Priselac v. The Chemours Co., 7:20-CV-190-D

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Writing for the Court: JAMES C. DEVER III, UNITED STATES DISTRICT JUDGE
• Docket Number: 7:20-CV-190-D
• Parties: TAMMIE PRISELAC, individually and on behalf of all others similarly situated, Plaintiff, v. THE CHEMOURS COMPANY, et al., Defendants.
• Decision Date: 28 March 2022

TAMMIE PRISELAC, individually and on behalf of all others similarly situated, Plaintiff,
v.
THE CHEMOURS COMPANY, et al., Defendants.

No. 7:20-CV-190-D

United States District Court, E.D. North Carolina, Southern Division

March 28, 2022

ORDER

JAMES C. DEVER III, UNITED STATES DISTRICT JUDGE

On September 15, 2020, Tammie Priselac ("Priselac" or "plaintiff'), individually and on behalf of all others similarly situated, filed a putative class action in Bladen County Superior Court against The Chemours Company, The Chemours Company FC, LLC, E.I. DuPont de Nemours and Company, Inc., E.I. duPont Chemical Corporation, Corteva, Inc., DuPont de Nemours, Inc., Ellis H. McGaughy, Brian D. Long, and Michael E. Johnson (collectively, "defendants"). See Compl. [D.E. 1-1] 12-83. On October 6, 2020, defendants removed the action to this court based on diversity jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2) [D.E. 1]. On September 20, 2021, the court denied Priselac's motion to remand [D.E. 49].

On October 13, 2020, defendants moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) [D.E. 13] and filed a memorandum in support [D.E. 14]. On November 8, 2021, Priselac responded in opposition [D.E. 52].^[1] On December 6, 2021, defendants replied [D.E. 54]. As explained below, the court grants in part and denies in part defendants' motion to dismiss.

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I.

This case concerns the alleged release of perfluorinated chemicals ("PFCs"), also known as perfluoroalkyl substances ("PFAS"), from the Fayetteville Works Site, which is located southeast of Fayetteville, North Carolina. PFCs include HFPO dimer acid ("GenX"), C8, and other chemicals. Priselac alleges defendants have released PFCs into the Cape Fear River and surrounding air, soil, and groundwater through their operations at the Fayetteville Works Site, thereby contaminating her property and drinking water. Priselac lived in Wilmington, North Carolina, from 2009 to 2019. While living there, she drank water supplied by the Cape Fear Public Utility Authority, which draws water for its customers from the Cape Fear River. See Compl. 12; see also Priselac v. Chemours Co.. No. 7:20-CV-190-D, 2021 WL 4303768, at *l-2 (E.D. N.C. Sept. 20, 2021); Kinlaw v. Chemours Co. FC. LLC. No. 7:20-CV-188-D, 2021 WL 4497151, at * 1-2 (E.D. N.C. Sept 30, 2021) (unpublished) (involving similar factual allegations by different plaintiffs against the same defendants); Order at2-8. Lohr v. Chemours Co. FC. LLC. No. 7:20-CV-189-D (E.D. N.C. Sept 27, 2021), [D.E. 118] (same); Nix v. Chemours Co. FC. LLC. 456 F.Supp.3d 748, 754-58 (E.D. N.C. 2019) (same): Dew v. E.I. du Pont de Nemours & Co.. No. 5:18-CV-73-D, 2019 WL 13117100, at *1-3 (E.D. N.C. Apr. 17, 2019) (unpublished) (same).

Priselac, seeking to represent herself and a class of others similarly situated, alleges numerous claims, including: (1) trespass, (2) private nuisance, (3) negligence, (4) negligent failure to warn, (5) violation of the North Carolina Uniform Voidable Transfer Act ("NCUVTA"), N.C. Gen. Stat §§ 39-23.1, et seq..(6) unjust enrichment (7) civil conspiracy, and (8) battery. See Compl. ¶¶196-266. Priselac alleges that because of defendants' actions, she suffered an "increased risk of illness, disease, and disease process," which results in a present need for "the cost of diagnostic testing for the early detection of such illness, disease, or disease process." Id. ¶¶ 171-79. Priselac seeks

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compensatory and punitive damages, money to pay for diagnostic testing and medical monitoring, disgorgement of profits obtained by unjust enrichment, and attorneys' fees. See Id. at 82-83. Defendants move to dismiss all of Priselac's claims under Rule 12(b)(6), except for the claim under the NCUVTA, which they do not address. See [D.E. 13]. Defendants also seek the dismissal of Long, McGaughy, and Johnson as defendants. See id.

II.

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal. 556 U.S. 662, 677-80 (2009)1: Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals. 626 F.3d 187, 190 (4th Cir. 2010), affd, 566 U.S. 30 (2012); Giarratano v. Johnson. 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal. 556 U.S. at 678 (quotation omitted); see Twomblv. 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to [the nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville. 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert. 576 U.S. 155 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano. 521 F.3d at 302 (quotation omitted); see Iqbal. 556 U.S. at 678-79. Rather, a party's factual allegations must "nudge[ ] [its] claims," Twomblv. 550 U.S. at 570, beyond the realm of "mere possibility" into ''plausibility." Iqbal. 556 U.S. at 678-79.

When evaluating a motion to dismiss, a court considers the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont deNemours & Co. v. Kolon Indus.. Inc..

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637 F.3d 435, 448 (4th Cir. 2011); see Fed.R.Civ.P. 10(c); Goines v. Vallev Cmtv. Servs. Bd.. 822 F.3d 159, 166 (4th Cir. 2016); Thompson v. Greene. 427 F.3d 263, 268 (4th Cir. 2005). A court also may consider a document submitted by a moving party if it is "integral to the complaint and there is no dispute about the document's authenticity" without converting the motion into one for summary judgment. Goines. 822 F.3d at 166. Additionally, a court may take judicial notice of public records. See. e.g.. Fed.R.Evid. 201; Tellabs. Inc. v. Makor Issues & Rts.. Ltd.. 551 U.S. 308, 322 (2007); Philips v. Pitt Cntv. Mem'l Hosp.. 572 F.3d 176, 180 (4th Cir. 2009).

Defendants' motion to dismiss requires the court to consider North Carolina state law claims. Accordingly, this court must predict how the Supreme Court of North Carolina would rule on any disputed state law issues. See Twin City Fire Tns. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C.. 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions of the Supreme Court of North Carolina. See id, ; Parkway 1046. LLC v. U.S. Home Corp.. 961 F.3d 301, 306 (4th Cir. 2020); Stahle v. CTS Corp.. 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from that court, this court may consider the opinions of the North Carolina Court of Appeals, treatises, and "the practices of other states." Twin City Fire Tns. Co., 433 F.3d at 369 (quotation omitted).^[2] In predicting how the highest court of a state would address an issue, this court must "follow the decision of an intermediate state appellate court unless there is persuasive data that the highest court would decide differently." Toloczko. 728 F.3d at 398 (quotation omitted); see Hicks v. Feiock. 485 U.S. 624, 630&n.3 (1988). Moreover, in predicting how the highest court of a state would address an issue, this court "should not create or expand a [s]tate's public policy." Time Warner Knt-Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp.. 506 F.3d 304, 314

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(4th Cir. 2007) (alteration and quotation omitted); see Day & Zinrniermami. Inc. v. niallmier, 423 U.S. 3, 4 (1975) (per curiam); Wade v. Danek Med.. Inc.. 182 F.3d 281, 286 (4th Cir. 1999).

A.

The primary injury Priselac alleges is the present need for diagnostic testing and medical monitoring in light of the increased risk of illness and disease caused by defendants' alleged contamination of the Cape Fear River. See Compl. ¶¶ 171-79; [D.E. 52] 8-18. Defendants argue medical monitoring is not cognizable as a cause of action or element of damages under North Carolina law absent a present physical injury. See [D.E. 14] 10-11; [D.E. 54] 2-4.

Under North Carolina law, medical monitoring is not cognizable as an independent cause of action or an element of damages absent a present physical injury. In rhirl v. American Multimedia, Inc.. the North Carolina Court of Appeals rejected an independent cause of action for medical monitoring absent a present physical injury. See 187 N.C.App. 649, 655-57, 654 S.E.2d 76, 80-82 (2007); see also Nix, 456 F.Supp.3d at 764-65. The Curl court also rejected medical monitoring as an element of damages. See. Curl. 187 N.C.App. at 657, 654 S.E.2d at 81; see also Nix. 456 F.Supp.3d at 764-65. The North Carolina Court of Appeals concluded that recognizing "the increased risk of disease as a present injury, or the cost of medical monitoring as an element of damages, will present complex policy questions... within the purview of the legislature and not the courts." Curl, 187 N.C.App. at 657, 654 S.E.2d at 81. The court explicitly "decline[d] to create the new causes of action or type of damages." Id., 654 S.E.2d at 81. As this court recognized in Nix, the court must "follow the decision of an intermediate state appellate court unless there [are] persuasive data that the highest court would decide differently." Nix. 456 F.Supp.3d at 765 (quoting Toloczko. 728 F.3d at 398). Accordingly, without a present physical injury, medical monitoring because of

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increased risk of illness is not cognizable as an independent cause of action or an element of damages under North Carolina law. The court declines to hold otherwise and thereby create or expand North Carolina public policy.

In opposition, Priselac argues she has the "persuasive data" the court lacked in Njx that shows the Supreme Court of North Carolina...