LM Nursing Serv. INC. v. Ferreira
| Decision Date | 30 March 2011 |
| Docket Number | Case No. 09-cv-413-SJM-DLM |
| Parties | LM Nursing Service, Inc.; Louis Paolino; and Marie Issa, Plaintiffs v. Joseph Ferreira, d/b/a Advanced Auto Recycling, Inc; LKQ Corporation; and Joseph I. Ferreira Trust, Defendants |
| Court | U.S. District Court — District of Rhode Island |
OPINION TEXT STARTS HERE
Plaintiffs are current or prior owners of property that abuts a former dump site in Cumberland, Rhode Island (the "Curran Road Property"), which is owned and/or controlled by defendants. At some point in the late 1970's or early 1980's, it was discovered that the Curran Road Property was contaminated with hazardous materials. Plaintiffs bring this suit seeking to recover damages caused by the migration of that contamination onto their property.
Previously, plaintiffs voluntarily dismissed their claims against Phillip Diamond, Mark Diamond, and "Mobil Corp." The three remaining defendants - Joseph Ferreira, LKQ Corporation, and the Joseph I. Ferreira Trust - move to dismiss counts 8 and 10 through 33 of the third amended complaint (document no. 21).
For the reasons discussed below, that motion is granted in part and denied in part, and this matter is remanded to state court.
When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader." S.E.C. v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), it must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citation and internal punctuation omitted).
In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to "nudge[] [plaintiff's] claims across the line from conceivable to plausible." Id. at 570. If, however, the "factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Tambone, 597 F.3d at 442.
Typically, a court must decide a motion to dismiss exclusively upon the allegations set forth in the complaint (and any documents attached to that complaint) or convert the motion into one for summary judgment. There is, however, a limited exception to that general rule:
[C]ourts have made narrow exceptions for documents the authenticity of which [is] not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citations omitted). See also Trans-Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008); Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998).
Here, in support of their respective positions on defendants' motion to dismiss, the parties rely on several documents which they agree are both authentic and central to plaintiffs' claims: the letters and documents by which plaintiffs say they met the notice requirements imposed by the various federal environmental statutes pursuant to which they bring claims.
Accepting the allegations set forth in the third amended complaint as true, the material facts are as follows. LM Nursing Services, Inc. is the former owner of Lots 362, 364, and 365 on Plat 19 in the Town of Cumberland, Rhode Island. In February of 1988, LM Nursing sold the property to Louis Paolino and Marie Issa. One or more of those lots abut the Curran Road Property (Lot 363), which is owned and/or controlled by defendants: Joseph Ferreira, d/b/a Advanced Auto Recycling, Inc., LKQ Corporation, and the Joseph I. Ferreira Trust ("JIF Trust").
Plaintiffs claim that defendants, through both negligent and intentional conduct, caused the Curran Road Property to become contaminated with hazardous materials. And, say plaintiffs, defendants caused that contamination to migrate onto their land by, among other things, redirecting a stream onto their property. Plaintiffs advance a total of 24 state common law and statutory causes of action: negligence, trespass, private nuisance, public nuisance, unjust enrichment, "punitive damages," and private rights of action under the Rhode Island Water Pollution Act. They also advance nine claims under various federal environmental statutes: the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the Resource Conservation and Recovery Act of 1976 ("RCRA"), and the Clean Water Act ("CWA").
It is, perhaps, best to begin with matters as to which there is no dispute. First, counts 1 through 3 were dismissed earlier, when plaintiffs voluntarily withdrew their claims against Mark Diamond, Phillip Diamond, and "Mobil Corp." Additionally, plaintiffs concede that counts 31 through 33 fail to state viable claims under the Rhode Island Water Pollution Act. See Plaintiffs' memorandum (document no. 49-1) at 17 (). Accordingly, those counts are dismissed as well.
Each of the federal statutes under which plaintiffs seek to bring private causes of action requires that they provide defendants (and various governmental entities) with very specific and detailed notice of defendants' alleged statutory violations, at least 60 days before filing suit. The notice requirements are mandatory and, absent strict compliance, the court must dismiss the claims. So, for example, the Supreme Court concluded that compliance with RCRA's 60-day notice provisions is mandatory and, once a case is filed, a court cannot stay the proceedings while a plaintiff complies with those requirements:
[A] plaintiff may not file suit before fulfilling the 60-day notice requirement. Staying judicial action once the suit has been filed does not honor this prohibition. Congress could have excepted parties from complying with the notice or delay requirement; indeed, it carved out such an exception in its 1984 amendments to RCRA. See, e.g., 42 U.S.C. § 6972(b)(1)(A) (1982 ed., Supp. V) (abrogating the 60-day delay requirement when there is a danger that hazardous waste will be discharged). RCRA, however, contains no exception applicable to petitioners' situation; we are not at liberty to create an exception where Congress has declined to do so.
Hallstrom v. Tillamook County, 493 U.S. 20, 26-27 (1989). Accordingly, the court held that, "where a party suing under the citizen suit provisions of RCRA fails to meet the notice and 60-day delay requirements of [42 U.S.C.] § 6972(b), the district court must dismiss the action as barred by the terms of the statute." Id. at 33.
Because the notice and 60-day delay requirements set forth in both CERCLA and the CWA are substantially similar to those contained in RCRA, courts have concluded that compliance with those notice requirements is mandatory as well. See, e.g., National Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096, 1097-98 (11th Cir. 1991) (CWA 60-day notice requirements are mandatory); Public Interest Research Group v. Windall, 51 F.3d 1179, 1189 n. 15 (3d Cir. 1995) (same); Am. Canoe Ass'n v. District of Columbia Water & Sewer Auth., 306 F. Supp. 2d 30, 35 (D.D.C. 2004) () (citations omitted); Hernandez v. Esso standard Oil Co., 571 F. Supp. 2d 305, 310 (D. Puerto Rico 2008) ("Failure to provide sufficient pre-litigation notice generally bars a citizen suit under the CWA or RCRA."); Regan v. Cherry Corp., 706 F. Supp. 145, 147 (D.R.I. 1989) ("Plaintiffs' § 310 CERCLA, 42 U.S.C. § 9659, claim must be dismissed [because] plaintiffs have failed to fulfill the section's sixty-day notice provision."); Roe v. Wert, 706 F. Supp. 788, 793 (W.D. Okla. 1989) (same).1
Although the notice requirements of the three statutes at issue in this case are similar, they are sufficiently distinct to warrant separate discussion.
In its notice provisions, CERCLA provides that "[n]o action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff has given notice of the violation to each of the following: (A) The President; (B) The State in which the alleged violation occurs; (C) Any alleged violator of the standard, regulation, condition, requirement, or order concerned." 42 U.S.C. § 9659(d). The pertinent regulations describe the contents of that notice, the means by which such notice is to be served upon alleged violators, and the governmental entities that are to be provided with copies. See 40 C.F.R. §§ 374.2 through 374.6.
Under those regulations, the notice must contain a number of specific elements:
Notice regarding an alleged violation of a standard, regulation, condition, requirement, or order (including any provision of an agreement under section 120 of the Act, relating to Federal facilities) which has become effective under this Act shall include sufficient information to allow the recipient to identify the specific standard, regulation, condition, requirement, or order (including any provision of an agreement under section 120 of the Act, relating to Federal facilities) which has allegedly been violated; the activity or failure to act alleged to constitute a violation;...
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