Freeman v. BAE Systems San Diego Ship Repair Inc.

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 LINNEA FREEMAN, KATTI Case No.: 22-cv-0934-L-KSC

FREEMAN, & DENNEA FREEMAN,

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ORDER:

Plaintiffs,

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v. (1) DENYING MOTION TO DISMISS

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[ECF No. 4]

BAE SYSTEMS SAN DIEGO SHIP

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REPAIR INC. f/k/a SOUTHWEST

(2) GRANTING IN PART AND

15 MARINE, INC., HUNTINGTON

DENYING IN PART MOTION TO

INGALLS INCORPORATED f/k/a

16 DISMISS [ECF No. 5]

NEWPORT NEWS SHIPBUILDING

17 AND DRY DOCK COMPANY,

(3) GRANTING IN PART AND

successor by merger to CONTINENTAL

18 DENYING IN PART MOTION TO

MARITIME INDUSTRIES, INC.,

DISMISS [ECF No. 6]

19 NATIONAL STEEL AND

SHIPBUILDING COMPANY, and DOES

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1–400,

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Defendants.

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23 Pending before the Court in this wrongful death action are motions to dismiss filed

24 by Defendant BAE Systems San Diego Ship Repair Inc. (“BAE”), Defendant Huntington

25 Ingalls Incorporated (“HIC”), and Defendant National Steel and Shipbuilding Company

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1 (“NASSCO”). (ECF Nos. 4, 5, 6.) Plaintiffs Linnea Freeman, Katti Freeman, and Dennea

2 Freeman (collectively, “Plaintiffs”) opposed, (ECF Nos. 11, 12, 13), and Defendants filed

3 replies, (ECF Nos. 14, 15, 16). For the reasons stated below, HIC’s motion to dismiss is

4 denied in full while BAE’s and NASSCO’s motions to dismiss are granted in part and

5 denied in part.

6 I. BACKGROUND

7 According to the allegations in the complaint, Plaintiffs are the surviving heirs of

8 Dennis Freeman (“Decedent”). (ECF No. 1, Compl., at 2.) Decedent worked as an

9 insulation contractor at various shipyards in California, Washington and Hawaii beginning

10 in about 1980 through the mid-1990s. (Id. at 15.) Decedent sustained lung injuries as a

11 result of his inhalation of asbestos fibers released during the handling of asbestos-

12 containing products at these jobsites. (Id.) Plaintiffs allege that Defendants manufactured,

13 distributed, or sold asbestos-containing products and supplied, installed, or maintained

14 such products at Decedent’s worksites which resulted in his prolonged exposure and

15 eventual illness and death. (Id.)

16 Plaintiffs bring four causes of action for: (1) negligence under maritime law; (2)

17 negligence under California law; (3) strict liability under maritime law; and (4) strict

18 liability under California law. (See generally id.) Plaintiff Linnea Freeman, Decedent’s

19 wife, brings an additional claim for loss of consortium. (Id. at 11–12.) All Defendants

20 move to dismiss Plaintiffs’ negligence and strict liability claims for failure to state a claim,

21 and BAE moves additionally to dismiss Linnea’s claim for loss of consortium. BAE also

22 challenges this Court’s subject-matter jurisdiction while HIC contends that this Court lacks

23 personal jurisdiction over it. Finally, BAE seeks dismissal of Plaintiffs’ prayers for

24 damages for fraud and punitive damages while NASSCO attacks Plaintiffs’ specific

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1 allegations of fraudulent conduct. The Court begins by addressing the jurisdictional-

2 related matters then turns to the sufficiency of the complaint.

3 II. SUBJECT-MATTER JURISDICTION

4 A party may challenge the Court’s subject-matter jurisdiction by bringing a motion

5 to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d

6 1214, 1242 (9th Cir. 2000). “Rule 12(b)(1) jurisdictional attacks can be either facial or

7 factual.” Id. “A ‘facial attack accepts the truth of the plaintiff’s allegations but asserts that

8 they ‘are insufficient on their face to invoke federal jurisdiction.’” Leite v. Crane Co., 749

9 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035,

10 1039 (9th Cir. 2004)).

11 BAE’s jurisdictional attack is facial, positing that the allegations in the complaint

12 are insufficient to invoke federal jurisdiction. (ECF No. 6, at 12–14.) “The district court

13 resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the

14 plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff’s favor,

15 the court determines whether the allegations are sufficient as a legal matter to invoke the

16 court's jurisdiction.” Leite, 749 F.3d at 1121.

17 BAE contends that this Court lacks maritime jurisdiction over the present action,

18 (ECF NO. 6, at 12–14), while NASSCO argues the contrary, (ECF No. 5, at 10). The Court

19 agrees with NASSCO.

20 Federal courts have original jurisdiction to hear admiralty and maritime tort claims.

21 U.S. Const. art. III § 2, cl.1; 28 U.S.C. § 1333(1). “[A] party seeking to invoke federal

22 maritime jurisdiction over a tort claim must satisfy both a location test and a connection

23 test.” Gruver v. Lesman Fisheries Inc., 489 F.3d 978, 982 (9th Cir. 2007) (citing Jerome

24 B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)). The

25 “location test” turns on “whether the tort occurred on navigable water or whether injury

26 suffered on land was caused by a vessel on navigable water.” Grubart, 513 U.S. at 534.

27 “The connection test raises two issues.” Id. “A court, first, must ‘assess the general

28 features of the type of incident involved,’ to determine whether the incident has ‘a

1 potentially disruptive impact on maritime commerce.’” Id. (quoting Sisson v. Ruby, 497

2 U.S. 358, 363–64 (1990)). “Second, a court must determine whether ‘the general

3 character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to

4 traditional maritime activity.’” Id. (quoting Sisson, 497 U.S. at 364 & n.2, 365).

5 In regard to the location test, Plaintiffs allege that Decedent was exposed to asbestos

6 at various shipyards. (ECF No. 1, at 15.) It is undisputed that exposure to asbestos during

7 the repair of vessels floating on navigable waters satisfies the location test, Myhran v.

8 Johns-Manville Corp., 741 F.2d 1119, 1121 (9th Cir. 1984), as do injuries incurred during

9 the repair of ships in drydock, Simmons v. The Steamship Jefferson, 215 U.S. 130, 142

10 (1909); Perry v. Haines, 191 U.S. 17, 34 (1903). With this in mind, and “drawing all

11 reasonable inferences in [Plaintiffs’] favor,” Leite, 749 F.3d at 1121, the Court concludes

12 that Decedent’s exposure through his work as an insulation contractor at various shipyards

13 over the span of over a decade took place, at least in part, on “navigable waters” for

14 purposes of satisfying the location test.

15 Turning to the first prong of the connection test, the Ninth Circuit has “taken an

16 inclusive view of what general features of an incident have a potentially disruptive effect

17 on maritime commerce.” In re Mission Bay Jet Sports, LLC, 570 F.3d 1124, 1128 (9th Cir.

18 2009). Indeed, in Wallis v. Princess Cruises, Inc., 306 F.3d 827 (9th Cir. 2002), the court

19 held that a cruise ship passenger’s claim for intentional infliction of emotional distress

20 stemming from an employee’s suggestion that her missing husband had likely been

21 “sucked under the ship” and “chopped up by the propellers” fell within maritime

22 jurisdiction because “[a] cruise line’s treatment of paying passengers clearly has potential

23 to disrupt commercial activity.” 306 F.3d at 840–42. Considered alongside the treatment

24 of cruise ship passengers, the Court finds that deadly exposure to asbestos in shipyards

25 certainly falls under the wide umbrella of activities that have the potential to disrupt

26 commercial maritime activity.

27 Next, in order to show a substantial relationship to traditional maritime activity, “the

28 tortfeasor's activity must be ‘so closely related to activity traditionally subject to admiralty

1 law that the reasons for applying special admiralty rules would apply.’” Gruver v. Lesman

2 Fisheries Inc., 489 F.3d 978, 983 (9th Cir. 2007) (quoting Grubart, 513 U.S. at 539). The

3 Court finds that Plaintiffs’ allegation that Decedent was injured by unsafe work conditions

4 in shipyards is sufficient to show a substantial relationship to traditional maritime activity.

5 In sum, Plaintiffs’ complaint satisfies both the location and relationship test

6 subjecting their claims to admiralty jurisdiction.

7 III. PERSONAL JURISDICTION

8 A complaint may be dismissed for lack of personal jurisdiction under Federal Rule

9 of Civil Procedure 12(b)(2). “Personal jurisdiction over a nonresident defendant is tested

10 by a two-part analysis. First, the exercise of jurisdiction must satisfy the requirements of

11 the applicable state long-arm statute. Second, the exercise of jurisdiction must comport

12 with federal due process.” Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1404–05 (9th

13 Cir. 1994). California’s long-arm statute provides that a court “may exercise jurisdiction

14 on any basis not inconsistent with the Constitution of this state or of the United States.”

15 Cal. Civ. Proc. Code § 410.10. This statute allows courts to exercise personal jurisdiction

16 within the limits of due process. Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857,

17 863 (9th Cir. 2003). It follows that compliance with due process satisfies both parts of the

18 test for personal jurisdiction.

19 Due process demands that a nonresident defendant have “certain minimum contacts”

20 with the forum “such that the maintenance of the suit does not offend traditional notions of

21 fair play and substantial justice.” Int’l Shoe Co. v. State of Wash., Off. of Unemployment

22 Comp. & Placement, 326 U.S. 310, 316 (1945). This “minimum contacts” requirement

23 can be satisfied by establishing either general or specific jurisdiction. Schwarzenegger v.

24 Fred Martin Motor Co., 374 F.3d 797, 801–02 (9th Cir. 2004). Plaintiffs here only allege

25 specific jurisdiction over HIC. (ECF No. 11, at 5.)

26 The Ninth Circuit employs a three-part test to determine whether the exercise of

27 specific jurisdiction over a nonresident defendant is appropriate. Boschetto v. Hansing,

28 539 F.3d 1011, 1016 (9th Cir. 2008). Under that test:

1 (1) The non-resident defendant must purposefully direct his activities or

consummate some transaction with the forum or resident thereof; or perform

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some act by which he purposefully avails himself of the privilege of

3 conducting activities in the forum, thereby invoking the benefits and

protections of its laws;

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5 (2) the claim must be one which arises out of or relates to the defendant's

forum-related activities; and

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(3) the exercise of jurisdiction must comport with fair play and substantial

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justice, i.e. it must be reasonable.

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9 Id.

10 “If the plaintiff succeeds in satisfying both of the first two prongs [of the test

11 for minimum cotnacts], the burden then shifts to the defendant to ‘present a

12 compelling case’ that the exercise of jurisdiction would not be reasonable.”

13 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004)

14 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). “[W]here, as

15 here, the motion is based on written materials rather than an evidentiary hearing, the

16 plaintiff need only make a prima facie showing of jurisdictional facts.” Id. That is,

17 the plaintiff need only demonstrate facts that support a finding of jurisdiction. Data

18 Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). In

19 determining whether Plaintiff has met this burden, the Court “may not assume the

20 truth of allegations in a pleading which are contradicted by affidavit,” Mavrix Photo,

21 Inc. v. Brand Techs., Inc., 647 F.3d 1218 (9th Cir. 2011), but “conflicts between the

22 facts contained in the parties’ affidavits must be resolved in [Plaintiff’s] favor,” Am.

23 Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).

24 HIC moves to dismiss for lack of personal jurisdiction citing Plaintiffs’ failure to

25 provide facts connecting HIC to Decedent’s asbestos exposure. (ECF No. 4, at 3–4.) In

26 support of specific personal jurisdiction, Plaintiffs provide a deposition from a witness that

27 worked with Decedent who states that he and Decedent were exposed to asbestos at

28 Continental Maritime, (ECF No. 11-1, at 77), and a newspaper article that describes

1 Continental Maritime as a shipyard in San Diego, California, (id. at 110). HIC provides

2 the articles of merger that show Continental Maritime Industries, Inc. merged into Newport

3 News Shipbuilding and Dry Dock Company, (ECF No. 4-5, at 1), and a list of previous

4 names which includes Newport News Shipbuilding and Dry Dock Company. (ECF No.

5 4-4, at 1.) Based on this information, the Court finds that Plaintiffs have alleged sufficient

6 facts to establish specific jurisdiction over HIC.

7 As to the first prong of the Ninth Circuit’s specific-jurisdiction test, the

8 newspaper article places the Continental Maritime shipyard in California and the

9 articles of merger and list of previous names connect HIC to Continental Maritime

10 through Newport News Shipbuilding and Dry Dock Company. Plaintiffs have

11 therefore alleged sufficient facts to show that a corporation which later became HIC

12 purposefully availed itself in California by operating a shipyard there. Moreover,

13 the second prong is also satisfied as Plaintiffs have sufficiently shown through the

14 deposition that Decedent’s injuries resulted at least in part from exposure that took

15 place at the same California-based shipyard, giving rise to the instant action.

16 Plaintiffs have made a prima facie case of personal jurisdiction over HIC who in turn

17 has not set forth a compelling argument as to why the exercise of jurisdiction would

18 be unreasonable.

19 The Court recognizes that there is the added complexity of successor liability

20 here, and that “maritime law . . . requires a transfer of all or substantially all of the

21 predecessor’s assets to the alleged successor before successor liability will be

22 imposed on that alleged successor.” Pac. Gulf Shipping Co. v. Vigorous Shipping

23 & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021). While Plaintiffs will eventually

24 be required to provide a viable basis for liability to maintain their claims against

25 HIC, such a determination is highly fact-specific and not required to make a prima

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2 The Court considers extra-pleading material in determining whether it has personal jurisdiction over

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1 facie showing of jurisdiction. Accordingly, HIC’s motion to dismiss for lack of

2 personal jurisdiction is denied.

3 IV. APPLICABLE LAW

4 The Court now turns to the hotly contested matter of applicable law. HIC cites to

5 California law, (ECF No. 4, at 4–6), while NASSCO argues that maritime law applies,

6 (ECF No. 5, at 10–13), and BAE argues their position under both maritime and California

7 law, (ECF No. 6, at 14–19). Plaintiffs assert that the “saving to suitors” clause of 28 U.S.C.

8 § 1333 allows them to pursue state claims in addition to their maritime claims.

9 The Ninth Circuit has held that tort claims “may arise under either state law or

10 general maritime law.” Christensen v. Georgia-Pac. Corp., 279 F.3d 807, 814 (9th Cir.

11 2002). But “if the district court could have maritime jurisdiction over a tort claim,

12 ‘substantive maritime law controls’ the claim, ‘whatever the forum or asserted basis of

13 jurisdiction.’” Adamson v. Port of Bellingham, 907 F.3d 1122, 1126 (9th Cir. 2018)

14 (quoting Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 366 n.1

15 (9th Cir. 1992)); see also E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,

16 864 (1986) (“With admiralty jurisdiction comes the application of substantive admiralty

17 law.”). As this Court has maritime jurisdiction over the present action, maritime law

18 applies to Plaintiffs’ claims.3

19 While “federal admiralty courts sometimes do apply state law,” Grubart, 513 U.S.

20 at 546, state law does not apply where it would be “inconsonant with the substance of

21 federal maritime law,” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 207 (1996).

22 State law therefore does not apply to Plaintiffs’ California claims because “general

23 maritime law has recognized the tort of negligence for more than a century,” Norfolk

24 Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001), and “has likewise

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3 In light of the Court’s holding, the Court need not address Defendants’ arguments sounding in

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1 recognized common-law principles of products liability for decades,” Air & Liquid Sys.

2 Corp. v. DeVries, 139 S. Ct. 986, 993 (2019).

3 The “saving to suitors” clause does not alter this outcome. “The savings to suitors

4 clause [of 28 U.S.C. § 1333] permits the plaintiff to bring an action ‘at law’ in the federal

5 district court, provided the requirements of diversity of citizenship and amount in

6 controversy are met.” Ghotra by Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1054

7 (9th Cir. 1997). Plaintiffs fail to allege in their complaint any basis for diversity jurisdiction

8 and therefore cannot benefit from the saving to suitors clause. In any event, the only

9 differences between invoking diversity jurisdiction as opposed to maritime jurisdiction are

10 procedural (namely, the availability of a jury trial), so the applicable substantive law is

11 unchanged. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628

12 (1959) (“Where the plaintiff exercises the right conferred by diversity of citizenship to

13 choose a federal forum, the result is no different, even though he exercises the further right

14 to a jury trial.”). Thus, even if Plaintiffs had adequately pled diversity jurisdiction, federal

15 maritime law would still apply to their state claims. Since the same substantive law applies

16 to Plaintiffs’ California and maritime claims for negligence and strict liability, the Court

17 dismisses Plaintiffs’ California claims as duplicative.4 The Court then turns to Plaintiffs’

18 remaining causes of action arising out of maritime law.

19 V. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

20 A. Legal Standard

21 A 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v.

22 Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain, in part, “a short and

23 plain statement of the claim showing that the pleader is entitled to relief.”

24 Fed. R. Civ. P. 8(a)(2). But plaintiffs must also plead “enough facts to state a claim to

25 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);

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4 BAE’s motion to dismiss Plaintiffs’ California claims due to untimeliness is denied as moot. (See ECF

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1 see also Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than “a

2 formulaic recitation of the elements of a cause of action,” or “‘naked assertions’ devoid of

3 ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

4 Twombly, 550 U.S. at 557).

5 In reviewing a 12(b)(6) motion to dismiss, “[a]ll allegations of material fact are taken

6 as true and construed in the light most favorable to the nonmoving party.” Cahill v. Liberty

7 Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). However, a court need not take legal

8 conclusions as true merely because they are cast in the form of factual allegations. See

9 Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

10 “Generally, district courts may not consider material outside the pleadings when

11 assessing the sufficiency of a complaint under Rule 12(b)(6).” Khoja v. Orexigen

12 Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). When “matters outside the pleading

13 are presented to and not excluded by the court,” the 12(b)(6) motion converts into a motion

14 for summary judgment. Fed. R. Civ. P. 12(d). “A court may, however, consider certain

15 materials—documents attached to the complaint, documents incorporated by reference in

16 the complaint, or matters of judicial notice—without converting the motion to dismiss into

17 a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.

18 2003).

19 B. First Cause of Action—Negligence (Maritime)

20 1. BAE

21 According to BAE, Plaintiffs cannot establish the elements of a negligence claim

22 because they make undifferentiated claims against all Defendants. (ECF No. 6, at 15.)

23 This group pleading makes it impossible to discern which defendant is responsible for any

24 particular course of conduct, argues BAE. (Id. at 17.) “There is no flaw in a pleading,

25 however, where collective allegations are used to describe the actions of multiple

26 defendants who are alleged to have engaged in precisely the same conduct.” United States

27 v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016). It is not necessary

28 here for Plaintiffs to allege specific actions for each Defendant because each Defendant is

1 accused of identical conduct committed separately as opposed to a case where the

2 defendants are accused of acting in concert but the complaint fails to describe each

3 defendant’s role in the wrongdoing. BAE’s motion to dismiss Plaintiffs’ negligence claim

4 is denied.

5 2. NASSCO

6 NASSCO maintains that Plaintiffs’ cause of action for negligence is just a thinly

7 veiled product liability claim and must be dismissed for the same reason that Plaintiffs’

8 claim for strict liability cannot stand, which is discussed in more detail infra. (ECF No. 5,

9 at 13.) To establish negligence under maritime law, Plaintiffs must show (1) duty; (2)

10 breach; (3) causation; and (4) damages. Samuels v. Holland Am. Line-USA Inc., 656 F.3d

11 948, 953 (9th Cir. 2011). Plaintiffs complain that Defendants “had a duty to exercise due

12 care,” each of them “breached said duty,” and as a result of Defendants’ acts or omissions,

13 Decedent suffered “severe and permanent injury.” (ECF No. 1, at 6.) Plaintiffs have

14 properly stated a claim under a standard negligence theory and this alone is enough to

15 survive a 12(b)(6) challenge. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more

16 statements of a claim or defense alternatively or hypothetically . . . . If a party makes

17 alternative statements, the pleading is sufficient if any one of them is sufficient.”);

18 Molsbergen v. United States, 757 F.2d 1016, 1019 (9th Cir. 1985) (“In light of the liberal

19 pleading policy embodied in Rule 8(e)(2), we hold that a pleading should not be construed

20 as an admission against another alternative or inconsistent pleading.”). NASSCO’s motion

21 to dismiss Plaintiffs’ negligence claim is denied.

22 3. HIC

23 HIC bases its motion to dismiss Plaintiffs’ negligence claim on the group-pleading

24 argument articulated by BAE. (ECF No. 4-1, at 4.) For the reasons stated above, HIC’s

25 motion to dismiss Plaintiffs’ negligence claim is denied. See Section II.D.1.

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1 C. Third Cause of Action—Strict Liability (Maritime)

2 1. BAE

3 BAE moves to dismiss Plaintiffs’ strict liability claim arguing that Plaintiffs have

4 failed to establish the elements of causation; a necessary aspect of a strict liability claim.

5 (ECF No. 6, at 17–18.) To establish causation in asbestos-related injury cases under

6 maritime law, a plaintiff must show: (1) actual exposure to asbestos-containing materials,

7 and (2) “such exposure was a substantial contributing factor in causing [the] injuries.”

8 McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th Cir. 2016).

9 The complaint states that Decedent “has used, handled, or been otherwise exposed

10 to asbestos and asbestos-containing products,” and that “Decedent’s exposure to asbestos

11 and asbestos-containing products caused severe and permanent injury.” (ECF No. 1, at 6.)

12 At this stage, Plaintiffs have sufficiently alleged that Decedent was actually exposed to

13 asbestos and that such exposure wasn’t just a substantial factor in causing his injuries but

14 was the sole cause of his injuries. Plaintiffs sufficiently plead causation to uphold their

15 strict liability claims.

16 2. NASSCO

17 NAASCO contends that Plaintiffs’ strict liability claims are barred by maritime law

18 because a Navy ship is not a “product” within the meaning of strict liability law under

19 Ninth Circuit precedent. (ECF No. 5, at 12–13) (citing McIndoe., 817 F.3d at 1172). While

20 true, the complaint specifically alleges that Defendants, including NASSCO,

21 “manufactured, fabricated, designed, [and] developed, . . . products containing asbestos

22 and/or products which created an asbestos hazard . . . [that] were defective.” (ECF No. 1,

23 at 8.) The complaint makes no mention of manufacturing Navy ships, and there is nothing

24 in McIndoe to suggest that the court intended their holding to go beyond Navy ships and

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5 Although Plaintiffs do not address Defendants’ strict liability arguments in their oppositions, the Court

27 still considers whether dismissal is appropriate and does not deem the claims abandoned. After all,

“[t]he focus of any Rule 12(b)(6) dismissal . . . is the complaint,” not the briefs. Schneider v. California

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1 apply generally to products containing asbestos. Thus the Court cannot conclude at this

2 juncture that Plaintiffs’ claim is barred by law.

3 3. HIC

4 HIC grounds its motion to dismiss Plaintiffs’ strict liability claim in California law,

5 arguing that Plaintiffs have not satisfied the requirements for pleading a multi-defendant

6 action involving injury-producing products. (ECF No. 4-1, at 4.) Having found that

7 maritime substantive law applies to Plaintiffs’ claims, HIC’s arguments are fruitless. HIC

8 also applies the group-pleading theory to Plaintiffs’ strict liability claims which the Court

9 previously found to be unavailing. See Section II.D.1. Accordingly, HIC’s motion to

10 dismiss Plaintiffs’ strict liability claim is denied.

11 D. Fifth Cause of Action—Loss of Consortium

12 BAE moves to dismiss Plaintiff Linnea Freeman’s claim for loss of consortium on

13 the grounds that maritime law bars recovery for such a claim.7 (ECF No. 6, at 18–19.) The

14 Court agrees.

15 In contemplating issues similar to the one at hand, the Supreme Court strives to fulfill

16 Congress’s intent to “achieve uniformity in the exercise of admiralty jurisdiction.” Miles

17 v. Apex Marine Corp., 498 U.S. 19, 26 (1990) (quoting Moragne v. States Marine Lines,

18 Inc., 398 U.S. 375, 401 (1970)). It is well-established that loss of consortium claims are

19 not available: (1) under the Jones act for the death of a seaman, Miles, 498 U.S. at 32; (2)

20 under general maritime law for the death of a seaman, id. at 32–33; or (3) under the Death

21 on the High Seas Act (“DOHSA”) for the death of a non-seaman occurring on the high

22 seas, Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623 (1978). It would be discordant

23 with the Supreme Court’s holdings and Congress’ intent for this Court to allow recovery

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6 The court in McIndoe even declined to expand their holding to commercial non-Navy ships. McIndoe,

26 817 F.3d at 1174 n.3 (“We express no opinion on the circumstances under which a commercially

distributed or mass-produced vessel would qualify as a ‘product’ under maritime law.”).

27 7 Plaintiffs do not specify the law under which the loss of consortium claim is brought, but only address

maritime law in their brief. (See ECF No. 12, at 15–19.) This fact, in combination with the Court’s

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1 for loss of consortium in a case involving the death of a non-seaman that did not occur on

2 the high seas. Accordingly, BAE’s motion to dismiss Plaintiffs’ loss of consortium claim

3 is granted without leave to amend. See Knappenberger v. City of Phoenix, 566 F.3d 936,

4 942 (9th Cir. 2009) (“Leave to amend should be granted unless the district court determines

5 that the pleading could not possibly be cured by the allegation of other facts.” (quotation

6 omitted)).

7 E. Punitive Damages

8 Plaintiffs include a request for punitive damages in their complaint, (ECF No. 1, at

9 12), but BAE argues that punitive damages, like loss of consortium claims, are not available

10 under general maritime law, (ECF No. 14, at 7–9).

11 The Court begins by noting that the law concerning the availability of punitive

12 damages in maritime cases is less settled than the law surrounding loss of consortium

13 claims. In Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), the Supreme Court

14 allowed an injured seaman to recover punitive damages for his employer’s willful failure

15 to pay maintenance and cure. 557 U.S. at 407. In so holding, the Supreme Court reasoned

16 that “[h]istorically, punitive damages have been available and awarded in general maritime

17 actions, including some in maintenance and cure.” Id. But a decade later, the Supreme

18 Court held that punitive damages are unavailable in unseaworthiness actions “because there

19 is no historical basis for allowing punitive damages in unseaworthiness actions.” The

20 Dutra Group v. Batterton, 139 S. Ct. 2275 (2019). Thus, the pertinent question here seems

21 to be whether there is a historical basis for allowing punitive damages for negligence and

22 strict liability claims arising out of maritime law. See Batterton, 139 S. Ct. at 2283. The

23 answer to this question is not abundantly clear from the pleadings and would require the

24 Court to engage in an inquiry that is not appropriate at this stage of the proceedings. The

25 Court therefore declines to dismiss Plaintiff’s claim for punitive damages.

26 F. Fraud Allegations and Damages for Fraud

27 Plaintiffs’ complaint is replete with allegations that Defendants’ actions were

28 “fraudulent, oppressive, and malicious,” among other similar terms. (ECF No. 1, at 7, 10.)

1 || NASSCO moves to dismiss these allegations for failure to meet the heightened pleading

2 ||standard under Rule 9 for claims sounding in fraud. (ECF No. 5, at 16-24.) NASSCO

3 |;argues alternatively that Plaintiffs’ fraud claims fail to satisfy the lower plausibility

4 ||requirement under Rule 8. (ECF No. 5, at 21.)

5 Rule 9(b) provides in part “[m]alice, intent, knowledge, and other condition of mind

6 ||of a person may be averred generally.” That is exactly what Plaintiffs have done here.

7 || Moreover, Plaintiffs’ allege fraud in connection with their claim for punitive damages, not

8 ||as standalone causes of action. (ECF No. 12, at 20; ECF No. 13, at 8.) Plaintiffs are not

9 || therefore required to plead the substantive requirements of a cause of action arising out of

10 fraudulent conduct. Accordingly, NASSCO’s motion to dismiss these allegations is

11 denied.

12 BAE argues in a similar vein that Plaintiffs’ request for “damages for fraud” should

13 ||be dismissed because Plaintiffs fail to state a claim for fraud that would call for such

14 ||damages. (ECF No. 6, at 22-23.) The Court agrees. Plaintiffs make a naked request for

15 ||damages for fraud that is not associated with a substantive cause of action. Without

16 pleading the elements of a claim based on fraudulent conduct, Plaintiffs cannot recover

17 ||damages for fraud. BAE’s motion to dismiss this request is granted without leave to

18 amend.

19 VI. CONCLUSION

20 For the forgoing reasons, BAE’s motion to dismiss Plaintiff Linnea Freeman’s claim

21 || for loss of consortium is GRANTED without leave to amend. BAE’s motion to dismiss

22 || Plaintiffs’ request for damages for fraud is GRANTED without leave to amend. Plaintiffs’

23 ||claims for negligence and strict liability under California law are DISMISSED as

24 || duplicative. Defendants’ motions to dismiss all other claims are DENIED.

25 IT IS SO ORDERED.

26 || Dated: August 23, 2023

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28 H . James Lorenz

United States District Judge

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