United States District Court, S.D. Illinois
SYLVIA PEREZ, Individually and as Special Administrator of the Estate of Armando Perez, Plaintiffs,
AIR AND LIQUID SYSTEMS CORPORATION, Individually and as Successor to BUFFALO PUMPS, INC., et al., Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
matter comes before the Court on several motions to dismiss.
On August 1, 2016, Defendant General Electric Company
(“GE”) filed a motion to dismiss for lack of
personal jurisdiction (Doc. 11). On August 5, 2016,
Defendants Air & Liquid Systems and Warren Pumps filed
nearly identical motions to dismiss for failure to state a
claim (Docs. 29, 30). Defendant John Crane joined in the
motion filed by Air & Liquid Systems on August 22, 2016
(Doc. 38). The motions are fully briefed and ripe for review.
Sylvia Perez, Special Administrator of the Estate of Decedent
Armando Perez, brought this action against numerous
defendants for injuries her husband allegedly sustained from
asbestos exposure while serving in the United States Navy
from approximately 1944 to 1946 (Doc. 1-1, p. 5). The
decedent trained in San Diego, California, and was stationed
in Honolulu, Hawaii (Id.). He primarily served
aboard the USS Maryland but also worked at various ports when
the USS Maryland was being repaired (Id.). Perez
claims that the decedent was exposed to asbestos fibers from
various products he worked with that were sold by Defendants
during his time in the Navy (Id.). On May 4, 2015,
the decedent was diagnosed with mesothelioma, which
ultimately led to his death (Id., p. 7-8).
1, 2016, Perez filed a complaint in the Circuit Court of
Madison County, Illinois, alleging negligence as to
manufacturers of asbestos products (Count I), willful and
wanton misconduct (Count II), and loss of consortium (Count
III). On July 25, 2016, Defendant Crane Co. removed the case
to this Court on the basis of federal officer jurisdiction
under 28 U.S.C. § 1442. The Court recently found that
federal subject matter jurisdiction is proper and denied
Plaintiff's motion to remand the case back to state court
(see Doc. 76).
Motions to Dismiss Count III
Court first reviews the motions to dismiss Count III,
Perez's loss of consortium claim, filed by Defendants Air
& Liquid Systems, Warren Pumps, and John Crane (Docs. 29,
30, 38). Defendants claim that Count III should be dismissed
because a claim under the Illinois Wrongful Death Act renders
a separate claim for loss of consortium superfluous. They
assert that Illinois courts consistently and explicitly state
that a widow “is precluded from bringing her loss of
consortium count as an additional remedy when she also filed
a count arising from the Wrongful Death Act.” See
Kubian v. Alexian Bros. Medical Ctr., 272 Ill.App.3d
246, 255 (2d Dist. 1995) (citing Knierim v. Izzo,
174 N.E.2d 157 (Ill. 1961)). As a result, they argue, Count
III for loss of consortium should be dismissed.
response, Perez asserts that she brought claims under both
the Survival Act and the Wrongful Death Act. Under the
Wrongful Death Act, she can recover for pecuniary losses from
her husband's death, arising after his death, including
loss of consortium. Under the Survival Act, she can recover
for the pain and mental suffering and expenses her deceased
husband sustained between the time of his injury and death.
She argues that her claim for loss of consortium is
derivative of her Survival Act claim; that is, she seeks
damages for injuries to the marital relationship that
occurred between the time her husband was injured and his
death. Perez notes that while she did not expressly invoke
the Survival Act in her Complaint, her allegations are
sufficient to state a claim under both the Wrongful Death Act
and the Survival Act.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is meant to “test the sufficiency of the
complaint, not to decide the merits” of the case.
Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th
Cir. 1990) (citation omitted). Dismissal of an action under
this motion is warranted if the plaintiff can prove no set of
facts in support of its claims that would entitle it to
relief. Gen. Elec. Capital Corp. v. Lease Resolution
Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In
evaluating a motion to dismiss, the Court must accept all
well-pleaded allegations in the complaint as true and draw
all reasonable inferences in the plaintiff's favor.
Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d
901, 903 (7th Cir. 2011); Thompson v. Ill. Dep't. of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
the Wrongful Death Act, a personal representative of the
decedent may bring an action for his or her own losses
resulting from the decedent's death, “arising
after his death, i.e., for his lost wages
and other such monetary losses.” Eisenmann v.
Cantor Bros., 567 F.Supp. 1347, 1350 (N.D. Ill. 1983)
(citing Murphy v. Martin Oil Co., 308 N.E.2d 583
(Ill. 1974)). “The purpose of the Wrongful Death Act is
to compensate the surviving spouse and next of kin for the
pecuniary losses sustained due to the decedent's
death.” Elliott v. Willis, 442 N.E.2d 163, 168
(Ill. 1982). “Loss of consortium is one of the
pecuniary injuries compensable in a wrongful death action . .
. and, therefore, the common law action for loss of
consortium is not available as an additional remedy to the
surviving spouse.” Dunleavy v. Keene Corp.,
No. 86-C-2759, 1987 WL 4403, at *1 (N.D. Ill. Feb. 11, 1987).
facts of Dunleavy v. Keene Corp. are strikingly
similar to those presented here. The plaintiff in that case
brought an action against numerous defendants alleging
personal injury, wrongful death, and loss of consortium as a
result of her husband's exposure to the defendants'
asbestos products. Id. The defendants moved to
dismiss the loss of consortium claim because it was
superfluous to recovery sought under the Wrongful Death Act.
Id. The district court agreed that, to the extent
the plaintiff sought loss of consortium damages arising
after her husband's death, she did not state a
claim. Id. In addition to the wrongful death claim,
however, the plaintiff, as administrator of her husband's
estate, also brought claims arising under the Survival Act
for injuries sustained during the interval between the
decedent's injury and his death. The court held that
“[t]o the extent that the loss of consortium count
seeks damages for injury to the marriage during the interval
between the decedent's injury and his death, it is
derivative of the surviving personal injury claims and is not
part of the wrongful death claim.” Id. Thus,
the court denied the defendants' motion to dismiss the
plaintiff's loss of consortium claim. Id.
Dunleavy, Perez has brought a claim under the
Illinois Survival Act for personal injuries her husband
suffered prior to his death. The Complaint alleges that the
decedent experienced great physical pain and mental anguish
as a result of the inhalation, ingestion, and absorption of
asbestos fibers (Doc. 1-1, p. 8). Perez also alleges her
husband was compelled to expend and become liable for large
sums of monies for hospital, medical, and other health care
services necessary for the treatment of his asbestos-induced
disease and to alleviate the pain, suffering, mental anguish,
and physical disability caused by his injury. See
Eisenmann v. Cantor Bros., 567 F.Supp. 1347, 1351 (N.D.
Ill. 1983) (the Survival Act allows recovery for such
injuries as conscious pain and mental suffering, expenses,
and lost wages the decedent sustained during the interval
between his injury and his death). Thus, the Complaint may be
construed as bringing a claim under the Survival Act.
extent that Perez's loss of consortium claim seeks
damages for injury to the marriage sustained after her
husband's injury but before his death, “it is
derivative of the surviving personal injury claims and is not
part of the wrongful death claim.” Dunleavy,
1987 WL 4403, at *1. Any recovery under the Wrongful Death
Act for injuries to the marriage sustained after her
husband's death would not compensate for injuries
sustained before his death. Thus, Perez may bring
her claim for loss of consortium for any injury to the
marriage suffered between the time of her husband's
injury and his death. Accordingly, Defendants' motions to
dismiss Count III are denied.
GE's Motion to Dismiss for Lack of Personal Jurisdiction
Court next reviews GE's Motion to Dismiss for Lack of
Personal Jurisdiction (Doc. 11). GE argues that because it is
a New York corporation with its principal place of business
in Massachusetts,  Perez cannot establish general personal
jurisdiction. Furthermore, because Perez has not alleged any
injuries that directly arise out of or relate to GE's
activity in Illinois, there can be no specific personal
jurisdiction. Thus, GE is entitled to be dismissed for lack
of personal jurisdiction. In response, Perez asserts that GE
consented to jurisdiction by registering to do business in
Illinois and appointing an agent for service of process (Doc.
46, p. 1). Furthermore, GE is subject to both general and
specific jurisdiction (Id.). To her response, Perez
attached an affidavit from her attorney and six exhibits
(Doc. 46-1). GE moved to strike that affidavit and three of
the exhibits (Doc. 55). GE also filed a reply in support of
its motion to dismiss (Doc. 56).
defendant moves to dismiss based on the lack of personal
jurisdiction, the burden falls on the plaintiff to
demonstrate that jurisdiction exists. Kipp v. Ski Enter.
Corp. of Wis., 783 F.3d 695, 697 (7th Cir. 2015). When a
court determines personal jurisdiction based on written
submissions without holding an evidentiary hearing, the
plaintiff must establish a prima facie case of
personal jurisdiction to survive dismissal. Id.;
Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713
(7th Cir. 2002); see also Snap-On Inc. v. Robert Bosch,
LLC, No. 09 C 6914, 2013 WL 5423844, at *4 (N.D. Ill.
Sept. 26, 2013). In deciding whether the plaintiff has met
the prima facie standard, a court is not limited to
the pleadings and may consider affidavits and other outside
materials. Purdue Research Found. v. Sanofi-Synthelabo,
S.A., 338 F.3d 773, 782 (7th Cir. 2003); Leibovitch
v. Islamic Republic of Iran, No. 08 C 1939, 2016 WL