McGlone v. Centrus Energy Corp.
| Decision Date | 31 March 2022 |
| Docket Number | 2:19-cv-02196 |
| Parties | URSULA MCGLONE, et al., Plaintiffs, v. CENTRUS ENERGY CORP., et al. Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION & ORDER
This matter is before the Court on Defendants Centrus Energy Corp., United States Enrichment Corporation, Uranium Disposition Services, LLC, BWXT Conversion Services, LLC Mid-America Conversion Services, LLC, Bechtel Jacobs Company LLC, LATA/Parallax Portsmouth, LLC, and Fluor-BWXT Portsmouth, LLC's (“Defendants”) Motion to Dismiss. (ECF No. 150). After careful review of the parties briefing, the Court finds that oral argument is not necessary to the fair resolution of this matter. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion to Dismiss (Id.).
On May 13, 2019, Zahn's Corner Middle School in Piketon, Ohio abruptly closed. (ECF No. 142 ¶ 5). Hazardous levels of enriched Uranium were found inside the school building and Neptunium-237 was detected by a neighboring air monitor. (Id.). Nearby, several plants operated at ¶ 3, 777-acre site (“Portsmouth site” or “PORTS”). (Id. ¶ 2). The plants enriched Uranium, used centrifuge-related equipment, converted depleted uranium hexafluoride, and provided, at least some, environmental remediation and waste management services. (Id. ¶¶ 32-46).
Ursula and Jason McGlone, Adam and Brittani Rider, Joshua and Rachel Ross, Patsy Brownfield, and Mickey and Heather Tackett, as well as their minor children live within three miles of the Portsmouth site. (Id. ¶¶ 65-69). They allege that their properties-much like Zahn's Corner elementary school-are contaminated with radioactive and toxic materials. (Id.). Moreover, they assert that the contamination comes from operations that took place at the Portsmouth site. (Id.). Since at least 1993 to present, the Defendants operated or operate a facility at the PORTS site engaged in the above enumerated activities. (Id. ¶¶ 32-46). Only after the sudden closing of Zahn's Corner, however, did the landowners file suit. (See Id. ¶¶ 71-73).
Ursula and Jason McGlone, Adam and Brittani Rider, Joshua and Rachel Ross, Patsy Brownfield, and Mickey and Heather Tackett, proceeding on behalf of themselves, their minor children, and all others similarly situated, initiated this action on May 26, 2019. (ECF No. 1). On December 10, 2019, Plaintiffs filed their first amended complaint. (ECF No. 64). Approximately thirty days later, Plaintiffs filed their second amended complaint. (ECF No. 78). Defendants followed with a timely Motion to Dismiss. (ECF No. 83). On July 31, 2020, this court issued an order granting in part and denying in part Defendants' Motion to Dismiss the second amended complaint. (ECF No. 113; McGlone v. Centrus Energy Corp., No. 2:19-CV-02196, 2020 WL 4431482, at *2 (S.D. Ohio July 31, 2020) (“McGlone I”)).
In McGlone I, this Court held that Plaintiffs failed “to state a cognizable claim under the Price-Anderson Act … [b]ecause Plaintiffs [did] not allege that they or their properties were exposed to radiation levels in excess of the limits set forth in 10 C.F.R. § 20.130.” Id. at *5. Moreover, Plaintiffs claims for negligence/gross negligence, trespass, nuisance, ultra-hazardous activity/absolute liability/strict liability, and injunctive and equitable relief of medical monitoring were similarly dismissed. Id. at *6. Specifically, these alternative claims-a term Plaintiffs used to describe them-were based on identical theories as its Price-Anderson Act (“PAA”) claim, just brought under state law. Id. There, the Court found that under Nieman v. NLO, Inc., 108 F.3d 1546, 1549 (6th Cir. 1997), these state law claims were preempted by the PAA. Id. Further, Plaintiffs' claim “for a declaratory judgment that Price-Anderson Act preemption violates their due process rights” was also dismissed. Id.
Additionally, Plaintiffs asserted a claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); a medical monitoring claim; and an additional request for a declaratory judgment. Id. at *1. The Court found the CERCLA claim insufficient because Plaintiffs “failed to allege any necessary, recoverable response costs that are consistent with the National Contingency Plan.” Id. at *11. The medical monitoring claim failed to stand as an independent cause of action. Id. at * 16. And finally, the Court dismissed Plaintiffs additional declaratory judgment claim as duplicative of its other asserted causes of action. Id.
Following McGlone I, Plaintiffs filed a third amended complaint, but subsequently withdrew it on March 12, 2021. (ECF No. 139). On March 23, 2021, Plaintiffs filed their Fourth Amended Complaint. (ECF No. 142). There, Plaintiffs allege various theories of liability, premised on federal and state law:
(ECF No. 142 ¶¶ 111-211). On May 24, 2021, Defendants filed their Motion to Dismiss. (ECF No. 150). Plaintiffs timely filed their Response in Opposition (ECF No. 152), and Defendants timely followed with their Reply. (ECF No. 154). This motion is now ripe for review.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are sufficient to raise a right to relief above the speculative level and to state a claim to relief that is plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). “A claim has facial plausibility 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. (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). And although the court “must accept all well-pleaded factual allegations in the complaint as true, ” the court “need not accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotations omitted). Finally, “[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Raymond v. Avectus Healthcare Sols., LLC, 859 F.3d 381, 383 (6th Cir. 2017); Taylor v. City of Saginaw, 922 F.3d 328, 331 (6th Cir. 2019).
Defendants move to dismiss Plaintiffs' Complaint for a failure to state a claim upon which relief can be granted on several bases. First, Defendants assert that Plaintiffs' federal claim fails because: (1) the claim is time barred as to some Defendants; and (2) they fail to allege necessary elements. (ECF No. 150 at 6, 19). Additionally, Defendants maintain that Plaintiffs' state law claims as to the minor litigants must fail because each of the claims derives from property ownership. (Id. at 34). Because the minor litigants cannot own property, Defendants say, the claims necessarily fail. (See id.). Finally, Defendants argue that the state law claims are also time-barred, resting on the same reasoning as its attack on the PAA claim. (Id. at 35). The Court will address each of these arguments in turn.
In McGlone I, this Court held, “[t]o prevail on a claim under the Price-Anderson Act, Plaintiffs must establish four elements: (1) Defendants released radiation into the environment in excess of federal regulatory limits; (2) Plaintiffs were exposed to this radiation; (3) Plaintiffs have injuries; and (4) radiation was the cause of those injuries.” McGlone I, 2020 WL 4431482, at *2 (citing In re TMI, 67 F.3d 1103, 1119 (3d Cir. 1995)).
Here, Defendants argue that Plaintiffs fail to allege claims under the PAA because: (i) those claims are time-barred against some defendants; and (ii) they fail to allege all elements of a PAA claim. (ECF No. 150 at 11, 24). The Court will consider these arguments in turn.
Defendants argue that Plaintiffs PAA claims as to Defendants Bechtel Jacobs, UDS, LATA/Parallax are time-barred by the relevant statute of limitations. (Id. at 24). First Defendants contend that courts may dismiss a claim when it is time-barred on its face. (Id.) (citing Hoover v. Langston Equip. Assoc., Inc., 958 F.2d 742, 744 (6th Cir. 1992)). Moreover, Defendants maintain, there is no specified statute of limitations in the PAA. Instead, say Defendants, the PAA incorporates the relevant state's law regarding any applicable statutes of limitations. (Id.) (citing Day v. NLO, Inc., 3 F.3d 153, 154 n.1 (6th Cir. 1993)). As such, because Ohio is the relevant state, the Court should look to Ohio law in determining the applicable statute of limitations. (See id.). Further, Defendants reason, because Plaintiffs attempt to allege injuries of bodily harm and property, the relevant statute of limitations is two and four years respectively. (Id.) (citing R.C....
To continue reading
Request your trial