W. Morgan-East Lawrence Water & Sewer Auth. v. 3M Co., Civil Action Number 5:15-cv-01750-AKK

Decision Date20 September 2016
Docket NumberCivil Action Number 5:15-cv-01750-AKK
Citation208 F.Supp.3d 1227
Parties WEST MORGAN-EAST LAWRENCE WATER AND SEWER AUTHORITY, and Tommy Lindsey, Lanette Lindsey and Larry Watkins, individually, and on behalf of a class of persons similarly situated, Plaintiffs, v. 3M COMPANY, Dyneon, L.L.C., and Daikin America, Inc., Defendants.
CourtU.S. District Court — Northern District of Alabama

Carl A. Cole, III, Cole Law Firm LLC, Decatur, AL, Gary A. Davis, James S. Whitlock, Douglas Avery Ruley, Davis & Whitlock PC, Asheville, NC, Jeffrey E. Friedman, Lee T. Patterson, Friedman Dazzio Zulanas & Bowling PC, Birmingham, AL, for Plaintiffs.

Michael Joseph Collins, Stephanie Leeann Gase, William Andrew Brewer, III, Brewer, Attorneys & Counselors, Dallas, TX, William S. Cox, III, Harlan Irby Prater, IV, Lightfoot Franklin & White LLC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

The plaintiffs in this case are West Morgan-East Lawrence Water and Sewer Authority (the "Authority"), in its individual capacity, and Tommy Lindsey, Lanette Lindsey, and Larry Watkins (collectively "Representative Plaintiffs"), who bring this action both individually and on behalf of a class of persons similarly situated.1 Federal jurisdiction is premised upon the diversity statute. 28 U.S.C. § 1332(a). The Authority and Representative Plaintiffs (collectively "Plaintiffs") assert common law claims of negligence (Count I), nuisance (Count II), abatement of nuisance (Count III), trespass (Count IV), battery (Count V), and wantonness (Count VI) against 3M Company, Dyneon, L.L.C., and Daikin America, Inc. Doc. 39. Currently before the court is 3M and Dyneon's motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 46. Daikin America also separately moved to dismiss the amended complaint, but later withdrew its motion. See docs. 44, 61. Notwithstanding the withdrawal of Daikin America's motion, the court will address the arguments presented therein, as 3M and Dyneon explicitly incorporated by reference all arguments asserted in Daikin America's former motion, and plaintiffs have had the opportunity to respond to both motions. See docs. 47 at 1 n.1; 45, 54, 55, and 56. For the reasons stated more fully below, the motion is due to be granted in part, and denied in part.2

I. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders ‘naked assertion[s] devoid of ‘further factual enhancement.’ " Id. (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. "To survive a motion to dismiss, a complaint 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, 129 S.Ct. 1937 (citations omitted) (internal quotation marks omitted). A complaint states a facially plausible claim for relief "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. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id. ; see also Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ("Factual allegations must be enough to raise a right to relief above the speculative level."). Ultimately, this inquiry is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

II. FACTUAL BACKGROUND3

This action arises out of defendants' discharge of wastewaters containing perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and related chemicals into the Tennessee River near Decatur, Alabama. Doc. 39 at 5–7. Specifically, 3M and its wholly-owned subsidiary Dyneon own and operate manufacturing and disposal facilities in Decatur, which have released, and continue to release, PFOA, PFOS, and related chemicals into ground-and surface water, through which the chemicals are ultimately discharged into the Tennessee River. Id. at 5. Daikin America manufactures tetrafluoroethylene and hexafluoropropylene fluoropolymers, produces PFOA as a byproduct, and discharges PFOA, PFOS, and related chemicals into the Decatur Utilities Wastewater Treatment Plant. Id. at 7. The Wastewater Treatment Plant, in turn, discharges the wastewater into the Tennessee River. Id.

Defendants discharge these chemicals thirteen miles upstream from the area where the Authority draws water that it supplies to local water utilities, or directly to consumers. Id. at 10. Although the Authority treats the water, unsafe levels of PFOA and PFOS remain in the drinking water because of these chemicals' stable carbon-fluorine bonds and resistance to environmental breakdown processes. Id. at 7. Studies, including one by an independent science panel, have shown that absorption of these chemicals may cause long-term physiologic changes and damage to the blood, liver, kidneys, immune system, and other organs, and an increased risk of developing cancer, immunotoxicity, thyroid disease, ulcerative colitis, and high cholesterol. Doc. 39 at 8.

Plaintiffs allege that defendants continue to discharge these chemicals into the Tennessee River despite knowing of the persistence and toxicity of PFOA and PFOS. Id. at 10. Further, defendants are aware that tests of the Authority's treated water have shown elevated levels of these chemicals. Id. at 15. The Authority has consistently found PFOA levels at 0.1 ppb and PFOS levels at 0.19 ppb in its treated water, where 0.07 ppb is the current4 EPA Health Advisory Level for both of those chemicals. Id. at 14–15, doc. 58-1 at 1–2. As a result of these levels, the Authority has incurred costs of testing its treated water, implementing pilot programs to develop more effective methods for the removal of PFOA and PFOS, and attempting to locate a new water source. Doc. 39 at 16.

Representative Plaintiffs and the proposed class are owners or possessors of property who consume water supplied by the Authority and other water utilities that receive water from the Authority. Id. at 2. They allege personal injuries from their exposure to unsafe levels of PFOA and PFOS in their domestic water supplies, including elevated levels of those chemicals in their blood serum. Id. at 17. In 2010, the federal Agency for Toxic Substances and Disease Registry ("ATSDR") analyzed the blood serum of 121 customers of the Authority, including some of the Representative Plaintiffs and members of the proposed class, for PFOA and PFOS, and found an association between elevated levels of those chemicals and the use of drinking water supplied by the Authority. Id. In addition to personal injuries, Representative Plaintiffs and the proposed class claim diminution in their real property values, and out-of-pocket costs for purchasing water filters and bottled water. Id. at 18.

III. ANALYSIS

Defendants move to dismiss all six counts asserted in the amended complaint. The court addresses each count below.

A. Negligence (Count I)

Defendants argue that plaintiffs' negligence claims fail because they are time-barred (doc. 47 at 7), and do not plead a cognizable injury (doc. 45 at 6).

1. The timeliness of plaintiffs' negligence claims

Focusing solely on the Authority's allegation that it knew about the discharge of the chemicals in 2009, and the Representative Plaintiffs' allegation that the ATSDR issued a report on the contamination in April of 2013, defendants maintain that the negligence claims are barred by Alabama's two-year statute of limitations. Doc. 47 at 17–18 (citing doc. 39 at 14, 17). The contention is unavailing because, when a defendant commits a continuing tort, the statute of limitations is tolled until the defendant ceases the tortious conduct.

AC, Inc. v. Baker , 622 So.2d 331, 335 (Ala. 1993). As plaintiffs note, defendants continue to discharge PFOA and PFOS into the water supply and have taken no actions to remediate the contamination that has already occurred. Doc. 54 at 25. The continuous and repeated dumping of chemicals into the Tennessee River is the type of activity Alabama courts would recognize as a continuing tort. See Moon v. Harco Drugs, Inc. , 435 So.2d 218, 220–21 (Ala. 1983) (stating that a "defendant's repeated wrong to the plaintiff can constitute a ‘continuous tort,’ such as ... when a plaintiff landowner seeks damages for the contamination of a well or stream") (citations omitted); cf. Payton v. Monsanto Co. , 801 So.2d 829, 835 (Ala. 2001) ("Alabama law does not recognize a continuing tort in instances where there has been a single act followed by multiple consequences .") (emphasis added). Thus, the court finds that the negligence claims are not time-barred.

2. Legally cognizable injury

Transitioning to the question of injury, the amended complaint states that the Representative Plaintiffs and proposed class "have elevated levels of PFOA, PFOS, and related chemicals in their blood serum," and that those elevated levels "cause long-term physiologic alterations and damage to the blood, liver, kidneys, immune system, and other...

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