Aertker v. Dresser LLC
| Decision Date | 04 May 2022 |
| Docket Number | Civil 1:22-CV-00323 |
| Parties | SAM R. AERTKER v. DRESSER, LLC, ET AL |
| Court | U.S. District Court — Western District of Louisiana |
DAVID C. JOSEPH JUDGE
MEMORANDUM RULING
Before the Court are the following motions: (i) a MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (the “Dresser Motion”) [Doc. 21] filed by Dresser, LLC, Dresser RE LLC, Baker Hughes, a GE Company, LLC (now known as Baker Hughes Holdings LLC), and Baker Hughes, Inc. (now known as Baker Hughes Holdings LLC) (collectively “Dresser”); and (ii) a MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (the “GE Motion”) [Doc 20] filed by General Electric Company (“GE”). Both motions are brought pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff, Sam R. Aertker (“Aertker”) opposes the motions. [Docs. 24, 25]. For the following reasons:
The Dresser Motion is GRANTED.
The GE Motion is GRANTED, in part and DENIED, in part.
This lawsuit - among others - arises from alleged property damage and personal injury sustained by an adjacent landowner resulting from operations at a now-closed industrial valve manufacturing facility located in Rapides Parish Louisiana (the “Dresser Facility”).[1] [Doc. 16]. Plaintiff contends that throughout the approximately 50 years during which the Dresser Facility was in operation, solvents, cutting oils, acids, and caustics were disposed of improperly, thereby contaminating the groundwater and soil beneath the Dresser Facility. Aertker further alleges that this contamination has migrated onto his immediately adjacent property and caused him injury.
Plaintiff owns a nine-acre property (the “Aertker property”) immediately adjacent to the Dresser Facility. [Doc. 1-1, ¶ 1]. According to Plaintiff, Defendants kept a storage tank for trichloroethylene (“TCE”) at the southeast corner of the Dresser Facility - which is the closest portion of the facility to the Aertker property. [Doc. 16, ¶ 16]. Aertker contends that Defendants' TCE storage tank and TCE-related operations constantly leaked and spilled throughout their use. [Doc. 16, ¶ 17]. Plaintiff alleges that these leaks, coupled with Defendants' improper use of two unlined earthen pits for discharge of wastewater, resulted in the migration of several harmful chemicals, including TCE, tetrachloroethylene (“PCE”), and other volatile organic compounds onto the Aertker property, causing damage.
On December 7, 2020, Plaintiff filed the above-captioned matter in the 19thJudicial District Court in East Baton Rouge Parish, Louisiana. [Doc. 1-1]. Dresser subsequently removed the suit to the United States District Court for the Middle District of Louisiana. [Docs. 1, 2-1]. Removal was based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 6972(a) due to Plaintiff's claim under the citizen-suit provision of the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.) (the “RCRA Claim”).[2] On February 1, 2022, this matter was transferred to the Western District of Louisiana. [Docs. 44, 46].
Before responsive pleadings were filed, Plaintiff amended his complaint pursuant to Federal Rule of Civil Procedure 15(a)(1)(B) (the “Amended Complaint”). [Doc. 16]. The Amended Complaint asserts claims of negligence, nuisance, breach of the natural servitude of drain, breach of Louisiana Mineral Code Article 10, several theories of premises liability, and violations of the RCRA. [Doc. 16, ¶¶ 54-133]. GE and Dresser then filed the instant motions to dismiss several of Plaintiff's claims. [Docs. 20, 21]. Plaintiff opposes both motions. [Docs. 24, 25]. Following the transfer of this matter to the Western District, the Court requested additional briefing concerning the alleged RCRA violations and the pre-suit notice required under that statutory scheme. See 42 U.S.C. § 6972(b)(2)(A); [Doc. 65]. GE, Dresser, and Aertker filed responses to the Court's request. [Docs. 66, 67, 68]. The pending motions are now ripe for review.
Federal Rule of Civil Procedure 12(b)(6) allows for dismissal of a claim when a plaintiff “fail[s] to state a claim upon which relief can be granted.” Such motions are reviewed with the court “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough facts ‘to state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility requires more than just the “sheer possibility” that a defendant acted unlawfully; it calls for enough facts “to raise a reasonable expectation that discovery will reveal evidence” to support the elements of the claim. Twombly, 550 U.S. at 556. Accordingly, the Court's task is not to evaluate the plaintiff's likelihood of success but instead to determine whether the claim is both legally cognizable and plausible. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). If the factual allegations asserted in the complaint are wholly speculative or if it is apparent from the face of the complaint that there is an absolute bar to recovery, the claim should be dismissed. Twombly, 550 U.S. at 555.
Dresser seeks dismissal on two grounds. First, it argues that Plaintiff has failed to state a claim as a matter of law for: (i) Dresser's negligence in failing to contain or remediate any contamination, (ii) strict liability under Louisiana Civil Code Article 667, (iii) trespass, (iv) continuing trespass, and (v) civil fruits. Second, Dresser claims that Plaintiff has failed to state an RCRA claim due to his noncompliance with the mandatory notice and delay provisions of the Act. The Court will address each argument in turn.
Aertker alleges several theories to support his negligence claim, including that Dresser failed to prevent, contain, and remediate the alleged contamination onto the Aertker property. [Doc. 16, ¶¶ 68, 69, 70, 72, 71]. Dresser seeks dismissal of the portion of Aertker's claim alleging its failure to contain or remediate any contamination - arguing that these are not cognizable claims under Louisiana law.
In contamination cases, a defendant's failure to contain or remediate is not an act of negligence separate and apart from such defendant's failure to prevent the conduct causing the alleged contamination in the first instance. See Marin v. Exxon Mobil Corp., 2009-2368, p. 28 (La. 10/19/10); 48 So.3d 234, 254; Hogg v. Chevron USA, Inc., 2009-2632, pp. 22-23 (La. 07/06/10); 45 So.3d 991, 1007. Stated differently, the initial leakage - not the failure to contain or remediate - is the operating cause of the plaintiff's injury. Id. Therefore, assuming Plaintiff has stated a negligence claim regarding the alleged initial disposal of hazardous substances, he does not maintain a separate negligence claim for failure to contain or remediate.[3] Accordingly, the Court dismisses Plaintiff's negligence claim insofar as it claims Dresser failed to contain and remediate the alleged contamination.
The Amended Complaint also asserts strict liability claims against Dresser under Civil Code Article 667.[4] [Doc. 16, ¶¶ 75, 79, 80]. The pre-1996 version of Article 667 imposed liability on landowners or proprietors for damage caused to their neighbors by engaging in ultrahazardous activities. Morgan Plantation, Inc. v. Tennessee Gas Pipeline Co., LLC, CV 16-1620, 2017 WL 4864489, at *5 (W.D. La. Sept. 21, 2017) (citations omitted). Louisiana courts employed a three-prong test to determine whether an activity was ultrahazardous. Under this test, in order to qualify as an ultrahazardous activity, courts require that the conduct must: (i) relate to an immovable, (ii) itself cause the injury, and the defendant must be engaged directly in the injury-producing activity, and (iii) not require substandard conduct to cause injury. Id. (citing Bartlett v. Browning-Ferris Indus., Chem. Svcs., Inc., 19960218, p. 4 (La.App. 3 Cir. 01/02/96), 683 So.2d 1319, 1321).
Dresser claims that the Amended Complaint fails as a matter of law to state a claim for injuries stemming from ultrahazardous activity because the third prong of the test is not met. The Court agrees. Because Plaintiff alleges throughout the Amended Complaint that his injuries were caused by the substandard conduct of Dresser - and, importantly, does not allege that Dresser's activities were ultrahazardous in and of themselves - the third prong fails. Barrett v. Dresser, LLC, CV 20-1346, 2021 WL 53658, at *8 (W.D. La. Jan. 6, 2021); see also, Morgan Plantation, Inc., 2017 WL 4864489, at *5 (); Pierce v. Exxon Mobil Oil Corp., CV 12-2224, 2013 WL 1856079, *7 (E.D. La. Apr. 30, 2013) (). Accordingly, Plaintiff's negligence allegations throughout his complaint defeats his pre-1996 Article 667 strict liability claim. Dresser's Motion is therefore granted as to this claim.
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