United States District Court, N.D. California
For Ron Rodriguez, Lawrence McClarty, Martin Dergen, Tony Cappabianca, Romulado Alvarez, Eric Driggs, Randy Maddox, Brian Sullivan, John Cho, Donald Helgesen, Roy Jensen, John Ross, Steve Lewandowski, Plaintiffs: Thomas Franklin Friedberg, LEAD ATTORNEY, Law Offices of Friedberg and Bunge, San Diego, CA.
For United Airlines, Inc., Defendant: Caitlin C. Ross, Gregory Charles Read, James Landon Mink, Michael Louis Fox, LEAD ATTORNEYS, Sedgwick LLP, San Francisco, CA.
For Leading Edge Aviation Services, Inc., Defendant: Jeffrey George Jacobs, LEAD ATTORNEY, Law Ofc Jeffrey G Jacobs, Irvine, CA.
ORDER GRANTING MOTIONS TO DISMISS
PHYLLIS J. HAMILTON, United States District Judge.
Defendants' motions to dismiss the first amended complaint came on for hearing before this court on November 20, 2013. Plaintiffs appeared by their counsel Thomas F. Friedberg; defendant United Airlines, Inc. appeared by its counsel Michael L. Fox; and defendant Leading Edge Aviation Services, Inc. appeared by its counsel Jeffrey G. Jacobs. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motions as follows.
In this personal injury case, plaintiffs Ron Rodriguez, Lawrence McClarty, Martin Dergen, Tony Cappabianca, Romulado Alvarez, Eric Driggs, Randy Maddox, Brian Sullivan, John Cho, Donald Hegelsen, Roy Jensen, John Ross, and Steve Lewandowski filed suit against defendants United Airlines, Inc. (" United" ) and Leading Edge Aviation Services, Inc. (" Leading Edge" ) in May 2013. Plaintiffs allege that they were injured in the workplace by exposure to hexavalent chromium.
Defendants removed the case to this court, asserting jurisdiction based on federal defenses, and then moved to dismiss the original complaint for failure to state a claim. The court granted the motions, with leave to amend to allege facts supporting the elements of the claims.
Plaintiffs were employed by United as aircraft mechanics. They allege that beginning in about 1998, United developed a maintenance program for repairs to the F117, a United States Air Force (" USAF" ) aircraft. As part of this maintenance program, United developed procedures for repairs to the F117, including the inlet cowl assembly. These repairs included sanding the F117 nose inlet cowls to remove paint and primer. In order to accomplish this work, United set up a sanding booth at its San Francisco Maintenance Center.
Each of the plaintiffs asserts that he was assigned to work in the United sanding booth, 1-3 times a week, for up to four hours at a time, using a power orbital sander to remove the gray paint and the green primer from the nose inlet cowls. Plaintiffs claim that the green primer used
on the F117 inlet cowls contained hexavalent chromium, and that the sanding caused hexavalent chromium particles to become airborne. Plaintiffs allege that from 2003 until June 11, 2011, they were exposed to higher than Permissible Exposure Limit of hexavalent chromium, and that United failed to provide sufficient protective gear, such as appropriate HEPA filters, and failed to provide vacuums to remove the carcinogenic dust before it could reach the workers' faces.
Plaintiffs contend that hexavalent chromium is a known carcinogen that can cause lung cancer if inhaled at sufficient concentrations, and can also adversely affect the respiratory tract and the skin and eyes. They assert that United was aware of the toxicity of hexavalent chromium from the relevant Material Safety Data Sheet, and that it employed individuals whose job it was to monitor hexavalent chromium exposure. Each of the 13 plaintiffs alleges a cause of action against United, asserting the fraudulent concealment exception to California Labor Code § 3602(b)(2).
In addition to the claims asserted against United, five of the plaintiffs (Rodriguez, Dergen, Driggs, Maddox, and Sullivan) also each allege a cause of action for negligence against Leading Edge. They assert that following United's receipt of a violation notice from Cal-OSHA on June 20, 2011, for knowing exposure of its workers to carcinogenic levels of hexavalent chromium, United suspended its sanding operations at the San Francisco Maintenance Center, and subcontracted the work to Leading Edge.
Plaintiffs allege that from June 20, 2011, until September 2011, Leading Edge sanded the nose inlet cowls while the nose inlet cowels were in the crates; that Leading Edge then shipped the crates containing the sanded nose inlet cowls back to United, where plaintiffs Rodriguez, Dergen, Driggs, Maddox, and Sullivan were tasked with opening the crates; and that when they did so, they were further exposed to carcinogenic levels of hexavalent chromium.
Defendants now seek an order dismissing the FAC for failure to state a claim.
A. Legal Standards
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a " short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The court is to " accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The allegations in the complaint " must be enough to raise a right to relief above the
speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and quotations omitted).
A motion to dismiss should be granted if the complaint does not proffer enough facts to state a claim for relief that is plausible on its face. See id. at 558-59. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). " [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Id. at 679. In the event dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. See Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).
In actions alleging fraud, " the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). Under Rule 9(b), " allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Bly-Magee ...