In re Trimble

• Citation: 232 F.3d 946
• Decision Date: 15 March 2000
• Docket Number: PLAINTIFF-APPELLANT,No. 99-2894,PLAINTIFFS-APPELLANTS,DEFENDANT-APPELLEE,99-2894
• Parties: (8th Cir. 2000) VON R. TRIMBLE, JR., ON HIS OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; DOUGLAS S. CAMPBELL, ON HIS BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; MARCI CAMPBELL, ON HER OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED, JIMMIE GROSVENOR, ON HIS BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF. GEORGIA GROSVENOR, ON HER OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; MATT FERRO, ON HIS OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; JOHN C. PIEPER, ON HIS OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; SYLVIA CURTIS, ERNEST DEPLANTY, PLAINTIFF. DARELL YOUNG,v. ASARCO, INC., A NEW JERSEY CORPORATION, Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 946

232 F.3d 946 (8th Cir. 2000)

VON R. TRIMBLE, JR., ON HIS OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; DOUGLAS S. CAMPBELL, ON HIS BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; MARCI CAMPBELL, ON HER OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS.

JIMMIE GROSVENOR, ON HIS BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF.

GEORGIA GROSVENOR, ON HER OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; MATT FERRO, ON HIS OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; JOHN C. PIEPER, ON HIS OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED; SYLVIA CURTIS, PLAINTIFFS-APPELLANTS.

ERNEST DEPLANTY, PLAINTIFF.

DARELL YOUNG, PLAINTIFF-APPELLANT. v. ASARCO, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLEE.

No. 99-2894

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: March 15, 2000

Filed: November 28, 2000

Appeal from the United States District Court for the District of Nebraska

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before McMILLIAN, Floyd R. Gibson ¹ and Morris Sheppard Arnold, Circuit Judges.

McMILLIAN, Circuit Judge.

Plaintiffs, a putative class of over 30,000 current and future residents of a geographic area near a former lead smelter and refinery (hereinafter "the site" or "the Asarco site") located in Omaha, Nebraska, appeal from a final judgment entered in the United States District Court ² for the District of Nebraska dismissing for lack of subject matter jurisdiction their third amended complaint against Asarco, Inc. (Asarco), the owner and former operator of the site. See Trimble v. Asarco, Inc., No. 8:97CV428 (D. Neb. May 20, 1999) (judgment). For reversal, plaintiffs argue that the district court erred in holding that it lacked federal question jurisdiction over plaintiffs' claim for recovery of response costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., and that it lacked diversity jurisdiction over plaintiffs' remaining state law claims. See id. (May 20, 1999) (memorandum and order).

The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a). We have jurisdiction pursuant to 28 U.S.C. 1291. For the reasons stated below, we affirm.

Background

On September 5, 1997, plaintiffs brought this class action against Asarco, pursuant to Fed. R. Civ. P. 23, alleging that their properties have been contaminated by pollutants from the Asarco site. On December 8, 1997, plaintiffs filed a second amended complaint, setting forth the CERCLA private cost-recovery claim, as well as state law claims for trespass, nuisance, negligence, strict liability, unjust enrichment, and medical monitoring. See Joint Appendix, Vol. I, at 19-52 (second amended complaint). The named plaintiffs purported to represent thousands of individuals who own or rent property in a specified area surrounding the site. See id. at 20-35. Plaintiffs asserted that the district court had subject matter jurisdiction pursuant to 28 U.S.C. 1331 (federal question), 1332 (diversity of citizenship), and 1367 (supplemental jurisdiction). In its answer, Asarco admitted that, from time to time in the past, Asarco's smelting and refining operations at the site caused lead and other particulates to be emitted into the air. See Answer to Second Amended Complaint, 39 (filed Aug. 14, 1998). ³ Asarco maintained, however, that particulates emitted into the air from the site did not have adverse public health effects. See id., 40. Asarco also moved to dismiss the second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim, and, alternatively, pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction.

Focusing on Asarco's Rule 12(b)(1) motion, the district court held that it lacked subject matter jurisdiction over plaintiffs' CERCLA claim because plaintiffs failed to allege facts sufficient to show that they had incurred response costs consistent with the national contingency plan (NCP). See slip op. at 2-7 (Dec. 14, 1998) (memorandum and order). However, the district court granted plaintiffs leave to amend the complaint to address the deficiency. See id. at 7-8.⁴

The district court further held that it lacked subject matter jurisdiction over plaintiffs' state law claims. The district court reasoned that, for jurisdiction to be predicated upon 28 U.S.C. 1332, plaintiffs were required to show that they each individually satisfied the $75,000 amount-in-controversy requirement. See id. at 8-12. The district court held that plaintiffs had not made such a showing, but again granted plaintiffs leave to do so in the third amended complaint. See id. at 12-13. ⁵

Plaintiffs filed a third amended complaint on January 11, 1999. On January 26, 1999, Asarco renewed its motion to dismiss for lack of subject matter jurisdiction. Asarco argued in its renewed motion to dismiss that subject matter jurisdiction could not be based upon 28 U.S.C. 1331 because plaintiffs had failed to allege essential elements of their private cause of action under CERCLA. See 83 F.Supp.2d at 1037 (May 20, 1999). In particular, Asarco argued that plaintiffs could not establish the third element of their cause of action under 42 U.S.C. 9607(a)(4)(B), that they had incurred necessary response costs. ⁶ See id. at 6. The district court characterized Asarco's motion as "a 'factual attack' on subject matter jurisdiction." Id. at 2. The district court thus reasoned that factual findings related to the third element of plaintiffs' CERCLA claim were "findings of jurisdictional fact," which the district court could decide according to the preponderance of evidence standard and which this court would review solely for clear error. See id. at 3 & n.1(citing Osborne v. United States, 918 F.2d 724, 728-31 (8th Cir. 1990) (Osborne) (reversing dismissal for lack of subject matter jurisdiction which was predicated upon jurisdictional statute of limitations defense)). The district court then noted: "It is clear from the record that the plaintiffs in this action, both the putative class members and the class representatives, have not personally spent any money whatsoever for investigation or remediation." See id. at 6-7 (footnote omitted). The district court explained that only plaintiffs' attorneys, not plaintiffs themselves, had paid for the "brief sampling" of soil near the site, and, moreover, plaintiffs would not be liable for reimbursement of the attorneys' expenditures unless they were ultimately successful in the litigation. See id. at 7-8. The district court thus concluded:

[W]hether the plaintiffs have "incurred" "necessary costs of response" within the meaning of 42 U.S.C 9607(a)(4)(B) of CERCLA, presents a mixed question of fact and law. The court finds and concludes that the plaintiffs have "incurred" no liability and no costs; that the plaintiffs have, therefore, failed to allege an essential element of a private cause of action under CERCLA; and that subject matter jurisdiction of this action cannot be predicated on 28 U.S.C. 1331.

Id. at 1040.

Regarding diversity jurisdiction - in particular, the $75,000 amount-in- controversy requirement - the district court opined that, under Nebraska law, an award for property damage would be limited by the Nebraska Supreme Court to the fair market value of the property immediately preceding the damage. See id. at 13-15. The district court explained:

This court believes, and, therefore, predicts that the Nebraska Supreme Court, if faced with the issue today, would adopt the rule set forth in Kietges[ v. VanDermeulen, 483 N.W.2d 137, 143 (Neb. 1992),] and "L" Investments[, Ltd. v. Lynch, 322 N.W.2d 651, 656 (Neb. 1982)], limiting the recoverable costs of restoration or remediation to the market value of the property.

Id. at 1041. The district court then determined that the cost to remediate plaintiffs' properties, limited by their market values, plus any damages arising from incidental burdens associated with such remediation, could not meet the $75,000 jurisdictional amount-in-controversy requirement for each plaintiff. See id. at 12-15 & n.4.

Finally, the district court rejected plaintiffs' argument that they were entitled to damages for the costs of future medical monitoring and could thereby satisfy the $75,000 amount-in-controversy requirement under 28 U.S.C. 1332. See id. at 15-17 & n.5. Because the CERCLA claim had been dismissed, the only possible basis for plaintiffs' medical monitoring claim was state law. The district court then reasoned:

[T]he plaintiffs have cited no authority, and the court has found none, which would suggest that Nebraska law recognizes either a cause of action for medical monitoring or a remedy involving the creation of a medical monitoring fund. There exists no pending or prospective legislation to authorize a cause of action or a remedy for medical monitoring, and the court finds it improbable that the Nebraska courts would judicially fashion such a right or remedy.

Id. at 1041.

Thus, the district court granted Asarco's motion to dismiss the third amended complaint for lack of subject matter jurisdiction, and judgment was entered for Asarco. See id. (May 20, 1999) (judgment). Plaintiffs timely appealed.

Discussion

Dismissal for lack of subject matter jurisdiction under 28 U.S.C. 1331

We address, as a threshold matter, the district court's reliance on lack of subject matter jurisdiction as its basis for dismissing plaintiffs' CERCLA claim. As noted above, Asarco originally moved to dismiss the second amended complaint on grounds of both lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Fed. R. Civ. P. 12(b)(6). In its order dated December 14, 1998, however, the district court discussed the motion solely in terms of subject matter jurisdiction. Consequently, after plaintiffs filed their third amended complaint, Asarco...