The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Arising Out of the Events of June 22, 2009
THIS DOCUMENT RELATES TO: ALL CASES
This action was initiated on behalf of individuals killed or injured on June 22, 2009, in a collision between two Washington Metropolitan Area Transit Authority (the "WMATA" or "Metrorail") trains. On October 18, 2010, the plaintiffs, except for the Estate of Jeanice McMillan,*fn1 who filed a separate amended complaint at the same time, filed their consolidated Second Amended Master Complaint ("Compl." or "Master Complaint") against the following defendants: ADCO Circuits Incorporated ("ADCO"); Ansaldo STS USA, Incorporated ("Ansaldo"); Alstom Signaling, Incorporated ("Alstom"); the WMATA; and Arinc Incorporated, alleging claims for negligence, products liability, and breach of warranty. One of the defendants, Alstom, has filed motions to dismiss both the Second Amended Master Complaint and the Jeanice McMillan Estate Second Amended Complaint and Jury Demand ("McMillan Estate Compl." or "McMillan Estate Complaint"). Alstom argues that certain counts of the Master Complaint must be dismissed because they fail to state claims upon which relief may be granted for the following reasons: (1) Counts 7, 9, 10, and 14 on the ground that they are "time-barred under the District of Columbia's ten-year statute of repose[,] D.C. Code § 12-310 (2001);" (2) Counts 11, 12, and 15 on the ground that they "are time-barred under the statute of limitations [applicable to] breach of warranty claims under the Uniform Commercial Code [(the 'UCC')] as adopted by the District of Columbia[,] D.C. Code § 28:2-725;" (3) Count 14 on the ground that it is duplicative of Count 7; (4) Counts 11, 12, and 15 on the ground "that the [Master] Complaint fails to allege the essential element[s] necessary for a claim [of] breach of warranty;" and (5) Counts 16 and 17 on the ground that they are "derivative claims" of Counts 7, 9, 10, 11, 12, 14, and 15. Defendant Alstom Signaling Inc.'s Motion to Dismiss, April 21, 2010 ("Mot. to Dismiss") at 1-2. Alstom argues that those counts of the McMillan Estate Complaint which correspond with the counts of the Master Complaint should also be dismissed for the reasons just outlined,*fn2 and therefore the McMillan Estate Complaint should be dismissed in its entirety "for failure to state a claim upon which relief can be granted." Defendant Alstom Signaling Inc.'s Motion to Dismiss, June 18, 2010 ("McMillan Estate Mot. to Dismiss") at 1.*fn3
For the reasons that follow, Alstom's motions will be granted in part and denied in part.*fn4
The complaints allege that "[o]n Monday, June 22, 2009, [at] about 4:58 p.m., eastern daylight time, . . . Metrorail train 112 collided with the rear end of stopped train 214 near the Fort Totten station in Washington, D.C." Compl. ¶ 156. As a result of the collision, nine passengers and the striking train's operator were killed and more than seventy passengers were injured. Compl. ¶ 161. The accident purportedly occurred because "[t]he Metrorail automatic train control system stopped detecting the presence of train 214 (the . . . train [that was struck]) in track circuit B2-304, which caused train 214 to stop and also allowed speed commands to be transmitted to train 112 (the striking train) until the collision." National Transportation Safety Board, Railroad Accident Report 10/02: Collision of Two Washington Metropolitan Area Transit Authority Metrorail Trains Near Fort Totten Station 120, available at http://www.ntsb.gov/publictn/2010/RAR1002.pdf.
Following the accident, civil actions were filed by injured passengers and representatives of passengers who were killed, and those actions were consolidated by this Court. As a result of the consolidation, the plaintiffs filed a single Master Complaint. CMO ¶¶ 31-32. A representative of Jeanice McMillan, the operator of train 112 who died in the collision, subsequently filed a separate complaint. McMillan Estate Compl. ¶ 1.
As noted earlier, according to the complaints, the trains collided because the WMATA's automatic train control system failed to detect the presence of train 214 on the track. Compl. ¶ 163. Due to the false reading and because train 112 was operating in automatic mode, it did not slow as it approached the track occupied by train 214. Id. ¶¶ 158, 163. The train operator, McMillan, overrode the automatic mode by activating emergency brakes when train 112 was about 300 feet from train 214. Id. ¶ 160. However, despite McMillan's actions, it failed to stop in time to prevent the collision due to the train's speed. Id.*fn5
The WMATA's train detection system is comprised of various components, including "transmitters, receivers, and impedance bonds," id. ¶ 165, which, according to the plaintiffs, were manufactured by defendants Alstom, Ansaldo, and ADCO, id. ¶¶ 18, 166. The train detection system was designed in the 1970s, id. ¶ 164, and some of the parts were actually manufactured by General Railway Signal ("GRS"), "the predecessor corporation to [d]efendant Alstom, " id. ¶ 166. Around 2004, the WMATA began replacing GRS components with those provided by United Switch & Signal ("US&S"), the predecessor corporation of defendant Ansaldo. Id. ¶ 166. WMATA employees and US&S personnel installed the replacement components, id., and neither complaint contends that Alstom had any role in installing the new components other than making its engineers available for technical discussions and participating in an investigation concerning an earlier event involving the train detection system, id. ¶¶ 166, 173.
The use of both GRS and US&S components allegedly diminished the sensitivity of the train detection system, resulting in the track circuit not de-energizing as it should have to detect the presence of a train on the track. Id. ¶ 167. Specifically, one symptom, "bobbing," caused the train detection system for a block of track to indicate the block was vacant, then occupied, and then vacant again. Id. ¶ 168. This problem was detected by a WMATA crew installing the replacement components, id., and a work order was opened to correct the bobbing problem, but it was not acted upon before the crash, which occurred five days later, id. ¶ 169.
Both the Master Complaint and the McMillan Estate Complaint raise claims of negligence, products liability, and breach of warranty against defendant Alstom.*fn6 Id. ¶¶ 228-241, 250-276, 284-305. The claims primarily allege that malfunctions in the electronic train control system caused the crash. Id. ¶ 235. Alstom, as one of the providers of the components used in the electronic train control system, is alleged to have failed to properly design, manufacture, install, inspect, test, and maintain the automated warning system that should have prevented the two trains from colliding. Id. ¶¶ 240, 253. The plaintiffs also allege that Alstom breached implied and express warranties that its products, such as the electronic control system, were fit for the safe transportation of WMATA employees and fare-paying passengers. Id. ¶¶ 269, 274, 302; McMillan Estate Compl. ¶¶ 76, 81, 86. Finally, the complaints assert wrongful death and separate survival claims for the "pre-impact fright, extreme pain and suffering, fear and anticipation of impending injury and death." Compl. ¶¶ 306, 308, 310.
For the reasons set forth below, the Court denies the motion to dismiss as to Counts 7, 9, 10, 16, and 17 of the Master Complaint and Counts 1, 2, 3, 8, 9, and 10 of the McMillan Estate Complaint. However, the Court grants the motion as to Counts 11, 12, and 15 of the Master Complaint, and as to Counts 4, 5, and 6 of the McMillan Estate Complaint. The Court will also grant the motion to dismiss either Counts 7 or 14 of the Master Complaint, permitting those plaintiffs to select one of the two counts on which they wish to proceed.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Twombly, 550 U.S. at 555 (omission in original) (internal quotation marks omitted). In other words, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, ___ U.S. at ___, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). A complaint alleging facts which are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557).
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Although the Court must accept the plaintiffs' factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, ___ U.S. at ___, 129 S. Ct. at 1950. If "the [C]court finds that the plaintiff[ has] failed to allege all the material elements of [his or her] cause of action," then the Court may dismiss that claim without prejudice, Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997), or with prejudice, provided that the Court "determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (internal quotation marks omitted).
A. Alstom's Statute of Repose Challenge
The District of Columbia statute of repose bars any action for "personal injury" and "wrongful death" "resulting from the defective or unsafe condition of an improvement to real property" if the injury or death occurs more than ten years after the "improvement was substantially completed." D.C. Code § 12-310(a)(1) (2001). An improvement is substantially completed when "it is first used" or "first available for use." Id. § 12-310(a)(2).
According to Alstom, the automatic train detection system is an improvement to real property and therefore the plaintiffs' personal injury and wrongful death claims are covered by the statute of repose.*fn8 Def.'s Mem. at 15. Alstom argues that because the system "is a dated system whose design goes back to the early 1970s," it was "substantially completed" over thirty years before the June 22, 2009 crash that is the subject of this litigation. Id. at 16. Furthermore, Alstom asserts that the injuries resulting from the crash occurred more than ten years after installation of the train detection system was first completed. Id. For these reasons Alstom argues that the plaintiffs' personal injury claims are barred by the statute of repose.*fn9 Id. at 17.
The plaintiffs argue in response that the statute of repose is not available to Alstom. Pls.' Jt. Opp'n at 4. They refer the Court to section 310(b)(3) of the statute, which excludes from its coverage "any manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property." Id. (citing D.C. Code § 12-310(b)(3)). And according to the plaintiffs, "Alstom, via its predecessor corporation, GRS, manufactured and supplied the ...