Barbara Mann v. AO Smith Corp ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 21-2361
________________
BARBARA MANN, PERSONAL REPRESENTATIVE
OF THE ESTATE OF RICHARD NYBECK,
Appellant
v.
A.O. SMITH CORP.; ALLEN-BRADLEY COMPANY, CT CORPORATION
SYSTEMS; ARVIN MERITOR, SUCCESSOR TO ROCKWELL MANUFACTURING;
AURORA PUMP; BAYER CROPSCIENCE, INC., AS SUCCESSOR TO AMCHEM
PRODUCTS, INC.; BELL & GOSSETT/DOMESTIC PUMP; BORG WARNER
CORPORATION; BUFFALO PUMPS, INC.; BW/IP, INC.;
CBS CORPORATION, FORMERLY WESTINGHOUSE ELECTRIC CORPORATION;
CLEAVER-BROOKS, INC., A DIVISION OF AM-CHEM, INC.;
CRANE CO; DANA CORP, K/N/A DANA COMPANIES; FORD MOTOR CO.;
FOSTER WHEELER, LLC; GENERAL ELECTRIC COMPANY;
GOODYEAR TIRE AND RUBBER CO. CORPORATION SERVICE CO.;
GOULDS PUMPS, INC.; GRAYBAR ELECTRIC COMPANY, INC.;
HAJOCA CORPORATION; *HONEYWELL INTERNATIONAL; HONEYWELL,
INC.; IMO INDUSTRIES, INC., F/K/A DE LAVAL STEAM TURBINE COMPANY,
THE CORPORATION TRUST COMPANY; INGERSOLL-RAND & CO.; ITT BELL
GOSSET; ITT, INC.; J.A. SEXAUER; JOHN CRANE, INC.; MAREMONT
CORPORATION; METROPOLITAN LIFE INSURANCE CO.; MINNESOTA
MINING AND MANUFACTURING; OWENS-ILLINOIS, INC.; PECORA
CORPORATION; QUAKER CITY MOTOR PARTS; RAYLOC COMPANY, A
DIVISION OF GENUINE PARTS CO.; SUN COMPANY, INC.; TRANE US, INC.;
TUTHILL PUMPS; WEIL MCLAIN, A DIVISION OF THE MARLEY COMPANY,
A WHOLLY OWNED SUBSIDIARY OF UNITED DOMINION INDUSTRIES, INC.;
WEYERHAEUSER COMPANY
---------------------------------
TUTHILL PUMPS,
Third-Party Plaintiff
v.
MANVILLE PERSONAL INJURY SETTLEMENT TRUST,
Third-Party Defendant
*(Dismissed pursuant to the Clerk's Order of
01/11/2022)
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-17-cv-04428)
District Judge: Honorable Eduardo C. Robreno1
________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on October 4, 2022
Before: CHAGARES, Chief Judge, SHWARTZ, and SCIRICA, Circuit Judges.
(Filed: March 3, 2023)
________________
OPINION**
________________
SCIRICA, Circuit Judge
In 2016, Richard Nybeck sued asbestos product manufacturers in the Philadelphia
Court of Common Pleas alleging he developed lung cancer after occupational exposure to
1
After deciding the motion at issue in this appeal, Judge Robreno transferred the case to the
Honorable Mitchell S. Goldberg.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
asbestos. Foster Wheeler, an appellee in this matter2, removed the case pursuant to 28
U.S.C. §§ 1442(a)(1) and 1446. District Judge Eduardo Robreno dismissed the suit and
counsel failed to timely amend. Nybeck then brought the present suit. Judge Robreno
dismissed Nybeck’s claims against Appellees on claim preclusion grounds. Nybeck
succumbed to lung cancer in 2020; his daughter, Barbara Mann, brings this appeal on
behalf of his estate.3 As the dismissal of Nybeck’s complaint in Nybeck I was a valid final
judgment on the merits, we will affirm.
I.
In accordance with local pleading practices, Nybeck initially filed a “short form”
complaint which incorporated a master long form complaint by reference instead of
laying out defendant-specific facts and allegations. After Foster Wheeler removed
Nybeck I, Owens-Illinois, who is not an appellee, moved for dismissal for failure to state
a claim, arguing Nybeck’s short form complaint did not comply with federal pleading
standards. The District Court granted the motion but also granted Nybeck’s counsel leave
to amend his complaint.
Nybeck failed to file an amended complaint before the District Court’s deadline
because his counsel inadvertently misplaced the dismissal order. Over five months after
the deadline, Nybeck’s counsel filed a motion for leave to file an amended complaint out
of time. The Court denied the motion and dismissed the complaint, remarking that
2
Appellees are CBS Corporation, Foster Wheeler LLC, IMO Industries, Inc., and John
Crane, Inc.
3
Continuing the parties’ practice, we will refer to appellant as Richard Nybeck.
3
Nybeck’s counsel had asserted Nybeck could refile because the statute of limitations had
not yet run.
Instead of appealing the dismissal order, Nybeck’s counsel filed Nybeck II. In his
brief, Nybeck explains that he understood the District Court’s order as an “apparent
invitation” to refile rather than make a Fed. R. Civ. P. 60 motion or appeal. Appellant Br.
at. 8. Appellees moved to dismiss, arguing that the new complaint was precluded by the
District Court’s dismissal order in Nybeck I. The Court granted Appellees’ motion4, and
Nybeck took this appeal.
II.5
Nybeck contends the District Court erred in dismissing Nybeck I. As this appeal is
from the dismissal of Nybeck II, not Nybeck I, the sole issue before us is whether claim
preclusion bars Nybeck’s renewed claims against Appellees.6 We answer that question in
the affirmative.
4
Claim preclusion can be a proper basis for a 12(b)(6) dismissal if the grounds for
preclusion are “apparent on the face of the complaint,” Bethel v. Jendoco Constr. Corp.,
570 F.2d 1168, 1174 & n.10 (3d Cir. 1978), or when the District Court presided over the
first suit. Hoffman v. Nordic Nats., Inc., 837 F.3d 272, 280 (3d Cir. 2016) (reasoning that
the purpose of the “on the face” requirement “is to avoid factual contests at the motion to
dismiss stage”). Here, District Court Judge Eduardo Robreno presided over the dismissal
orders in both Nybeck I and Nybeck II.
5
The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate
jurisdiction under 28 U.S.C. § 1291 and review a district court’s grant of a motion to
dismiss de novo. Covington v. Int’l Ass’n of Approved Basketball Offs., 710 F.3d 114,
118 (3d Cir. 2013).
6
In general, we lack jurisdiction over civil cases that are not appealed in accordance with
Federal Rule of Appellate Procedure 4(a). Budinich v. Becton Dickinson & Co., 486 U.S.
196, 203 (1988) (“[T]he taking of an appeal within the prescribed time is mandatory and
jurisdictional . . . .”).
4
Claim preclusion is proper where (1) there is a final judgment on the merits; (2)
the same parties are involved in both suits; and (3) the same cause of action is involved in
both suits.7 In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008); see also Taylor v. Sturgell,
553 U.S. 880, 892 (2008). The “essential similarity of the underlying events giving rise to
the various legal claims” determines whether two causes of action are the same for claim
preclusion purposes. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 277 (3d Cir. 2014)
(emphasis omitted) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 261 (3d Cir.
2010)). Nybeck argues the first element of claim preclusion is not met and suggests, in a
roundabout fashion, that the second element is likewise not met. Nybeck does not contest
the third element.
Nybeck’s clearest argument goes to the first element of claim preclusion: a final
judgment on the merits. Nybeck claims he reasonably believed that his complaint in
Nybeck I was dismissed without prejudice and, in the alternative, that the dismissal
pursuant to Rule 12(b)(6) was invalid. Appellees respond that Nybeck is, in effect,
attempting to appeal Nybeck I. We agree.
A district court’s dismissal without prejudice for failure to state a claim is
converted into a dismissal with prejudice if plaintiff “declar[es] his intention to stand on
7
The parties assume federal preclusion law applies. Pennsylvania preclusion law
produces the same result. Compare McArdle v. Tronetti, 627 A.2d 1219, 1222 (Pa. Super.
Ct. 1993) (explaining that, under Pennsylvania law, “res judicata generally is thought to
turn on the essential similarity of the underlying events giving rise to the various legal
claims”) with Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 277 (3d Cir. 2014)
(applying federal preclusion law and offering the same explanation).
5
his complaint” by failing to timely amend it. Hoffman v. Nordic Nats., Inc., 837 F.3d 272,
279 (3d Cir. 2016) (quoting Borelli v. City of Reading, 532 F.2d 950, 951–52 (3d Cir.
1976)). Nybeck asserts he did not “stand on his complaint” because he declared no
intention of doing so.
In support of his contention, Nybeck attempts to distinguish his case from
Hoffman. Hoffman, “a serial pro se class action litigant,” chose to file a new complaint,
rather than amend the original, after the District Court entered an adverse judgment on
the pleadings. Hoffman, 837 F.3d at 274, 276. When Hoffman appealed the District
Court’s decision to dismiss his second suit on claim preclusion grounds, this Court
affirmed, finding that Hoffman had declared his intention to stand on his original
complaint by filing a new lawsuit. Id. at 279–80. Nybeck points out that he did not make
an affirmative decision to refile, as Hoffman did. Instead, he inadvertently missed the
filing deadline and then attempted to amend his complaint out of time.8 This is not a
legally significant distinction. A plaintiff who inadvertently fails to amend his complaint
has still failed to amend it. See Id. at 279 n.49 (listing cases).
The second element of claim preclusion is also met here. Nybeck agrees that he
and Appellees were parties to both Nybeck I and Nybeck II. He suggests, however, that
8
In his reply brief, Nybeck characterizes his untimely Motion for Leave to Amend as a
Rule 60(b) motion. Even if Nybeck’s Motion for Leave were reclothed as a Rule 60(b)
motion, it would not have the effect he seeks. According to Nybeck, if the Motion for
Leave is understood as a Rule 60(b) motion, the District Court’s dismissal order would
not be final. In emphasizing that he brought the motion within a year of the District
Court’s judgment, as required under 60(d), Nybeck neglected to give due attention to
60(c)(2): “The motion does not affect the judgment’s finality or suspend its operation.”
6
claim preclusion is improper because Appellees did not join Owen-Illinois’ motion to
dismiss in Nybeck I. Nybeck proposes that Appellees could not have joined Owen-
Illinois’ motion because some defendants in Nybeck I filed answers in state court.
Nybeck did not properly preserve this line of argument. Even if he had, it is
unavailing. A district court is empowered to dismiss a complaint sua sponte under Rule
12(b)(6), even as to non-moving defendants, so long as the plaintiff has notice and an
opportunity to respond. See, e.g., Oatess v. Sobolevitch, 914 F.2d 428, 430 n.5 (3d Cir.
1990) (approving, in at least some cases, sua sponte dismissal after service of process
when plaintiff is given the opportunity to respond); Briscoe v. Klaus, 538 F.3d 252, 259
(3d Cir. 2008) (approving sua sponte dismissal when district court has “acquired
knowledge of the facts it needs to make an informed decision”); Martinez-Rivera v.
Sanchez Ramos, 498 F.3d 3, 7 (1st Cir. 2007) (similar); see also Acequia, Inc. v.
Prudential Ins. Co. of Am., 226 F.3d 798, 807 (7th Cir. 2000) (“[W]here one defendant
succeeds in winning summary judgment on a ground common to several defendants, the
district court may also grant judgment to the non-moving defendants, if the plaintiff had
an adequate opportunity to argue in opposition.”).
Nybeck responded to Owen-Illinois’ motion to dismiss. The deficiencies Owens-
Illinois identified in its motion were common to all defendants, as they stemmed from
Nybeck’s use of a short form complaint. Accordingly, the second element of claim
preclusion is met.
V.
Nybeck cannot now challenge the District Court’s dismissal of Nybeck I. Under
7
this Circuit’s precedent, a plaintiff is said to “stand on his complaint” even if his failure
to file a timely motion to amend was inadvertent. Hoffman, 837 F.3d at 279–80. His
failure to file a timely motion to amend, though inadvertent, means that Nybeck I was
dismissed on the merits.
Accordingly, we will AFFIRM the District Court’s dismissal of Nybeck II on
claim preclusion grounds.
8