IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

IN RE: ASBESTOS LITIGATION )

ESTATE OF DENNIS W. FRANCO )

)

Plaintiff, )

)

v. ) C.A. N14C-01-285 (ASB)

)

CSX TRANSPORTATION, INC. )

AND NORFOLK SOURTHERN )

RAILWAY COMPANY, )

)

Defendants. )

IN RE: ASBESTOS LITIGATION )

ESTATE OF JAMES M. NELSON )

)

Plaintiff, )

)

v. ) C.A. N13C-08-317 (ASB)

)

CSX TRANSPORTATION, INC. )

AND NORFOLK SOUTHERN )

RAILWAY COMPANY, )

)

Defendants. )

Submitted: June 4, 2015

Decided: July 13, 2015

ORDER GRANTING MOTION TO DISMISS

This 13th day of July, 2015, upon consideration of CSX Transportation, 

Inc.’s and Norfolk Southern Railway’s (“Railroad Defendants”) Motions to 

Dismiss (Trans. IDs 56597094 and 56588704); Plaintiffs Dennis W. Franco’s and 
-2-

James M. Nelson’s (“Plaintiffs”) responses (Trans. IDs 56745125 and 56745435) 

and the records in these matters, it appears to the Court that:

(1) WHEREAS Plaintiffs Dennis W. Franco and James M. Nelson filed a 

First Amended Complaint in each matter on December 12, 2014 (Trans. ID 

56466755) and December 15, 2014 (Trans. ID 56475534) respectively, alleging, 

inter alia, that each developed lung cancer as a result of wrongful exposure to 

asbestos;1

(2) WHEREAS Plaintiff Franco was employed in Pennsylvania as a track 

repairman for Reading Company (“Reading”), and Plaintiff Nelson was employed

in Pennsylvania as a machinist for Consolidated Rail Corporation (“Conrail”); but 

neither Plaintiff was ever employed by either of above-listed Railroad Defendants.2

(3) WHEREAS Plaintiffs claim that Railroad Defendants are successorsin-interest to Reading and Conrail3 and allege against the Railroad Defendants: 

common-law negligence, premises liability, and violations of federal, state, and 

local laws in addition to a claim under the Federal Employers’ Liability Act 

(“FELA”);

 1 See Pl. Franco Am. Compl., ¶ 23; Pl. Nelson Am. Compl., ¶ 27.

2 See Pl. Franco Am. Compl., ¶ 20(a); Pl. Nelson Am. Compl., ¶ 24(a).

3 See Pl. Franco Am. Compl., ¶ 20(a); Pl. Nelson Am. Compl., ¶ 24(a).
-3-

(4) WHEREAS Railroad Defendants argue that FELA provides the 

exclusive remedy to railroad carrier employees who suffer work-related injuries 

resulting from the employer’s negligence.4

 Plaintiffs did not respond to the 

Railroad Defendants’ arguments in their opposition to the instant motion. The 

Court will therefore GRANT, as unopposed, Railroad Defendants’ motion and 

DISMISS, with prejudice, Counts I, II, III, XI, and XII of Plaintiff Franco’s First 

Amended Complaint and Counts I, II, III, XI, XII, and XV of Plaintiff Nelson’s 

First Amended Complaint.

5

(5) WHEREAS the Court must apply Delaware procedural law here, and 

thus Delaware’s pleading standard governs here. When a Complaint fails to state a 

claim upon which relief can be granted, dismissal is warranted.

6

 4 See 45 U.S.C. § 51 (“Every common carrier by railroad while engaging in commerce 

between any of the several states . . . shall be liable in damages to any person suffering injury 

while he is employed by such carrier in such commerce. . .”); Erie R.R. Co. v. Winfield, 244 U.S. 

170, 172 (1917) (finding 45 U.S.C. § 51 “is intended to operate uniformly in all states, as 

respects to interstate commerce, and in that field it is both paramount and exclusive”); New York 

Cent. R.R. Co. v. Winfield, 244 U.S. 147, 151 (1917) (employer liability act is comprehensive 

and exclusive); Sarik v. Pennsylvania R. Co., 68 F. Supp 630, 631 (W.D. Pa. 1946) (FELA is 

comprehensive, exclusive, and cannot be extended or abridged by state common or statutory 

law).

5 See In re Asbestos Litig., 2007 WL 1651968, at *6 (Del. Super. Ct. May 31, 2007) 

(deeming motions as to certain claims unopposed when answering brief did not address 

defendants’ motions on those claims); see also Emerald Partners v. Berlin, 2003 WL 21003437, 

at *43 (Del. Ch. Apr. 28, 2003), aff’d, 2003 WL 23019210 (Del. Dec. 23, 2003) (“It is settled 

Delaware law that a party waives an argument by not including it in its brief.”).

6 See Super. Ct. Civ. R. 12(b)(6).
-4-

(6) WHEREAS under Delaware’s notice pleading requirements, a 

plaintiff need only state “a short and plain statement of the claim showing that the 

pleader is entitled to relief.”7

 However, a plaintiff must still plead each of the 

essential elements of his claim.8

 In a case such as this, that includes the elements 

of alleged successor liability.

(7) WHEREAS this Court has recognized that generally “where one 

company sells or otherwise transfers all of its assets to another company, the latter 

is not liable for the debts and liabilities of the transferor, including those arising out 

of the former’s tortuous conduct.”9

 There are recognized exceptions, however, to 

that general rule where the avoidance of liability would be unjust.10 These 

exceptions include: (1) the buyer’s express or implied assumption of the seller’s 

liability; (2) a de facto merger or consolidation; (3) the predecessor’s mere 

 7 Super. Ct. Civ. R. 8(a).

8 See, e.g., Simmons v. Truitt, 2009 WL 3531799, at *4 (Del. Super. Ct. Oct. 20, 2009) 

(“Because [plaintiff] has failed to allege essential elements of the claim of malicious prosecution, 

that claim is dismissed for failure to state a claim.”); Eisenmann Corp. v. Gen. Motors Corp., 

2000 WL 140781, at *22 (Del. Super. Ct. Jan. 28, 2000) (dismissing plaintiff’s breach of an oral 

contract claim for failure to state the “essential elements of price, terms, and duration”); see also 

Brown v. Perrette, 1999 WL 342340, at *8 (Del. Ch. May 14, 1999) (dismissing plaintiff’s 

disclosure claim because plaintiff “fail[ed] to plead an essential element of her claim”).

9 See Fountain v. Colonial Chevrolet Co., 1988 WL 40019, at *7 (Del. Super. Ct. Apr. 13, 

1988) (citing Fehl v. S.W.C. Corp., 433 F. Supp. 939 (D. Del. 1977)).

10 See Fountain, 1988 WL 40019, at *7.
-5-

continuation as a legal entity under a different corporate name; or (4) fraud.11 The 

Plaintiff bears the burden of alleging “a core set of facts . . . in order to adequately 

set forth the various exceptions to the general rule.”12

(8) WHEREAS Plaintiffs here each fail to allege such a core set of facts 

necessary to establish successor liability. Nowhere do the Plaintiffs set forth facts 

indicating that the Railroad Defendants expressly or impliedly assumed Conrail’s 

or Reading’s liability.13 Additionally, the Court can discern no allegations of a 

continuation theory or of fraud.14

 11 See Furnari v. Wallpang, Inc., 2014 WL 1678419, at *12 (Del. Super. Ct. Apr. 16, 2014) 

(exceptions to general rule include where “avoidance of liability would be unjust, the buying 

company contractually assumed the liability, or a de facto merger occurred”); Magnolia’s at 

Bethany, LLC v. Artesian Consulting Engineers, Inc., 2011 WL 4826106, at *2 (Del. Super. Ct. 

Sept. 19, 2011) (setting forth four exceptions to general rule: buyers assumption of liability, de 

facto merger or consolidation, mere continuation of predecessor under a different name, or 

fraud); Fountain, 1988 WL 40019, at *7 (discussing limited exceptions to general rule where 

avoidance of liability would be unjust, in a de facto merger or consolidation, and a predecessor’s 

continuation under a different corporate name); see also Spring Real Estates, LLC v. Echo/RT 

Holdings, Inc., 2013 WL 6916277, at *4-5 (Del. Ch. Dec. 31, 2013) (discussion application of de 

facto merger and continuation theories in Delaware, and holding that the continuation exception 

is narrowly construed to require “the purchaser of the assets to be a continuation of ‘the same 

legal entity,’ not just a continuation of the same business in which the seller of the assets 

engaged”).

12 Magnolia’s, 2011 WL 4826106, at *4 (dismissing plaintiff’s complaint for failing to 

adequately plead elements of exceptions to the general rule on successor corporate liability); see 

also Furnari, 2014 WL 1678419, at *12 (“A plaintiff bears the burden to ‘adequately plead in its 

complaint the element of the alleged exceptions to [the] general rule’ that asset purchasers do not 

bear ‘successor corporate liability.’”).

13 Nor do Plaintiffs recite the terms of or attach to their Complaints any applicable 

acquisition documents such as a purchase agreement between the entities that would demonstrate 

a contractual assumption of liabilities. See, e.g., Spring Real Estates, 2013 WL 6916277, at *3 

(considering Purchase Agreement attached to Complaint); Furnari, 2014 WL 1678419, at *12 

(looking to terms of purchase agreement to determine assumption of liability); Magnolia’s, 2011 
-6-

(9) WHEREAS accepting all of the First Amended Complaints’

remaining allegations as true, and drawing all reasonable inferences in Plaintiffs’ 

favor as the non-moving parties, the Court finds that Plaintiffs have failed to plead 

the necessary elements of successor liability against these Railroad Defendants.

(10) Railroad Defendants’ Motions to Dismiss are GRANTED and any 

remaining counts against these Railroad Defendants are DISMISSED, with 

prejudice.

15

IT IS SO ORDERED.

 /s/ Paul R. Wallace_______

PAUL R. WALLACE, JUDGE

Original to Prothonotary

Cc: All counsel via File&Serve

 

WL 4826106, at *3 (looking to terms of purchase agreement to determine if de facto merger 

exception applied); Fountain, 1988 WL 40019, at *7.

14 See Magnolia’s, 2011 WL 4826106, at *3-4 (discussing elements of continuation theory, 

including whether “entities [had] common officers, directors and shareholders” and whether 

“both remained as separate legal entities after the asset sale.”).

15 The Court grants these dismissals with prejudice because: (1) the Court granted Railroad 

Defendants’ first motion to dismiss on this same issue after a hearing on October 23, 2014; (2) 

the Court there did grant Plaintiffs leave to file these First Amended Complaints. (Trans. I.D. 

56239418); and (3) even with the opportunity to remedy the deficiencies (if they could be), 

Plaintiffs’ amended complaints still fail to plead the necessary elements of successor liability 

against these Railroad Defendants. There should be no re-re-do—dismissal with prejudice is 

now appropriate.