Clark et al v. Ashland, Inc.
Filing
242
OPINION AND ORDER granting in part and denying in part 196 defendants FDEP and its Employees' Motion to Dismiss; granting in part and denying in part 213 defendants Hercules Incorporated and Ashland Inc.'s Motion to Dismiss; granti ng in part and denying in part 214 defendants Timothy Hassett and Carolyn J. Straton's Motion to Dismiss; granting in part and denying in part 215 defendants URS Corporation, Edward W. Siersema, Jr., and Bruce Desilet's Motion to Dismis s. The Clerk of Court shall docket the Court's modified Fourth Amended Complaint. Defendant, Hercules Incorporated, shall have fourteen (14) days from the date of this Opinion and Order to file an Answer to the modified Fourth Amended Complaint. See Opinion and Order for details. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NOEL
D.
CLARK,
individually,
JR.,
Plaintiff,
v.
Case No: 2:13-cv-794-FtM-29MRM
ASHLAND, INC., a foreign
corporation, HERCULES INC.,
a foreign corporation, TIM
HASSETT, Ashland employee,
individually,
URS
CORPORATION,
a
foreign
corporation, BRUCE DESILET,
individually,
EDWARD
W.
SIERSEMA,
JR.
,
individually,
FLORIDA
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
STEVE
BELL,
individually,
WILLIAM
KUTASH,
individually,
HERSCHELL
T.
VINYARD,
individually,
JOHNATHON
STEVENSON,
individually,
CAROLYN
J.
COOPER,
individually, and MARY E.
YEARGON, individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of the following
motions
to
Environmental
dismiss:
Protection
(1)
and
State
its
of
Florida
current
Department
employees
of
Jonathon
Stevenson and Mary E. Yeargan, and former employees Steve Bell,
William Kutash, and Herschell T. Vineyard, Motion to Dismiss the
Fourth Amended Complaint (Doc. #196) filed on March 31, 2016; (2)
Hercules
Incorporated
Plaintiff’s
Fourth
and
Ashland
Amended
Inc.’s
Complaint
Motion
(Doc.
to
#213)
Dismiss
filed
on
September 16, 2016; (3) Timothy Hassett and Carolyn J. Straton’s 1
Motion to Dismiss Plaintiff’s Fourth Amended Complaint (Doc. #214)
filed on September 16, 2016; and (4) URS Corporation, Edward W.
Siersema, Jr., and Bruce Desilet’s Motion to Dismiss Plaintiff’s
Verified Fourth Amended Complaint and, Alternatively, for a More
Definite
Plaintiff
Statement
filed
(Doc.
Responses
#215)
filed
(Docs.
on
##224,
September
226,
227,
19,
2016.
229)
in
opposition to each the motion.
I.
This matter arises out of the pollutant contamination of real
property in DeSoto County, Florida now owned by plaintiff Noel D.
Clark (plaintiff or Clark).
Plaintiff’s Fourth Amended Complaint
(Doc. #178) contains 232 paragraphs and thirteen (13) counts
against thirteen (13) defendants alleging violations of various
state and federal laws.
All defendants seek dismissal of all
counts of the Fourth Amended Complaint which relate to them.
1
Carolyn J. Straton has been named as Carolyn J. Cooper in
plaintiffs’ Fourth Amended Complaint. Accordingly, references in
this Opinion and Order to Straton or Cooper refer to the same
individual.
2
A. Jurisdiction of Court
Plaintiff’s assertion of diversity jurisdiction (Doc. #178,
¶ 1) is ineffective since he has not alleged the citizenship of
all parties, and it seems apparent that such allegations would
establish that the citizenship of at least one defendant is nondiverse from plaintiff’s citizenship.
Plaintiff has, however,
alleged federal question jurisdiction based upon the presence of
causes of action premised on federal statutes.
Thus, the Court
has subject matter jurisdiction to proceed with the motions.
B. Summary of Factual Allegations
In brief, the Fourth Amended Complaint (Doc. #178) alleges
the following underlying material facts:
On an unstated date, defendant Hercules, Inc. (Hercules), a
Delaware corporation (id. ¶ 5), bought the subject real property
(hereafter the Property) and conducted a Stumping Operation on it
from 1972 through 1978, (id. ¶ 18).
The Stumping Operation
“consisted
with
turpentine,
of
extracting
tall
oil,
and
working
rosin,
derivatives,
rosin
paper
toxaphene, delnav, and agricultural insecticides.”
to
produce
chemicals,
(Id. ¶ 19.)
Hercules would extract wood rosin from pine stumps, wash the
extract in water towers, and deposit the warm mixture into settling
basins.
(Id. ¶ 20.)
Hercules would remove the remaining sludge
and pump it directly from the settling basins into a manmade
retention pond through an underground tank and pipe system, as
3
well as “numerous above ground tanks.”
(Id. ¶ 21.)
During this
time, Hercules discharged various pollutants onto the Property.
(Id. ¶ 22.)
On an unstated date, defendant Ashland, Inc. (Ashland), a
Kentucky
corporation
(id.
¶
6),
purchased
liabilities in the United States, (id. ¶ 46).
Hercules
and
its
Plaintiff describes
Ashland as “the informed buyer” (id. ¶ 23), and “the buyer of
Hercules with full knowledge,” (id. ¶ 120).
Few additional facts
about Ashland are articulated.
In 1978, Hercules sold the Property to Herbert Hutner without
having remediated the contamination on the Property, in violation
of Chapter 376, Florida Statutes.
(Id. ¶¶ 22, 25.)
Hercules left
behind the underground storage tanks and piping from the Stumping
Operation (id. ¶¶ 66-67), which contained hazardous and toxic
substances, (id. ¶ 22).
and
piping
began
to
Over time the underground storage tanks
rust
and
leak;
the
hazardous
substances
migrated from the Property and contaminated the groundwater, soil,
and air on and around the Property in violation of federal and
Florida law.
(Id. ¶¶ 22, 59, 66-67.)
On an unstated date Daniel Mahler inherited the Property from
Herbert Hutner and Ms. Barbara.
(Id. ¶ 27.)
In 2001, plaintiff Clark and former plaintiff B. Lynn Callaway
purchased the 81 acre Property from Daniel Mahler.
75, 79.)
(Id. ¶¶ 28,
Plaintiff asserts that at the time they purchased the
4
Property, plaintiff conducted a diligent search of the property
title
records
and
found
nothing
indicating
potentially hazardous waste on the Property.
the
existence
(Id. ¶ 29.)
of
Despite
the prior commercial stumping operation which had been conducted
on
the
Property,
residential.
plaintiff
(Id. ¶ 28.)
alleges
the
Property
was
zoned
Plaintiff further alleges that he
purchased the property for the purpose of running a cattle ranch
(id. ¶ 30) and did so (id. ¶¶ 73-74, 79), building cattle chutes
and five separate holding pens, fencing in the entire property,
and placing three mobile homes and one recreational vehicle on the
property, (id. ¶¶ 30, 79).
resided on the Property.
Until relatively recently, plaintiff
(Id. ¶ 79.)
In 2008, plaintiff received mail correspondence from the
Florida Department of Environmental Protection (FDEP) notifying
him for the first time of the potential contamination situation
involving Hercules and his Property.
(Id. ¶ 32.)
This was the
first notice plaintiff had of the possible pollutant contamination
of the Property.
(Id. ¶¶ 32, 131.)
Plaintiff initially cooperated with the FDEP by allowing
Hercules, Ashland, FDEP, and other defendants onto the Property to
take steps to remediate the contamination (id. ¶ 43), and by
performing extensive work himself, (id. ¶¶ 71, 94).
Plaintiff
became convinced, however, that they were on the Property “to
destroy, hide, and cover up the evidence and to misrepresent the
5
extent of damages caused by the site.” (Id. ¶¶ 43, 46, 50.)
Therefore, plaintiff issued a no trespass notice to all named
defendants unless an access agreement was negotiated.
45, 48-49, 123.)
on
the
Property
(Id. ¶¶ 43,
There are no allegations that any defendant was
thereafter
without
plaintiff’s
permission.
Defendant URS prepared a report for FDEP in 2009, which plaintiff
asserts
intentionally
misrepresented
the
existence
of
the
underground tanks and pipes, and the chemicals leaking therefrom.
(Id. ¶¶ 66, 72.)
Plaintiff alleges that there is a continuing release of
pollutants onto the Property from the underground pipe and tank
system, which are now rusted and leaking, leaching hazardous wastes
into the soil groundwater.
(Id. ¶ 59.)
This hazardous waste
continues to migrate from the Property to neighboring wells through
the groundwater aquifers and to the Peace River recreation area
less than one-quarter mile away from the Property.
68, 85.)
(Id. ¶¶ 63-
This has caused plaintiff a number of different types of
injuries and damages.
(Id. ¶¶ 144-45, 161.)
Plaintiff alleges that the FDEP and its individually named
employees were malfeasant and conspired with Hercules and Ashland
and
the
other
defendants
contamination of the Property.
to
conceal
the
violations
(Id. ¶¶ 32-42, 48-51.)
and
Plaintiff
alleges that FDEP failed to diligently perform its duties (id. ¶¶
41-42), and that all defendants made false representations to him
6
and
were
part
of
a
racketeering
enterprise
concerning
the
contamination of his Property, (id. ¶¶ 45-47, 52-53, 72, 80-137).
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
an
accusation.”
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
7
Iqbal, 556 U.S. at 678.
consistent
with
a
“Factual allegations that are merely
defendant’s
facially plausible.”
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages
in a two-step approach: “When there are well-pleaded factual
allegations,
a
court
should
assume
their
veracity
and
then
determine whether they plausibly give rise to an entitlement to
relief.”
Iqbal, 556 U.S. at 679.
“Generally, the existence of an affirmative defense will not
support a motion to dismiss,” Quiller v. Barclays Am./Credit, Inc.,
727 F.2d 1067, 1069 (11th Cir. 1984), aff’d on reh'g, 764 F.2d
1400 (11th Cir. 1985) (en banc) (per curiam) (reinstating panel
opinion),
because
plaintiffs
are
not
affirmative defense in their complaint.
required
to
negate
an
La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
A complaint may
be dismissed, however, when the existence of an affirmative defense
“clearly appears on the face of the complaint.” Quiller, 727 F.2d
at 1069.
See also La Grasta, 358 F.3d at 845 (“[A] Rule 12(b)(6)
dismissal on statute of limitations grounds is appropriate only if
it is ‘apparent from the face of the complaint’ that the claim is
time-barred” (quoting Omar ex rel. Cannon v. Lindsey, 334 F.3d
1246, 1251 (11th Cir. 2003))); Douglas v. Yates, 535 F.3d 1316,
1321 (11th Cir. 2008)(same).
8
A pleading drafted by a party proceeding pro se, like the
Fourth Amended Complaint at issue here, is held to a less stringent
standard than one drafted by an attorney, and the Court will
construe the allegations contained therein liberally.
Jones v.
Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).
“This
liberal construction, however, does not give a court license to
serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.’” Hickman v.
Hickman, 563 F. App’x 742, 743 (11th Cir. 2014) (internal quotation
marks and citations omitted).
Pro se parties are still required
to conform to the procedural rules. Id.
III.
Once again, plaintiff’s complaint is a shotgun pleading which
hinders any reasonable construction of his claims.
If plaintiff
has valid causes of action, he has obfuscated them by incorporating
over 120 paragraphs into each of his thirteen counts.
Most of the
incorporated paragraphs have nothing to do with the specific cause
of action, but simply force the Court and opposing parties to sift
through irrelevant allegations and decide for themselves which are
material to each count.
Strategic Income Fund, L.L.C. v. Spear,
Leeds & Kellogg Corp., 305 F.3d 1293, 1295 nn.9 & 10 (11th Cir.
2002).
Given the age of the case, the Court makes one last effort
to determine if plaintiff has plausibly stated any cause of action.
9
A. Claims Against Hercules and Ashland:
Counts I Through V
Counts I through Count V purport to state causes of action
against only Hercules and Ashland.
The Court will address these
five counts first, beginning with Counts I and IV.
(1)
Count I: Violation of the Florida Pollutant Discharge
and Control Act;
Count IV:
Violation of Chapter 376, Florida Statutes
Count I and Count IV of the Fourth Amended Complaint both
purport to set forth statutory causes of action under Chapter 376
of
the
Florida
Statutes.
Chapter
376
addresses
“Pollutant
Discharge Prevention and Removal” and contains a series of statutes
addressing those goals.
The first portion of Chapter 376 is the
Florida “Pollutant Discharge Prevention and Control Act,” which is
set
forth
in
sections
376.011-376.21,
Florida
addresses pollution of coastal waters and land.
376.011.
Statutes,
and
See Fla. Stat. §
Other portions of Chapter 376 address pollution of
surface and ground waters, Fla. Stat. §§ 376.30-376.319, as well
as other aspects of pollution discharge prevention and removal.
(a)
Count
Failure to State a Claim Under Florida Pollutant
Discharge Prevention and Control Act – Count I
I
of
plaintiff’s
Fourth
Amended
Complaint
alleges
Hercules and Ashland are strictly liable for damages for violation
of the “Florida Pollutant Discharge and Control Act.” (Doc. #178,
10
¶ 139.) 2
Count I asserts that Hercules was the contaminator who
illegally sold its un-remediated, unabated facility, from which
pollutants
are
now
qualifying
as
a
trespassing
“person
in
on
plaintiff’s
charge”
as
Property,
defined
in
thus
section
376.031(15), Florida Statutes (Doc. #178, ¶ 141); that Hercules
has not eliminated the hazardous substances or their continuing
discharges into the air and water table (id. ¶ 142); that as the
past owner of the facility and past owner and contaminator of the
Property, Hercules is liable for contaminates which continue to
flow into and invade the Peace River and Joshua Creek, neighboring
residential
wells,
and
plaintiff’s
Property,
(id.
¶
143).
Plaintiff alleges that he has suffered a variety of personal
injuries and monetary damages as a direct and proximate result of
the violation of the Florida Pollutant Discharge and Control Act.
(Id. ¶¶ 144-45.)
Hercules and Ashland assert that Count I cannot state a claim
under the Pollutant Discharge Prevention and Control Act, Fla.
Stat. §§ 376.011–376.21, because plaintiff has not, and cannot,
allege that the site has polluted any coastal waters or lands, as
required by the statute.
(Doc. #213, p. 14.)
2
Florida has a “Pollutant Discharge Prevention and Control
Act,” which the Court infers plaintiff intends to allege as the
basis for Count I.
11
The Pollution Discharge Prevention and Control Act prohibits
“[t]he discharge of pollutants into or upon any coastal waters,
estuaries, tidal flats, beaches, and lands adjoining the seacoast
of the state in the manner defined by ss. 376.011-376.21.”
Stat. § 376.041.
1970
and
Fla.
This portion of Chapter 376 was first enacted in
“provides
a
cause
of
action
for
parties
harmed
by
pollution of coastal waters and lands.” Curd v. Mosaic Fertilizer,
LLC, 39 So. 3d 1216, 1229 (Fla. 2010) (Polston, J., concurring).
That statutory cause of action provides:
Notwithstanding any other provision of law, any person
may bring a cause of action against a responsible party
in a court of competent jurisdiction for damages, as
defined in s. 376.031, resulting from a discharge or
other condition of pollution covered by ss. 376.011376.21. In any such suit, it shall not be necessary
for the person to plead or prove negligence in any form
or manner. Such person need only plead and prove the
fact of the prohibited discharge or other pollutive
condition and that it occurred. The only defenses to
such cause of action shall be those specified in s.
376.12(7). The court, in issuing any final judgment in
such action, may award costs of litigation, including
reasonable attorney's and expert witness fees, to any
party, whenever the court determines such an award is
in the public interest.
Fla. Stat. § 376.205.
Thus, “any person” may bring a cause of
action under section 376.205 if he adequately alleges that:
(1)
defendant is a “responsible party” under the Act; (2) plaintiff
suffered “damages” which are recoverable under the Act;
and (3)
the recoverable damages result from a discharge or other condition
12
of pollution covered by sections 376.011-376.21.
Fla. Stat. §
376.205.
Plaintiff Clark, of course, qualifies within the “any person”
phrase of section 376.205.
Plaintiff may bring this cause of
action only against “a responsible party,” which is defined in
relevant part as “any person owning or operating the facility.”
Fla.
Stat.
§
376.031(20)(b).
The
Court
finds
that
Count
I
adequately alleges that Hercules was the owner and operator of an
onshore facility, and hence Hercules is sufficiently alleged to be
a responsible party.
Ashland, however, was never an owner or
operator of the onshore facility.
By the time Ashland purchased
the assets of Hercules in 2008 (Doc. #36, ¶ 45), Hercules had longsince sold the Property and thus had not been an owner or operator
for about twenty years.
While plaintiff has alleged numerous components of damages in
Count I, not all damages are recoverable under the Pollution
Discharge Prevention and Control Act.
The statute contains a
limiting definition of “damage”:
“Damage” means the documented extent of any destruction
to or loss of any real or personal property, or the
documented extent, pursuant to s. 376.121, of any
destruction of the environment and natural resources,
including all living things except human beings, as the
direct result of the discharge of a pollutant.
Fla.
Stat.
§
376.031(5).
While
most
of
plaintiff’s
claimed
injuries and damages (Doc. #178, ¶ 144) are not recoverable under
13
the Act, plaintiff has alleged certain monetary damages, including
diminished
value
of
his
Property,
(id.
recoverable damages under the statute.
¶
145).
These
are
Adinolfe v. United Techs.
Corp., 768 F.3d 1161, 1175 (11th Cir. 2014).
Therefore, plaintiff
has sufficiently pleaded this element of the cause of action.
The
final
element
of
the
cause
of
action
is
that
the
recoverable damages must result from a discharge or other condition
of pollution covered by sections 376.011-376.21, Florida Statutes.
Fla. Stat. § 376.205. The prohibited act under these statutes is
the “discharge” of “pollutants into or upon any coastal waters,
estuaries, tidal flats, beaches, and lands adjoining the seacoast
of the state in the manner defined by ss. 376.011 – 376.21.”
§ 376.041.
Id.
“Discharge” is defined to “include[ ], but is not
limited to, any spilling, leaking, seeping, pouring, emitting,
emptying, or dumping which occurs within the territorial limits of
the state or outside the territorial limits of the state and
affects lands and waters within the territorial limits of the
state.”
Id. § 376.031(7).
becomes
important
because
The physical location of the discharge
the
other
statutes
in
Chapter
376
prohibiting discharge of pollutants on surface and ground waters
only apply to discharge “which occurs and which affects lands and
the surface and ground waters of the state not regulated by ss.
376.011-376.21.”
Id. § 376.301(12) (emphasis added).
14
Read liberally, plaintiff alleges that pollutants left in
storage tanks and piping on plaintiff’s Property by Hercules have
leaked out and contaminated his Property and the surrounding
properties, including the Peace River and Joshua Creek.
#178, ¶¶ 63, 85, 141, 143, 145, 159.)
(Doc.
Assuming this is factually
true, as the Court must at this stage of the proceedings, the
discharge of pollutants may have been into or upon “any coastal
waters, estuaries, tidal flats, beaches, and lands adjoining the
seacoast of the state” within the meaning of section 376.041,
Florida Statutes.
While defendants argue to the contrary, they
have not provided the Court with any binding definition of these
terms or established that the discharges at issue cannot come
within the meaning of this phrase.
In sum, plaintiff has not plausibly stated a cause of action
in
Count
I
against
defendant
Ashland,
who
has
never
been
a
“responsible party,” so Count I of the Fourth Amended Complaint
will be dismissed with prejudice as to Ashland.
Count I has not
been shown to be implausible as to Hercules, at least as to the
limited damages allowed by statute.
The motion to dismiss Count
I will be denied as to defendant Hercules.
(b)
Failure to State a Claim Under Chapter 376 – Count IV
Count IV of plaintiff’s Fourth Amended Complaint alleges
Hercules and Ashland are strictly liable for damages for violation
of sections 376.12(5) and 376.313, Florida Statutes.
15
(Doc. #178,
¶ 157.)
Count IV asserts that Hercules owned and operated the
Gulf Naval Stores, a “facility” as defined by Florida Statute
section 376.031(15), which is now owned by plaintiff. (Id. ¶ 159.)
Count IV further alleges that plaintiff suffered various personal
injuries as a direct result of the violation of “Strict Liability
Florida Statutes 376” and monetary damages.
(Id. ¶¶ 160-62.)
Count IV does not specifically allege that either defendant did
anything, but the Court infers that the conduct plaintiff intends
to allege is the contamination of what is now his Property, as had
been described in Count I.
(Id. ¶¶ 141-43.).
This portion of Chapter 376 was originally enacted as part of
the
Water
Quality
comprehensive
Assurance
statutory
Act
scheme
surface and ground waters.
of
1983,
designed
to
and
comprises
protect
a
Florida's
Fla. Stat. §§ 376.30-376.319.
See
Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 22
(Fla. 2004). These statutes have their own private cause of action
provision, which provides:
Except as provided in s. 376.3078(3) and (11), nothing
contained in ss. 376.30–376.317 prohibits any person
from bringing a cause of action in a court of
competent jurisdiction for all damages resulting from
a discharge or other condition of pollution covered
by ss. 376.30–376.317 and which was not authorized
pursuant to chapter 403.
Nothing in this chapter
shall prohibit or diminish a party's right to
contribution from other parties jointly or severally
liable for a prohibited discharge of pollutants or
hazardous substances or other pollution conditions.
Except as otherwise provided in subsection (4) or
16
subsection (5), in any such suit, it is not necessary
for such person to plead or prove negligence in any
form or manner. Such person need only plead and prove
the fact of the prohibited discharge or other
pollutive condition and that it has occurred.
The
only defenses to such cause of action shall be those
specified in s. 376.308.
Fla. Stat. § 376.313(3).
See Curd, 39 So. 3d at 1221.
Thus, “any
person” may bring a cause of action under section 376.313(3) if he
adequately
alleges
that:
(1)
plaintiff
suffered
“damages”
recoverable under the statutes; and (2) the recoverable damages
resulted from a discharge or other condition of pollution covered
by sections 376.30-376.317.
Fla. Stat. § 376.313(3).
Plaintiff
need not show that defendant caused the discharge of pollutants.
Aramark, 894 So. 2d at 24.
Once again, plaintiff comes within the phrase “any person”
who may bring the cause of action.
“all damages” may by recovered.
Under this portion of Chapter
Fla. Stat. § 376.313(3).
Count
IV adequately pleads the damage element of the cause of action.
As relevant to this case, the statutes prohibit the “discharge
[of] pollutants or hazardous substances into or upon the surface
and ground waters of the state or lands, which discharge violates
any departmental ‘standard’ as defined in s. 403.803(13).”
376.302(1)(a).
Discharges governed by these statutes must occur
on land or waters “not regulated by ss. 376.011–376.21.”
376.301(13).
Id. §
Id. §
Once again, there are no allegations which establish
any basis for Ashland’s liability, since it was not an owner or
17
operator of a facility at any time.
with prejudice.
Ashland will be dismissed
The Court concludes that Count IV sufficiently
alleges a cause of action against Hercules, and the motion to
dismiss Count IV is denied as to Hercules.
Defendants also assert that plaintiff cannot state a claim in
Count IV because the doctrine of caveat emptor protects a seller
of commercial real property from any liability to the purchaser
from a condition of the property that preexists the sale.
#213, pp. 15-17.)
(Doc.
This potential affirmative defense, however,
cannot be resolved on the pleadings in this case.
The doctrine of caveat emptor has been abolished in Florida
for residential real estate transactions.
Johnson v. Davis, 480
So. 2d 625 (Fla. 1985); Mansur v. Eubanks, 401 So. 2d 1328 (Fla.
1981).
Florida courts have been at odds concerning its continued
applicability in regard to commercial real estate transactions and
violations under the Florida pollution statutes. Compare Mostoufi
v. Presto Food Stores, Inc., 618 So. 2d 1372 (Fla. 2d DCA 1993),
overruled on other grounds by Aramark, 849 So. 2d 20, with Kaplan
v. Peterson, 674 So. 2d 201 (Fla. 5th DCA 1996).
The Florida
Supreme Court has not yet resolved the conflict.
Plaintiff’s Fourth Amended Complaint contains allegations
supporting both a residential use and a commercial use of the
Property.
Plaintiff
alleges
that
the
property
at
issue
is
residential and that there are homes on the property. (Doc. #178,
18
¶¶ 28, 79.)
Elsewhere plaintiff discusses his ranch business and
running a cattle ranch on the property.
(Id. ¶¶ 30, 74, 79.)
Hercules does not cite to any Florida decision discussing the
application
of
caveat
emptor
in
such
a
mixed-use
situation.
Because the existence of caveat emptor does not clearly appear on
the face of the Fourth Amended Complaint, and Florida law appears
unsettled, the doctrine of caveat emptor does not preclude the
cause of action in Count IV.
In sum, the motion to dismiss Ashland is granted as to Count
I and Count IV, with prejudice.
The motion to dismiss Hercules is
denied as to Count I and Count IV.
(2)
Count II: Trespass
Defendants Hercules and Ashland move to dismiss Count II
because:
(1)
At
the
time
of
the
alleged
chemical
trespass,
plaintiff did not have an ownership or possessory interest in the
property;
and
(2)
(reading
plaintiff’s
Count
most
liberally)
Defendants’ entry on the property as a contractor is not alleged
to have been unauthorized.
(Doc. #213, pp. 22-23.)
Count II of plaintiff’s Fourth Amended Complaint asserts a
damages claim against defendants Hercules and Ashland 3 for “Strict
3
Timothy Hassett and Carolyn J. Straton have responded to
the trespass count in their Motion to Dismiss. (Doc. #214, pp.
18-19.)
Since plaintiff only asserted this claim against
defendants Hercules and Ashland (Doc. #178, ¶ 146), this portion
of the individual’s motion to dismiss is moot.
19
Liability Trespass.”
(Doc. #178, ¶ 146.)
Plaintiff asserts that
at all times mentioned Hercules owned and operated the Gulf Navel
Stores
“facility,”
as
defined
(Id. ¶ 148.) 4
376.031(15).
by
Florida
Statute
section
Count II alleges that plaintiff
suffered multiple injuries and damages “[a]s a direct and proximate
result of Hercules and Ashland Inc violation of Chemical Trespass
on Plaintiff Property.”
additional
information
(Id. ¶¶ 149-50.)
about
the
Count II provides no
“Chemical
Trespass”
on
his
Property, and does not allege any other factual basis for a
trespass claim.
“A simple definition of a civil trespass to real property is
an injury to or use of the land of another by one having no right
or authority.
To obtain a recovery for a trespass to real property
then, it is clear that the aggrieved party must have had an
ownership or possessory interest in the property at the time of
the trespass.” Winselmann v. Reynolds, 690 So. 2d 1325, 1327 (Fla.
3d
DCA
1997)
(citations
omitted).
See
also
Glen
v.
Club
Méditerranée, S.A., 450 F.3d 1251, 1256 n.1 (11th Cir. 2006).
Even when Count II is pieced together, it is insufficient to
state a viable cause of action.
The only time it is alleged that
4
As mentioned earlier, that statute actually defines “person
in charge” as “the person on the scene who is in direct,
responsible charge of a terminal facility or vessel from which
pollutants are discharged, when the discharge occurs.” Fla. Stat.
§ 376.031(15).
20
Hercules made a “chemical trespass” was from 1972 through 1978,
when it operated its stumping operation.
Plaintiff did not own
and had no property interest in the Property at that time, and did
not acquire any such interest for over twenty years.
Without such
ownership or interest, plaintiff has no claim against either
defendant for trespass.
Therefore, Count II is dismissed with
prejudice as to both Ashland and Hercules.
Defendants very liberally read Count II to include trespass
for
the
later
plaintiff’s
efforts.
physical
Property
in
entry
by
Hercules
connection
with
and
Ashland
purported
onto
clean-up
The Court sees no reasonable basis to construe Count II
to include such a basis, since Count II specifies only a chemical
trespass and its adoption of 120 or so paragraphs is simply a
shotgun approach.
Even if the Court were to construe Count II to
include such a claim, the Fourth Amended Complaint establishes
that that entry onto the Property was authorized at the time it
was made.
Accordingly, even if Count II were construed to include
this component, it would be dismissed with prejudice.
(3)
Count III:
Resource Conservation and Recovery Act
Count III of plaintiff’s Fourth Amended Complaint asserts a
damages
claim
against
defendants
Hercules
and
Ashland
for
violation of the federal Resources Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6901, et seq.
(Doc. #178, ¶ 151.)
Count
III asserts that at all times mentioned Hercules owned and operated
21
a facility as defined by Florida Statute section 376.031(15). (Id.
¶
153.)
injuries
Count
and
III
damages
alleges
“[a]s
that
a
plaintiff
direct
and
suffered
proximate
multiple
result
of
Hercules and Ashland Inc violation of the Resource Conservation
and Recovery Act.” (Id. ¶¶ 154-56.) Count III provides absolutely
no
information
about
how
defendants
violated
the
Resource
Conservation and Recovery Act, or how any of the incorporated
shotgun paragraphs support such a claim.
Defendants Hercules and Ashland move to dismiss Count III on
the basis that the relief requested by plaintiff is unavailable
under the RCRA. 5
(Doc. #213, pp. 18-19.)
While the allegations
of Count III fail to state a claim, the Court also agrees that
Count III requests relief to which plaintiff is not entitled under
the RCRA and fails to request any relief which is authorized by
the RCRA.
The “RCRA is a comprehensive environmental statute that
governs the treatment, storage, and disposal of solid and hazardous
waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citation
omitted).
See also Parker v. Scrap Metal Processors, Inc., 386
5
Hercules and Ashland also assert that plaintiffs have failed
to provide adequate notice as required by the RCRA prior to
bringing suit.
(Doc. #213, p. 19 n.8.)
Plaintiff has alleged
that he “complied with filing Notices and all other statutory
Notice requirements.” (Doc. #178, ¶ 138.) It is sufficient at
this stage of the proceedings to allege that all conditions
precedent to filing suit have been met.
Fed. R. Civ. P. 9(c).
The motion to dismiss is denied as to this ground.
22
F.3d 993, 1010 (11th Cir. 2004).
The citizen suit provision of
the RCRA provides in pertinent part that “any person may commence
a civil action on his own behalf” against “any person . . . who
has contributed or who is contributing to the past or present
handling, storage, treatment, transportation, or disposal of any
solid
or
hazardous
waste
which
may
present
an
imminent
substantial endangerment to health or the environment.”
§ 6972(a)(1)(B).
and
42 U.S.C.
“The section applies retroactively to past
violations, so long as those violations are a present threat to
health or the environment.”
Parker, 386 F.3d at 1014 (citing
Meghrig, 516 U.S. at 485-86).
To prevail on a claim under section
6972(a)(1)(B), the plaintiffs must prove:
(1) that the defendant is a person, including, but not
limited to, one who was or is a generator or transporter
of solid or hazardous waste or one who was or is an owner
or operator of a solid or hazardous waste treatment,
storage, or disposal facility; (2) that the defendant
has contributed to or is contributing to the handling,
storage, treatment, transportation, or disposal of solid
or hazardous waste; and (3) that the solid or hazardous
waste
may
present
an
imminent
and
substantial
endangerment to health or the environment.
Parker, 386 F.3d at 1014–15.
Defendants do not argue that Count III fails to adequately
allege
these
three
elements.
Rather,
defendants
argue
that
plaintiff has not requested any relief which is available to him
under the RCRA.
The citizen suit provision limits the relief that
a district court may provide in a case such as this:
23
The district court shall have jurisdiction . . . to
restrain any person who has contributed or who is
contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or
hazardous waste referred to in paragraph (1)(B), to
order such person to take such other action as may be
necessary, or both, . . . .
42 U.S.C. § 6972(a).
It is apparent from the two remedies described in §
6972(a) that RCRA's citizen suit provision is not
directed at providing compensation for past cleanup
efforts. Under a plain reading of this remedial scheme,
a private citizen suing under § 6972(a)(1)(B) could seek
a mandatory injunction, i.e., one that orders a
responsible party to “take action” by attending to the
cleanup and proper disposal of toxic waste, or a
prohibitory injunction, i.e., one that “restrains” a
responsible party from further violating RCRA. Neither
remedy, however, is susceptible of the interpretation
adopted by the Ninth Circuit, as neither contemplates
the award of past cleanup costs, whether these are
denominated “damages” or “equitable restitution.”
Meghrig, 516 U.S. at 484.
Plaintiff lists a number of personal
injuries and other damages within his RCRA count (Doc. #178, ¶¶
154-56),
none
of
which
are
recoverable
under
the
RCRA.
Additionally, plaintiff fails to request any relief within his
RCRA count which is within the scope of the RCRA.
(See id. ¶¶
151-56.)
While Count III does not request any injunctive relief, Count
XII purports to state a claim for “Emergency Injunctive Relief”
and an unnumbered section titled “Prayer for Relief” includes a
conclusory request for injunctive relief.
(Id. ¶¶ 217-25, 232.)
The Court will liberally construe the counts so that Count III is
24
deemed to include the injunctive relief sought in Count XII.
Even
so construed, there is still no valid cause of action under the
RCRA.
Plaintiff’s request for injunctive relief mostly seeks
relief outside the scope of the RCRA.
An injunction compels or
prohibits future conduct, and does not provide relief for past
injuries.
S.E.C. v. Graham, 823 F.3d 1357, 1361 (11th Cir. 2016).
Hercules and Ashland have no legal ability to take any of the steps
plaintiff wants.
Neither Hercules nor Ashland have the right to
go on the Property and do anything to it, as plaintiff clearly
recognizes by his trespass notice to defendants.
There is no
injunctive order which the Court could issue to either defendant
which either could satisfy.
There being no relief the Court can
grant, Count III will be dismissed with prejudice.
(4)
Count V:
Violation of the Clean Air Act
Count V of plaintiff’s Fourth Amended Complaint asserts a
claim against defendants Hercules and Ashland for violation of the
federal Clean Air Act.
Hercules
was
the
(Doc. #178, ¶ 163.)
contaminator
who
Count V alleges that
illegally
sold
its
un-
remediated, unabated facility, which is now plaintiff’s Property.
(Id. ¶ 165.)
Plaintiff wants the Court to force defendants to
immediately remove the top of the ground hazardous chemicals that
are dumped and covered up, thus trespassing on his land.
166.)
(Id. ¶
Plaintiff alleges he suffered various injuries and damages
25
as a direct result of the violation of the federal Clean Air Act
(Id. ¶ 167.)
Hercules and Ashland move to dismiss Count V for failure to
allege a violation of a specific emissions standard within the
Fourth Amended Complaint.
(Doc. #213, p. 18.)
The Court is unable
to find argument in opposition in plaintiff’s Response.
(See Doc.
#226.)
“The Clean Air Act establishes a series of regulatory programs
to
control
air
pollution
from
stationary
sources
(such
as
refineries and factories) and moving sources (such as cars and
airplanes).”
Michigan v. E.P.A., 135 S. Ct. 2699, 2704 (2015)
(citations omitted).
The citizen suit provision of the Clean Air
Act provides in relevant part:
[A]ny person may commence a civil action on his own
behalf—(1) against any person . . . who is alleged to
have violated (if there is evidence that the alleged
violation has been repeated) or to be in violation of
(A) an emission standard or limitation under this
chapter . . . .
42 U.S.C. § 7604(a)(1).
“Emission standard or limitations” is
defined as:
(1) a schedule or timetable of compliance, emission
limitation, standard of performance or emission standard
. . . or
(3) . . . any condition or requirement under an
applicable
implementation
plan
relating
to
transportation control measures, air quality maintenance
plans, vehicle inspection and maintenance programs or
vapor recovery requirements . . . .
26
. . .
which is in effect under this chapter . . . or under an
applicable implementation plan.
Id. § 7604(f).
In order to bring a citizen suit under the CAA, the claimant
must
allege
limitation
a
in
violation
effect
of
under
Implementation Plan (SIP).
a
specific
the
CAA
or
emission
the
standard
applicable
or
State
See Conservation Law Found., Inc. v.
Busey, 79 F.3d 1250, 1258 (1st Cir. 1996);
F.2d 605, 613-14 (2d Cir. 1988).
Wilder v. Thomas, 854
Accordingly, “[t]o allege a
violation of [the CAA or] an SIP, plaintiffs must point to a
specific strategy or commitment in the [CAA or] SIP and describe,
with some particularity, the respects in which compliance with the
provision is deficient.”
Comm. for Environmentally Sound Dev.,
Inc. v. City of New York, No. 98 CIV.272(SWK), 1998 WL 832606 at
*4 (S.D.N.Y. Dec. 1, 1998) (quoting Coal. Against Columbus Ctr. v.
City of New York, 967 F.2d 764, 769 (2d. Cir. 1992)).
Defendants Hercules and Ashland assert that plaintiff has not
identified a single emission standard within his 232-paragraph
Fourth Amended Complaint.
(Doc. #213, p. 18.)
The Court agrees.
Plaintiff’s Fourth Amended Complaint alleges that “Plaintiff’s
case is daily violations discharging deadly hazardous chemicals
into the air.”
(Doc. #178, ¶ 53.)
Plaintiff discusses specific
chemicals that were identified in the soil by the FDEP in 2011.
27
(Id. ¶¶ 54-58.)
Plaintiff discusses “[t]oxic air emissions of
benzene and the many other hazardous wastes and chemicals into the
ambient
air
surrounding
Plaintiff
Calloway’s
home,
surrounding Plaintiff Clark’s home and the entire site.”
60.)
Plaintiff’s
Fourth
Amended
Complaint
contains
additional allegations that toxins are in the air.
67, 70, 85, 133, 136.)
however,
fails
limitation”
in
to
also
(Id. ¶
numerous
(Id. ¶¶ 64-
Plaintiff’s Fourth Amended Complaint,
allege
effect
any
under
specific
the
“emission
CAA
or
standard
Florida’s
or
State
Implementation Plan (SIP) that Hercules and Ashland violated.
Without
these
allegations,
plaintiff
plausible cause of action under the CAA.
has
failed
to
state
a
Accordingly, Count V is
dismissed without prejudice.
B. Sufficiency of Counts VI Through XIII
(1)
Claims Against
Protection
Florida
Department
of
Environmental
The Florida Department of Environmental Protection (FDEP) is
a defendant in all the remaining counts.
FDEP argues that all the
claims asserted against it are barred by the Eleventh Amendment.
(Doc. #196, pp. 2-4.)
Plaintiff responds that the FDEP is not
immune from suit, seemingly relying on Florida Statute section
768.28 and the holding in Monell v. Department of Social Services,
436 U.S. 658 (1978).
(Doc. #227, pp. 2-7.)
28
The Court finds that
the FDEP is immune from the claims filed against it in the Fourth
Amended Complaint.
The Eleventh Amendment of the United States Constitution
provides:
The Judicial power of the United
construed to extend to any suit
commenced or prosecuted against one
by Citizens of another State, or by
of any Foreign State.
U.S. Const. Amend. XI.
States shall not be
in law or equity,
of the United States
Citizens or Subjects
Despite its literal language, the Eleventh
Amendment also precludes suits by citizens against their own states
in federal court, Tenn. Student Assistance Corp. v. Hood, 541 U.S.
440, 446 (1973) (collecting cases); Miccosukee Tribe of Indians of
Fla. v. Fla. St. Athletic Comm'n, 226 F.3d 1226, 1231 (11th Cir.
2000), and suits in federal courts against an agency that is an
arm of the state,
Williams v. Dist. Bd. of Trs. of Edison Cmty.
Coll., 421 F.3d 1190, 1192 (11th Cir. 2005).
The FDEP is clearly an agency of the state of Florida which
functions as an arm of the state of Florida.
The FDEP has “the
power and the duty to control and prohibit pollution of air and
water in accordance with the law and rules adopted and promulgated
by it.”
Fla. Stat. § 403.061.
It also has the power and duty to
“[e]ncourage and conduct studies, investigations, and research
relating
to
pollution
abatement, and control.”
and
its
causes,
effects,
Id. § 403.061(18).
prevention,
“The [FDEP] shall
implement such programs in conjunction with its other powers and
29
duties and shall place special emphasis on reducing and eliminating
contamination that presents a threat to humans, animals or plants,
or to the environment.”
Id. § 403.061.
to enforce violations of Chapter 403.
also
has
extensive
powers
The FDEP has the authority
Id. § 403.121.
concerning
addressing
The FDEP
pollutant
discharge prevention and removal. See id. § 376.051.
FDEP is therefore entitled to Eleventh Amendment immunity
unless its immunity has been waived or abrogated.
Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Seminole Tribe
of Fla. v. Florida, 11 F.3d 1016, 1021-22 (11th Cir. 1994).
The
Court finds that the FDEP has not waived its Eleventh Amendment
immunity and no statute abrogates it.
Plaintiff briefly points to section 768.28, Florida Statutes.
(Doc.
#227,
pp.
5-6.)
Section
768.28
is
titled
“Waiver
of
sovereign immunity in tort actions; recovery limits; limitations
on
attorney
fees;
statute
of
limitations;
indemnification; risk management programs.”
exclusions;
Fla. Stat. § 768.28.
While this statute does deal with specific situations where the
state of Florida has waived its sovereign immunity in state court
tort suits, subsection 18 explicitly excludes actions in federal
court from this waiver.
Id. § 768.28(18) (“No provision of this
section . . . shall be construed to waive immunity of the state or
any of its agencies from suit in federal court, as such immunity
is guaranteed by the Eleventh Amendment to the Constitution of the
30
United States . . . .”)
held
that
section
Amendment immunity.
768.28
The Eleventh Circuit has consistently
does
not
waive
Florida's
Eleventh
Schopler v. Bliss, 903 F.2d 1373, 1379 (11th
Cir. 1990); Hamm v. Powell, 874 F.2d 766, 770 n.3 (11th Cir. 1989);
Gamble v. Fla. Dep’t of Health and Rehab. Servs., 779 F.2d 1509,
1514-19 (11th Cir. 1986). See also Hill v. Dep’t of Corr., 513 So.
2d 129, 133 (Fla. 1987).
In his Response, plaintiff repeatedly states that he is
bringing his claims against the FDEP pursuant to section 1983, and
that the decision in Monell v. Department of Social Services “held
that local government players are not immune from suit under 42
USC 1983.”
(Doc. #227, p. 3.)
Neither 42 U.S.C. § 1983 nor Monell
are of assistance to defendant on the issue of Eleventh Amendment
immunity.
It is clearly established that section 1983 has not waived
Florida’s
Eleventh
Amendment
immunity.
“Congress
has
not
abrogated Eleventh Amendment immunity in section 1983 cases.”
Cross v. Ala. State Dep’t of Mental Health & Mental Retardation,
49 F.3d 1490, 1502 (11th Cir. 1995) (citing Carr v. City of
Florence, 916 F.2d 1521, 1525 (11th Cir. 1990)).
779 F.2d at 1512.
within
In Monell, the Supreme Court held that “persons”
includes
individuals,
municipalities, and other local government units.
436 U.S. at
690–91.
the
See also Gamble,
meaning
of
section
1983
“Persons” does not include a state or an arm of a state.
31
Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
Accordingly, Monell does not authorize suit against the FDEP in
federal court for section 1983 claims.
Lastly, it is possible that plaintiff may be arguing that the
Ex parte Young exception 6 to Eleventh Amendment immunity applies
to the case at hand.
(See Doc. #227, p. 2) (“The FDEP as an agency
has allowed these daily violations to continue for 3 decades . .
.
.”;
“A
state
agency
does
not
possess
the
immunity
to
intentionally kill, maim, lie, commit fraud or violate federal
environmental laws or the U.S. Constitution.”).
“Under the doctrine of Ex parte Young, there is a long and
well-recognized exception to [Eleventh Amendment immunity] for
suits against state officers seeking prospective equitable relief
to end continuing violations of federal law.” Fla. Ass’n of Rehab.
Facilities, Inc. v. State of Fla. Dep’t of Health and Rehab.
Servs., 225 F.3d 1208, 1219 (11th Cir. 2000) (citations omitted).
Ex parte Young applies only when state officials are sued for
prospective relief in their official capacity.
While the Ex parte
Young exception applies to state officials, it does not apply to
state agencies.
Cir.
2006)
Eubank v. Leslie, 210 F. App’x 837, 844 (11th
(“State
agencies,
however,
are
never
subject
to
unconsented suit, even under the doctrine of Ex parte Young. . .
6
Ex parte Young, 209 U.S. 123 (1908).
32
. It does not permit suit against state agencies or the state
itself, even when the relief is prospective.” (citing Halderman,
465 U.S. at 100-03)).
This is because “[t]he theory behind Ex
parte Young is that a suit alleging a violation of the federal
constitution against a state official in his official capacity for
injunctive relief on a prospective basis is not a suit against the
state, and, accordingly, does not violate the Eleventh Amendment.”
Camm v. Scott, 834 F. Supp. 2d 1342, 1348 (M.D. Fla. 2011) (quoting
Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011)).
Even when
read liberally, plaintiff has not asserted any claims against FDEP
officials in their official capacities, and therefore the Ex parte
Young exception is inapplicable to the FDEP.
Accordingly, FDEP is entitled to Eleventh Amendment immunity.
Plaintiff’s claims against the FDEP for monetary damages as set
forth in Counts VI through XIII are dismissed with prejudice as to
filing in federal court, but otherwise without prejudice.
(2)
Count VI: Breach of Special Fiduciary Duty
Count VI asserts a claim for breach of special fiduciary duty
against all named defendants.
(Doc. #178, ¶¶ 169-74.)
All
defendants move to dismiss Count VI on the basis that no fiduciary
duty exists between plaintiff and any of the defendants.
(Doc.
#196, pp. 7-9; Doc. #213, pp. 20-22; Doc. #214, pp. 17-18; Doc.
#215, pp. 17-19.)
The Court agrees.
33
In Florida, “[t]he elements of a breach of fiduciary duty
action are (1) the existence of a fiduciary duty and (2) the breach
of that duty that was the proximate cause of the plaintiff’s
damages.”
Collins v. Countrywide Home Loans, Inc., 680 F. Supp.
2d 1287, 1296 (M.D. Fla. 2010) (citing Gracey v. Eaker, 837 So. 2d
348, 353 (Fla. 2002)).
A fiduciary relationship exists between
parties “where confidence is reposed by one party and a trust
accepted by the other.”
Doe v. Evans, 814 So. 2d 370, 374 (Fla.
2002) (quoting Quinn v. Phipps, 113 So. 419, 421 (Fla. 1927)).
fiduciary relationship may be either express or implied.”
“A
Hogan
v. Provident Life and Accident Ins. Co., 665 F. Supp. 2d 1273,
1287 (M.D. Fla. 2009) (citing Maxwell v. First United Bank, 782
So. 2d 931, 933 (Fla. 4th DCA 2001)).
An express fiduciary
relationship is created either by “contract or legal proceedings.”
Id. (citation omitted). An implied fiduciary relationship is based
“upon
the
specific
facts
and
circumstances
surrounding
the
relationship of the parties and the transaction in which they are
involved.”
Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850
So. 2d 536, 540 (Fla. 5th DCA 2003) (citations omitted).
“When
the parties are dealing at arm’s length, a fiduciary relationship
does not exist because there is no duty imposed on either party to
protect or benefit the other.” Id. at 541 (citations omitted).
Here, plaintiff has failed to plausibly allege that there was
a fiduciary relationship between himself and any of the defendants.
34
Plaintiff alleges that “[a]ll Parties entering on Plaintiffs land
were to be licensed Florida contractors working on Plaintiffs
property for the benefit of the owner and as beneficiary, and owes
a fiduciary duty to the owner.” (Doc. #178, ¶ 115.)
Plaintiff
goes on to allege that “[a]ll on Plaintiffs property requires a
duty to disclose material facts and owes a fiduciary duty of Trust
and confidence to the land owner beneficiary principal Plaintiff
Clark.”
(Id.)
The Court does not find any support for plaintiff’s contention
that
a
fiduciary
relationship
existed
between
plaintiff
and
defendants solely by virtue of defendants allegedly being Florida
licensed contractors and performing work on plaintiff’s property.
Plaintiff alleges that URS defendants performed contractual work
(id. ¶ 124), and alludes to the fact that the other defendants did
as well (id. ¶ 106, 115), but he provides no information about the
contract(s) which would plausibly suggest a fiduciary relationship
between such defendants and plaintiff.
Further, the Court does
not find any plausible basis for the imposition of an implied
fiduciary duty within the plaintiff’s Fourth Amended Complaint. 7
7
There is one sentence within plaintiff’s Fourth Amended
Complaint
that
alleges
a
representation
of
a
fiduciary
relationship. Plaintiff alleges that “Vinyard, Kutash, and Bell
made fraudulent misrepresentations to Clark and Callaway stating
this was a special relationship and a special fiduciary between
Plaintiffs and the FDEP and licensed specialized contractors who
would perform the work for the Plaintiffs.” (Doc. #178, ¶ 106.)
This could only arguably support a claim of a breach of fiduciary
35
The Court finds that plaintiff has failed to plausibly allege
the existence of a fiduciary relationship between himself and any
defendant. 8 Accordingly, Count VII is dismissed without prejudice.
(3)
Count VII:
Common Law Fraud
Count VII of the Fourth Amended Complaint alleges a claim for
common law fraud against all defendants.
(Id. ¶ 175.)
Plaintiff
alleges that all defendants “made false statements of material
facts to induce Plaintiff to allow them on his property” as part
of their scheme to continue felony violations of contaminated waste
being discharged daily from the former facility onto plaintiff’s
property.
(Id. ¶ 177.)
Defendants assert that Count VII fails to state a claim for
common law fraud because (1) plaintiff has failed to allege with
sufficient
particularity
the
basis
of
the
claim
and
(2)
the
duty against FDEP, as these individuals were employees/agents of
FDEP, but FDEP has been dismissed from this action based upon the
Eleventh Amendment. There is no allegation that these individuals
were acting on behalf of, or could otherwise bind, the other
“licensed specialized contractors” to a fiduciary relationship
with plaintiff.
8
FDEP Employees also assert that plaintiff has failed to
satisfy conditions precedent to bringing suit. (Doc. #196, pp. 78.) As stated previously, plaintiff has alleged that he “complied
with filing Notices and all other statutory Notice requirements.”
(Doc. #178, ¶ 138.)
It is sufficient at this stage of the
proceedings to allege that all conditions precedent to filing suit
have been met.
Additionally, the Court need not address the qualified
immunity assertion given the dismissal on other grounds.
36
allegations do not support an actionable fraud claim.
(Doc. #196,
pp. 10-11; Doc. #213, pp. 19-20; Doc. #214, pp. 15-17; Doc. #215,
pp. 15-17.)
In Florida, the elements of common-law fraud are:
(1) a false statement of fact; (2) known by the person
making the statement to be false at the time it was made;
(3) made for the purpose of inducing another to act in
reliance thereon; (4) action by the other person in
reliance on the correctness of the statement; and (5)
resulting damage to the other person.
Gandy v. Trans World Comput. Techn. Grp., 787 So. 2d 116, 118 (Fla.
2d DCA 2001).
Rule 9(b) requires allegations of fraud to be
pleaded “with particularity.”
complaint
plaintiffs
subject
retain
to
the
Rule
dual
Fed. R. Civ. P. 9(b).
9(b)'s
burden
particularity
of
providing
“In a
requirement,
sufficient
particularity as to the fraud while maintaining a sense of brevity
and clarity in the drafting of the claim, in accord with Rule 8.”
Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1278 (11th
Cir. 2006) (citation omitted).
To satisfy Rule 9(b)'s “particularity” standard, we
generally require that a complaint identify (1) the
precise statements, documents or misrepresentations
made; (2) the time and place of and persons responsible
for the statement; (3) the content and manner in which
the statements misled the plaintiff; and (4) what the
Defendants gain[ed] by the alleged fraud.
W. Coast Roofing & Waterproofing, Inc. v. John Manville, Inc., 287
F. App’x 81, 86 (11th Cir. 2008) (citing Ambrosia Coal & Constr.
Co. v. Pages Morales, 482 F.3d 1309, 1316-17 (11th Cir. 2007)).
37
“Rule 9(b) requires more than conclusory allegations that certain
statements were fraudulent; it requires that a complaint plead
facts
giving
omitted).
rise
to
an
inference
of
fraud.”
Id.
(citation
“Failure to satisfy Rule 9(b) is a ground for dismissal
of a complaint.”
Corsello v. Lincare, Inc., 428 F.3d 1008, 1012
(11th Cir. 2005), cert. denied, 549 U.S. 810 (2006).
Plaintiff
alleges
that
all
defendants
knowingly
and
intentionally made false statements of material fact in order to
induce plaintiff to allow them onto his property in order to
“destroy and cover up evidence and reduce contaminator Hercules
Inc and buyer Ashland Inc[’s] liabilities to clean up, remediate,
and abate . . . [the] site.”
(Doc. #178, ¶ 177.)
This is clearly
insufficient to meet the particularity requirement of Rule 9.
However, plaintiff has additional allegations scattered throughout
the complaint.
(a)
These are all insufficient.
Hercules & Ashland
Plaintiff’s Fourth Amended Complaint contains the following
allegations regarding Hercules and Ashland that could be related
to plaintiff’s fraud count:
(1) conclusory allegations regarding
“all defendants” making fraudulent misrepresentations (id. ¶¶ 43,
81-82, 92, 95, 98, 110, 121); (2) conclusory allegation that
plaintiff was defrauded and misrepresented by Hercules and Ashland
(id. ¶ 37); (3) an allegation regarding a promise to compensate
plaintiff for building roads and clearing the site (id. ¶ 71); (4)
38
an allegation that Cooper/Straton (an employee of Hercules) and
Yeargon (employee of FDEP) were “compiling documented excuses,
delays, no diligence and no care to the daily felony violations”
(id. ¶ 86); (5) an allegation that Hercules and Ashland paid for
falsified
reports
to
lessen
their
liabilities
for
the
contamination on the site (id. ¶ 93); (6) an allegation that
“Ashland and Hercules Inc. by Tim Hassett in person in 2008 at the
ranch, by phone and wire 2008, 3 more times” (id. ¶ 106); and (7)
an allegation that “Ashland and Hercules’s employee Tim Hassett .
. . intentionally stated in person in 2008 to Plaintiff Clark in
front of witnesses that there was hazardous chemicals on the
property nothing harmful on the property” (id. ¶ 121).
The Court finds the allegations as to “all defendants” and
the conclusory allegations that Hercules and Ashland “defrauded
and
misrepresented”
standard.
insufficient
to
meet
the
particularity
As to plaintiff’s claim regarding reimbursement for
expenses, this Court already held that this does not amount to
actionable
fraud
and,
performed,
which,
by
if
anything,
itself,
cannot
is
“a
form
mere
the
promise
not
predicate
for
actionable fraud.” (Doc. #67, p. 15) (quoting Biscayne Inv. Grp.
Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So. 2d 251, 255 (Fla. 3d
DCA 2005)).
The Court also finds the allegations regarding Cooper
documenting excuses and delays in number 4 and Hercules and Ashland
paying for falsified reports in number 5, without more, to be vague
39
and insufficient to meet the particularity requirement.
The
allegations in numbers 6 and 7 above are similarly insufficient as
it is unclear what statement plaintiff is even referring to and
plaintiff’s
own
statement
in
paragraph
125
is
contradictory.
Accordingly, the Court finds that plaintiff has failed to allege
fraud as to Hercules and Ashland and grants Hercules and Ashland’s
motion to dismiss as to Count VII without prejudice.
(b)
FDEP Employees
Plaintiff’s Fourth Amended Complaint contains the following
allegations regarding FDEP Employees that could arguably support
plaintiff’s fraud count:
(1) same general allegations as to all
defendants (Doc. #178, ¶¶ 43, 81-82, 92, 95, 98, 110, 121); (2) an
allegation that FDEP Employees’ acts were illegal (id. ¶ 86); (3)
an
allegation
that
Yeargon
fabricated
reports
and
Vineyard,
Stevenson, Bell, and Kutash were aware of it (id. ¶ 103); (4) an
allegation
that
Vineyard,
Bell,
and
Kutash
fraudulently
misrepresented that there would be a special relationship between
plaintiff and FDEP and licensed contractors, that there would be
full
disclosure,
and
that
all
contactors
possessed
Florida
licenses and carried a minimum of 1 million dollars in insurance
(id. ¶ 106); (5) an allegation that Kutash, Vineyard, Bell, and
Stevenson
promised
copies
policies,
and
plans
work
of
all
(id.);
licenses,
(6)
an
bonds,
allegation
insurance
that
Bell
promised to be present on the property when test samples were taken
40
(id.); (7) allegations that Vinyard, Kutash, and Bell promised to
provide copies of each and every test and every finding (id.); and
(8) an allegation that Vinyard, Kutash, and Bell misrepresented
Hercules’s 1993 agreement (id.).
As to the general assertions as to all defendants, the Court
finds that these lack the requisite particularity to support a
claim of fraud.
Further, general allegations of illegal acts in
number 2 and fabrication of reports in number 3 are similarly
insufficient.
The Court finds that the allegations regarding
promises made by Bell, Kutash, Stevenson, and Vinyard
in numbers
5, 6, and 7 are merely promises to do something and do not amount
to actionable fraud.
255.
See Biscayne Inv. Grp. Ltd., 903 So. 2d at
As to the allegations regarding the 1993 agreement in number
8, the Court finds that this lacks sufficient particularity to
support a claim of fraud.
The allegations that Vineyard, Bell, and Kutash fraudulently
misrepresented that all contactors possessed Florida licenses and
carried a minimum of 1 million dollars in insurance could be a
statement upon which a fraud claim may be premised.
However, it
is not pleaded with the required specificity under Rule 9(b).
Accordingly, the Court grants defendant FDEP Employees’ motion to
dismiss Count VII without prejudice.
41
(c)
The
URS Defendants
Fourth
Amended
Complaint
contains
the
following
allegations regarding URS defendants that could arguably support
a claim of fraud:
(1) general allegations as to all defendants
(Doc. #178, ¶¶ 43, 81-82, 92, 95, 98, 110, 121); (2) allegations
that URS, Desilet, and Siersema stated that plaintiff would be
compensated for expenses incurred (id. ¶ 71); (3)
an allegation
that “URS, Siersema, and Desilet made those representations in
2008 in person at the ranch, 2009 twice, 2010 again by phone/wire,”
(id. ¶ 106); (4) an allegation that “URS’s Siersema and Desilet
intentionally stated in person in 2008 to Plaintiff Clark in front
of witnesses at the ranch that there was hazardous chemicals on
the property nothing harmful on the property,” (id. ¶ 121); and
(5) an allegation that URS defendants committed fraud by covering
up and fraudulently misrepresenting to plaintiff the extent of the
contamination on plaintiff’s property (id. ¶ 123).
As
held
previously,
the
Court
finds
that
the
general
allegations regarding all defendants do not meet the particularity
requirement of Rule 9.
The allegation regarding being compensated
for expenses incurred is merely a promise to do something and does
not amount to actionable fraud.
So. 2d at 255.
See Biscayne Inv. Grp. Ltd., 903
The allegations in numbers 3 and 4 above are
similarly insufficient as it is unclear what statements plaintiff
is even referring to and plaintiff’s own statement in paragraph
42
125 is contradictory.
Lastly, plaintiff’s allegation that URS
defendants committed fraud by covering up and misrepresenting the
contamination is similarly insufficient to meet the particularity
requirement.
It does not allege what false statement of material
fact they are identifying, who stated it, and to whom, etc.
Accordingly, URS defendants’ motion to dismiss Count VII is granted
and
Count
VII
is
dismissed
without
prejudice
as
to
these
defendants.
(d)
The
Hassett & Straton
only
Complaint
allegations
directed
at
within
Hassett
and
plaintiff’s
Straton
Fourth
have
Amended
already
been
addressed above and found to be insufficient to support a fraud
claim.
Accordingly, Hassett and Straton’s motion to dismiss Count
VII is granted, and Count VII is dismissed without prejudice as to
these defendants.
(4)
Count VIII: Personal Injury
In Count VIII, plaintiff alleges a cause of action for a tort
which plaintiff calls “Personal Injury.” (Doc. #178, ¶¶ 182-86.)
Plaintiff seeks to recover money damages from all defendants for
the personal injuries he suffered as the direct and proximate
result of “the wrongful conduct and actions” of defendants.
(Id.
¶ 82.)
There is no such global cause of action in Florida.
person
may
recover
damages
for
43
personal
injuries,
While a
these
are
recovered by bringing a valid and recognized cause of action, such
as negligence or battery. Accordingly, plaintiff’s cause of action
of “Personal Injury” is dismissed with prejudice.
(5)
Count IX:
Fourteenth Amendment
In Count IX, only the FDEP is named as a defendant, and is
alleged to have violated plaintiff’s Fourteenth Amendment rights.
As discussed earlier, this claim against the FDEP is barred in
federal court pursuant to the Eleventh Amendment.
Accordingly,
Count IX is dismissed with prejudice as to refiling in federal
court, and otherwise without prejudice.
(6)
Counts X & XI: Federal RICO Provisions
Counts X and XI assert claims pursuant to the federal RICO
statute against all defendants.
(Doc. #178, ¶¶ 196-216.)
Count
X alleges a “Federal RICO conspiracy to defraud” asserting that
from 1993 to the present all defendants conspired to “create,
maintain, and support a criminal and civil syndicate and or illegal
enterprise as alleged in this complaint for illegal purposes and
to commit fraud and misrepresentation on Plaintiffs to continue
their illegal enterprise.”
“federal
RICO”
claim
(Id. ¶ 198.)
against
all
Count XI alleges a
defendants
asserting
that
Hercules, Ashland, the FDEP, and URS were an “enterprise” and that
the individual defendants participated in the conduct of the
enterprise’s affairs through a pattern of racketeering activity,
44
i.e., thousands of felony violations in connection with plaintiff
and his real property.
(Id. at ¶ 206.)
Defendants 9 move to dismiss these counts on various grounds.
Essentially, defendants assert that the RICO claims are barred by
the applicable statute of limitations and the claims fail to
sufficiently allege the essential elements.
The Court agrees with
both arguments.
Section 1962(c) of the RICO Act makes it unlawful “for any
person employed by or associated with any enterprise engaged in,
or the activities of which affect, interstate or foreign commerce,
to conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering
activity.”
18 U.S.C. § 1962(c).
a RICO case:
“Four elements must be proven in
(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.”
Lehman v. Lucom, 727 F.3d
1326, 1330 (11th Cir. 2013) (quoting Williams v. Mohawk Indus.,
Inc., 465 F.3d 1277, 1282 (11th Cir.2006) (per curiam)). “The civil
RICO provision permits a private plaintiff ‘injured in his business
or property by reason of a violation of section 1962’ to recover
treble damages.”
Id.
(citation omitted).
As with general fraud causes of actions, the standards set
forth in Iqbal and Twombly are altered for claims dealing with
9
Claims against the FDEP have already been dismissed from
these counts on Eleventh Amendment immunity grounds.
45
fraud in RICO claims.
Miccosukee Tribe of Indians of Fla. v.
Cypress, 814 F.3d 1202, 1212 (11th Cir. 2015).
When a plaintiff asserts RICO and RICO conspiracy
claims, the court must look at the underlying
allegations of racketeering predicates to determine the
nature of the alleged wrongdoing. When the underlying
allegations assert claims that are akin to fraud, the
heightened pleading standards of Rule 9(b) apply to the
RICO claims. As such, the pleading requirements do not
extend merely to plausibility, they demand plausibility
based upon Rule 9(b)'s heightened degree of specificity.
To satisfy the Rule 9(b) standard, RICO complaints must
allege: (1) the precise statements, documents, or
misrepresentations made; (2) the time and place of and
person responsible for the statement; (3) the content
and manner in which the statements misled the
Plaintiffs; and (4) what the Defendants gained by the
alleged fraud.
Id. (internal citation and quotations marks omitted).
In pleading
a civil RICO claim premised upon fraud, the “plaintiff must allege
facts with respect to each defendant’s participation in the fraud.”
Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.
2010) (citation omitted).
Plaintiff premised his RICO claims on
mail and wire fraud so he is required to satisfy the pleading
requirements of Rule 9(b).
Miccosukee Tribe, 814 F.3d at 1212.
While the Court agrees that the federal RICO claims are not
sufficiently pleaded, it is not necessary to discuss the pleading
deficiencies in detail because both claims are barred by the
applicable statute of limitations.
As discussed previously, a
complaint may be dismissed when the merits of an affirmative
defense “clearly appears on the face of the complaint.”
46
Quiller,
727 F.2d at 1069; La Grasta, 358 F.3d at 845 (“[A] Rule 12(b)(6)
dismissal on statute of limitations grounds is appropriate only if
it is ‘apparent from the face of the complaint’ that the claim is
time-barred” (quoting Omar, 334 F.3d at 1251)). The Fourth Amended
Complaint is such a complaint.
Civil RICO claims are subject to a four-year statute of
limitations.
Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,
483 U.S. 143, 156 (1987); Lehman, 727 F.3d at 1330.
A civil RICO
claim accrues, and the four-year limitations period begins to run,
“when the injury was or should have been discovered, regardless of
whether or when the injury is discovered to be part of a pattern
of racketeering.” Lehman, 727 F.3d at 1330 (citing Maiz v. Virani,
253 F.3d 641, 676 (11th Cir. 2001)).
adopted
a
separate
accrual
rule
in
The Eleventh Circuit has
civil
RICO
actions
which
provides that “if a new RICO predicate act gives rise to a new and
independent injury, the statute of limitations clock will start
over for the damages caused by the new act.”
Id. at 1330-31
(citations
cannot
omitted).
However,
“the
plaintiff
use
an
independent, new predicate act as a bootstrap to recover for
injuries caused by other earlier predicate acts that took place
outside the limitations period.
a
continuation
independent.”
of
an
By extension, when an injury is
initial
injury,
it
is
not
new
and
Id. at 1331 (alterations and citations omitted).
47
Plaintiff Clark filed a RICO claim for the first time in this
case on February 11, 2016, when he filed his Fourth Amended
Complaint.
(Doc. #178.)
The four year statute of limitations
bars RICO claims accruing before February 11, 2012, unless there
is a separate accrual date for subsequent conduct.
The Fourth
Amended Complaint establishes that defendant knew of his injury no
later than May 2008, and that there was no separate accrual.
In brief, the gist of plaintiff’s claims is that he purchased
an 81-acre parcel of real property in 2001 (id. ¶¶ 28, 32), and he
had no knowledge that the property had been contaminated by a prior
owner until he received a letter from the FDEP in 2008, (id. ¶¶
29, 31-32, 94, 131).
In 2008 the contaminated waste site made
plaintiff very worried, and he initially fully cooperated with
FDEP’s
clean-up
efforts
(id.
¶¶
43,
71,
94),
but
has
been
consistently conned and lied to by defendants since 2008 (id. ¶¶
31, 35, 104-06, 110, 121).
FDEP has looked the other way, is
corrupt, and has entered into an illegal racketeering enterprise
regarding the Property.
(Id. ¶¶ 36, 42, 51-52.)
Plaintiff
received a copy of a false 2009 report in 2011 regarding the extent
of the contamination.
(Id. ¶¶ 66, 72.)
Plaintiff is now stuck
with the contaminated property, which has caused him a variety of
injuries.
(Id. ¶ 75.)
The allegations which are within the
statute of limitations continue with the same type of complaints
about
the
defendants:
They
are
48
corrupt
conspirators
whose
continuing conduct is leaving plaintiff’s property contaminated
and injuring plaintiff in a variety of ways.
Thus, the Fourth Amended Complaint establishes on its face
that plaintiff had discovered the contamination injury well before
February 11, 2012.
The Fourth Amended Complaint also establishes
that there was not a new RICO predicate act within the statute of
limitations,
and
that
continuation
of
the
independent. 10
all
of
initial
plaintiff’s
injuries,
injuries
and
not
were
new
a
and
Accordingly, Counts X and XI of the Fourth Amended
Complaint are dismissed with prejudice as barred by the statute of
limitations.
(7)
Counts XII & XIII: Emergency Injunctive Relief &
Punitive Damages
Counts XII and XIII assert claims for Emergency Injunctive
Relief and Punitive Damages, respectively.
31.)
(Doc. #178, ¶¶ 217-
There are no such freestanding causes of action.
As to plaintiff’s purported cause of action of “Emergency
Injunctive Relief,” “injunctive relief is not a proper claim for
relief in and of itself, but rather a remedy that is available
upon a finding of liability on a claim.” GlobalOptions Servs.,
Inc. v. N. Am. Training Gro., Inc., 131 F. Supp. 3d 1291, 1302
10
Even if plaintiff could establish that the Fourth Amended
Complaint related back to the filing of an earlier Complaint
pursuant to Federal Rule of Civil Procedure 15(c), it would still
not save his claims from being untimely.
49
(M.D. Fla. 2015) (citing Alabama v. U.S. Army Corps of Eng’rs, 424
F.3d 1117, 1127 (11th Cir. 2005), cert. denied, 547 U.S. 1192
(2006)).
Because this is not a proper freestanding claim, Count
XII is dismissed with prejudice. 11
As to plaintiff’s count for
punitive damages, the Court finds that this also is not a valid
independent
prejudice.
cause
of
action
and
dismisses
Count
XIII
with
Echols v. RJ Reynolds Tobacco Co., No. 2:13-CV-14215,
2014 WL 5305633, at *6 (S.D. Fla. Oct. 15, 2014).
C. Denial of Leave to File Another Complaint
The
Court
has
dismissed
Counts
prejudice (except as to FDEP).
V,
VI,
and
VII
without
The Court declines to provide
plaintiff with a further opportunity to amend his complaint as to
these claims.
pollutant
Plaintiff waited years after being notified of the
issue,
and
this
is
plaintiff’s
attempting to state various causes of action.
fifth
complaint
The Court has
provided plaintiff with ample opportunities to state claims if he
can do so.
While defendant is proceeding pro se, he is an
experienced federal litigator, having filed at least 7 federal
suits in the last 18 years, and been a party to numerous other
federal suits.
11
This does not detrimentally affect plaintiff’s claim under
the RCRA because, as discussed within the portion analyzing the
RCRA claim, plaintiff has also requested emergency injunctive
relief within his Prayer for Relief.
50
D. Remaining Counts and Jurisdiction
What remains of the Fourth Amended Complaint is Count I
against Hercules and Count IV against Hercules.
The Court will
redact the Fourth Amended Complaint, striking the claims which
have
been
dismissed
and
the
allegations
relevance to the remaining counts.
having
no
possible
That modified Fourth Amended
Complaint will be docketed in this case, and shall be responded to
by Hercules within fourteen (14) days of the date of this Opinion
and Order.
The
Court
began
this
Opinion
and
Order
by
noting
jurisdiction based upon federal question jurisdiction.
its
Based upon
its rulings, the Court’s jurisdiction is premised upon diversity
of citizenship.
Accordingly, it is now
ORDERED:
1.
Defendants FDEP and its Employees’ Motion to Dismiss
(Doc. #196) is GRANTED in part and DENIED in part as set forth
above.
2.
Defendants
Hercules
Incorporated
and
Ashland
Inc.’s
Motion to Dismiss Plaintiff’s Fourth Amended Complaint (Doc. #213)
is GRANTED in part and DENIED in part as set forth above.
3.
Defendants
Timothy
Hassett
and
Carolyn
J.
Straton’s
Motion to Dismiss Plaintiff’s Fourth Amended Complaint (Doc. #214)
is GRANTED in part and DENIED in part as set forth above.
51
4.
Defendants URS Corporation, Edward W. Siersema, Jr., and
Bruce Desilet’s Motion to Dismiss Plaintiff’s Verified Fourth
Amended
Complaint,
and,
Alternatively,
for
a
More
Definite
Statement (Doc. #215) is GRANTED in part and DENIED in part as set
forth above.
5.
All claims against FDEP as an agency are dismissed with
prejudice as to refiling in federal court and otherwise without
prejudice.
6.
Count I as to Ashland; Count II; Count III; Count IV as
to Ashland; Counts VI and VII as to FDEP; Counts VIII through XIII
are dismissed with prejudice.
Hercules.
Counts I and IV remain as to
The remaining counts are dismissed without prejudice,
but the Court declines to allow an additional amendment.
7.
The Clerk of the Court shall docket the Court’s modified
Fourth Amended Complaint.
8.
Defendant shall have FOURTEEN (14) DAYS from the date of
this Opinion and Order to file an Answer to the modified Fourth
Amended Complaint.
DONE AND ORDERED at Fort Myers, Florida, this __3rd___ day of
February, 2017.
Copies: Parties of Record
52
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