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LOY v. ARMSTRONG WORLD INDUS.

November 15, 1993

PHYLLISS ANN LOY AND THOMAS LOY
v.
ARMSTRONG WORLD INDUSTRIES, INC.



The opinion of the court was delivered by: WILLIAM H. YOHN, JR.

 Yohn, J.

 Presently before the court is a motion by the defendant, Armstrong World Industries, Inc. ("Armstrong"), to dismiss the amended complaint. For the reasons discussed below, the court will grant Armstrong's motion and dismiss the complaint without prejudice to the Loys' right to pursue this action in state court.

 STANDARD FOR REVIEW

 Dismissal Under Rule 12(b)(6)

 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). A court must determine whether the party making the claim would be entitled to relief under any set of facts that could be established in support of his or her claim. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). In reviewing a motion to dismiss, all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. See Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984).

 A complaint does not need to contain a lengthy recitation of the facts to withstand a motion to dismiss. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). All a plaintiff must do in his complaint is give a "short and plain statement of the claim that will give each defendant fair notice of what plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47. Therefore, the court must accept the facts contained in plaintiffs' complaint as true.

 BACKGROUND

 The class action complaint was filed on April 29, 1993. An amended class action complaint was filed on July 1, 1993. One of the original plaintiffs in this action was Carrie Hayes and one of the original defendants was Coronet Industries, Inc. ("Coronet"). On June 2, 1993, Coronet filed a motion to transfer venue to Georgia. On July 27, 1993, the court, on request of Coronet and with no objection by plaintiffs, severed the action by Hayes against Coronet from this civil action. The severed action was consolidated into a related civil action captioned Howell, et al. v. Shaw Industries, Inc. et al., 93-cv-2068. When Coronet was severed and then consolidated with another case, its motion to transfer venue was also severed with it. No party other than Coronet has ever filed a motion to transfer the venue of this civil action.

 On September 29, 1993, the court transferred the Howell action along with McBride, et al. v. Galaxy Carpets, et al., 93-cv-2638, to the United States District Court for the Northern Division of Georgia, Rome Division. The court did not transfer the Loys' action to Georgia because none of the remaining parties filed a motion to transfer venue.

 The only remaining parties in this civil action are the plaintiffs Phyliss Ann Loy and Thomas Loy and the defendant Armstrong. All of the remaining parties reside within the Commonwealth of Pennsylvania.

 The Loys' class action complaint alleges that Armstrong is in the business of manufacturing, designing, selling, distributing, marketing and warranting rugs, carpeting and the materials used to install carpets. Am.Compl. P 3. Included in the installed carpeting is the backing, binding, padding or cushioning, adhesives and sealants. Am.Compl. P7. "Carpeting" as used in this memorandum encompasses all of the above listed components.

 The Loys' class action complaint alleges that Armstrong's carpeting contains chemical additives and treatments used in the manufacturing process. Am. Compl. P 8. The Loys assert that the chemical additives and treatments in Armstrong's carpeting are toxic. Am.Compl. P 10. Over time, the Loys believe that the carpeting emits these toxic substances into the air. Am.Compl. P 14. As a result of these emissions, the Loys allege that the toxic substances are absorbed into the human body through the lungs and the mucous membranes or by direct contact with a person's skin. Id. The Loys assert that because of exposure to the defendant's carpeting, people suffer the following adverse physical conditions: respiratory illness; headaches, sleeplessness and fatigue; nausea; vomiting; skin rashes; eye, ear and throat irritation; development of immune system problems; and aggravation of previous existing conditions. Am.Compl. P 16. No specific ailment has been attributed to the Loys.

 The Loys believe and aver that the carpeting industry has known since 1980 about the negative health effects associated with exposure to toxic substances contained in carpeting. Am.Compl. P 30. Despite this knowledge, they alleged the defendant has failed to disclose or warn about these possible dangers. Id. The Loys have brought this suit individually and on behalf of the class of people who purchased carpeting defined above since January 1, 1980. Am.Compl. P 35. The Loys allege that the members of the class could exceed one-hundred thousand (100,000) people, with a personal injury subclass number exceeding one thousand (1,000). Am.Compl. P 36.

 The Loys allege a federal claim based on the Lanham Act. The Loys attempt to invoke the court's supplemental jurisdiction for their Magnuson-Moss Act claim as well as their alleged state law claims based upon failure to warn (strict products liability), negligent and intentional misrepresentation, defective design and/or manufacture and violations of state consumer protection laws. The court has federal question jurisdiction over this action pursuant to the Lanham Act. ...


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