Roeder v. Atl. Richfield Co.

Decision Date30 August 2011
Docket Number3:11-cv-00105-RCJ-RAM
PartiesPHILIP ROEDER et al., Plaintiffs, v. ATLANTIC RICHFIELD CO. et al., Defendants.
CourtU.S. District Court — District of Nevada
ORDER

This class action arises out of alleged air and groundwater contamination by a mining company in Yerington, Nevada. Defendants have moved to dismiss seven of the ten claims. For the reasons given herein, the Court grants the motion in part and denies it in part, granting it as to all challenged claims except the claims for strict liability and battery, and with leave to amend the negligence and nuisance claims, respectively, to plead per se theories thereunder if Plaintiffs wish to do so, although such theories need not be specifically pled to obtain summary judgment on them as a matter of law.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs are landowners and residents in Yerington, Nevada who have had their property damaged by, and/or who are at an increased risk of being personally injured by, toxic chemicals Defendants have permitted to escape from their property (the "Mine Site") into the surrounding air, soil, and groundwater. (Am. Compl. ¶¶ 6-15, Feb. 17, 2011, ECF No. 4). The Mine Site consists of an abandoned copper mine and extraction facility in Lyon County, Nevada. (Id. ¶ 17). Empire Nevada Mining & Smelting Co. first opened the Mine Site as the Empire Nevada Minein 1918. (Id. 19). Anaconda Co. acquired the Mine Site in 1952 and operated it until 1977, when Defendant Atlantic Richfield Co. ("ARCO") acquired Anaconda and operated the Mine Site until 1982. (Id.). These companies extracted approximately 360 million tons of ore and debris from the open pit mine, much of which now remains as waste in a "pit lake" and "tailings or leach heap piles." (Id. 20). The toxic substances on the Mine Site, including arsenic, chromium, lead, mercury, uranium, thorium, and radium, have contaminated the local groundwater, surface water, soil, and air, leaving Plaintiffs exposed to them. (Id. ¶¶ 21-36).

Plaintiffs sued Defendants in this Court. The Amended Complaint lists ten causes of action: (1) Nuisance; (2) Nuisance Per Se; (3) Strict Liability; (4) Trespass; (5) Battery; (6) Negligence; (7) Negligence Per Se; (8) Unjust Enrichment; (9) Fraudulent Concealment; and (10) Negligent Misrepresentation. Plaintiffs anticipate certifying two subclasses: (1) a "Property Damage Class"; and (2) a "Medical Monitoring Class." (See id. 11). Defendants have moved to dismiss all claims except those for nuisance, trespass, and negligence.

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them inthe light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

III. ANALYSIS
A. Nuisance Per Se

In most states, nuisance is a common law cause of action, but the claim has been codified in Nevada for over a century. The current statute reads in relevant part:

Except as otherwise provided in this section[, a]nything which is injurious to health,

or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance, and the subject of an action. The action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.

Nev. Rev. Stat. § 40.140(1), (1)(a). A nuisance per se is any activity specified by law to constitute a nuisance, but in the absence of such a designation, the existence of a nuisance is a question of fact. Jezowski v. City of Reno, 286 P.2d 257, 260-61 (Nev. 1955). The question of fact is usually posed as whether the defendant's interference with the use and enjoyment of the plaintiff's land is substantial and unreasonable. See id. at 260 (quoting Amphitheaters, Inc. v. Portland Meadows, 198 P.2d 847, 852 (Or. 1948) (citing Restatement (First) of Torts § 822 (1939))). In Jezowski, the Nevada Supreme Court affirmed the following jury instruction on the definition of a nuisance generally: "anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." See id. at 261. This approved language parrots the statute.

Section 40.140(1)(a) therefore appears to be a broad definition of nuisance to be applied by a fact-finder—it is by statute the definition of a private nuisance in Nevada. Although subsections (1)(b) through (1)(d) designate particular activities as nuisances per se, e.g., drug houses and the meeting places of criminal gangs, subsection (1)(a) serves as a general definition for nuisance. The Jezowski Court affirmed a jury's instruction with the text of section 40.140(1)(a) as the broad definition of a nuisance under Nevada law. See id. To say that any activity falling under this broad standard is a nuisance per se would therefore be superfluous so far as ultimate liability, but procedurally it would potentially transfer the factual determination of nuisance in a particular case from the jury to the judge. The Jezowski case makes clear that the section 40.140(1)(a) standard is to be applied by the jury (or by the judge as fact-finder whereapplicable) as the general definition of a nuisance, and there is no broader definition of private nuisance in Nevada. Plaintiffs must look elsewhere in the code for a more specific designation of a nuisance to establish a nuisance per se.

Defendants argue that Plaintiffs cannot point to any statute indicating that mining generally, any particular type of mining, or any particular method of disposing of waste during mining, has been designated as a nuisance such that the question of nuisance can be taken from the fact-finder under a nuisance per se theory. Although the question of nuisance is a question of fact, no statute in Nevada designates mining as a nuisance, and as Defendants note, mining is (or at one time was) "the paramount interest" of the State of Nevada. Nev. Rev. Stat. § 37.010(f)(1); see also NL Indus., Inc. v. Eisenman Chem. Co., 645 P.2d 976, 979 (Nev. 1982). Of course, simply because an activity such as mining may be legally performed does not mean that it can never constitute a nuisance as a factual matter, see Ileto v. Glock, 349 F.3d 1191, 1214 (9th Cir. 2003) (citing Woodruff v. N. Bloomfield Gravel Mining Co., 18 F. 753 (C.C.D. Cal. 1884) (California law)), but mining itself is clearly not a nuisance per se in Nevada.

The Court will dismiss the nuisance per se claim. Nuisance per se is not a separate claim but a legal theory affecting the nuisance claim that Defendants have not attacked. This does not mean that Plaintiffs cannot establish a nuisance per se via offensive summary judgment. If Plaintiffs can identify a statute or regulation prohibiting some particular activity allegedly engaged in by Defendants, the Court could rule as a matter of law that the activity is a nuisance per se, leaving only causation and damages for determination by the fact-finder under the nuisance claim. But Plaintiffs have not yet identified such a statute or regulation. Plaintiffs may amend the nuisance claim to include such an allegation; however, they need not do so. They may instead simply assert their nuisance per se theory...

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