Alvarez v. Atlantic Richfield Co.
| Decision Date | 26 July 2021 |
| Docket Number | 2:17-CV.414-JVB-JPK |
| Parties | CRISTOBAL ALVAREZ, et al., Plaintiffs, v. ATLANTIC RICHFIELD COMPANY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court on the following motions, all of which were filed on July 31, 2020:
The motions to dismiss are fully briefed. No. responses were filed to the requests for judicial notice and the request for oral argument.
The 46 plaintiffs brought suit against 8 defendants. Four defendants remain: Atlantic Richfield Company (“Atlantic Richfield”), E.I. Du Pont De Nemours and Company, the Chemours Company (collectively with the previous defendant “DuPont”), and U.S. Smelter and Lead Refinery Inc. (“U.S. Smelter”).
Under Northern District of Indiana Local Rule 7-5(c)(1), the Court in its discretion, may grant or deny a request for oral argument. Finding oral argument unnecessary for the resolution of the pending motions, the Court denies the request.
“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . is generally known within the trial court's territorial jurisdiction; or . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid 201(b). Public records-such as court orders, agency decisions, administrative body reports, and government websites-are appropriate subjects of judicial notice. See In re Lisse, 905 F.3d 495, 496 (7th Cir. 2018) (Easterbrook, J., in chambers) (court orders); Opoka v I.N.S., 94 F.3d 392, 394-95 (7th Cir. 1996) (agency decisions); Bell v. City of Country Club Hills, 841 F.3d 713, 716 n.1 (7th Cir. 2016) (administrative body reports); Pickett v. Sheridan Health Care Ctr, 664 F.3d 632, 648 (7th Cir. 2011) (government websites). It is proper to take judicial notice that documents in the public record exist, that they say what they say, and (if applicable) that they have legal consequences. See Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th Cir. 2012).
U.S. Smelter asks the Court to take judicial notice of (1) a November 20, 1990 order issued by the United States Bankruptcy Court for the Western District of Pennsylvania in case number 87-00207E, (2) a September 2017 administrative settlement agreement and order signed by representatives of the Environmental Protection Agency (EPA) and U.S. Smelter in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) docket number V-W-17-C0913, (3) the November 2012 EPA record of decision for the U.S. Smelter and Lead Refinery, Inc. Superfund Site Operable Unit 1, and (4) a June 25, 2020 EPA memorandum recommending the partial deletion of the U.S. Smelter and Lead Refinery, Inc. Superfund Site from the National Priorities List.
Atlantic Richfield asks the Court to take judicial notice of (1) the October 31, 1946 warranty deed transferring ownership from International Smelting and Refining Company to the Eagle-Picher Company, (2) the November 27, 1946 warranty deed transferring ownership from International Smelting and Refining Company to the Eagle-Picher Company, (3) the January 5, 1949 warranty deed transferring ownership from International Smelting and Refining Company to Mid-West Tar Products Corporation, and three government webpages.
DuPont asks the Court to take judicial notice of an EPA webpage and an April 8, 2009 Press Release titled “EPA adds East Chicago site to Superfund list; proposes Elkhart, Ind., site, ” which can be found on the EPA website.
No party has filed a response or objection to any request for judicial notice. It appears that the Court can properly take judicial notice of the fact that all of these documents exist and that they say what they say. The Court can also take judicial notice that the judicial and agency decisions have a legal effect. The Court takes such judicial notice of the documents.
The Court does not take judicial notice of any of the documents to establish a disputed fact. For example, U.S. Smelter asks the Court to take judicial notice that the residential properties in Zones 2 and 3 have been remediated such that the EPA recommended removal from the National Priorities List. U.S. Smelter would use this information to rebut Plaintiffs' allegation that contamination continues to migrate onto their properties. The Court takes judicial notice that the EPA issued a recommendation and made statements regarding the status of remediation, but whether the statements in that recommendation are true is an improper subject for judicial notice.
On a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, the Court accepts as true all well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atl. Corp. v Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008). Federal Rule of Civil Procedure Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” However, “recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 661, 678 (2009) (citing Twombly, 550 U.S. at 555). A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570).
Plaintiffs allege the following. Plaintiffs are landowners whose land is located within an area of East Chicago, Indiana, placed on the EPA's Superfund National Priorities List in 2009. Atlantic Richfield had operations on property it owned in East Chicago, Indiana until the 1970s, and emissions from these operations contaminated the surrounding area with hazardous contaminants. DuPont had operations until approximately 2000 on property it still owns, and emissions from these operations contaminated the surrounding area. Though operations have ceased at DuPont's facility, migration of contaminated groundwater continues. U.S. Smelter had operations on property it owned until the 1980s, and emissions from these operations contaminated the surrounding area. Throughout their operations and continuing to the time of the filing of the complaint, Defendants kept secret and failed to notify Plaintiffs of the contamination and the associated potential adverse health effects.
Though the land at issue was placed on the Superfund National Priorities Listing 2009, Plaintiffs were not informed of EPA soil testing results by EPA or Defendants until 2016. Plaintiffs did not know that they were living on toxic contamination until 2016. The contamination of Plaintiffs' properties has decreased the property values and potential buyers are unwilling to buy Plaintiffs' properties due to contamination. Plaintiffs have also ceased certain activities at home, such as allowing children to play outside or opening windows, and in instances where indoor contamination was found, remediation requires moving belongings and replacing upholstery and window dressings.
Certain Plaintiffs had a more than 18-month wait from learning of the contamination to the remediation of their property. The contamination of their properties have caused Plaintiffs stress and anxiety due to concerns regarding financial concerns and the health of themselves and family members.
Plaintiffs bring claims of negligence, private nuisance, trespass, and negligent infliction of emotional distress. They request relief of compensatory damages, punitive damages, reasonable attorney's fees, and costs.
Indiana has a six-year statute of limitations “for injuries to property other than personal property.” Ind. Code § 34-11-2-7(3). For personal injury actions, Indiana has a two-year statute of limitations. Id. § 34-11-2-4. “Under Indiana's discovery rule, a cause of action accrues, and the limitation period begins to run when a claimant knows or in the exercise of ordinary diligence should have known of the injury.” Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1280 (Ind. 2009) (citing Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992)).
Because a statute of limitations argument is an affirmative defense, Plaintiffs need not anticipate and defend against it in their complaint. U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003). Dismissal on a statute of limitations defense is only proper if the allegations of the complaint set forth all of the necessary elements of the defense. Id.
DuPont identifies Plaintiffs' allegation that by 2009 the EPA placed the area where Plaintiffs own property on the Superfund's National Priorities List. See (Compl. ¶ 118). However, in the immediately preceding paragraph, Plaintiffs also allege that “Defendants failed to notify...
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