Henke v. Midcon

• Decision Date: 02 November 2010
• Docket Number: Case No. 4:10CV86 HEA.
• Citation: 750 F.Supp.2d 1052
• Parties: Glenn A. HENKE and Linda Kluner, Individually and on behalf of all others similarly situated, Plaintiffs,v.ARCO MIDCON, L.L.C., Magellan Pipeline Company, L.P., and Wiltel Communications, L.L.C., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

750 F.Supp.2d 1052

Glenn A. HENKE and Linda Kluner, Individually and on behalf of all others similarly situated, Plaintiffs,

v.ARCO MIDCON, L.L.C., Magellan Pipeline Company, L.P., and Wiltel Communications, L.L.C., Defendants.

Case No. 4:10CV86 HEA.

United States District Court, E.D. Missouri, Eastern Division.

Nov. 2, 2010.

John E. Campbell, Simon Law Firm, P.C., St. Louis, MO, Robert Schultz, Schultz and Little, L.L.P., Chesterfield, MO, for Plaintiffs.Anne M. Lindner, Gerald P. Greiman, Spencer and Fane, LLP, St. Louis, MO, John F. Fisher, Squire and Sanders, Columbus, OH, Sharon D. Sirott, Squire and Sanders, Chicago, IL, Richard F. Modin, Theodore A. Kardis, Dougherty and Modin, Kansas City, MO, for Defendants.

OPINION, MEMORANDUM AND ORDER

HENRY EDWARD AUTREY, District Judge.

This matter is before the Court on Defendant Wilted Communications, L.L.C.'s Motion to Dismiss, [Doc. No. 4]; Defendant Magellan Pipeline Company, L.P.'s Motion to Dismiss, [Doc. No. 15]; Plaintiffs' Motion for Leave to file an Amended Complaint, [Doc. No. 19]; and Defendant ARCO Midcon, L.L.C's Motion to Dismiss and Strike, [Doc. No. 28]. For the reasons set forth below, Wiltel and Magellan's Motions to Dismiss are granted in part and denied in part. ARCO Midcon's motion to dismiss and to strike is granted.

Facts and Background

Plaintiffs bring this putative class action seeking recovery for alleged damage to Plaintiffs' property and the property of the putative class incurred allegedly as a result of Defendants' ownership, maintenance and control of a pipeline and pipeline easement on or beside the properties. Plaintiffs' Complaint alleges the following¹:

Plaintiffs own real property that is located at Saale Road and Route 94 in West Alton, Missouri. At all times during Plaintiffs' ownership of the property, it has been subject to or adjacent to an easement containing an underground pipeline.

The underground pipeline running through the easement and alongside Plaintiffs' property was used to transport petroleum products from the early 1900s until the early–1990s. The pipeline is currently used for telecommunications.

The pipeline is approximately 8 inches in diameter and is made of cast iron. Allegedly, the pipeline has deteriorated significantly over time so that now, and during many decades of its use, it was unfit for transport of petroleum products. The pipeline resulted in substantial leaks. The Complaint further alleges that hazardous chemicals were leaked onto Plaintiffs' property and have remained on the property to this day. According to the Complaint, the chemicals continue to migrate onto Plaintiffs' property from the easement. All of the leakage and presence of oil products and other toxic substances was hidden from view of the Plaintiffs.

Oil products and other toxic substances, including benzene, leaked or migrated form the pipeline or from the easement onto or under the property, where they remain thereby contaminating the property of the Plaintiffs and the respective properties of the putative class members.

Sinclair Refining Company, Sinclair Pipeline Company, Sinclair Oil Corporation and/or any predecessor, affiliate, parent company, subsidiary company or successor in interest of Sinclair Oil Corporation owned and operated the pipeline and easement beginning in 1950. In 1950, the pipeline and easement were conveyed from Sinclair Refining Company to Sinclair Pipeline Company, which, in 1969 changed its name to ARCO Pipeline Company.

ARCO Midcom L.L.C., is responsible for liabilities and claims against ARCO Pipeline Company. ARCO Midcom now controls assets that were previously owned, controlled and operated by the Sinclair entities and ARCO Pipeline Company.

In 1994, ARCO Pipeline Company sold the pipeline and easement to Williams Pipeline Company. In 2001, Williams Pipeline Company changed its name to Magellan Pipeline Company, L.P.

During the late 1990s, Williams Communication, Inc., a subsidiary of Williams Pipeline Company, acquired and operated the easement and then-pipeline for fiber optic cables.

Wiltel Communications, LLC is the current owner of the pipeline and easement. Wiltel was formerly known as Williams Communications, Inc. Allegedly, Wiltel Communications, LLC. is responsible for liabilities and claims against Williams Communications, Inc. Wiltel currently controls assets relevant to the claims set forth in the Complaint that were previously owned, controlled and operated by Williams Communications, Inc.

Plaintiffs allege that Defendants Magellan, Wiltel and ARCO Midcon (on behalf of themselves and by their predecessors for which they are liable) owed Plaintiffs the duty to stop pollution leaks or migrations from the pipeline, or from the easement onto or into the property, to inspect and search for leaks and contaminants (past and present) from the pipeline, to clean up the leaks and contaminants, to utilize modern methods such as intelligent pigs to find past repairs on the pipeline which would identify past leaks, to keep and retain records of leaks, to repair leaks, and clean up contaminants, pollutants, and poisons, which originated in the pipeline or the easement, and to warn Plaintiffs of nearby pollutants or hazardous leaks or contaminations which originated from the pipeline or easement, and which Plaintiffs contend persist and continue migrating.

Plaintiffs further allege that Defendants owe an ongoing duty to clean up any spill or leaks, and the remnants of the spills and leaks and that Defendants owed and owe Plaintiffs an ongoing duty to check for spills and leaks.

The Complaint alleges that none of the Defendants has engaged in a reasonable clean-up of any of the spills and leaks and that Defendants continue to breach their ongoing duty to clean up the spills and leaks on the property.

Plaintiffs allege that the leakage, spillage and migration constitute hidden dangers known by Defendants but not known or appreciated by the landowners.

Prior to the sale of the pipeline and easement to Williams Pipeline Company in 1994, employees of Williams and ARCO reviewed past leak records for the pipeline. They compiled a list of hundreds of past leaks in Missouri. The list was attached to the Pipeline Sale and Purchase Agreement. Williams and ARCO agreed that Williams would not and could not test the soil or water for past leaks before the closing of the transaction. There were no records showing or evidencing that any of the listed leaks had been remediated or cleaned up.

Although there are records of additional leaks not contained in the exhibit to the Pipeline Sale and Purchase Agreement, there are no records of any clean ups of these leaks.

Plaintiffs allege that as a result of the actions and omissions of Defendants, they have proximately caused damages and injuries to Plaintiffs by improperly operating or maintaining the pipeline and easement, which led to the contamination of Plaintiffs' property.

Plaintiffs allege that the Missouri Department of Natural Resources, (MDNR), advised residents of an adjacent property to Plaintiffs that their drinking water well and portions of their land were heavily contaminated with several dangerous petroleum compounds, including benzene. Soil sampling conducted by the MDNR identified a leak in the pipeline to be the source of the contamination. Additionally, readings from a test well on Plaintiffs' property show benzene concentration levels that are higher than the acceptable standards as set by the Environmental Agency.

Count I of Plaintiffs' Complaint is brought under a theory of nuisance against all Defendants; Count II is brought against all Defendants for trespass; Count III, against all Defendants is brought for Defendants' alleged negligence; Count IV alleges Defendants engaged in an abnormally dangerous activity; Count V is styled “Declaratory and Injunctive Relief,” but contains no additional allegations other than incorporating the previous allegations and stating that Class certification of the claims is proper. Count VI is brought against Wiltel for breach of contract.

Plaintiffs seek compensatory, consequential and incidental damages, injunctive relief and punitive damages.²

Defendants Wiltel and Magellan move to dismiss the Complaint in its entirety. Defendant ARCO moves to dismiss Counts IV, V and VI and to strike certain other allegations of Plaintiffs' Complaint.

Discussion

When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim, the Court must take as true the alleged facts and determine whether they are sufficient to raise more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court does not, however, accept as true any allegation that is a legal conclusion. Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). The complaint must have “ ‘a short and plain statement of the claim showing that the [plaintiff] is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Fed.R.Civ.P. 8(a)(2)) and then Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), abrogated by ( Twombly, supra); see also Gregory v. Dillard's Inc., 565 F.3d 464, 473 (8th Cir.) (en banc), cert. denied, ––– U.S. ––––, 130 S.Ct. 628, 175 L.Ed.2d 480 (2009). While detailed factual allegations are not necessary, a complaint that contains “labels and conclusions,” and “a formulaic recitation of the elements of a cause of action” is not sufficient. Twombly, 550 U.S. at 555, 127 S.Ct. 1955; accord Iqbal, 129 S.Ct. at 1949. The complaint must set forth “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; accord Iqbal, 129 S.Ct. at 1949; Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009)....