Keller Transp., Inc. v. Wagner Enters., LLC

• Decision Date: 06 June 2012
• Docket Number: No. CV 11–174–M–JCL.,CV 11–174–M–JCL.
• Citation: 873 F.Supp.2d 1342
• Parties: KELLER TRANSPORT, INC., Plaintiff, v. WAGNER ENTERPRISES, LLC, Defendant.
• Court: U.S. District Court — District of Montana

873 F.Supp.2d 1342

KELLER TRANSPORT, INC., Plaintiff,

v.WAGNER ENTERPRISES, LLC, Defendant.

No. CV 11–174–M–JCL.

United States District Court, D. Montana.

June 6, 2012.

Charles E. Hansberry, Megan L. Dishong, Garlington, Lohn & Robinson, PLLP, Missoula, MT, for Plaintiff.

Julia D. Goodkind, Robert A. Terrazas, Andre Gurr, Terrazas Law Offices, Missoula, MT, for Defendant.

ORDER

JEREMIAH C. LYNCH, United States Magistrate Judge.

This action has its genesis in an environmental contamination that resulted from a gasoline spill that occurred when a fuel tanker truck overturned on Montana State Highway 35 in close proximity to Flathead Lake, Lake County, Montana. The fuel tanker was owned by—and operated by an employee of—Defendant Wagner Enterprises, LLC (Wagner). Both the tanker and employee were under lease to Plaintiff Keller Transport, Inc. (Keller). Keller commenced this action seeking contribution from Wagner for damages caused by the gasoline spill, including past and future cleanup costs.

The matter is presently before the Court upon the following motions of Wagner: (1) Fed.R.Civ.P. 12(b)(6) motion to dismiss; (2) motion requesting dismissal of Keller's claim for contribution advanced under the Oil Pollution Act at 33 U.S.C. § 2709 due to Keller's failure to assert the claim in an earlier lawsuit now pending in state court; and alternatively (3) motion for an order staying this case pending resolution of the referenced prior state court action. For the reasons discussed, the Court grants the Rule 12(b)(6) motion in part, and denies the balance of Wagner's motions.

I. BACKGROUND

On December 1, 2007, Keller and Wagner entered a lease agreement whereby Wagner leased equipment and employees to Keller for use in transporting fuel. Pursuant to that agreement, Wagner was transporting gasoline on April 2, 2008, along Highway 35 bordering Flathead Lake when the second of two tandem trailers overturned, spilling over 6,000 gallons of gasoline on the highway and adjoining land. Most of the spilled fuel seeped into the ground and migrated onto private land and the shoreline of Flathead Lake.

The United States Environmental Protection Agency (EPA) issued an administrative order directing Keller to complete the fuel cleanup at the spill site in accordance with an EPA-approved cleanup plan. After $5 million of available insurance proceeds were exhausted in the cleanup, Keller began, and continues to pay for cleanup and mitigation activities at the site.

In January of 2009, several homeowners impacted by the gasoline spill filed a lawsuit in the Twentieth Judicial District Court, Lake County, Montana, seeking compensation for removal costs and damages they sustained as a result of the fuel spill. Both Keller and Wagner are named as defendants in that pending lawsuit. Keller states it reached a settlement agreement with those homeowners in which Keller agreed to continue with the cleanup and mitigation activities pursuant to the EPA's order.

Keller states it has thus far incurred over $300,000 in cleanup and mitigation costs. Keller anticipates continuing to incur costs associated with the fuel spill for ten more years, and it expects the EPA will eventually impose a fine against it in the amount of approximately $98,000.

Keller contends Wagner, as owner and operator of the tanker, is jointly liable for damages and cleanup costs resulting from the spill. But according to Keller, Wagner refuses to contribute to the cleanup costs.

Keller commenced this action on December 29, 2011. On February 28, 2012, Wagner filed the various motions now before the court. In response, Keller moved for leave to file an amended complaint to cure some of the deficiencies identified in Wagner's motions. Upon Wagner's stipulation to allow Keller to file an amended complaint, the Court granted Keller's motion, and Keller filed its First Amended Complaint on April 3, 2012.¹

Keller's amended pleading advances claims against Wagner under federal law seeking to obtain compensation from Wagner for the damages and costs Keller has had to pay as a result of the fuel spill. Keller asserts claims under the Clean Water Act, 33 U.S.C. § 1251 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Oil Pollution Act, 33 U.S.C. § 2701 et seq., and federal common law. Keller also requests injunctive relief.

The Court will address the merits of Wagner's motions based on Keller's claims as amended and pled in its First Amended Complaint.

II. DISCUSSIONA. Wagner's Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

1. Applicable Law

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). A dismissal for failure to state a claim under Rule 12(b)(6) is proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir.1990). To survive a motion to dismiss, a plaintiff's complaint must have sufficient facts “to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Services, Inc., 622 F.3d 1035, 1041 (9th Cir.2010). The court must accept all factual allegations in the complaint as true and construe the pleading in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005).

2. Oil Pollution Act—Subrogation

Wagner moves to dismiss Keller's claim for subrogation under the Oil Pollution Act at 33 U.S.C. § 2715(a). In response, Keller initially represented that it would dismiss that subrogation claim without prejudice, and it conceded that any subrogation right it may have has not yet arisen. Dkt. 24 at 2 n. 1. Consequently, Keller did not present any arguments in opposition to Wagner's motion to dismiss this claim. Notwithstanding, Keller continues to assert a claim for subrogation under 33 U.S.C. § 2715(a) in its First Amended Complaint. Dkt. 32 at ¶ 37. For the reasons discussed, Keller's allegations fail to state a claim for subrogation under section 2715, and Wagner's motion is well-taken.

The subrogation provision of the Oil Pollution Act states as follows:

(a) In general

Any person, including the Fund, who pays compensation pursuant to this Act to any claimant for removal costs or damages shall be subrogated to all rights, claims, and causes of action that the claimant has under any other law.

33 U.S.C. § 2715(a). A “claimant” under the Oil Pollution Act is “any person or government who presents a claim for compensation under” the Act, and a “claim” is “a request, made in writing for a sum certain, for compensation for damages or removal costs resulting from an incident[.]” 33 U.S.C. § 2701(3) and (4).

The foregoing statutory structure requires that a responsible party must first pay a claimant's claim before the party is “subrogated to all rights, claims, and causes of action that the claimant has under any other law.” See Seaboats, Inc. v. Alex C Corp., 2003 WL 203078, *1 and *8 (D.Mass.2003) (permitting a subrogation claim under 33 U.S.C. § 2715(a) for damages the responsible party actually paid to claimants); and National Shipping Co. of Saudi Arabia v. Moran Mid–Atlantic Corp., 924 F.Supp. 1436, 1446 n. 4 (E.D.Va.1996) (noting that 33 U.S.C. § 2715(a) limits subrogation to only those amounts paid to claimants).

Here, Keller's allegations are insufficient to state a claim for subrogation under 33 U.S.C. § 2715(a). The Court recognizes Keller's allegations assert that it has incurred cleanup and removal costs stemming from the gasoline spill, that it has been “held responsible” through the EPA Order for “compensation to claimants” under the Oil Pollution Act, and that the EPA has paid cleanup costs out of the Oil Pollution Act Fund. Keller also alleges that both it and Wagner are jointly liable for those costs and damages under the Oil Pollution Act at 33 U.S.C. § 2702(a). But conspicuously absent is any assertion that a particular claimant submitted a claim that was paid by Keller. In fact, Keller has conceded its subrogation rights have not ripened. Absent allegations that it has actually compensated a claimant, Keller's allegations fail to state a subrogation claim. See Texas Trading and Transportation, Inc. v. Laine Construction Co., Inc., 1998 WL 814615, *5 (E.D.La.1998) (granting Fed.R.Civ.P. 12(b)(6) motion dismissing subrogation claim under 33 U.S.C. § 2715(a) where plaintiff did not allege that it actually paid money to any claimant). Therefore, Wagner's motion is granted in this respect. Keller may, of course, seek to amend its complaint in the event it makes payment to any claimant under the Act.

3. Resource Conservation and Recovery Act

a. Contribution

Wagner moves to dismiss Keller's claim for contribution originally pled under the Resource Conservation and Recovery Act at 42 U.S.C. § 6972(a), arguing section 6972(a) does not provide a cause of action for contribution.

In response, Keller concedes the statutory language in 42 U.S.C. § 6972(a)(1)(B) does not provide a cause of action for contribution as pled in its original complaint. In its First Amended Complaint, however, Keller turns to 42 U.S.C. § 6972(f) to support its claim for contribution from Wagner. But Keller fares no better.

Section 6972(f) states as follows:

(f) Other rights preserved

Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief (including relief against the Administrator or a State agency).

42 U.S.C. § 6972(f).

Thus, section 6972(f) preserves a suit for contribution available under some other law. Keller's amended complaint advances a cause of action under 42 U.S.C. § 6972(f) predicated upon its...