325-343 E. 56TH STREET CORP. v. Mobil Oil Corp.

• Decision Date: 19 October 1995
• Docket Number: No. 93-0297 RMU.,93-0297 RMU.
• Parties: 325-343 E. 56TH STREET CORPORATION, Plaintiff, v. MOBIL OIL CORPORATION, et. al., Defendants.
• Court: U.S. District Court — District of Columbia

906 F. Supp. 669

325-343 E. 56TH STREET CORPORATION, Plaintiff, v. MOBIL OIL CORPORATION, et. al., Defendants.

No. 93-0297 RMU.

United States District Court, District of Columbia.

October 19, 1995.

Robert X. Perry, Jr., Wilkes, Artis, Hedrick & Lane, Kim Hoyt Sperduto, Sperduto Law Firm, Washington, DC, for Plaintiff.

William A. Caldwell, Washington Metropolitan Area Transit A., Office of General

Counsel, John Jay Range, Michael Patrick McQuillen, Richard F. Gibbons, Jr., Hunton & Williams, Darci Lee Rock, Richard D. Horn, Bracewell & Patterson, Washington, DC, for Defendants.

AMENDED MEMORANDUM OPINION¹

URBINA, District Judge.

I. CASE HISTORY

On January 19, 1993, Plaintiff, 325-343 E. 56th Street, Fifty-Fifty Corporation, on behalf of The Corps Limited Partnership (hereinafter "The Corps"), filed a complaint against Mobil Oil Corporation (hereinafter "Mobil"), Atlantic Richfield Company (hereinafter "ARCO"), and the Washington Metropolitan Area Transit Authority (hereinafter "WMATA") in the Superior Court for the District of Columbia. Defendant WMATA removed the case to this court pursuant to D.C.Code Ann. § 1-2431 (1992).

The Complaint is based on nine counts for: (1) strict liability; (2) trespass; (3) common law indemnification; (4) negligence; (5) violation of the District of Columbia Underground Storage Tank Act; (6) negligence per se for violation of the District of Columbia Underground Storage Tank Act; (7) restitution; (8) negligence per se for violations of 40 C.F.R. §§ 280-81; and (9) contractual indemnification. Plaintiff has moved for summary judgment pursuant to Fed.R.Civ.P. 56(c). Defendant ARCO has moved for dismissal of the Plaintiff's Complaint pursuant to Fed. R.Civ.P. 12(b)(6). Defendant WMATA has filed a cross-motion for summary judgment.

II. BACKGROUND

A. The Defendants

From 1985 through October of 1992, the Corps owned a piece of property (hereinafter "the property"), the subject of this lawsuit, located at the corner of 12th Street, H Street, and New York Avenue in Northwest Washington, D.C.

Defendant Mobil is the successor-in-interest to Socony Mobil Company, Inc., which leased the property from 1962 through 1974.

Defendant ARCO is the successor-in-interest of Sinclair Refining Company (hereinafter "Sinclair") which leased the property from 1946 through 1949.

Defendant WMATA, an instrumentality and agency of the governments of the District of Columbia, the State of Maryland, and the Commonwealth of Virginia, owned the property from 1974 to 1981.

B. Ownership and Alleged Usage of the Property

On or about March 20, 1946, Riva Honig leased the property to Sinclair for a period of three years beginning on April 8, 1946. Sinclair operated or permitted others to operate a gasoline service station which sold and dispensed petroleum products on the property. Underground storage tanks, (hereinafter "USTs"), supply lines, and pumps were installed on the property.

In October of 1949, Helen Wright acquired the property from Riva Honig. On or about March 8, 1962, Wright leased the property to Mobil for a term of fifteen years. Mobil's lease provided, in part, for indemnification against all claims, demands, and liabilities based on damages or injuries to property occasioned by Mobil's negligence in the conduct and operation of its business on the property.

From 1962 until 1974, Mobil operated and/or permitted others to operate gasoline service stations, which sold and dispensed petroleum products on the property. Mobil built an entirely new gasoline and service station on the property in 1963. It installed four four-thousand (4000) gallon tanks to serve the new station. Upon termination of the Mobil Lease, Mobil neither slurried nor removed any USTs or pumps.

On or about July 26, 1974, WMATA acquired the property in eminent domain proceedings. WMATA leased the premises to Eugene E. Beavers (hereinafter "Beavers") from July 27, 1974 to October 10, 1974. Beavers operated a gasoline service station on the property during this lease period, and paid WMATA rents for use of the property. Mobil and WMATA were the last entities that leased or owned the property for purposes of operating a gasoline service station.

Thereafter, WMATA hired Ace Wrecking & Building Material Company (hereinafter "Ace") to, inter alia, remove the USTs and demolish the pumps on the property. Ace purportedly removed certain USTs, demolished the pumps, and backfilled the excavation site with sand.

On or about February 26, 1981, WMATA conveyed the property in fee simple, subject to WMATA's subsurface easement and right of way, to James, Theodore, and Evangeline Pedas. No gasoline service station or related services operated on the property during the Pedases' ownership.

On or about December 31, 1983, the property was conveyed by the Pedases to the Cafritz Construction Company, the Morris and Gwendalyn Cafritz Foundation, Riggs National Bank, Gwendalyn D. Cafritz, Calvin Cafritz, and Martin Atlas (collectively, "Cafritz"). No gasoline service station or related services operated on the property during the Cafritz's ownership.

The Corps acquired the property from Crafritz in 1985. No gasoline service station or related services operated on the property during the Corps' ownership. On or about November 13, 1989, Chase Manhattan Bank, in conjunction with a mortgage placed on the property, required the performance of an environmental study. Briggs Associates, Inc. (hereinafter "Briggs") was engaged to perform the study, the culmination of which was a report. The study was undertaken to determine if a release of petroleum products or hazardous materials had occurred on the property.

According to the Briggs Report, Briggs visually inspected the property for contamination, performed a site history investigation, and collected soil samples for testing. The Briggs Report concluded that the USTs had been removed and that there had been no releases of any hazardous or toxic substances, including petroleum, on the property.

On or about July 30, 1992, the Corps entered into a purchase contract with the American Association for the Advancement of Science (hereinafter "AAAS") for sale of the property. On October 9, 1992, the property was sold by the Corps to AAAS. The Purchase Contract entitled AAAS to perform a feasibility study on the property prior to sale.

In August of 1992, Schnabel Engineering Associates, Inc. (hereinafter "SCS") performed a feasibility study on behalf of AAAS. The study included geo-technical and environmental tests on the property. SCS's study revealed that petroleum and petroleum substances contaminated the property. The Corps then retained SCS, which confirmed that the soil on the property was contaminated. On behalf of the Corps, SCS notified District of Columbia Department of Consumer and Regulatory Affairs (hereinafter "DCRA") of the petroleum contamination on the property. DCRA directed the Corps to remediate the property.

On September 2, 1992, the Corps through SCS commenced remediation. SCS discovered six USTs on the property, specifically, four two-thousand-five-hundred (2500) gallon gasoline USTs partially filled with sludge, one five-hundred-and-fifty (550) gallon waste oil UST partially filled with sludge, and one one-thousand (1000) gallon gasoline UST containing waste oil sludge. Additionally, one concrete oil/water separator, which contained approximately three-hundred (300) gallons of waste oil sludge, was discovered. All six USTs and the separator were corroded and contained cracks and holes. SCS also discovered two sets of underground supply or transfer lines, along with connected piping, lines, and fittings on the property. Residual petroleum products were found in and around these supply or transfer lines which contained numerous leaks and holes. (See Compl. ¶¶ 30-32.) Pursuant to directives from DCRA, the Corps completed removal of the USTs and contaminated soil from the property.

On September 28, 1992, DCRA issued a closure letter, addressed to Mobil, approving the remediation of the property. The letter identified Mobil Oil as the owner and operator of the UST systems discovered on the property.

The Corps now seeks to recover the costs it incurred in remediating the property totalling not less than $1,100,000.09, as well as lost profits associated with the use of the property during the remediation process and attorney's fees.

III. LEGAL STANDARDS

A. Fed.R.Civ.P. 12(b)(6)

A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) unless "the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." See Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). When passing judgment on the legal efficacy of a plaintiff's claim, the court may only look at the complaint, items in the record of the case, and matters of public record. Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C.Cir.1979); see Marshall County Health Care Auth., 988 F.2d 1221, 1226 (D.C.Cir.1993) (citing Phillips).

The complaint must be liberally construed in the plaintiff's favor, including any inferences derived from the factual allegations. Id. The court, however, need not accept inferences unsupported by the facts. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). The court also does not have to accept plaintiff's legal conclusions. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986); Kowal, 16 F.3d at 1276.² Therefore, a complaint may be dismissed under Fed. R.Civ.P. 12(b)(6) for lacking a cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). It is also within the court's power to dismiss an issue of first impression under Fed. R.Civ.P. 12(b)(6). See McKenna v. Washington Metro. Area Transit Auth., 670 F.Supp. 7, 8 & n. 1 (D.D.C.1986), aff'd 829 F.2d 186 (D.C.Cir...