United States District Court, D. Colorado
MARY MARQUEZ, individually and as the personal representative of the Estate of Robert L. Balerio, Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
Michael E. Hegarty, United States Magistrate Judge.
BNSF Railway Company seeks an order requiring Plaintiff Mary
Marquez to file an amended complaint pursuant to Federal Rule
of Civil Procedure 12(e). Mot. for More Definite Statement,
ECF No. 6. Because the Complaint provides sufficient detail
for BNSF to respond, the Court denies BNSF's motion.
Marquez initiated this action on May 9, 2017, individually
and on behalf of her deceased husband, Robert L. Balerio. ECF
No. 1. Ms. Marquez claims Mr. Balerio was exposed to a
variety of toxic chemicals while he was employed by
BNSF's predecessor, Colorado and Southern Railway.
Id. at ¶¶ 4-5. According to Ms. Marquez,
the cumulative exposure to at least eight substances over Mr.
Balerio's nine-year employment caused him to develop
esophageal cancer. Id. at ¶¶ 6-7. The
railway's negligence alleged resulted in Mr.
Balerio's exposure to these chemicals. Id. at
30, 2017, BNSF responded to the Complaint by filing the
present Motion for a More Definite Statement. ECF No. 6. BNSF
contends the Complaint “lacks sufficient substantive
information to allow [it] to perform an adequate pre-answer
investigation and provide a meaningful answer.”
Id. at 2. BNSF requests that this Court issue an
order requiring Ms. Marquez to amend her Complaint and
include “the specific substances, the specific types of
exposure(s), the specific manner of the exposure(s), the
locations of the exposure(s), and the specific time frames of
the exposure(s) alleged to have injured [Mr. Balerio].”
Id. at 6.
Marquez objects to such an order. Resp. to Mot. for More
Definite Statement, ECF No. 15. According to Ms. Marquez, the
Complaint provides BNSF with sufficient information to
respond. Id. Moreover, Ms. Marquez contends she
“cannot plead with the specificity that [BNSF] demands
simply because her husband did not know he was being exposed
to carcinogens at various points in his railroad
career.” Id. at 3. BNSF filed its reply brief
on July 19, 2017. ECF No. 23.
Rule of Civil Procedure 12(e) provides:
A party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a
response. The motion must be made before filing a responsive
pleading and must point out the defects complained of and the
“[r]equiring a more definite statement is appropriate
when addressing unintelligible or confusing pleadings.”
Mechler v. United States, No. 12-1183-EFM-GLR, 2012
WL 5289627, at *1 (D. Kan. Oct. 23, 2012). “A motion
for more definite statement should not be granted merely
because the pleading lacks detail; rather, the standard to be
applied is whether the claims alleged are sufficiently
specific to enable a responsive pleading in the form of a
denial or admission.” Emp'rs Mut. Cas.
Co. v. Downey Excavation, Inc., No. 10-cv-02043-MSK-KMT,
2011 WL 1335839, at *1 (D. Colo. Apr. 7, 2011) (quoting
Advantage Homebuilding, LLC v. Assurance Co. of Am.,
No. 03-2426-KHV, 2004 WL 433914, at *1 (D. Kan. Mar. 5,
2004)). Accordingly, Rule “12(e) motions are
discouraged unless the complaint is so unintelligible that
defendants cannot understand the allegations and are unable
to respond.” Fed. Deposit Ins. Corp. v. Wise,
758 F.Supp. 1414, 1418 (D. Colo. 1991). The decision to grant
or deny a motion for more definite statement rests within the
trial court's sound discretion. Emp'rs Mut. Cas.
Co., 2011 WL 1335839, at *1.
Court holds that Ms. Marquez's Complaint is sufficient to
withstand a Rule 12(e) motion. Ms. Marquez states that
BNSF's predecessor railway employed Mr. Balerio as a
trackman/machine operator from 1971 to 1980. Compl. ¶ 4.
Further, she alleges that during Mr. Balerio's
employment, he was exposed to “chemicals, solvents,
diesel fuel/exhaust, benzene, heavy metals, creosote,
manganese, and rock/mineral dust and fibers, ” the
combination of which caused his esophageal cancer.
Id. at ¶¶ 5-6. She contends that Mr.
Balerio's cancer was not caused by any one substance on
any one day; instead, it was caused by the cumulative effect
of the toxins. Id. at ¶ 7. Finally, Ms. Marquez
pleads that Mr. Balerio was exposed to these substances,
because the railway negligently took or failed to take a
variety of actions. Id. at ¶¶ 8-9.
Therefore, the Complaint informs BNSF of when Mr. Balerio was
employed, his job title, the chemicals that combined to cause
his esophageal cancer, and the specific ways in which the
railway acted negligently. Although BNSF may prefer more
detail, the Complaint is far from being “so
unintelligible that [BNSF] cannot understand the
allegations.” Fed. Deposit Ins. Corp., 758
F.Supp. at 1418.
holdings of other judges within this District support the
Court's denial of BNSF's motion. In Roddy York v.
BNSF Railway Co., the court denied BNSF's Rule 12(e)
motion in a nearly identical case. ...