Moore v. Walter Coke, Inc., CASE NO. 2:11-cv-1391-SLB

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
PartiesLOUISE MOORE, Plaintiff, v. WALTER COKE, INC., Defendant.
Decision Date28 September 2012
Docket NumberCASE NO. 2:11-cv-1391-SLB

LOUISE MOORE, Plaintiff,
WALTER COKE, INC., Defendant.

CASE NO. 2:11-cv-1391-SLB


Dated: September 28, 2012


This case is before the court on defendant, Walter Coke, Inc.'s Motion to Dismiss plaintiff's Amended Class Action Complaint. (Doc. 9.)1 Upon consideration of defendant's Motion, the supporting and opposing memoranda, arguments of counsel and the relevant law, the court finds, for the reasons stated below, that defendant's Motion will be granted in part and denied in part as follows:

Defendant's Motion to Dismiss on the basis of Alabama's rule of repose will be denied, because at this time, the court has insufficient evidence to determine exactly when plaintiff's first injury occurred. However, the court finds that Section 309 of CERCLA applies to Alabama's rule of repose.

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The defendant's Motion to Dismiss on the basis of plaintiff's failure to sufficiently plead an ascertainable class will be granted. However, plaintiff will be given leave to amend her class allegation.

The defendant's Motion to Dismiss on the basis of plaintiff's failure to sufficiently plead valid state law claims of trespass, nuisance, wantonness, and negligence will be denied. However, defendant's Motion Dismiss regarding plaintiff's claim for injunctive relief will be granted because plaintiff does not plead the necessary elements for such relief.


A defendant may move to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief may be granted. To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint "does not need detailed factual allegations;" however, the "plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] 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) (internal citations omitted).2 "Factual allegations must

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be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. The plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

"When considering a motion to dismiss, all facts set forth in plaintiff's complaint 'are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). All "reasonable inferences" are drawn in favor of the plaintiff. St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002). "'[U]nsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.'" Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)).


In her Amended Complaint, plaintiff Louise Moore ("plaintiff") asserts, on behalf of herself and a proposed class of similarly situated persons, various state law claims against defendant, Walter Coke, Inc. ("defendant"). (Doc. 6 ¶ 1.) Plaintiff is an adult resident citizen of Jefferson County, Alabama and resides in North Birmingham. (Id. ¶ 5.) Defendant is a Delaware corporation with its principal place of business in Wilmington, Delaware. (Id. ¶ 6.) Defendant operates and has operated furnaces in North Birmingham, Jefferson County,

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Alabama, where it produces "furnace and foundry coke, and slag fiber." (Id. 7-16.) The Amended Complaint outlines the operational history of some of defendant's facilities in the Birmingham area:

• In 1881 defendant constructed "two Blast Furnaces, now known as the City Furnaces." Around that time, "two more blast furnaces were built in North Birmingham." (Id. ¶ 8.)
• "In 1918 the construction of a By-Product Recovery Coke Plant commenced . . . which included 120 3.7 meter Semet Solvay coke Ovens." (Id. ¶ 9.)
• "Three more coke oven batteries and an additional blast furnace were constructed in North Birmingham between 1951 and 1958." (Id. ¶ 10.)
• "The operation of the old Semet Solvay coke oven batteries and all the blast furnaces ceased by the end of 1980." However, defendant's "coke oven batteries built in Jefferson County, Alabama in the 1950's continue" to operate. (Id. ¶¶ 12, 13.)

Plaintiff alleges that in the course of defendant's operations in North Birmingham, it "deposited and deposit[s] various waste substances" on her property and/or defendant "allow[s] such substances and materials to migrate to and/or become located on Plaintiff's property through emissions in the air and/or flow from surface water, ground water or discharge into waterways." (Id. ¶ 17.) Plaintiff claims her property has been damaged in the form of depreciated value and that the removal of hazardous substances is needed. (Id. ¶ 21.) Based on these allegations, plaintiff, on behalf of herself and a proposed class, asserts against defendant state law claims of negligence, wantonness, nuisance, trespass, and a claim for injunctive relief. (See id. ¶¶ 24-48.)

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Defendant moved to dismiss plaintiff's claims on the following grounds:

1. Alabama's twenty-year common law rule of repose bars all claims asserted in Plaintiff's Amended Complaint;
2. All putative class allegations in the Amended Complaint must be dismissed for failure to state a claim under FED. R. CIV. P. 23; and
3. Plaintiff's Amended Complaint fails to adequately plead claims for negligence, nuisance, trespass, wantonness, and injunctive relief under the pleading standards articulated by the U.S.Supreme Court in Bell Atlantic Corp. v. Twombley, 550 U.S. 544 (2007), and Ashcroft v. Iqbal 129 S. Ct. 1937 (2009).

(Doc. 9 at 1-2.)


I. Alabama's Rule of Repose

Defendant's Memorandum of Law in Support of Its Motion to Dismiss asserts that all of plaintiff's claims are barred by application of Alabama's rule of repose. (Doc. 9-1 at 4.) The court finds that at this early stage of litigation there is insufficient evidence to determine when exactly plaintiff's alleged injuries first occurred and triggered the repose time limit. Accordingly, for the reasons discussed below, defendant's Motion to Dismiss based on its argument that the rule of repose bars all claims will be denied.

A. Rule of Repose: Background

Alabama's longstanding rule of repose is derived from common law and "serves to bar claims that arise out of events that are more than twenty years old." Moore v. Liberty

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Nat'l Life Ins. Co., 267 F.3d 1209, 1213 (11th Cir. 2001) (citing Ex parte Grubbs, 542 So. 2d 927, 930-31 (Ala. 1989)); see also Boshell v. Keith, 418 So. 2d 89, 91-92 (Ala. 1982) (discussing Alabama's rule of repose and noting the first recognition of the rule in 1858). The rule is founded on the concept that after a significant passage of time, it is equitable to bar claims, regardless of when the plaintiff actually discovered the harm, if the injury arose more than twenty years before legal redress is sought:

[I]t has long been the settled policy of this state . . . that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into. . . . . It is necessary for the peace and security of society that there should be an end of litigation, and it is inequitable to allow those who have slept upon their rights for a period of 20 years, after they might have demanded an accounting, and after, as is generally the case, the memory of transactions has faded and parties and witnesses passed away, to demand an accounting.

Snodgrass v. Snodgrass, 58 So. 201, 201-02 (Ala. 1912).

The concept of repose differs somewhat from the reasoning underlying statutes of limitations. See Moore, 267 F.3d at 1213-14. Unlike a statute of limitations, the rule of repose "is not related to the accrual of any cause of action." Moore, 267 F.3d at 1218 (quoting Bradway v. Am. Nat'l Red Cross, 992 F.2d 298, 301 (11th Cir.1993) (internal quotation marks omitted)). Rather, the rule is "based solely upon the passage of time." Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758, 764 (Ala. 2002) (per curiam) (citation omitted). As such, it is a substantive rule, which "extinguishes both the remedy and the

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actual action." Id. at 765 (internal quotation marks and citations omitted). The rule does not account for equitable concerns arising from "the circumstances of the situation, . . . personal disabilities, . . . prejudice . . . or evidence obscured." Boshell, 418 So. 2d at 91 (citations omitted). "The only circumstance that will stay the running of the 20-year period of repose is a recognition of the claimant's right by the party defending against the...

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