Adkisson v. Jacobs Eng'g Grp., Inc., : 3:13-CV-505-TAV-HBG
| Decision Date | 03 September 2014 |
| Docket Number | No.: 3:13-CV-666-TAV-HBG,No.: 3:14-CV-20-TAV-HBG,No.: 3:13-CV-505-TAV-HBG,: 3:13-CV-505-TAV-HBG,: 3:13-CV-666-TAV-HBG,: 3:14-CV-20-TAV-HBG |
| Parties | GREG ADKISSON, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. KEVIN THOMPSON, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. JOE CUNNINGHAM, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
These three actions, which all relate to defendant Jacobs Engineering Group, Inc.'s post-spill clean-up removal and recovery of fly ash at the Tennessee Valley Authority("TVA") Kingston Fossil Fuel Plant (the "KIF Plant") following the coal ash spill that occurred when a containment dike at the KIF plant failed on December 22, 2008 (the "ash spill"), have been consolidated by order of the Court [Doc. 35].1 Prior to consolidation, defendant moved, in each case, to dismiss all of the claims by all the plaintiffs pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the basis of derivative discretionary function immunity. For the reasons that follow, the Court will grant those motions and dismiss plaintiffs' claims.
In Case Number 3:13-CV-505-TAV-HBG, Adkisson v. Jacobs Engineering Group, Inc., plaintiffs include individuals who allegedly "worked long hours per day in close proximity with toxic fly ash constituents" and some of their spouses [Doc. 1 ¶ 61]. They make allegations that defendant did not monitor the fly ash in violation of federal and state law, did not adequately train plaintiffs about the hazards associated with fly ash, did not adequately monitor plaintiffs' medical conditions, did not provide plaintiffs with safety equipment, did not dispose of toxic substances properly, and did not admit that plaintiffs had been exposed to hazardous substances, despite knowing the toxic nature of fly ash [Id. ¶¶ 53-70]. Plaintiffs claim that they have suffered negative health impacts as a result of defendant's conduct, including eye problems, sinus problems, pulmonary problems, heart problems, and other health-related problems [Id. ¶¶ 71-72]. On the basisof their allegations, they assert the following claims: outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud, misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or abnormally dangerous activity [Id. ¶¶ 73-139]. Defendant has moved to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Doc. 10] and to strike part of plaintiffs' response to that motion [Doc. 25].
In Case Number 3:13-CV-666, Thompson v. Jacobs Engineering Group, Inc., plaintiffs are Shaun Travis Smith, Kevin Thompson, and Kevin Thompson's wife, Joy Thompson [Case No. 3:13-CV-666 Doc. 1 ¶¶ 1-22]. Plaintiffs Shaun Travis Smith and Kevin Thompson allegedly worked on the KIF site during TVA's post-spill clean-up and remediation efforts at and around the KIF plant [Id. ¶¶ 4, 15]. Plaintiffs make allegations that defendant did not monitor the fly ash in violation of federal and state law, did not adequately train plaintiffs about the hazards associated with fly ash, did not adequately monitor plaintiffs' medical conditions, did not provide plaintiffs with safety equipment, did not dispose of toxic substances properly, and did not admit that plaintiffs had been exposed to hazardous substances, despite knowing the toxic nature of fly ash [Id. ¶¶ 9-19]. Plaintiffs have allegedly suffered negative health impacts as a result of defendant's conduct, including eye problems, sinus problems, pulmonary problems, heart problems, and other health-related problems [Id. ¶ 23]. On the basis of these allegations, they assertthe following claims: outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud, misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or abnormally dangerous activity [Id. ¶¶ 24-90]. Defendant has moved to dismiss the action pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure [Case No. 3:13-CV-666 Doc. 7] and pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Case No. 3:13-CV-666 Doc. 16]. Plaintiffs have filed two motions to amend [Case No. 3:13-CV-666 Docs. 20, 29].3
In Case Number 3:14-CV-20, Cunningham v. Jacobs Engineering Group, Inc., plaintiffs are Joe Cunningham and his wife, Taylor Cunningham [Case No. 3:14-CV-20 Doc. 1 ¶¶ 2-3]. Plaintiff Joe Cunningham allegedly worked on the KIF site during TVA's post-spill clean-up and remediation efforts [Id. ¶ 5]. Plaintiffs claim Joe Cunningham "unintentionally brought home toxins from fly ash that he was told [were] safe" [Id.]. Plaintiffs make allegations that defendant did not monitor the fly ash in violation of federal and state law, did not adequately train plaintiff Joe Cunningham about the hazards associated with fly ash, did not adequately monitor plaintiff Joe Cunningham's medical conditions, did not provide plaintiff Joe Cunningham with safety equipment, did not dispose of toxic substances properly, and did not admit that plaintiff Joe Cunningham had been exposed to hazardous substances, despite knowing the toxic nature of fly ash [Id. ¶¶ 12-21]. Plaintiff Joe Cunningham has allegedly sufferednegative health impacts as a result of defendant's conduct, including eye problems, sinus problems, pulmonary problems, heart problems, and other health-related problems [Id. ¶¶ 22-23]. Plaintiff Taylor Cunningham had a miscarriage allegedly as a result of plaintiff Joe Cunningham's exposure to toxic substances and the carrying home of those substances [Id. ¶ 24]. On the basis of these allegations, they assert the following claims: outrageous conduct, battery, negligence, negligence per se, intentional and/or reckless failure to warn, reckless infliction of emotional distress, fraud, misrepresentation/fraudulent concealment, and strict liability for ultrahazardous or abnormally dangerous activity [Id. ¶¶ 25-90]. Defendant has moved to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure [Case No. 3:14-CV-20 Doc. 6].
A motion to dismiss on the basis of discretionary function is appropriately made under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Hatcher v. United States, 512 F. App'x 527, 528-29 (6th Cir. 2013). In consideration of a motion brought pursuant to Rule 12(b)(1), a court may review extra-complaint evidence and resolve factual disputes. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915-16 (6th Cir. 1986). "Moreover, on the question of subject matter jurisdiction[,] the court is not limited to jurisdictional allegations of the complaint but may properly consider whatever evidence is submitted for the limited purpose of ascertaining whether subject matter jurisdictionexists." Pryor Oil Co., Inc. v. United States, 299 F. Supp. 2d 804, 807 (E.D. Tenn. 2003) (citing Rogers, 798 F.2d at 915-16) (other citations omitted).
Because defendant's motions are properly brought pursuant to Rule 12(b)(1), the Court considers the affidavits and documents submitted in support and opposition of dismissal. Plaintiffs ask the Court to allow discovery to further contest defendant's motions [See Doc. 16], but the Court finds that request unwarranted. When sovereign immunity is an issue, the D.C. Circuit has noted that "jurisdictional discovery should be carefully controlled and limited" "to avoid burdening a sovereign that proves to be immune from suit." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). Upon review of the parties' submissions, and for reasons apparent from the Court's analysis regarding application of derivative discretionary function immunity below, the Court does find that discovery would aid in determining whether derivative discretionary function immunity applies here.5
TVA is a corporate agency and instrumentality of the United States created by and existing pursuant to the Tennessee Valley Authority Act of 1933 (the "TVAAct"). See 16 U.S.C. §§ 831 et seq.; see also Hill v. U.S. Dep't of Labor, 65 F.3d 1331, 1333 (6th Cir. 1995). TVA was created by Congress "in the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins." 16 U.S.C. § 831. Through amendments to the TVA Act, Congress extended TVA's purposes to "law enforcement . . . in the area of jurisdiction," id. § 831c-3(a), and "[t]o aid further the proper use, conservation, and development of the natural resources of the Tennessee River drainage basin and of such adjoining territory as may be related to or materially affected by the development consequent to this chapter, and to provide for the general welfare of the citizens of said areas . . . ." Id. § 831u; see also U.S. ex rel. Tenn. Valley Auth. v. Welch, 327 U.S. 546, 553-54 (1946). The TVA Act also specifically authorizes TVA "[t]o produce, distribute, and sell electric power." 16 U.S.C. § 831d(l); see also Memphis Power & Light Co. v. City of Memphis, 112 S.W.2d 817, 822 (1937) (). In addition, the TVA Act gives TVA the power to exercise the right of eminent domain, to acquire real estate, and to take title to real estate in the name of the United States to accomplish the purposes of the TVA Act, including "the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects . . . ." 16 U.S.C. §§ 831c(h)-(i).
TVA owns, operates, and manages the KIF plant. Chesney v. Tenn. Valley Auth., ...
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