Kitchin v. Bridgeton Landfill, LLC

• Citation: 389 F.Supp.3d 600
• Decision Date: 08 May 2019
• Docket Number: No. 4:18 CV 672 CDP,4:18 CV 672 CDP
• Parties: John C. KITCHIN, Jr., North West Auto Body Company, and Mary Menke, on behalf of themselves and all others similarly situated, Plaintiffs, v. BRIDGETON LANDFILL, LLC, et al., Defendants.
• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)

389 F.Supp.3d 600

John C. KITCHIN, Jr., North West Auto Body Company, and Mary Menke, on behalf of themselves and all others similarly situated, Plaintiffs,

v.BRIDGETON LANDFILL, LLC, et al., Defendants.

No. 4:18 CV 672 CDP

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

Signed May 8, 2019

Anthony D. Gray, Johnson Gray LLC, Kimberly Starr Morr, The Driscoll Firm, P.C., Nathaniel Richard Carroll, Ryan A. Keane, Keane Law LLC, Alexander L. Braitberg, Schlichter and Bogard, LLP, St. Louis, MO, Barry James Cooper, Jr., Celeste Brustowicz, Victor T. Cobb, The Cooper Law Firm, LLC, New Orleans, LA, Ron A. Rustin, Gretna, LA, for Plaintiffs.

Allyson Elisabeth Cunningham, Peter F. Daniel, William Garland Beck, Lathrop and Gage, LLP, Kansas City, MO, Patricia L. Silva, Lathrop and Gage, LLP, Clayton, MO, for Defendants.

MEMORANDUM AND ORDER OF REMAND

CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

Plaintiffs John C. Kitchin, Jr., North West Auto Body Company, and Mary Menke are property owners seeking damages and injunctive relief for radioactive contamination of their respective properties allegedly caused by neighboring West Lake Landfill, located in North St. Louis County, Missouri. Plaintiffs assert that their property has been damaged by soil, dust, and air contamination from improper generation, handling, storage, and disposal of radioactive materials by four corporate defendants who are landfill owners and operators.

Plaintiffs originally filed this suit in St. Louis County Circuit Court on behalf of themselves and all other others similarly situated, pleading various state-law tort theories. Defendants removed the action to this Court arguing that the allegations arise under federal law – specifically the Price-Anderson Act (PAA) as amended in 1988, 42 U.S.C. §§ 2011, et seq. , which provides a federal compensation regime for damages resulting from a nuclear incident; and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601, et seq. , which established a federal "Superfund" to clean up uncontrolled or abandoned hazardous-waste sites, and provides for liability of persons responsible for releases of hazardous waste at these sites. In their removal petition, defendants also invoked the Class Action Fairness Act (CAFA), 28 U.S.C. §§ 1332(d), 1453, which permits federal courts to preside over certain class actions in diversity jurisdiction where the aggregate amount in controversy exceeds $5 million; where the class comprises at least 100 plaintiffs; and where there is at least "minimal diversity" between the parties, i.e. , at least one plaintiff class member is diverse from at least one defendant.

Plaintiffs move to remand this case to state court. I will grant the motion.

Background

From 1942 to 1957, uranium ore was processed into various uranium compounds at a facility located in downtown St. Louis, Missouri, as part of the Manhattan Project – a United States research project designed to develop the first nuclear weapons. In the late 1940's, the Manhattan Project acquired an additional tract of land near Lambert Airport – the St. Louis Airport Site ("SLAPS") – for storage of radioactive wastes from the uranium processing occurring at the downtown site. Contaminated scrap was also stored at the SLAPS site.

In the 1960's, some of the radioactive wastes were moved from SLAPS to a storage site on Latty Avenue in Hazelwood, Missouri ("Latty Site"). In 1973, the defendant landfill owners and operators accepted over 46,000 tons of these radioactive wastes mixed with contaminated soil and used this mixture as daily cover for the West Lake Landfill located in Bridgeton, Missouri ("Landfill").¹ The Landfill is not a licensed nuclear facility. According to the plaintiffs, despite knowing that the Landfill was not permitted to accept radioactive material and was never an adequate storage or disposal site for radioactive wastes, the defendants nevertheless dumped the wastes into the Landfill and spread them over a large area. Plaintiffs claim that about 15 acres of the Landfill are filled with radioactive wastes at a depth of up to 20 feet. Plaintiffs contend that because of defendants' spread and improper storage of these wastes, radioactive material has contaminated soil, water, and air, resulting in the contamination of surrounding communities where their properties are located.

A subsurface fire currently exists at the Landfill and emits noxious and offensive odors. Plaintiffs claim that defendants are permitting the fire to spread uncontrolled, which could affect the radioactively-contaminated areas of the Landfill and cause increased risk of radioactive exposure to persons in the surrounding area.

As of December 31, 2004, the Landfill stopped accepting waste and is now used only as a transfer station. The Landfill is currently a Superfund site under the regulation of the Environmental Protection Agency (EPA) pursuant to CERCLA.

None of the defendants have entered into indemnification agreements with the United States government with respect to the complained-of activities.

Plaintiffs' Properties

In 1995, plaintiff Kitchin purchased real property in Bridgeton, Missouri, adjacent to the Landfill. His family-owned-and-operated business, North West Auto Body Company, is located on the property. Kitchin first learned in 2017 that the property and the building housing the business were contaminated with radioactive material. Kitchin and his company contend that the auto body shop has lost significant business, revenue, and customers as a result of the contamination, and will lose future business and incur relocation costs.

Plaintiff Menke owns real property in Bridgeton, Missouri. She learned in 2018 that her property and the structure on it were contaminated with radioactive material.

Plaintiffs frequently experience offensive odors emanating from the Landfill. Samples taken on and around plaintiffs' properties confirm a highly-elevated presence of radioactive particles matching the fingerprint of the radioactive wastes dumped at the Landfill. Trees in the vicinity of the North West Auto Body property contain radiological and organic contamination. Plaintiffs claim that the radioactive contamination of their property migrated from the Landfill and was caused by defendants' improper handling, storage, and disposal of radioactive materials. They claim that such contamination and offensive odors render their properties unfit for normal use and enjoyment, and have destroyed the fair market value of the properties.

The Amended Petition

Plaintiffs filed their original petition in state court on February 20, 2018, and an amended petition on April 2, 2018. The case was removed to this Court on April 27, 2018. The amended petition remains the operative petition in this action.

Named as defendants in the amended petition are the owners of the Landfill – Bridgeton Landfill, LLC and Rock Road Industries, Inc.; and the operators of the Landfill – Republic Services, Inc. and Allied Services, LLC. Defendant Bridgeton Landfill removed the action from state court with the consent of defendants Republic Services and Allied Services. In the notice of removal, Bridgeton Landfill averred that named defendant Rock Road Industries merged into Bridgeton Landfill on April 9, 2018, after the amended petition was filed.

In their amended petition, plaintiffs assert the following state-law claims against all defendants: (1) trespass, (2) permanent nuisance, (3) temporary nuisance, (4) negligence, (5) negligence per se, (6) strict liability/absolute liability, (7) injunctive relief seeking scientific and medical monitoring, (8) civil conspiracy, and (9) punitive damages. As relief, plaintiffs seek damages resulting from the loss of use and enjoyment of their property, for annoyance and discomfort, for damage to personal property, and for diminution in the market value of their property. Plaintiffs also seek recovery of costs and expenses incurred as a result of their exposure to radioactive emissions, including the cost of remediation and relocation. They also seek statutory damages under Missouri law, punitive and exemplary damages, costs and attorneys' fees, and interest on all of the requested monetary relief. Finally, plaintiffs seek injunctive relief enjoining defendants from continuing in the unlawful conduct, directing defendants to identify members of the class for compensation, and compelling defendants to clean up all contamination and to provide medical monitoring.

For the following reasons, I do not have jurisdiction over plaintiffs' claims or over this action. I will therefore remand this case to state court.

Legal Standard

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (citations omitted).

A federal district court may exercise removal jurisdiction only where the court would have had original subject-matter jurisdiction had the action initially been filed there. Krispin v. May Dep't Stores Co. , 218 F.3d 919, 922 (8th Cir. 2000) (citing 28 U.S.C. § 1441(b) ). The party seeking removal and opposing remand carries the burden of establishing federal subject-matter jurisdiction by a preponderance of the evidence. Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673 ; In re Prempro Prods. Liab. Litig. , 591 F.3d 613, 620 (8th Cir. 2010). Generally, a court must resolve all doubts about federal jurisdiction in favor of remand to state court. In re Prempro , 591 F.3d at 620.

Federal-Question Jurisdiction

"The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly...