Evans v. Walter Industries, Inc.

Decision Date23 September 2008
Docket NumberNo. CV-05-BE-1017-E.,CV-05-BE-1017-E.
Citation579 F.Supp.2d 1349
PartiesIsaiah EVANS, et al., Plaintiffs, v. WALTER INDUSTRIES, INC., et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

Christopher M. Hopkins, James M. Campbell, Campbell & Hopkins, James M. Sims, Anniston, AL, Craig L. Lowell, Dennis G. Pantazis, Edward McFarland Johnson, Brian M. Clark, Josh Wilson, Wiggins Childs Quinn & Pantazis, Birmingham, AL, E. Clayton Lowe, Jr., Peter A. Grammas, Lowe & Grammas LLP, Vestavia Hills, AL, for Plaintiffs.

Alfred F. Smith, Jr., Sela Stroud Blanton, Bainbridge Mims Rogers & Smith LLP, Charles E. Sharp, Joel A. Williams, Sadler Sullivan PC, Lynne Stephens O'Neal, Leitman Siegal & Payne, PC, Birmingham, AL, Cari K. Dawson, Douglas S. Arnold, Robert Mowrey, Shelly J. Ellerhorst, Alston & Bird LLP, Bradley W. Pratt, Philip E. Holladay, Jr., Stephen B Devereaux, King & Spalding LLP, Bryony Helen Bowers, Douglas A. Henderson, Lynette Eaddy Smith, Carmie Leeann McCurry, Troutman Sanders LLP, Atlanta, GA, Lianne Mantione, Van Carson, Wendlene M. Lavey, Lianne Mantione, Squire Sanders & Dempsey LLP, Cleveland, OH, Jerry B. Oglesby, Ronald S. Held, Sides Oglesby Held Dick & Burgess, George A. Monk, Brooks Harmon & Monk LLC, Anniston, AL, Scott A. King, Thompson Hine LLP, Dayton, OH, John W. Vardaman, Robert J. Shaughnessy, Williams & Connolly LLP, Steven L. Leifer, Baker Botts LLP, Washington, DC, B. Clark Carpenter, Jr., Wooten Thornton Carpenter O'Brien Lazenby & Lawrence, Talladega, AL, John A. Schifino, Robert V. Williams, Williams Schifino Mangione & Steady PA, Tampa, FL, Scott W. Gosnell, Webb & Eley PC, Montgomery, AL, for Defendants.


KARON OWEN BOWDRE, District Judge.

This case comes before the court on the following motions: "Defendant U.S. Pipe and Foundry Company, LLC's Motion to Dismiss Plaintiffs' Third Amended Complaint" (doc. 162); "Motion of Defendant Phelps Dodge Industries, Inc. to Dismiss the Third Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted" (doc. 165); "FMC's and United Defense's Motion to Dismiss the Third Amended Complaint With Prejudice" (doc. 166); "MW Custom Papers, LLC's Motion to Dismiss Plaintiffs' Third Amended Complaint" (doc. 168); "Plaintiffs' Request for Oral Argument" (doc. 175); and another "Plaintiffs' Request for Oral Argument" (doc. 181). The parties have fully briefed these motions. For the reasons stated below, U.S. Pipe's motion (doc. 162), Phelps Dodge's motion (doc. 165), FMC's and United Defense's motion (doc. 166), and MW Custom's motion (doc. 168) will be GRANTED IN PART and DENIED IN PART, as set forth below. Plaintiffs' motions for oral argument (docs. 175 & 181) will be DENIED. A separate order to that effect will be entered simultaneously.


This case has already had a long and tortuous history, even though still at the pleading stage. The Plaintiffs originally filed their class action suit on April 8, 2005, in Calhoun County Circuit Court. The Defendants removed the case under the removal provision of the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. No. 109-2, 119 Stat. 4 (codified at 28 U.S.C. § 1332(d)(2)). The Plaintiffs sought remand, asserting that the case fell within the "local controversy exception" in CAFA, which requires a federal court to decline jurisdiction if more than two-thirds of the plaintiff class are in-state residents and at least one in-state defendant is a "significant" defendant within the meaning of CAFA. See 28 U.S.C. § 1332(d)(4)(A). The court agreed that the case presented a "local controversy," because the heart of this case involves damage to real property in Calhoun County, Alabama, and remanded the case to state court. The Defendants appealed under 28 U.S.C. § 1453(c), and the Eleventh Circuit reversed, holding that the court's finding of purely local matter was based on "speculation." Evans v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir.2006).

Since its return to this court, the Plaintiffs have tried to properly plead their case. The motions to dismiss currently before the court challenge the Third Amended Complaint ("TAC"), filed on July 27, 2007, as barred by Alabama's statute of repose and statute of limitations, for failure to state causes of action, and for lack of subject matter jurisdiction. Because Plaintiffs' TAC on its face indicates that MW Custom operated various facilities "no later than 1977" and Phelps Dodge operated its facilities "no later than 1983," the court ordered the Plaintiffs to show cause why the claims against these two Defendants should not be dismissed as time barred. (Order, docs. 171 & 172). The Plaintiffs filed their joint brief (doc. 174), to which the Defendants replied (docs. 178 & 179). The court set briefing schedules on the motions to dismiss filed by U.S. Pipe, FMC, and United Defense. Plaintiffs filed a joint brief (doc. 180), to which Defendants replied (docs. 183 & 184).

A. Motion to Dismiss

A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. Generally, the Federal Rules of Civil Procedure require only that the complaint provide "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule 8 generally does not require "detailed factual allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544, ___ - ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 127 S.Ct. at 1969. "[S]tating such a claim requires a complaint with enough factual matter (taken as true) to suggest" the required elements. Id. at 1965.

Thus, contrary to Plaintiffs' continued position that they need not set forth detailed facts in support of their claims (Pls.' Resp. Mots. Dismiss TAC, doc. 180, 25), Twombly did abrogate that portion of Conley—which Plaintiffs continue to cite in support of their position—that precludes dismissal unless "no set of facts" exists. Rather, the Plaintiffs bear the burden of alleging a set of facts—albeit any set of facts—in support of their claims. Plaintiffs also ignore the limits of a motion to dismiss by citing in their briefs facts not alleged in the TAC and by attaching to their briefs exhibits in support of their claims. At the motion to dismiss stage, this court may only review the allegations in the complaint, unless the court converts the motion to dismiss into a motion for summary judgment and allows all parties to submit evidence. See Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir.2002). The court will not convert the current motions to dismiss into motions for summary judgment and, therefore, will disregard Plaintiffs' exhibits and look only to the TAC for factual allegations.

In evaluating a motion to dismiss, the court assumes that all factual allegations set forth in the complaint are true, United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), and construes all factual allegations in the light most favorable to the plaintiff. Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). In other words, "[o]n a motion to dismiss, the facts stated in the ... complaint and all reasonable inferences therefrom are taken as true." Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir.2006) (citing Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)). To succeed on a motion to dismiss under Rule 12(b)(6), therefore, a defendant must demonstrate that the plaintiff has failed to give sufficient notice of a proper claim and the grounds upon which that claim rests.

B. Lack of Subject Matter Jurisdiction

Although the court may not consider anything outside the complaint for purposes of Defendants' arguments regarding the statute of limitations, rule of repose, and failure to state a claim, "when a defendant properly challenges subject matter jurisdiction under Rule 12(b)(1), the district court is free to independently weigh facts, and may proceed as it never could under Rule 12(b)(6)." Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003). Because the issue presented by a motion to dismiss under Rule 12(b)(1) is "the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the exercise of its power to hear the case." Id. Accordingly, the court will consider all materials submitted by the parties when addressing its subject matter jurisdiction.


The focus of the current motions is the TAC; thus, a brief description of the factual allegations and claims asserted is necessary before proceeding.

Plaintiffs' thirty-six page TAC in essence asserts that these Defendants and others operated foundries and smelters in or near Anniston, Alabama; that, as part of Defendants' manufacturing operations, they discharged contaminated waste water, spent foundry sand, and other contaminated materials into water sources and/or discharged pollutants into the air; that these discharged materials contained "lead, cadmium, zinc, chromium, arsenic and/or other hazardous substances;" and that these pollutants and hazardous substances ultimately were deposited on Plaintiffs' properties, causing various property damages, including diminution of value.1 The TAC alleges that the Defendants disposed of contaminated foundry sand by giving it away or selling it as fill material for commercial and residential properties. (TAC ¶ 36).2

The Plaintiffs...

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