Abner et al v. United States Pipe and Foundry Company, LLC et al

Filing 87

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/31/17. (Attachments: # 1 Appendix A)Associated Cases: 2:15-cv-02040-KOB, 2:15-cv-02045-KOB, 2:15-cv-02046-KOB, 2:15-cv-02047-KOB, 2:15-cv-02048-KOB, 2:15-cv-02049-KOB, 2:15-cv-02050-KOB, 2:15-cv-02051-KOB, 2:15-cv-02052-KOB, 2:15-cv-02054-KOB, 2:15-cv-02055-KOB, 2:15-cv-02056-KOB, 2:15-cv-02057-KOB, 2:17-cv-00136-KOB(SAC )

FILED
2017 Mar-31 PM 04:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE ABNER, et al.,
Plaintiffs,
v.
UNITED STATES PIPE & FOUNDRY
COMPANY, LLC, et al.,
Defendants.

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2:15-cv-02040-KOB
This Document Relates to All Cases

MEMORANDUM OPINION
These 14 consolidated cases involve Plaintiffs’ allegations that Defendants operated a
pipe-making facility in Birmingham, Alabama that released harmful chemical contaminants into
areas occupied or frequented by Plaintiffs, causing personal injury and property damage. They
are before the court on Defendants United States Pipe & Foundry Company, LLC and Mueller
Water Products, Inc.’s 14 Motions to Dismiss and Motions for More Definite Statement. (Doc. 7
in 2:15-cv-02040-KOB, Doc. 8 in 2:15-cv-02045-KOB, Doc. 5 in 2:15-cv-02046-KOB, Doc. 8
in 2:15-cv-02047-KOB, Doc. 7 in 2:15-cv-02048-KOB, Doc. 7 in 2:15-cv-02049-KOB, Doc. 7
in 2:15-cv-02050-KOB, Doc. 7 in 2:15-cv-02051-KOB, Doc. 7 in 2:15-cv-02052-KOB, Doc. 8
in 2:15-cv-02054-KOB, Doc. 8 in 2:15-cv-02055-KOB, Doc. 7 in 2:15-cv-02056-KOB, Doc. 7
in 2:15-cv-02057-KOB, Doc. 5 in 2:17-cv-00136-KOB).
The court directed the parties to brief the Motions in a single response and reply brief.
(Doc. 74). Plaintiffs filed a response (doc. 77) and Defendants filed a reply. (Doc. 81). All
docket references are to the lead case, 2:15-cv-02040-KOB, except where otherwise noted.

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I.

Standard of Review
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint.

Generally, the Federal Rules of Civil Procedure require only that the complaint provide “‘a short
and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting
Fed. R. Civ. P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule 8
generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal 556 U.S. 662,
678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the elements of a
cause of action” do not meet Rule 8 standards nor do pleadings suffice that are based merely
upon “labels or conclusions” or “naked assertions” without supporting factual allegations.
Twombly, 550 U.S. at 555, 557.
The Supreme Court explained that “[t]o 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 (quoting and explaining its decision in Twombly, 550 U.S. at 570).
To be plausible on its face, the claim must contain enough facts that “allow[ ] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. Although “[t]he plausibility standard is not akin to a ‘probability requirement,’” the
complaint must demonstrate “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
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Id. (quoting Twombly, 550 U.S. at 557).
The Supreme Court has identified “two working principles” for the district court to use in
applying the facial plausibility standard. The first principle is that, in evaluating motions to
dismiss, the court must assume the veracity of well-pleaded factual allegations; however, the
court does not have to accept as true legal conclusions even when “couched as [] factual
allegation[s]” or “threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” Iqbal, 556 U.S. at 678. The second principle is that “only a complaint
that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus, under prong
one, the court determines the factual allegations that are well-pleaded and assumes their veracity,
and then proceeds, under prong two, to determine the claim’s plausibility given the well-pleaded
facts. That task is “context-specific” and, to survive the motion, the allegations must permit the
court based on its “judicial experience and common sense . . . to infer more than the mere
possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted as true,
do not state a claim that is plausible, the claim must be dismissed. Id.
II.

Discussion
Pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), Defendants move to

dismiss Plaintiffs’ claims of Nuisance; Concealment, Misrepresentation, and Fraud; Conspiracy;
Battery; and Trespass.1 Defendants move for a more definite statement of Plaintiffs’ claims for
Negligence; Wrongful Death; Wantonness; Negligence Per Se; and Punitive Damages. Plaintiffs
concede that they have failed to state a claim for battery, so the court will dismiss those claims

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Defendants do not move to dismiss Plaintiff’s Nuisance and Trespass claims in 2:17-cv-00136KOB.
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for every Plaintiff.2
A.

Fraud

Plaintiffs’ allegations of “Concealment, Misrepresentation, and Fraud” in their
Complaints apparently aim to state claims of fraudulent suppression and fraudulent
misrepresentation. Under Alabama law, a plaintiff claiming fraudulent suppression must show:
“(1) that [the defendant] had a duty to disclose the existing material fact; (2) that [the defendant]
suppressed this material fact; (3) that [the defendant’s] suppression of this fact induced [the
plaintiff] to act or to refrain from acting; and (4) that [the plaintiff] suffered actual damage as a
proximate result.” LaFerrera v. Camping World RV Sales of Birmingham, 171 F. Supp. 3d 1257,
1269 (N.D. Ala. 2016) (quoting State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834, 837 (Ala.
1998)); see ALA. CODE § 6-5-102.
In the absence of a statutory duty or other duty imposed by law, as here, whether the
defendant had a duty to disclose depends on several factors: “(1) the relationship of the parties;
(2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff’s
opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant
circumstances.” See Ex parte Ford Motor Credit Co., 717 So. 2d 781, 786 (Ala. 1997); State
Farm, 729 So. 2d at 834 (internal citations omitted).
Fraudulent misrepresentation, which involves an affirmative act or statement as opposed
to suppression of information, consists of “(1) a false representation (2) concerning a material
existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result.” See
Fisher v. Comer Plantation, Inc., 772 So. 2d 455, 463 (Ala. 2000) (quoting Baker v. Bennett, 603
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Appendix A, attached, details the count numbers for each of these claims by individual case.
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So. 2d 928, 935 (Ala.1992)); see ALA. CODE § 6-5-101.
Federal Rule of Civil Procedure 9(b) requires plaintiffs to plead the circumstances
constituting fraud with particularity. A plaintiff may satisfy the requirements of Rule 9(b) in one
of two ways. Traditionally, “a plaintiff must allege: ‘(1) the precise statements, documents, or
misrepresentations [or omissions] made; (2) the time, place, and person responsible for the
statement [or omission]; (3) the content and manner in which these statements [or omissions]
misled the [p]laintiff; and (4) what the defendants gained by the alleged fraud.’” Am. Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010) (quoting Brooks v. Blue Cross &
Blue Shield of Fla., Inc., 116 F.3d 1364, 1380–81 (11th Cir. 1997)). A plaintiff may also plead
fraud by “alternative means,” such as by submitting documents demonstrating the circumstances
of the alleged fraud. Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1512 (11th Cir. 1998)
(finding adequate pleading where plaintiffs alleged mail fraud and submitted affidavit asserting
receipt of documents in the mail); see Tanner v. Int’l Isocyanate Inst., No. 1:05-cv-02341-PWG,
at 44 (N.D. Ala. June 9, 2008), ECF Doc. 303 (finding that the plaintiffs could not satisfy Rule
9(b) by alternative means because “[t]here are simply no other papers, documents, or
communication to be reviewed.”).
In claiming fraudulent suppression and misrepresentation, Plaintiffs allege that
Defendants “withheld, misrepresented, and/or concealed information” related to their toxic
substance emissions, and that “Plaintiffs, other exposed individuals, and the public at large were
damaged and physically harmed” as a result, because they “continued to live, work in, and/or
frequent” contaminated areas. (Doc. 1-1 at 19). Plainly, these allegations fail to assert what
information Defendants misrepresented or concealed; the manner, time(s), or place(s) in which
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they misrepresented or concealed it; what acts, statements, or omissions constituted fraud; which
individuals concealed the information or misrepresented it; the nature of Plaintiffs’ reliance on
the concealment or misrepresentation in continuing to “live, work in, and/or frequent” the
contaminated areas; and how and what Defendants gained from the fraud.
Specifically, Plaintiffs have failed to adequately plead Defendants’ duty to disclose
certain information, which they must demonstrate to prevail on their claims of fraudulent
suppression. They assert broadly that “Defendants had an affirmative duty to disclose to the
Plaintiffs, other exposed individuals, and the public at large the actual and potential harm to their
persons . . . including an affirmative duty to disclose” their exposure to chemical contaminants.
(Doc. 1-1 at 18). On its face, this assertion amounts to a legal conclusion that Defendants owed
affirmative duties to multiple classes of people to disclose information. Plaintiffs argue that the
source of these duties to disclose are the state and federal statutes referenced in their Complaints,
which impose affirmative duties to avoid the pollution alleged, and that Defendants failed to
disclose the risks of the unlawful pollution to Plaintiffs.
But Plaintiffs mischaracterize the duties imposed by those statutes, which assume the
presence of pollutants and regulate their discharge. See, e.g., Clean Water Act, 33 U.S.C. § 1251
et seq. (providing for regulation of water pollution); Clean Air Act, 42 U.S.C. § 7401 et seq.
(same as to air pollution); Alabama Air Pollution Control Act of 1971, Ala. Code § 22-28-1 et
seq. (regulating air pollution in Alabama). Moreover, those laws do not speak to a defendant’s
obligations to publicly disclose information or convey information to private individuals, but
provide only for compliance and reporting duties to relevant state and federal agencies.
Plaintiffs also argue that their Complaints plead that (1) Plaintiffs did not know about the
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toxic nature of Defendants’ emissions; (2) Plaintiffs had no way of ascertaining that information;
and (3) the information was of high value, as it showed a link between the emissions and serious
illnesses. They contend that these facts sufficiently establish an affirmative duty. But the
Complaints do not allege the second point, clarify what information Defendants owed a duty to
disclose, or address the other State Farm factors.
“Superior knowledge of a fact, without more, does not impose upon a party a legal duty to
disclose such information.” Surrett v. TIG Premier Ins. Co., 869 F. Supp. 919, 925 (M.D. Ala.
1994) (citing Barnes v. Liberty Mut. Ins. Co., 468 So.2d 124, 126 (Ala. 1985)). Plaintiffs have
failed to point in their Complaints to any statutory or other legal duty or combination of the State
Farm factors that would impose a duty to disclose the information Defendants allegedly
concealed from Plaintiffs.
Plaintiffs have not submitted documentation showing the circumstances of the alleged
fraud in an effort to plead it by alternative means. Accordingly, their claims of fraudulent
suppression and misrepresentation are due to be dismissed.
B.

Conspiracy

Plaintiffs allege that Defendants and their “employees, agents, officers, and
representatives” conspired: (1) “[t]o release the Contaminants from the Plant in question and in a
manner in violation of the law”; (2) “[t]o conceal the fact that the Contaminants were being
released from the Plant”; (3)”[t]o conceal the fact that human exposure to the Contaminants from
the Plant would lead to injury and/or death in those exposed”; (4) “[t]o conceal the fact that the
Contaminants were being released on to the properties of the Plaintiffs and other landowners in
the Neighborhoods”; (5) “[t]o conceal the fact that Defendants knew their contaminates [sic]
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were invading the bodies of individuals, including Plaintiffs, in the surrounding communities”;
and (6) “[t]o evade liability for damages caused by the Contaminants released from the Plant
through corporate restructuring and/or reorganizing.” (Doc. 1-1 at 19–20 ¶ 94).
To the extent Plaintiffs’ conspiracy claim alleges a conspiracy to fraudulently conceal
information, it fails to state a claim for relief, because a conspiracy requires the commission of an
underlying tort and Plaintiffs’ claims of fraudulent concealment and misrepresentation are
inadequately pled. See Triple J. Cattle, Inc. v. Chambers, 621 So. 2d 1221, 1225 (Ala. 2003)
(internal citations omitted) (“Conspiracy itself furnishes no civil cause of action.”).
Further, to allege a conspiracy claim, Plaintiffs must do more than simply aver in their
Complaints that a conspiracy existed. See Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir.
1984). A conspiracy requires an agreement, or “meeting of the minds,” to bring about an
unlawful end. See First Bank of Childersburg v. Florey, 676 So. 2d 324, 327 (Ala. Civ. App.
1996). Plaintiffs have not pled facts that, if proven, would show that Defendants agreed to
commit the acts they allegedly conspired to commit. Nor have they alleged the time, place, or
people involved in making the agreement.
Further, Plaintiffs specifically allege that Mueller acquired an interest in the pipe-making
plant in 2006 and that the plant closed in 2010, but do not state whether the conspiracy only
existed between 2006 and 2010 or longer. (Doc. 1-1 at 6 ¶¶ 15, 16). These dates are significant
because a conspiracy “cannot exist between a corporation and its agents or employees, since the
acts of agents and employees acting within the line and scope of their employment are considered
the acts of the corporation itself.” Phillips v. Amoco Oil Co., 614 F. Supp. 694, 702 n.10 (N.D.
Ala. 1985). In other words, USPF cannot have conspired with itself. Accordingly, Plaintiffs’
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conspiracy claims are due to be dismissed.
C.

Nuisance and Trespass

The parties agree that under Alabama law, claims for both nuisance and trespass require
an interest in the affected property. See Borland v. Sanders Lead Co., 369 So. 2d 523, 529 (Ala.
1979). Defendants do not challenge these claims in 2:17-cv-00136-KOB, for the obvious reason
that the Complaint identifies the specific property owned by the Plaintiff. See (Doc. 1-1 at 8 ¶ 2)
in 2:17-cv-00136-KOB. The other Complaints lack any such sufficiency.
Plaintiffs’ nuisance and trespass claims assert damage to Plaintiffs’ property, but the
Complaints do not contain allegations showing that Plaintiffs held any interest in property,
whether through ownership, a lease, or something else. Rather, Plaintiffs claim that they “lived,
worked, and/or frequented one or more locations within the Neighborhoods” near the facility.
(Doc. 1-1 at 15 ¶ 68). They then assert that Defendants damaged “Plaintiffs’ properties.” (Id. at
17–18 ¶¶ 81–87, 22 ¶¶ 108–113). These allegations are insufficient to state an interest in
properties in the Neighborhoods,3 and Plaintiffs’ nuisance and trespass claims are due to be
dismissed.
To the extent Plaintiffs’ trespass claims allege personal injury, the court dismisses them
for the same reason it dismisses Plaintiffs’ battery claims, as discussed below. Trespass to person
does not constitute an independent action, but rather is a descriptor encapsulating intentional torts
committed against the person, and these facts suggest that Plaintiffs plead trespass to person in
the form of battery. See Ex parte Capstone Bldg. Corp., 96 So.3d 77, 85–86 (Ala. 2012) (holding

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Defined as the neighborhoods of Collegeville, North Birmingham, Fairmont, Harriman Park,
and other surrounding areas. (Doc. 1-1 at 8 ¶ 23).
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that the statute of limitations for “[a]ctions for any trespass to person” applies only to intentional
torts and not to wantonness claims and noting that trespass, which gave rise to intentional torts
like assault and battery, historically denoted intent to injure).
D.

Battery

Plaintiffs allege that Defendants’ release of contaminants “resulted in an invasion of
Plaintiffs’ person.” (Doc. 1-1 at 21 ¶ 103). Plaintiffs concede that they cannot state a claim for
battery because battery under Alabama law requires physical touching. See, e.g., Ex parte Atmore
Cmty. Hosp., 719 So. 2d 1190, 1193 (Ala. 1998). Accordingly, the court dismisses Plaintiffs’
battery claims.
E.

More Definite Statement: Negligence; Wrongful Death; Wantonness;
Negligence Per Se; and Punitive Damages

Rule 12(e) permits a party to ask for a more definite statement of a pleading “so vague or
ambiguous that the party cannot reasonably prepare a response.” FED. R. CIV. P. 12(e). Plaintiffs
do not individually allege their injuries or the nature of their property damage. Nor do they assert
the individual circumstances of their exposure to the described toxic emissions. Rather, each
Plaintiff claims to have contracted one or more of the sixty-seven “linked diseases” identified in
the Complaints and/or to have generally suffered property damage. Accordingly, Defendants ask
that the court order Plaintiffs to provide a more definite statement of (1) each Plaintiff’s
individualized injuries and (2) the circumstances of each Plaintiff’s exposures to Defendants’
contaminants, including relevant dates, locations, and contaminants.
The court is cognizant that Rule 12(e) must not be employed as an end-run around the
“short and plain statement” rule. See Harris v. Fisher-Price Inc., No. 1:13-cv-00076-KOB, 2013

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WL 2013 WL 9861461, at *1 (N.D. Ala. Oct. 24, 2013) (Bowdre, J.) (citing Herman v.
Continental Grain Co., 80 F. Supp. 2d 1290, 1297 (M.D. Ala. 2000)). Too, as this court
previously observed, “Rule 12(e) does not require plaintiffs to provide a plaintiff-by-plaintiff
breakdown of specific factual allegations or to provide painstaking detail distinguishing each
plaintiff’s claims from each other plaintiff’s claims.” Id. (quoting Abrams v. CIBA Specialty
Chemicals Corp., No. 08–0068–WS–B, 2008 WL 4183344, at *4 (S.D. Ala. Sept. 10, 2008)).
Further, the Plaintiffs have already revealed the specific “linked diseases” for each
Plaintiff through informal discovery. More details about each Plaintiff and each injury can be
obtained more efficiently through discovery. So the court denies the Motions for More Definite
Statement as to these aspects of the Complaints.
However, the court finds that Plaintiffs’ allegations are “vague and ambiguous—leaving
the reader to guess at precisely what the plaintiff[s are] claiming” in violation of Rule 8(b), as to
each Defendant’s role in causing Plaintiffs’ injuries. Byrne v. Nezhat, 261 F.3d 1075, 1128 (11th
Cir. 2001), abrogated on other grounds by Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146
(11th Cir. 2011); see Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290 (N.D. Ga. 2005)
(holding, in a beryllium emission case, that “the Complaint [did] not give each Defendant ‘fair
notice’ of the role it or its product is alleged to have played in causing Plaintiffs’ injuries”).
Plaintiffs have provided Defendants with fair notice of their claims that Defendants
wrongfully emitted specified contaminants that caused Plaintiffs in the defined Neighborhoods to
suffer personal injury and property damage. But Defendants must guess at how each Defendant
supposedly committed the purported emissions; the need for more specificity is particularly
relevant given that Mueller did not acquire an interest in the pipe-making plant until 2006, but
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the complaint refers to injuries caused during the period between 1985 and 2010.
The court therefore ORDERS Plaintiffs to provide Defendants with a more definite
statement of their Negligence, Wrongful Death, Wantonness, Negligence Per Se, and Punitive
Damages claims to specify how each Defendant caused Plaintiffs’ injuries.
III.

Conclusion
For the reasons stated in this opinion, the court GRANTS Defendants’ 14 Motions to

Dismiss and Motions for More Definite Statement and DISMISSES WITHOUT PREJUDICE
Plaintiffs’ claims of Nuisance; Concealment, Misrepresentation, and Fraud; Conspiracy; and
Trespass, except that the court does not dismiss the Nuisance and Trespass claims in 2:17-cv00136-KOB. The court DISMISSES WITH PREJUDICE Plaintiff’s Battery claims. The court
ORDERS Plaintiffs to provide a more definite statement of their Negligence, Wrongful Death,
Wantonness, Negligence Per Se, and Punitive Damages claims. The court will enter a separate
order consistent with this opinion.
DONE this 31st day of March, 2017.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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