Trimble v. Asarco Inc.

• Decision Date: 20 May 1999
• Docket Number: No. 8:97CV428.,8:97CV428.
• Citation: 83 F.Supp.2d 1034
• Parties: Von R. TRIMBLE, Jr., et al., Plaintiffs, v. ASARCO INCORPORATED, a New Jersey Corporation, Defendant.
• Court: U.S. District Court — District of Nebraska

83 F.Supp.2d 1034

Von R. TRIMBLE, Jr., et al., Plaintiffs, v. ASARCO INCORPORATED, a New Jersey Corporation, Defendant.

No. 8:97CV428.

United States District Court, D. Nebraska.

May 20, 1999.

COPYRIGHT MATERIAL OMITTED

Robert S. Lannin, Richard W. DeWitt, Croker, Huck Law Firm, Omaha, NE, Phillip S. Lorenzo, Michael G. Martin, Demetri E. Munn, Baker, Hostetler Law Firm, Denver, CO, David D. Hoff, Loren D. Dunn, Lucy L. Helm, Janissa A. Strabuk, Trilby C.E. Dorn, Daniel J. Gunter, Graham, James Law Firm, Seattle, WA, for plaintiffs.

Stephen M. Bruckner, Fraser, Stryker Law Firm, Omaha, NE, Steven E. Guenzel, Barlow, Johnson Law Firm, Lincoln, NE, Peter J. Nickles, Steven J. Rosenbaum, Richard A. Meserve, Elliott Schulder, James A. Goold, Thomas L. Cubbage, III, Anthony S. Yoo, Covington, Burling Law Firm, Washington, DC, for defendant.

MEMORANDUM AND ORDER

SHANAHAN, District Judge.

Before the court is filing no. 135, the "Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction" filed by the defendant, ASARCO Incorporated ("ASARCO"). In response to a previous motion by ASARCO to dismiss this action for lack of subject matter jurisdiction (filing no. 62), the court in filing no. 131, sustained ASARCO's motion to dismiss, but granted the plaintiffs leave to file a Third Amended Complaint. The plaintiffs, Von R. Trimble, et al., filed a "Third Amended Complaint Class Action" (filing no. 133). In filing no. 135, ASARCO asserts again that the court lacks subject matter jurisdiction of this action and alleges that the Third Amended Complaint does not cure the jurisdictional deficiencies of the Second Amended Complaint (filing no. 31).

In deciding filing no. 135, the court has reviewed matters outside the pleadings. See, e.g., Godfrey v. Pulitzer Publishing Co., 161 F.3d 1137, 1140 (8th Cir.1998), cert. denied, ___ U.S. ____, 119 S.Ct. 1575, 143 L.Ed.2d 671 (1999); Deuser v. Vecera, 139 F.3d 1190, 1191 n. 3 (8th Cir.1998); Osborn v. United States, 918 F.2d 724, 728-731 (8th Cir.1990). A district court may consider matters outside the pleadings on a motion challenging subject matter jurisdiction. Deuser, 139 F.3d at 1191 n. 3; Osborn, 918 F.2d at 728 n. 4. When the court does consider matters outside the pleadings, "[t]he court's election to do so does not convert the 12(b)(1) motion to dismiss into a motion for summary judgment." Deuser, 139 F.3d at 1191 n. 3. Accord Western Neb. Resources Council v. Wyoming Fuel Co., 641 F.Supp. 128, 132, 139-140 (D.Neb.1986), cited in Osborn, 918 F.2d at 728 n. 5.

Instead of a purely "facial attack," which challenges the facial sufficiency of the complaint, a party may, as in this action, mount a "factual attack" on subject matter jurisdiction, that is, looking beyond the pleadings and addressing the factual basis for jurisdiction. Osborn, 918 F.2d at 729 n. 6. In that event, "no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Id. at 730. The district court has the power to decide issues of disputed fact when resolving a factual attack on subject matter jurisdiction. Godfrey, 161 F.3d at 1140.¹ On appeal, if the district court determined disputed factual issues, the clearly erroneous standard of review applies to the district court's findings of jurisdictional fact. Osborn, 918 F.2d at 730.

In this action, the Third Amended Complaint asserts a private cause of action by a proposed class of real estate owners and tenants for recovery of "response costs" pursuant to 42 U.S.C. § 9607(a), which is section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq. The plaintiffs also assert tort claims under state law based on the alleged deposit by ASARCO of airborne contaminants on the plaintiffs' owned or rented real estate.

More specifically, the Third Amended Complaint (filing no. 133) alleges that the named class representatives first became aware in 1997 that ASARCO, through years of operation, has contaminated the plaintiffs' property. In Paragraph 25 of filing no. 133, the named plaintiffs claim to represent classes and subclasses with a total membership in excess of 67,700 members. The Third Amended Complaint states that by depositing airborne contaminants on properties of the class members, ASARCO became liable for trespass, nuisance, negligence, strict liability, unjust enrichment, medical monitoring and CERCLA response costs. The plaintiffs also seek a declaratory judgment establishing ASARCO's liability for all future CERCLA costs incurred in remediation of the plaintiffs' properties.

ASARCO contends that subject matter jurisdiction of this action cannot be predicated on 28 U.S.C. § 1331 (federal question) because the plaintiffs have failed to allege essential elements of a private cause of action under CERCLA. In addition, ASARCO challenges the plaintiffs' allegation that jurisdiction can be based on 28 U.S.C. § 1332 (diversity of citizenship) for a subclass of 15,000 "owner-occupants." ASARCO disputes jurisdiction under 28 U.S.C. § 1332(a) because the claims of the individual "owner-occupants" do not meet the threshold $75,000 jurisdictional amount.

FEDERAL QUESTION JURISDICTION

42 U.S.C. § 9607(a)(4)(B) of CERCLA provides a private cause of action for the recovery from responsible parties of "necessary costs of response incurred ... consistent with the national contingency plan." See generally Kalamazoo River Study Group v. Rockwell Intern. Corp., 171 F.3d 1065, 1068 (6th Cir. 1999): "The purpose of CERCLA is `to facilitate the prompt cleanup of hazardous waste sites by placing the ultimate financial responsibility for cleanup on those responsible for hazardous wastes.' ... In order to establish a prima facie case of CERCLA liability against [the defendant], [the plaintiff] must establish that: (1) there was a release or threatened release of a hazardous substance; (2) the site of the release or threatened release is a `facility' as that term is defined the statute; (3) the release or threatened release has caused [the plaintiff] to incur response costs; and (4) [the defendant] is among a statutorily-defined group of persons, which includes the owner or operator of a facility. ... 42 U.S.C. § 9607(a)."

In addition, CERCLA places the burden on a nongovernmental plaintiff to prove that the claimed response costs conform to the National Contingency Plan established under CERCLA and administered by the Environmental Protection Agency. See, e.g., B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); Public Service Co. of Colorado v. Gates Rubber Co., 22 F.Supp.2d 1180, 1187 (D.Colo.1997).

ASARCO denies that the plaintiffs can establish the third of the foregoing elements, namely, that the plaintiffs have incurred response costs consistent with the National Contingency Plan. If the plaintiffs have not incurred such costs, their CERCLA claim is not ripe and should be dismissed. See, e.g., Lewis v. General Electric Co., 37 F.Supp.2d 55, 62 (D.Mass. 1999):

CERCLA enables a private party who has investigated or remediated a hazardous waste site "consistent with the national contingency plan" to recover response costs. 42 U.S.C. § 9607(a)(4)(B).

To recover costs under this provision, however, a plaintiff must have actually incurred response costs....

In this case, plaintiff concedes that she has not incurred such costs.... Plaintiff's claim is therefore premature and fails to state a claim for which relief can be granted at this time. Accordingly, Count VIII will be dismissed without prejudice. If, at a later date, plaintiff does incur response costs, she will be free to reassert this claim.

(Emphasis added.)

It is clear from the record that the plaintiffs in this action, both the putative class members and the class representatives, have not personally spent any money whatsoever for investigation or remediation.² Instead, attorneys who previously prevailed in other litigation against ASARCO commissioned, at their own expense, "a brief sampling" of soil near the Omaha ASARCO site in 1997. See "Affidavit of Robert S. Lannin" ("Lannin Affidavit") (filing no. 141) at ¶ 3; "Plaintiffs' Opposition to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction" ("Plaintiffs' Opposition") at 10. Thereafter, the attorneys, again entirely at their own expense, hired AGI Technologies to conduct initial and follow-up studies resulting, by the date of the Third Amended Complaint, in an expenditure by the attorneys of $168,000. "Affidavit of Raymond M. Sadowski" ("Sadowski Affidavit") (filing no. 142) at ¶¶ 10-14; Lannin Affidavit at ¶ 4; Plaintiffs' Opposition at 10, 12, 23-25.

Upon receipt of the initial evidence of contamination, the attorneys approached the individuals who are now the proposed class representatives in this action, informed those individuals that their property had been contaminated by ASARCO, and asked whether the individuals would like to initiate, or participate in, a lawsuit against ASARCO. Thus, the representatives signed on to the prospective lawsuit against ASARCO without ever spending any funds to investigate or clean up the contamination. See Exhibits 1, 2, 3, 4 and 5 to Index of Evidence (filing no. 136); Exhibits C, D and E to Declaration of Thomas L. Cubbage III (filing no. 146).

The plaintiffs argue that they are liable for the costs expended by the attorneys because the named class representatives signed fee agreements with counsel which provide for reimbursement of the amounts the attorneys have spent for investigation and other services. Lannin Affidavit at ¶ 15; Plaintiffs' Opposition at 23-27. However, reimbursement is categorically conditional, namely, the plaintiffs' attorneys would...