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Lemieux, v. CSR Ltd,

United States District Court, E.D. Louisiana

March 28, 2017


         SECTION "B"(5)


         Before 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.


         This 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.

         After 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.

         On 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 ¶¶ 25-26.[1]

         On 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.


         Defendant 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).[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).


         Under 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).

         Generally, 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.”).

         However, “[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”).

         Here, 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).

         The 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' claims.[3]


         Under 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)).

         The 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.

         Plaintiffs 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 [Decedent's ...

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