Jerue v. Drummond Co.
| Decision Date | 19 April 2018 |
| Docket Number | Case No.: 8:17-cv-587-EAK-AEP |
| Parties | JOHN J. JERUE and MICHAEL J. FEIST, on behalf of themselves and all others similarly situated, Plaintiffs, v. THE DRUMMOND COMPANY, INC., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Before the Court is Defendant Drummond Company, Inc.'s ("Drummond") motion to dismiss (Doc. 41) ("Motion") Plaintiffs', John J. Jerue and Michael J. Feist, second amended complaint (Doc. 36) ("Operative Complaint"). Plaintiffs filed a response in opposition (Doc. 46), to which Drummond replied (Doc. 50). The Court has considered the Parties' briefings, the pertinent portions of the record, and is otherwise fully advised on the premises. For the reasons set forth below, the Motion is DENIED.
Several decades ago, Drummond operated a phosphate mine in Polk County, Florida. In the early-1980s, however, Drummond ceased its mining efforts and began developing the former mining lands for residential and commercial use, part of which now encompasses two residential developments—the communities of Oakbridge and Grasslands. Plaintiffs Jerue and Feist, respectively, own homes in those two developments.
Phosphate mining and subsequent reclamation of former mining lands essentially works like this: mining companies, like Drummond, remove the top layer of soil, called "overburden," to access "the matrix" beneath it. This matrix consists of equal parts sand, clay, and raw phosphate ore. Water is introduced into the matrix to create a "slurry." This slurry is then pumped to a beneficiation plant, and the plant, through certain processes, removes the raw phosphate ore from the slurry for processing into fertilizers, animal feed supplements, food preservatives, and other industrial products. Finally, the remaining "waste," a mixture of sand and clay is returned to the mining site and used as fill material in the reclamation process.1 This is what occurred at Oakbridge and Grasslands.
Raw phosphate ore is known to contain radioactive elements, such as uranium and its daughter products, including radium-226, which decays to form radon gas. See (Doc. 36, at ¶12, 45). And Plaintiffs allege that the phosphatic mining waste used by Drummond to reclaim its former mining lands was thus "enriched in . . . radioactive elements." Id. at ¶46. Plaintiffs further allege that this has contaminated the land on which the Oakbridge and Grasslands developments now sit and created a substantial health hazard for residents of those communities. Id. at ¶48. According to Plaintiffs, the level of radiation exposure identified in Oakbridge and Grasslands through both state and federal environmental studies "translates to residents receiving over one chest x-ray per week." Id. at ¶86. In addition, Plaintiffs allege that Drummond, in fact, knew that its former mining and reclamation efforts had contaminated the land and exposed residents to unsafe levels of cancer-causing radiation, but told no one. Id. at ¶¶90-104. Plaintiffsconsequently filed this putative class action demanding that the former mining lands be cleaned up, that Drummond fund a "medical monitoring" regime that provides Plaintiffs with routine medical testing and observation, and that Drummond compensate them for, among other things, diminution in the value of their property and their fear over the risks posed by exposure to dangerous radiation.
For their part, Drummond calls applesauce. After decades of "development and residential use," says Drummond, "there is not one documented case of cancer or other illness." See (Doc. 41, at 1). Drummond further contends that "Plaintiffs have not even alleged any actual gamma radiation levels on their own properties," and that Plaintiffs' damages "were caused by Plaintiffs' own self-publication of their allegations." Id. at 1-2. Drummond accordingly calls for dismissal of Plaintiffs' lawsuit, contending that Plaintiffs' claims rest on "rank speculation." Id. at 5.
That being the case, the Court must now do some mining of its own, but obviously not for phosphatic ore, and, at this juncture, not even for the "truth;" of course, when ruling on a motion to dismiss, the Court must accept as true Plaintiff's well-pled factual allegations. Rather, the Court must dig through Plaintiffs' Operative Complaint for deposits of facially plausible allegations of wrongdoing by Drummond. Should the Court indeed unearth any, those portions of Plaintiffs' Operative Complaint should survive.
To that end, as is more fully set forth below, the Court concludes that the allegations contained in Plaintiffs' Operative Complaint state plausible claims for relief, in all respects. Drummond's Motion is therefore due to be denied in its entirety.
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Defendant Drummond, an Alabama corporation, is a phosphate mining company and a developer of residential and commercial property. See (Doc. 36, at ¶¶16, 33, 50). In 1978, Drummond, initially through the Poseidon Mining Company,2 began phosphate strip mining operations on approximately 1,400 acres of mining lands in Polk County, Florida. Id. at ¶¶16, 34-35. Drummond subsequently discontinued its mining activities in 1982 and began reclamation efforts on the land. Id. at ¶¶42, 50. Drummond thereafter developed the reclaimed land into residential and commercial plots, which it later sold (and, to-date, continues to sell). Id. at ¶¶48, 50. Two of those developments are the residential communities of Oakbridge and Grasslands. Id.
Plaintiff Jerue owns real property located in the Oakbridge development. Id. at ¶28. Jerue acquired the property from Edward M. Kwasnick, Jr. via a warranty deed dated May 4, 2004. See (Doc. 16-3). Mr. Kwasnick had previously acquired the property from Drummond via a warranty deed dated September 10, 2001. See (Doc. 16-1).
Plaintiff Feist owns real property located in the neighboring Grasslands development. Id. at ¶29. Feist acquired the property from Rekha Holdings, LLC via a quitclaim deed dated March 31, 2006. See (Doc. 16-6). Rekha Holdings, LLC acquired the property from Ms. Helena Mahais, who had previously acquired the property from Drummond via a warranty deed dated December 3, 2004. See (Doc. 16-4, 16-5).
Prior to Plaintiffs obtaining their interests in the developments, in September of 1985, Drummond and the State of Florida entered into the Drummond Properties Lakeland Development Agreement with the Department of Community Affairs and Central Florida Regional Planning Council (the "Development Agreement"). See (Doc. 36, at ¶66 and Doc. 16-2). Plaintiffs assert that Drummond's conveyance of title to Plaintiffs and/or Plaintiffs' predecessors-in-interest was expressly subject to, among other things, this Development Agreement. See id.
Jerue initiated this purported civil class action against Drummond on March 10, 2017. Jerue alleged that Drummond's mining and reclamation activities caused the land upon which the Oakbridge and Grasslands developments sit to be contaminated with harmful radiation, and that Drummond was, in fact, aware of the contamination and the associated risks posed to residents but kept quiet. See generally (Doc. 1).
In support of his allegations, Jerue cited to both a 2003 Environmental Protection Agency ("EPA") report on Florida's phosphate mining and reclamation activities and an undated Department of Energy ("DOE") report related to its assessment of the same. Both the EPA and DOE reports paid particular attention to the Oakbridge development, in addition to other Drummond plots. The EPA concluded that individuals residing in those areas may be exposed to unsafe levels of radiation. Id. at ¶61. The EPA accordingly urged that steps be taken to assess (1) the extent of the contamination and exposure and (2) the need for mitigative efforts to reduce the potential risks to residents of Oakbridge. Id. at ¶62. Jerue alleged that the EPA's findings were not shared with the public, and were marked as exempt from federal freedom of information laws. However,according to Jerue, the EPA's findings were shared with Drummond (along with other members of the phosphate mining industry), which, in response, "pressured the EPA (both directly and through state and/or federal legislators) to cease its investigation into the risks of reclaimed phosphate mining lands," while, at the same time, "touting Oakbridge as a 'good' example of successful reclamation of former mining land." Id. at ¶¶61, 63-64.
For its part, the DOE, in conjunction with Argonne National Laboratories, also conducted an assessment of the radiation risks posed to individuals living in communities built atop reclaimed phosphate lands in central Florida. Id. at ¶¶66-70. According to the DOE report, "a significant number of residential properties located over former mine areas have the potential to contain radioactivity at levels exceeding current remedial guidelines." Id. at ¶69. Specifically, the DOE found that Oakbridge and other Drummond developments were "highly likely" of needing additional remedial action, as the gamma radiation levels found on the land were anywhere from 2.5 to 8 times greater than baseline background levels. Id. at ¶70.3
Jerue's original complaint accordingly asserted claims against Drummond for strict liability (Counts I and IV), negligence (Count II), private nuisance (Count III), and fraudulent concealment (not as a distinct cause of action, but as grounds for tolling applicable statutes of limitation or repose) and sought, inter alia, compensation for loss of property value, for clean-up, and to initiate medical monitoring for certain of Oakbridge and Grasslands residents. See id. at ¶¶97-101, 124-170, "WHREFORE" clause.Drummond moved to dismiss Jerue's claims in their entirety (Doc. 10). But before the Court could issue a ruling on Drummond's motion, Jerue, now joined by Feist, filed an amended...
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