Board of County Com'Rs v. Brown Group Retail, Inc.

• Decision Date: 18 February 2009
• Docket Number: Civil Case No. 08-cv-00855-LTB-KMT.
• Citation: 598 F.Supp.2d 1185
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LA PLATA, COLORADO, Plaintiff, v. BROWN GROUP RETAIL, INC., Plummer Precision Optics Co., Blue Jaunte Company, Inc., and Plummer Precision Optics Western Division, Inc., Defendants.
• Court: U.S. District Court — District of Colorado

598 F.Supp.2d 1185

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LA PLATA, COLORADO, Plaintiff, v. BROWN GROUP RETAIL, INC., Plummer Precision Optics Co., Blue Jaunte Company, Inc., and Plummer Precision Optics Western Division, Inc., Defendants.

Civil Case No. 08-cv-00855-LTB-KMT.

United States District Court, D. Colorado.

February 18, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ann M. Rhodes, Asimakis Pascal Iatridis, Josh Adam Marks, Michael B. Arnold, Berg Hill Greenleaf & Ruscitti, LLP, Boulder, CO, for Plaintiff.

Gail L. Wurtzler, Robert Winston Lawrence, Davis Graham & Stubbs, LLP, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This environmental contamination case is before me on Defendant, Brown Group Retail, Inc.'s ("Brown Group"), Partial Motion to Dismiss Second Amended Complaint [Docket # 57]; Plaintiff's Response [Docket # 67]; and Brown Group's Reply [Docket # 70]. Oral argument would not materially assist the determination of this motion. After consideration of the motion, the papers, and the case file, and for the reasons stated below, I GRANT in part and DENY in part Brown Group's Motion to Dismiss [Docket # 57] as follows.

I. BACKGROUND

The following relevant facts are alleged in the Second Amended Complaint [Docket # 49]. In 1983, Plaintiff—a county in Colorado—purchased a parcel of land ("the property") previously owned by Brown Group. Beginning in 1975, Brown Group had operated a rifle scope manufacturing facility ("the facility") on the property. Toxic solvents used in the manufacturing process were spilled and leaked onto the floor of the facility and were flushed down the drains of the facility. The plumbing beneath the facility leaked solvents into the surrounding soil and contaminated the groundwater. The spills and leaks continued up until Plaintiff purchased the property in 1983. The property currently houses a detention center.

Plaintiff sampled the soil and groundwater at the property, as well as the surrounding area. Plaintiff's tests showed levels of toxic solvents in the soil and groundwater that exceed government standards for the protection of human health and the environment. The toxic plume extends into otherwise-potable groundwater supplies and reaches the Animas River, which is a source of drinking water. Fumes from the solvents escape the surface of the property into the detention center. Brown Group has not taken steps to abate or contain the contamination.

Plaintiff filed the present Second Amended Complaint on December 18, 2008, alleging seven claims for relief: (1) Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") cost recovery; (2) unjust enrichment; (3) negligence and negligence per se; (4) abnormally dangerous activity (strict liability); (5) declaratory relief; (6) Resource Conservation and Recovery Act ("RCRA") relief for ongoing contamination; and (7) RCRA relief for prior contamination while Brown Group was the owner and/or operator of the property and the facility. Brown Group filed the present motion on January 8, 2009 [Docket # 57]. Brown Group moves to dismiss Plaintiff's claims for failure to state a claim upon which relief can be granted under FED.R.CIV.P. 12(b)(6); and for lack of subject matter jurisdiction under FED.R.CIV.P. 12(b)(1).

II. STANDARDS OF REVIEW

A. FED.R.CIV.P. 12(b)(1)

As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them the authority to hear. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Accordingly, Rule 12(b)(1) directs a court to dismiss a complaint whenever it appears the court lacks jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1) and 12(h)(3). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). When a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's factual allegations, but has discretion to consider affidavits and other evidence to resolve disputed jurisdictional facts. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995).

B. FED.R.CIV.P. 12(b)(6)

Granting a motion to dismiss is a harsh remedy which must be exercised with caution to protect the liberal rules of pleading and the interests of justice. See Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989). Thus, the Federal Rules of Civil Procedure erect a powerful presumption against rejecting pleadings for failure to state a claim. Id. Nonetheless, a claim "may be dismissed either because it asserts a legal theory not cognizable as a matter of law or because the claim fails to allege sufficient facts to support a cognizable legal claim." Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D.Colo.2004).

When considering a motion to dismiss for failure to state a claim upon which relief can be granted, a district court must accept as true all factual allegations in the complaint. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). While the factual allegations need not be pleaded in great detail, they must be sufficiently precise to raise a right to relief above the speculative level. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 1969, 167 L.Ed.2d 929 (2007) (abrogating the rule of Conley v. Gibson, 355 U.S. 41, 44-45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"); Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.2007).

A district court should dismiss the complaint if the plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." See Twombly, 127 S.Ct. at 1974; see also Kay, 500 F.3d at 1218. "Plausible" in this context refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs `have not nudged their claims across the line from conceivable to plausible.'" See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974). "Plausibility," however, does not refer to the likelihood that the allegations can be proven or even that the allegations are true. See id.

"The determination of whether a complaint contains enough allegations of fact to state a claim to relief that is plausible on its face is dependent on the context of the claim raised." Mink v. Knox, 566 F.Supp.2d 1217, 1221 (D.Colo.2008); see also Robbins, 519 F.3d at 1248. The "mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (emphasis in original). Accordingly, "within the context of the claim alleged, the complaint must contain enough specific allegations of fact to show that if all the alleged facts—and only the alleged facts—are believed to be true, the plaintiff has a claim for relief." Knox, 566 F.Supp.2d at 1222; see Twombly, 127 S.Ct. at 1965; Robbins, 519 F.3d at 1247-48.

III. ANALYSIS

Brown Group moves to dismiss Plaintiff's Second Claim (unjust enrichment); Third Claim (negligence and negligence per se); Fourth Claim (abnormally dangerous activity); Sixth Claim (RCRA Section 6972(a)(1)(A)); and Seventh Claim (RCRA Section 6972(a)(1)(B)).

A. Unjust Enrichment

Brown Group initially argues Plaintiff's unjust enrichment claim should be dismissed because it is preempted by Plaintiff's CERCLA claims. Section 114(b) of CERCLA provides that any person who receives compensation under CERCLA is "precluded from recovering compensation for the same removal costs or damages or claims pursuant to any other State or Federal law." See 42 U.S.C. § 9614(b). As noted by the Tenth Circuit, however, Section 114(b) does not indicate Congress intended to preempt state-law remedies for hazardous waste contamination. See New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1244 (10th Cir.2006). Indeed, the language of Section 114(b) itself indicates that a Plaintiff may recover identical compensation under either a state law theory or CERCLA, but not both. See Manor Care, Inc. v. Yaskin, 950 F.2d 122, 127 (3d Cir.1991) ("Such a provision would be unnecessary and inexplicable if . . . costs that may be recovered under CERCLA may not be recovered under state law. In other words, if CERCLA's remedies preempted state remedies for recovering costs of hazardous waste cleanups, § 114(b) would make no sense at all."); see also Stanton Road Assocs. v. Lohrey Enters., 984 F.2d 1015, 1021-22 (9th Cir. 1993).

Brown Group next argues that— even if Plaintiff's unjust enrichment claim is not preempted by CERCLA as a general matter of law—it should be preempted here because the unjust enrichment claim seeks the same damages as Plaintiff's CERCLA claim. As an initial matter, I note it does not appear that Plaintiff's unjust enrichment claim seeks recovery of damages that are identical to those available under Plaintiff's CERCLA claim. For example, Plaintiff seeks monetary damages that are unavailable to private parties under CERCLA. See Gen. Elec. Co., 467 F.3d at 1246 n. 34 ("CERCLA as enacted provides no private right of action for personal or economic injury caused by the release of hazardous substances"). Even if the recovery sought was identical, however, it is well established...