation of Title VII; according
to the Fifth Circuit, “[t]hese issues are central to
[the plaintiff's] pleadings, and her failure to include
them does not allow her complaint to bypass [the
defendant's] motion to dismiss unexamined”);
Borders v. Chase Home Fin. L.L.C., No. 09-3020, 2009
WL 1870916, at *5 (E.D. La. June 29, 2009) (“because
the Settlement agreement documents attached to [the
defendant's] motion are referenced in Plaintiff's
complaint, central to-and in fact entirely dispositive
of-plaintiff's claims, and because Plaintiff has not
questioned the substantive validity of the documents, the
Court finds that the documents are properly submitted in the
context of the present motion”).
Plaintiffs do not explicitly object to the Court's
consideration of the release on Defendant's motion to
dismiss. The release was referred to by Plaintiffs in their
complaint (see Rec. Doc. 1 at ¶¶ 19-26),
likely in anticipation of Defendant's arguments, and, in
their memorandum in opposition to Defendant's motion,
Plaintiffs simply argue that the release is null-not that
they should not be considered on a motion to dismiss. The
only mention of this issue is when Plaintiffs stated that
Defendant “attached the Release executed by Plaintiffs
to their Motion to Dismiss in an apparent attempt to invite
the Court to treat their Motion as a Rule 56 Motion for
Summary Judgment” (Rec. Doc. 13 at 3) and that
“if this occurs, all parties must be given a reasonable
opportunity to present all material pertinent to the
motion” (id. at 9).
Court finds that the release is properly considered as part
of the pleadings and therefore as part of Defendant's
motion to dismiss. The release is explicitly mentioned in
Plaintiffs' complaint, Plaintiffs do not object to the
Court's consideration of the release, the release is
essential to determining whether or not Plaintiffs' claim
that the release is null is prescribed, and the release is
central to (and potentially dispositive of) Plaintiffs'
ARE PLAINTIFFS BARRED FROM ARGUING THAT THE SETTLEMENT
AGREEMENT IS NULL?
Louisiana law, an “[a]ction for annulment of an
absolutely null contract does not prescribe.” La. Civ.
Code Ann. art. 2032. However, an action to annul “a
relatively null contract must be brought within five years
from the time the ground for nullity either ceased, as in the
case of incapacity or duress, or was discovered, as in the
case of error or fraud.” Id. According to
Louisiana case law, “the reasonableness of the
plaintiff's action or inaction is a fundamental precept
that the court must focus on in determining when prescription
commences.” Sepulvado v. Procell, 12-271
(La.App. 3 Cir. 10/3/12); 99 So.3d 1129, 1135 (citing
Tiger Bend, L.L.C. v. Temple-Inland, Inc., 56
F.Supp.2d 686 (M.D. La. 1999)). Accordingly, the doctrine of
contra non valentem, which provides that
prescription commences on the date the inured party discovers
or should have discovered facts upon which his cause of
action is based, “will not except the plaintiff's
claim from the running of prescription if his ignorance is
attributable to his own willfulness or neglect; that is, a
plaintiff will be deemed to know what he could by reasonable
diligence have learned.” Id. (quoting
Corsey v. State, Through Dep't of Corr., 375
So.2d 1319, 1322 (La. 1979)).
release entered into by Plaintiffs was signed and dated on
February 10, 2011. Rec. Doc. 9-2. According to Defendant,
“Plaintiffs filed this lawsuit more than five years
after they entered into the Settlement Agreement, when they
were fully aware of the facts that allegedly give rise to the
nullity, including the fact that they were not represented by
independent counsel and were not receiving any direct
compensation.” Rec. Doc. 9-1 at 7-8.
appear to argue that that the prescriptive period in this
case did not begin to run until their alleged error or
Defendant's alleged fraud was discovered. Rec. Doc. 13 at
2. Specifically, they claim that “they did not
understand that they had future individual claims that might
arise upon [their] husband's/father's death and,
therefore, did not knowingly release those claims.
Additionally, Plaintiffs asserted that [Defendant]
misrepresented to Plaintiffs that they had legal counsel with
regard to the Release document. They did not.”
Id. Plaintiffs further argue that the release does
not “support a claim that the five year prescriptive
period should begin in 2011, ” because (1) “the
language regarding ‘wrongful death claims' is much
too vague and indiscernible to suggest that lay people . . .
should have known that they were releasing future individual
claims”; (2) the release misrepresents the role of
Decedent's counsel and Defendant's allegedly misled
“Plaintiffs into believing that they could rely on