King v. W. Morgan-East Lawrence Water & Sewer Auth.
| Decision Date | 13 March 2019 |
| Docket Number | Civil Action Number 5:17-cv-01833-AKK |
| Parties | WILLIE KING, et al., Plaintiffs, v. WEST MORGAN-EAST LAWRENCE WATER AND SEWER AUTHORITY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
The Plaintiffs bring this action individually and on behalf of a putative class of similarly situated individuals for personal injuries allegedly caused by exposure to pollutants in the Tennessee River. The Plaintiffs assert claims of negligence, nuisance, fraudulent concealment, and wantonness against the West Morgan-East Lawrence Water and Sewer Authority (the "Authority"), 3M Company, Dyneon, L.L.C.,1 and Daikin American, Inc. Doc. 8. Currently before the court are 3M's motion to stay, doc. 9, motion to dismiss the amended complaint, doc. 14, and motion to file supplemental brief, doc. 27. The motions are fully briefed and ripe for review. Docs. 9, 15, 17, 18, 19, 27, and 28. For the reasons stated below, themotion to dismiss is due to be granted solely as to the private nuisance claims, and the motions to stay and for leave are due to be denied.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. "To survive a motion to dismiss, a complaint must . . . state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citations omitted) (internal quotation marks omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). When considering a motion to dismiss under Rule 12(b)(6), the court accepts "the allegations in the complaint as true and construe[s] them in the lightmost favorable to the plaintiff." Hunt v. Aimco Props., L.P. 814 F.3d 1213, 1221 (11th Cir. 2016).
This action arises from 3M's and Daikin's discharge of perflurooctanoic acid ("PFOA"), perflurooctanesulfonic acid ("PFOS"), and related chemicals into the Tennessee River and its tributaries. Doc. 8 at 5-13. Specifically, the Plaintiffs plead that 3M and Daiken own and operate manufacturing and disposal facilities in Decatur, Alabama that allegedly "continue to release PFOA, PFOS, and related chemicals into groundwater and surface water through which the chemicals are discharged into the Tennessee River and its tributaries." Id. at 6. See also id. at 7. The Plaintiffs further allege that these Defendants also discharge the contaminated wastewater into the Decatur Utilities Wastewater Treatment Plant. Id. at 6-7. Allegedly, the chemicals in question, PFOA and PFOS, persist in the environment because they have no known environmental breakdown mechanism. Id. at 8. In addition, the human body readily absorbs PFOS and PFOA, and the chemicals tend to accumulate over time with repeated exposure. Id. Studies, including one by an independent science panel, have found a probable link between PFOA and PFOS exposure and kidney and testicular cancer. Id. Other human health risks includethyroid disease, ulcerative colitis, pregnancy-induced hypertension, and high cholesterol. Id. at 8-9. The Plaintiffs, who have been diagnosed with kidney, cancer, thyroid disease, hyperthyroidism, thyroid cancer, or ulcerative colitis, allege that 3M has known for at least 35 years that PFOA, PFOS, and related chemicals are toxic, persist in the environment, and accumulate in the human body. Id. at 3-5, 9-10.
The Authority draws water from the Tennessee River to provide to its customers in Morgan and Lawrence County, Alabama. Id. at 7. The Plaintiffs allege that, despite knowing about the potential risks of PFOA and PFOS exposure, 3M continues to discharge PFOA, PFOS, and related chemicals into the River thirteen miles upstream from the Authority's water intake source. Id. at 9. As a result, the Authority "has distributed and continues to distribute water containing these chemicals to Plaintiffs." Id. at 7, 12. Since 2009, the Authority has consistently found PFOA levels at 0.1 ppb and PFOS levels at 0.19 ppb in the water it provides to the Plaintiffs and the proposed class. Id. at 3, 11-12.
The Plaintiffs allege personal injuries from their exposure to unsafe levels of PFOA, PFOS, and related chemicals in their drinking water, and assert common law claims for negligence, nuisance, fraudulent concealment, and wantonness against 3M. Doc. 8 at 12-13, 17-22. 3M has moved to dismiss all claims againstthem, doc. 15, and has also moved to stay in light of West Morgan-East Lawrence Water and Sewer Authority, et al. v. 3M Company, et al., a previously-filed class action currently pending before this court as Case No. 5:15-cv-01750-AKK, doc. 9. The court turns now to the parties' respective contentions, beginning with the motion to stay.
According to 3M, the Plaintiffs' claims "are similar to and subsumed by the class claims in the West Morgan Action." Doc. 9 at 1. This contention overlooks that, unlike this case, the West Morgan Action does not involve any claims for personal injuries. See West Morgan-East Lawrence Water and Sewer Authority v. 3M Company, 208 F. Supp. 3d 1227, 1233 and 1238 (N.D. Ala. 2016) (). In addition, the Authority, which is a defendant in this case, is a plaintiff in the West Morgan Action. See doc. 8; Doc. 39 in Case No. 5:15-cv-01750-AKK. Thus, the claims in these two lawsuits are not substantially similar to warrant a stay of this case.
3M raises two primary arguments for dismissal: (1) that the claims against them are time-barred, and (2) that the Plaintiffs have failed to plead viable claims. Doc. 15 at 16-26.
Under Alabama law, a two-year statute of limitations applies to negligence, nuisance, fraudulent concealment, and wantonness claims. See Ala. Code § 6-2-38(l); Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 86 (Ala. 2012). Relevant here, in toxic exposure cases, the two-year period generally begins to run when the plaintiff sustains "'a manifest, present injury.'" Griffin v. Unocal, 990 So. 2d 291, 293 (Ala. 2008) (quoting Cline v. Ashland, Inc., 970 So. 2d 755, 761 (Ala. 2007) (Harwood, J. dissenting)). An injury manifests when it "has evidenced itself sufficiently that its existence is objectively evident and apparent, even if only to the diagnostic skills of a physician." Id. at 311 (quoting Cline, 970 So. 2d at 773 (Harwood, J. dissenting)). But, under Alabama law, "when a defendant commits a continuing tort, the statute of limitations is tolled until the defendant ceases the tortious conduct." West-Morgan-East Lawrence Water and Sewer Authority v. 3M Company, 208 F. Supp. 3d 1227, 1232 (N.D. Ala. ) (citing AC, Inc. v Baker, 622 So. 2d 331, 335 (Ala. 1993)). A continuing, or continuous, tort refers to "a defendant's repeated tortious conduct which has repeatedly and continuously injured a plaintiff." Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220-21 (Ala. 1983). The continuing tort doctrine applies when a defendant exposes a plaintiff "on a continuing basis to harmful substances and conditions; . . . and [] when aplaintiff landowner seeks damages for the contamination of a well or stream." Id. (citations omitted).
A review of the amended complaint shows that the Plaintiffs allege that 3M continues to release PFOA, PFOS, and related chemicals into the Tennessee River and its tributaries, and that 3M has continued to deny and conceal the harmful effects of these chemicals. Doc. 8 at 6, 13. These allegations sufficiently allege continuing tortious conduct—a fact that 3M does not dispute. See doc. 19 at 3-5. Rather, 3M contends instead that, because the Plaintiffs allege specific, manifest personal injuries caused by exposure to PFOA and PFOS in drinking water, the continuing tort doctrine does not apply, and the statute of limitations started to run for each Plaintiff's claims when he or she received a diagnosis of disease. Id. at 3. Even accepting 3M's contention as correct, 3M's argument for dismissal is not persuasive because the Plaintiffs have not alleged when they received diagnoses of their diseases, see doc. 8 at 3-5, and, as such, it is not clear from the Amended Complaint that the statute of limitations on their claims has run. See Foster v. Savannah Comm., 140 F. App'x 905, 907 (11th Cir. 2005) () (citing AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. 1982)).3
3M also argues that the Plaintiffs' claims are time-barred under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., ("CERCLA"), which preempts Alabama's statute of limitations to the extent that Alabama law provides for a date of accrual before the "federally required commencement date" ("FRC...
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