Adkins v. Chevron Corp.

• Decision Date: 21 December 2012
• Docket Number: No. 2:11–CV–173.,2:11–CV–173.
• Citation: 960 F.Supp.2d 761
• Parties: Patricia Ann Scott Holloway ADKINS, et al., Plaintiffs, v. CHEVRON CORPORATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

960 F.Supp.2d 761

Patricia Ann Scott Holloway ADKINS, et al., Plaintiffs,

v.CHEVRON CORPORATION, et al., Defendants.

No. 2:11–CV–173.

United States District Court, E.D. Tennessee.

Dec. 21, 2012.

Fidelma Fitzpatrick, Motley Rice, LLC, Jonathan D. Orent, Providence, RI, Jenny C. Rogers, John Rogers Law Group, Jerry W. Laughlin, Laughlin, Nunnally, Hood & Crum, Todd A. Shelton, John T. Milburn Rogers, John Rogers Law Group, Greeneville, TN, Kevin J. Lawner, Marc Bern, Tate Kunkle, Napoli Bern Ripka, LLP, New York, NY, for Plaintiffs.

Tami Lyn Azorsky, Dara D. Mann, McKenna, Long & Aldridge LLP, Washington, DC, Gary C. Shockley, Baker, Donelson, Bearman, Caldwell & Berkowitz PC, Nashville, TN, Stephen E. Fox, Fox & Cole, PLLC, Johnson City, TN, for Defendants.

MEMORANDUM OPINION AND ORDER

J. RONNIE GREER, District Judge.

This is a putative class action lawsuit brought by 143 named plaintiffs individually and on behalf of all others similarly situated for personal injury and/or property damage which arise from allegations of releases of radioactive, hazardous and toxic substances from a nuclear fuel processing facility (the “facility”) into the surrounding environment since the facility began to operate in Erwin, Tennessee in 1957. The action arises under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq., and the Price–Anderson Act, 42 U.S.C. § 2210 et seq.

Currently pending before the Court are three motions: (1) the motion of NFS Holdings, Inc., individually and as Successor-in-interest to Nuclear Fuel Services, Inc., NOG–ERWIN Holdings, Inc., individually and as Successor-in-interest to Nuclear Fuel Services, Inc., Babcock & Wilcox Power Generation Group, Inc., individually and as Successor-in-interest to Babcock & Wilcox Company, B & W Technical Services Group, Inc. f/k/a Nuclear Environmental Services, Inc., Nuclear Fuel Services, Inc., The Babcock & Wilcox Company and NFS–Radiation Protection Systems, Inc.¹ (“NFS Defendants”) to dismiss plaintiffs' first amended complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), [Doc. 77]; (2) Chevron Corporation's (“Chevron”) motion to dismiss plaintiffs' first amended complaint for lack of personal jurisdiction and failure to state a claim for relief under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), [Doc. 76]; and (3) plaintiffs' second motion to amend their complaint, [Doc. 105].

More specifically, the NFS Defendants claim that plaintiffs' state law claims are preempted by the Price–Anderson Act, that plaintiffs' public liability action under the Price–Anderson Act fails because plaintiffs do not allege any violation of the applicable federal duty of care, that plaintiffs fail to plead their causes of action with specific factual detail to meet the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and that plaintiffs' class allegationsare facially deficient because the alleged class is an improper fail-safe class. Chevron alleges that it does not have sufficient contacts with the state of Tennessee to allow the Court to exercise personal jurisdiction over Chevron, that plaintiffs have not alleged a cognizable legal theory which would make Chevron liable as Successor-in-interest to Texaco, Inc., Getty Oil Company and Skelly Oil Company, makes the same arguments as the NFS Defendants that plaintiffs have failed to state a claim under the Price–Anderson Act or to plead a viable tort theory sufficient to satisfy the requirements of Twombly and Iqbal, and that plaintiffs' class allegations are deficient as a matter of law. Responses and replies have been filed and all motions are now ripe for disposition. Oral argument was heard on June 28, 2012. For the reasons which follow, the motions to dismiss will be GRANTED IN PART and plaintiffs' complaint will be DISMISSED. Plaintiffs' second motion to amend their complaint will be DENIED.

I. Standard of Review

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Bassett v. National Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007)). “[T]o survive a motion to dismiss a complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’ ” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir.2009) (quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action.” Id. The plausibility standard is not equivalent to a “ ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

Federal Rule of Civil Procedure 12(b)(2) provides for dismissal of cases for lack of personal jurisdiction over the defendant. In considering a properly supported motion to dismiss for lack of personal jurisdiction, a district court has discretion to either decide the motion upon the affidavits alone, permit discovery in aid of deciding the motion, or conduct an evidentiary hearing to resolve any apparent factual questions. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991) (citing Serras v. First Tennessee Bank Nat. Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989)). A plaintiff bears the burden of establishing the existence of personal jurisdiction. Estate of Thomson v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 360 (6th Cir.2008) (citing Brunner v. Hampson, 441 F.3d 457, 462 (6th Cir.2006)).

However, where a Rule 12(b)(2) motion is decided solely on written submissions and affidavits, the plaintiffs' burden “is relatively slight,” American Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir.1988) and “the plaintiff must make only a prima facie showing that personal jurisdiction exists in order to defeat dismissal,” Theunissen, 935 F.2d at 1458. Indeed, “the pleadings and affidavits submitted ... are received in a light most favorable to the plaintiff,” id. at 1459, and the court “should not weigh the controverting assertions of the party seeking dismissal.” Thomson, 545 F.3d at 361 (citing Theunissen, 935 F.2d at 1459). This Rule is in place because the United States Court of Appeals for the Sixth Circuit has stated that it wants “to prevent non-resident defendants from regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional facts.” Theunissen, 935 F.2d at 1459.

II. Facts and Procedural Background

Plaintiffs' complaint, [Doc. 1], was filed on June 13, 2011. With the agreement of defendants, a First Amended Complaint was filed on October 14, 2011, [Docs. 64, 68]. Defendants responded to the complaint with the instant motions to dismiss. After the motions were fully briefed, plaintiffs filed a second motion to amend/revise their complaint, [Doc. 105], and defendants responded in opposition to the motion to amend, [Doc. 107]. On June 14, 2012, the Magistrate Judge entered an order deferring a ruling on the motion to amend until the instant dispositive motions were ruled upon, [Doc. 108].

Plaintiffs are 143 persons/organizations ² who lived near, worked at, or owned property in close proximity to, the facility who claim to have suffered severe personal or physical injury, pain, suffering, and mental and emotional damage from such illnesses as cancer, lung disease, heart attack, tumors and various other conditions and property damage from “repeated releases of hazardous and radioactive substances into the area surrounding the [f]acility.” Many plaintiffs also claim the death of family members related to the releases. These plaintiffs propose to represent a class of “all persons who lived, resided, or owned real property in Erwin, Tennessee, or any area that was contaminated by emissions from the [f]acility, who have suffered personal injury or death and/or substantial property damage as a result of Defendants' conduct ...”

The following facts, taken as true for the purpose of deciding the instant motions to dismiss, are taken from the first amended complaint:

Nuclear Fuel Services, Inc. (“NFS”) was formed in 1957 to develop one of the nation's first privately owned commercial nuclear processing facilities. The facility has continuously been located at the same location in Erwin, Tennessee since that time. Enriched uranium, thorium and plutonium have been processed, pelletized, and loaded into fuel rods or cylinders to be used as nuclear fuel by both government and commercial customers. Certain waste treatment and disposal activities, including radioactive waste incineration and use of retention ponds, also occurred at the facility.

The operations of the facility have generated significant amounts of substances that are toxic to humans and the environment and are carcinogenic. Throughout the history of the facility, there have been recurrent releases of radioactive and toxic materials into the environment, including discharge of radioactive and toxic material into public waters, emissions from facility stacks, exposure of workers, and leakage from storage tanks and disposal systems. Plaintiffs contend that the facility “was never operated in compliance with applicable state, local and federal...