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June 5, 1996

LENISE THOMEIER, Permanent Plenary Guardian of the Person and the Estate of Stephen Thomeier, a totally incapacitated person, and LENISE THOMEIER, Plaintiffs,

The opinion of the court was delivered by: MCLAUGHLIN


 The Defendant, Rhone-Poulenc, Inc. ("RPI"), has moved to dismiss this action under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, this motion will be denied.


 Stephen Thomeier was severely injured on October 14, 1993 while working for RPI near Oil City, Pennsylvania. On July 15, 1994, Thomeier instituted an action in this Court against Rhone-Poulenc Specialty Chemicals Company ("Specialty"), Pennzoil Company, and Pennzoil Products Company. See Thomeier v. Rhone-Poulenc Specialty Chemicals Co., Civ. Action No. 94-200 Erie (W.D. Pa.) (the "Specialty action"). As in this action, Thomeier sought to recover damages for his injuries, *fn1" and Lenise Thomeier sought to recover for her loss of consortium. Specialty was identified as the owner and possessor of the land on which Thomeier worked. RPI was not named as a defendant in the Specialty action, apparently because Thomeier believed that he would have been precluded under the Pennsylvania Workmen's Compensation Act, 77 Pa. Stat. §§ 1 et seq. (the "WCA"), from recovering any damages from RPI. All parties agree that RPI was Thomeier's employer, as that term is defined in 77 Pa. Stat. § 21, at the time of the accident. The Specialty action remains pending before this Court and has been aggressively litigated by all parties.

 Effective December 31, 1994, Specialty merged into RPI. Complaint at Pt 7. In connection with this merger, RPI filed certificates of ownership and merger with the secretaries of state of New York and Delaware. Id. at P 8; Ex. C to Plaintiff's Response to Defendant's Motion to Dismiss Complaint. In these documents, RPI's board of directors resolved, inter alia, "that this Corporation assume all of the obligations of Rhone-Poulenc Specialty Chemicals Co." Ex. C at C-3.

 Thomeier asserts that, because RPI has become the successor to the interests, including the liabilities, of Specialty, RPI "is responsible for paying any judgment which Plaintiff may obtain against Specialty, and as a result, RPI must be named as a Defendant." Complaint at P 9. Plaintiffs seek money damages.


 RPI's first argument is that this action must be dismissed under Fed. R. Civ. P. 12(b)(1) because this Court lacks subject matter jurisdiction.

Dismissal for lack of subject matter jurisdiction is not appropriate on the ground that a complaint fails to state a claim upon which relief can be granted, but only if the right claimed is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Growth Horizons[, Inc. v. Delaware County, Pa.], 983 F.2d [1277,] 1280-81 [(3d Cir. 1993)] (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974)). "The threshold to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(1) is thus lower than that required to withstand a Rule 12(b)(6) motion." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989).

 Bonnett Enterprises, Inc. v. United States, 889 F. Supp. 208, 209-10 (W.D. Pa. 1995). A plaintiff bears the burden of persuasion on a motion under Rule 12(b)(1). Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991).

 RPI also argues that this action should be dismissed for failure to state a claim on which relief can be granted. On a motion to dismiss under Rule 12(b)(6), this Court accepts as true all factual allegations in the complaint. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993). The proper inquiry is "whether relief could be granted . . . 'under any set of facts that could be proved consistent with the allegations.'" Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 71 (3d Cir. 1994) (quoting National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S. Ct. 798, 803, 127 L. Ed. 2d 99 (1994)). If no cause of action can be identified, dismissal is proper.


 RPI raises a number of arguments in support of its motion. First, it asserts that, as Thomeier's employer at the time of the October 1993 accident, it is immune from suit under the Workmen's Compensation Act. Second, it submits that this action is not ripe. Third, it claims that the Complaint fails to plead the amount in controversy necessary to support the jurisdiction of this Court under 28 U.S.C. § ...

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