Altidor v. Mo. Metals, LLC.

• Decision Date: 28 May 2013
• Docket Number: Case No. 4:12CV1997 TIA
• Parties: MIKERLANGE ALTIDOR, and BERNADE ALTIDOR, Plaintiffs, v. MISSOURI METALS, LLC., and PERKINELMER, INC., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

MIKERLANGE ALTIDOR, and BERNADE ALTIDOR, Plaintiffs,

v.MISSOURI METALS, LLC., and PERKINELMER, INC., Defendants.

Case No. 4:12CV1997 TIA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: May 28, 2013

MEMORANDUM AND ORDER

This matter is before the Court on Defendants PerkinElmer, Inc. and Missouri Metals, LLC's Motion to Dismiss (Docket No. 11). Plaintiffs Mikerlange Altidor and Bernade Altidor filed a Memorandum in Opposition to the Motion to Dismiss (Docket No. 18).¹ Defendants filed a Reply (Docket No. 19) thereto. All matters are pending before the undersigned United States Magistrate Judge, with the consent of the parties, pursuant to 28 U.S.C. § 636(c).

On September 12, 2012, Plaintiffs filed this putative class action Petition against Defendants in the Circuit Court of St. Louis County. Plaintiffs allege that Defendants own real property locatedat 9970 Page Avenue in Overland, Missouri ("Site") and that sometime in the late 1980s, Defendants spilled certain chemicals, namely perchloroethylene ("PCE") and trichloroethylene ("TCE") in the operation of business at the Site. (Pet. at ¶¶ 11 and 15). Plaintiffs allege that these chemicals then migrated and contaminated the soil and groundwater of the adjacent properties of Plaintiffs and the putative class members. (Id. at ¶ 17). In the three-count Petition, Plaintiffs seek damages and other relief related to their property for breach of nuisance (Count I), trespass (Count II), and negligence (Count III).

At the outset the undersigned notes, Plaintiffs in their Opposition include allegations outside of their pleadings set forth in the Petition. "Most courts ... view 'matters outside the pleading' as including any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (2d ed. 1990). The Eighth Circuit Court of Appeals had held that "'matters outside the pleading' may not be considered in deciding a Rule 12 motion to dismiss...." Enervations, Inc. v. Minn. Mining and Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004). The new allegations in the Opposition are unsupported by any pleadings or documentary evidence submitted with the Petition or any other filing. Such allegations clearly fall outside the realm of matters that the Court can consider on a Rule 12(b)(6) motion to dismiss. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999) ("On a motion to dismiss, we review the district court's decision de novo, accepting all the factual allegations of the complaint as true and construing them in the light most favorable to [the non-movant]."). A Rule 12(b)(6) motion "will succeed or fail based upon the allegations contained in the face of the complaint." Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992). Therefore, the Court willnot consider the allegations outside of the Petition.

Facts

Accepting as true all factual allegations in the First Amended Complaint and viewing them in the light most favorable to the plaintiff, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court sets forth the following facts² :

Plaintiffs allege they own property located at 1452 Elmridge Place in St. Louis, Missouri. (Pet. at ¶ 10). Plaintiffs allege that Defendants own real property located at 9970 Page Avenue in Overland, Missouri ("Site") and that sometime in the late 1980s, Defendants spilled certain chemicals, namely perchloroethylene ("PCE") and trichloroethylene ("TCE") in the operation of business at the Site. (Id. at ¶¶ 11 and 15). An area of residential development comprised of fifty single family residences and twenty-six multi-family dwellings, commonly referred to as Elmwood Park neighborhood, is located directly south and southeast of the Site. (Id. at ¶ 14).

Plaintiffs allege that Defendants spilled a number of chemicals, namely perchloroethylene ("PCE") and trichloroethylene ("TCE") in the operation of business at the Site in 1988 or 1989. (Id. at ¶ 15). As a result of the spills, Plaintiffs allege that PCE, TCE, and other chemicals leaked or migrated from the Site onto nearby properties, including the residential properties in the Elmwood Park neighborhood, contaminating the soil and groundwater, becoming an airborne contaminant, and entering the residences in the Elmwood Park neighborhood. (Id. at ¶¶ 17, 19).

Testing of the indoor air of three residences in the Elmwood Park neighborhood by the Missouri Department of Natural Resources in 2001 revealed levels of PCE and TCE in excess of theUnited States Environmental Protection Agency's Regional Screening Levels for residential air for the respective chemicals. (Id. at ¶ 20). Plaintiffs allege that Defendants knew and should have known of the spills and the continuing harm and migration of the TCE, PCE, and other chemicals. (Id. at ¶ 23). Plaintiffs further allege that Defendants have not fully investigated or cleaned up the leaks and spills of TCE, PCE, and other chemicals from the Site. (Id. at ¶ 27). Plaintiffs allege that Defendants have caused damages and injuries to Plaintiffs by improperly disposing of chemicals on the Site leading to the contamination of Plaintiffs' property. (Id. at ¶ 32). As a result of the TCE, PCE, and other chemicals leaking and migrating from the Site, Plaintiffs allege the soil and groundwater on their property needs extensive remediation activities to bring in compliance with state and federal law, and the value of the property is significantly decreased. (Id. at ¶ 33).

Standard for Ruling on a Motion to Dismiss

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint must be dismissed under Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, if a complaint pleads facts that are "merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief" and should be dismissed for failure to state a claim. Id. (internal quotation marks and citation omitted). Determining whether a claim for relief is plausible is a context-specific task requiring the court to draw on its judicial experience and common sense. Id. at 1950.

While the Court cautioned that the holding does not require a heightened fact pleading ofspecifics, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 555 U.S. at 555. In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. This standard simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the claim. Id. at 556. Plausible claims allow courts to draw "the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).

Courts must liberally construe the complaint in the light most favorable to the plaintiff and accept the factual allegations as true. See Id. at 555; see also Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (explaining that courts should liberally construe the complaint in the light most favorable to the plaintiff). Further a court should not dismiss the complaint simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. Twombly, 550 U.S. at 556. However, "[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Further, courts "'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft, 129 S. Ct. at 1950 (quoting Twombly, 550 U.S. at 555). When considering a motion to dismiss, a court can "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. Legal conclusions must be supported by factual allegations to survive a motion to dismiss. Id.

When reviewing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6),the Court must accept as true all factual allegations contained in the Complaint, and review the Complaint to determine whether its allegations show the pleader to be entitled to relief. Twombly, 550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2). The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the challenged claim. A claim must be dismissed under Rule 12(b)(6) if it does not plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (abrogating the traditional 12(b)(6) "no set of facts' standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the Complaint need not provide specific facts in support of the claims contained therein, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam), it "must include sufficient factual information to provide the 'grounds' on which the claim rests, Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. 555-56 & n.3). Although "specific facts are not...