Ogala et al v. Chevron Corporation et al

Filing 56

ORDER by Judge Samuel Conti granting in part and denying in part 49 Motion to Dismiss and granting in part and denying in part alternative motion to strike (sclc1, COURT STAFF) (Filed on 11/25/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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FOSTER OGALA, et al.,

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Plaintiffs,

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v.
CHEVRON CORPORATION,

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Defendant.

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Case No. 14-cv-173-SC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTIONS TO DISMISS AND TO SRIKE

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I. INTRODUCTION

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Now before the Court is Defendant Chevron Corporation's

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("Chevron") motion to dismiss Plaintiffs' second amended complaint

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("SAC").

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assertions of claims on behalf of, and separately by, the

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communities in which they live.

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suitable for determination without oral argument per Civil Local

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Rule 7-1(b).

Chevron moves in the alternative to strike Plaintiffs'

The motions are fully briefed 1 and

For the reasons set forth below, Defendants' motion

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ECF Nos. 49 ("Mot."), 51 ("Opp'n"), 52 ("Reply").

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to dismiss is GRANTED in part and DENIED in part, and Defendants'

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motion to strike is GRANTED in part and DENIED in part.

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II. BACKGROUND

drilling rig, which was drilling for natural gas in the North Apoi

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Field off of the coast of Nigeria.

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United States District Court

On January 16, 2012, an explosion occurred on the KS Endeavor

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For the Northern District of California

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that burned for forty-six days.

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Plaintiffs are persons who reside in the Niger Delta region of

The explosion caused a fire

ECF No. 45 ("SAC") ¶ 1.

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southern Nigeria.

Id. ¶¶ 6, 11.

The named plaintiffs claim to

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represent a class of 65,000 people who were affected by the

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explosion, fire, and resulting environmental damage.

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Plaintiffs allege that the KS Endeavor was operated by KS Drilling

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under the management of Chevron Nigeria Limited ("CNL"), which in

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turn acted at Defendant Chevron's direction.

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named as a defendant in this action.

Id. ¶ 5.

Id. ¶ 8.

CNL is not

Id. ¶ 16.

This is the third motion to dismiss in this case.

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The Court

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dismissed Plaintiffs' original complaint in large part because

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Plaintiffs failed to properly allege that Chevron was liable --

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either directly or secondarily -- for CNL's actions.

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("Compl. Dismissal Order") at 3-8.

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problem in their first amended complaint, but the Court dismissed

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that complaint as well, because Plaintiffs failed to allege that

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the lead plaintiffs had suffered injury in fact.

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Dismissal Order") at 9-12.

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amended complaint.

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ECF No. 30

Plaintiffs resolved that

ECF No. 44 ("FAC

Plaintiffs responded with their second

Chevron now moves to dismiss.

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III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure

Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory."

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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United States District Court

12(b)(6) "tests the legal sufficiency of a claim."

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For the Northern District of California

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Navarro v.

1988).

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should assume their veracity and then determine whether they

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

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plausibly give rise to an entitlement to relief."

Ashcroft v.

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Iqbal, 556 U.S. 662, 679 (2009).

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must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions.

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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complaint must be both "sufficiently detailed to give fair notice

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to the opposing party of the nature of the claim so that the party

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may effectively defend against it" and "sufficiently plausible"

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such that "it is not unfair to require the opposing party to be

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subjected to the expense of discovery."

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1202, 1216 (9th Cir. 2011).

However, "the tenet that a court

Threadbare recitals of the

Id. (citing Bell Atl. Corp. v.
The allegations made in a

Starr v. Baca, 652 F.3d

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IV. DISCUSSION

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A.

Causation

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Chevron argues first that Plaintiffs' SAC must be dismissed

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because Plaintiffs fail to plausibly allege causation.

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argument focuses on Plaintiff Dr. Foster Ogola.

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Chevron's

Dr. Ogola asserts

the air and water caused by the Endeavor explosion destroyed five

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of his fish ponds and polluted his farms.

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points out that Dr. Ogola lives in Yenogoa City, which is about

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sixty miles from the coast.

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is so unlikely that the explosion and fire on the Endeavor caused

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contamination sixty miles away that Plaintiffs' complaint is

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United States District Court

that he is a farmer and fisherman.

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For the Northern District of California

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facially implausible.

Mot. at 5-6.

The Court disagrees.

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SAC ¶ 12(i).

Chevron

According to Chevron, it

Plaintiffs all live in the Niger Delta

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region.

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as to warrant dismissal that an explosion and the resulting fire --

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which allegedly burned for almost a month and a half -- caused

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environmental damage sixty miles 2 upriver, or that the explosion

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killed fish that would otherwise migrate upriver.

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not required to prove causation at this stage of the proceedings,

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merely to plead factual allegations that "plausibly suggest an

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entitlement to relief, such that it is not unfair to require the

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opposing party to be subjected to the expense of discovery and

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continued litigation."

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Cir. 2011).

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from the explosion polluted the ocean, rivers, and air around the

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site of the rig.

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specific allegations with respect to other named plaintiffs.

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example, Plaintiff Fresh Talent alleges that:

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SAC ¶¶ 4, 11.

He claims that contamination of

The Court does not find it so implausible

Plaintiffs are

Starr v. Baca, 652 F.3d 1202, 1216 (9th

Plaintiffs allege generally that material discharged

SAC ¶ 33.

Moreover, Plaintiffs provide more
For

As a result of the pollutants released by the KS Endeavor
rig explosion, three of his fishponds suffered serious

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Other named plaintiffs may live closer to the shore than Dr.
Ogola. Chevron provides no evidence or arguments regarding the
other named plaintiffs.

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contamination from gas pollution with vast numbers of
dead fish continuously found floating over the pond
surfaces for a period of some two months from the date of
the explosion. His general fishing yield further fell by
90% immediately after the rig explosion as a result of
polluted waters in the area customarily fished in
Imgbikiba Creek near his home village.

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the Court to determine that it is, at least, plausible.

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argument that it is impossible for the explosion to have caused the

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United States District Court

Id. ¶ 12(iii).

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For the Northern District of California

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This allegation provides adequate specificity for

alleged injury is improper at this stage.

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ill-suited to make that sort of determination; this is precisely

Chevron's

Indeed, the Court is

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the sort of matter on which expert testimony is warranted.

The

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Court cannot conclude that Plaintiffs' allegations of causation are

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facially implausible.

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on this ground is DENIED.

Chevron's motion to dismiss the entire SAC

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B.

Allegations on Behalf of Communities in Nigeria

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Chevron moves in the alternative to strike or dismiss

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Plaintiffs' assertions of claims on behalf of their communities (as

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opposed to individual members of those communities).

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is premised on two primary arguments: (1) the Court did not grant

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Plaintiffs leave to amend their complaint to add such claims; and

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(2) under California law, communities lack standing to assert legal

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claims.

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This motion

Mot. at 7-10.

Chevron is correct as to its legal arguments.

In its order

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dismissing Plaintiffs' first amended complaint, the Court specified

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that "Plaintiffs may amend their FAC only to add facts

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demonstrating that (1) the named plaintiffs suffered injury

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sufficient to confer standing and (2) the named plaintiffs suffered

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harm different in kind to support private maintenance of public

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nuisance claims."

FAC Dismissal Order at 15.

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Accordingly, the

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addition of any claims that were not brought in the FAC were added

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without leave of the Court and without Chevron's assent.

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It is not clear that Plaintiffs necessarily assert any new

indeed claim that "[i]n addition to individual damages suffered by

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each claimant hereto, the communities affected by the pollution and

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spoilage caused by the KS Endeavor rig explosion and fire have

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United States District Court

claims in the SAC.

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For the Northern District of California

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sustained damage on a collective basis . . . ."

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However, the SAC is styled as a class action complaint brought on

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the behalf of six named plaintiffs allegedly representing classes

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of individual plaintiffs who live in certain communities.

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Plaintiffs attached thousands of pages of appendices to the SAC

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specifying the individuals allegedly harmed by Chevron's actions

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and estimating their damages.

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Plaintiffs also attached a list of the communities allegedly

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represented by each named plaintiffs.

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clear whether Plaintiffs focus on communities in this way merely as

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an organizational tool to help identify the approximately 65,000

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class members, or whether they actually intend to assert claims on

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behalf of the communities as well as the individuals who live in

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those communities.

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the situation: "To claim there is an attempt to add new claims of

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collective damage is simply erroneous."

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also explain that "The exhibits serve to clarify the claimants'

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identities.

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within the Niger Delta."

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The paragraphs to which Chevron points do

See SAC App'x A.

SAC ¶ 15.

Indeed,

However,

See SAC App'x B.

It is not

In their opposition brief, Plaintiffs clarify

Opp'n at 8.

Plaintiffs

These individuals live within various communities
Opp'n at 2 (emphasis added).

Despite Plaintiffs' clarifications, paragraph 15 of the SAC
does appear to assert a new collective damages claim on behalf of

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reside in those communities.

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paragraph 14, which refers to the "individuals" and "residents" who

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live in the Niger Delta communities.

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any claim.

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add new collective damages claims on behalf of Niger Delta

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communities.

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United States District Court

the communities, rather than on behalf of the individuals who

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For the Northern District of California

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Chevron's motion to strike is granted with respect to any claims in

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the SAC asserted on behalf of communities rather than the

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SAC ¶ 14.

SAC ¶ 15.

The same cannot be said of

Nor does paragraph 14 assert

The Court did not grant Plaintiffs leave to

Accordingly, paragraph 15 of the SAC is STRICKEN, and

communities' individual members.

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C.

Public Nuisance Claim

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The Court has previously explained to Plaintiffs that

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California law generally requires governmental entities to bring

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public nuisance claims.

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actions only if the nuisance "is specially injurious to himself,

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but not otherwise."

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4th 35, 55 (Cal. 2010); FAC Dismissal Order at 13.

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"individuals may assert claims for public nuisance only where they

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have suffered a special injury that is different in kind, not just

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degree, from the general public."

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Cal. App. 4th 1540, 1544 (Cal. Ct. App. 2009) (emphasis added).

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The Court directed Plaintiffs to amend their complaint "add facts

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demonstrating that . . . the named plaintiffs suffered harm

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different in kind to support private maintenance of public nuisance

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claims."

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Private persons may bring public nuisance

Cnty. of Santa Clara v. Super. Ct., 50 Cal.
Thus,

Birke v. Oakwood Worldwide, 169

FAC Dismissal Order at 15.

Plaintiffs once again fail to meet this requirement.

Indeed,

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they acknowledge in their opposition brief that each alleged class

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member "claims definable and identifiable damage sustained,

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each of the 65,000 alleged class members suffered harm "typified"

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by the harm suffered by the named Plaintiffs, it is hard to

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understand how Plaintiffs can argue that the named plaintiffs

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suffered harm different in kind from that suffered by the public at

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large.

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Plaintiffs allege that Dr. Ogola "in common with many other members

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United States District Court

typified by the claims of the named Plaintiffs."

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For the Northern District of California

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of his immediate community, suffered physical illness as a result

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of pollutants" and that Plaintiff Natto Iyela Gharabe "is aware of

The SAC also supports Chevron's argument.

Opp'n at 9.

If

For example,

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other community members who suffered the same health

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issues . . . ."

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assert that the named plaintiffs' injuries are typical of those

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suffered by other members of their communities.

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Plaintiffs generally claim that members of the alleged class

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suffered four types of injuries: illness, contamination of fish

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stocks, pollution of water supplies, and contamination of farmland.

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Id. ¶¶ 3, 12.

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different in kind from those injuries generally suffered throughout

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their communities.

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Plaintiffs to fix this defect in their pleadings twice.

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Dismissal Order at 14; FAC Dismissal Order at 12-14, 15.

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Plaintiffs have failed to do so both times.

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Plaintiffs' public nuisance claim is DISMISSED WITH PREJUDICE.

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SAC ¶¶ 12(i), 12(vi).

Plaintiffs repeatedly

Id. ¶ 12.

None of the named plaintiffs asserts any injury

Id. ¶ 12.

The Court has now directed

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Compl.

Accordingly,

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V. CONCLUSION
For the foregoing reasons, Defendant Chevron Corporation's

Plaintiff's public nuisance claim is DISMISSED WITH PREJUDICE, but

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Chevron's motion is DENIED with respect to all other claims.

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Chevron's motion to strike is GRANTED to the extent that the SAC

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asserts claims on behalf of communities rather than the

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United States District Court

motion to dismiss is GRANTED in part and DENIED in part.

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For the Northern District of California

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communities' individual members, and paragraph 15 of the SAC is

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STRICKEN.

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Chevron's motion to strike is DENIED with respect to

paragraph 14 of the SAC.

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IT IS SO ORDERED.

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Dated: November 25, 2014

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UNITED STATES DISTRICT JUDGE

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