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Slemmer v. McGlaughlin

United States District Court, Third Circuit

October 16, 2013

DANIEL SLEMMER and PAULA SLEMMER, Individually, and on behalf of all others similarly situated, Plaintiffs,
v.
McGLAUGHLIN SPRAY FOAM INSULATION, INC. and BARNHARDT MANUFACTURING CO., Defendants.

MEMORANDUM

DuBOIS, JAN E., J.

I. INTRODUCTION

Plaintiffs Daniel and Paula Slemmer have brought a class action against two corporations, Barnhardt Manufacturing Co. (“Barnhardt”) and McGlaughlin Spray Foam Insulation, Inc. (“McGlaughlin”). Barnhardt is the manufacturer of a type of home insulation known as spray polyurethane foam (“SPF”), and McGlaughlin is a certified installer of SPF. Plaintiffs allege that SPF is a toxic substance that creates health hazards for those living in homes where it is used.

By Order dated July 3, 2013, this Court granted in part and denied in part defendants’ motion to dismiss plaintiffs’ Class Action Complaint. Plaintiffs have since amended their Class Action Complaint and both defendants filed motions to dismiss Count VI of the Amended Class Action Complaint. For the reasons set forth below, the Court grants defendants’ motions.

II. FACTS[1]

The Court incorporates by reference the facts set out in its July 3, 2013 Memorandum. See Slemmer v. McGlaughlin Spray Foam Insulation, Inc., No. 12-cv-6542, 2013 WL 3380590 (E.D. Pa. July 8, 2013).

III. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of “failure to state a claim upon which relief can be granted” may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court “accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotation marks omitted).

“To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level.’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff’s allegations must show that a defendant’s liability is more than “a sheer possibility.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

Finally, the complaint must allege facts sufficient to give a defendant “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 545 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). A “formulaic recitation of the elements” of an offense will not suffice. Id. at 555.

IV. DISCUSSION

A. Plaintiffs’ Original Class Action Complaint

Plaintiffs’ original Class Action Complaint included a medical-monitoring claim. Plaintiffs alleged that exposure to SPF has caused them to “develop[] a significantly increased risk of contracting a serious latent disease, ” and that “[m]onitoring procedures exist that make the early detection of any latent disease possible that are different from those normally recommended in the absence of the exposure.” Pls.’ Compl. ¶¶ 114-115.

By Order dated July 3, 2013, the Court, inter alia, dismissed plaintiffs’ medical-monitoring claim, concluding, “[p]laintiffs have failed to identify either a serious latent disease which requires monitoring or a medical monitoring ...


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