Potra v. Jacobson Companies, Inc. et al

Filing 14

OPINION AND ORDER GRANTING Defendants' #6 Motion to Dismiss. IT IS FURTHER ORDERED that the Plaintiffs' Complaint is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the Defendants' #6 Motion to Stay all Proceedings is DENIED AS MOOT. IT IS FURTHER ORDERED that the Plaintiffs' #8 Motion to Consolidate this case with 1:12-cv-1600-WSD is DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 3/27/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LIVIU POTRA and THOMAS
HILTON,
Plaintiffs,
v.

1:13-cv-00387-WSD

JACOBSON COMPANIES, INC., et
al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion to Dismiss the
Plaintiffs’ Complaint or, in the alternative, to Stay all Proceedings [6], and the
Plaintiffs’ Motion to Consolidate this case with the pending False Claims Act
(“FCA”) action in Potra v. Jacobson Companies Inc., et al., No. 1:12-cv-1600WSD [8].
I.

BACKGROUND
A.

Factual and Procedural History

On February 3, 2013, Plaintiffs filed a sixteen (16) count Complaint against
the Defendants alleging violations of the federal and state environmental laws.
Defendants own and operate specialty chemical blending facilities in Ellenwood,

Georgia, and Forest Park, Georgia, where they blend, transport, store, and dispose
of pesticides, herbicides, and other chemical products. Compl. at ¶¶ 4, 24.
Plaintiffs are employees of the Defendants, and they bring this direct action
pursuant to the citizen suit provisions of several environmental laws and
regulations. Id. at ¶ 2. Plaintiffs allege that Defendants violated, and continue to
violate, federal environmental statutes and regulations, including the Clean Water
Act, the Clean Air Act, the Resource Conservation and Recovery Act, the
Emergency Planning and Community Right-to-Know Act, and environmental
standards implemented by the Occupation Safety and Health Administration
(“OSHA”). Id. at ¶¶ 12, 25-53, 54-162. Plaintiffs claim that Defendants violated
these federal statutes and environmental regulations by improperly transporting,
storing, treating, and disposing of hazardous waste at the blending facilities. Id.
Plaintiffs claim that the Defendants failed to comply with the reporting and
permitting requirements mandated by the federal environmental laws and
regulations. Plaintiffs also assert that Defendants violated Georgia state laws that
regulate the environment and workplace safety.
On April 26, 2013, Defendants moved to dismiss the Plaintiffs’ Complaint
for lack of subject matter jurisdiction. Defendants have facially attacked the
Complaint, and they argue that the Complaint fails to allege a concrete and

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particularized injury required for the purposes of standing under Article III of the
United States Constitution.
II.

DISCUSSION
A.

Legal Standard

Article III of the United States Constitution provides that the judicial power
of the federal courts extends only to “cases” and “controversies.” U.S. Const. art.
III, § 2, cl. 1. It is well-settled that this limited extension of power imposes
substantive constitutional constraints on the power of federal courts to resolve legal
disputes. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The
doctrine of standing is a fundamental boundary of the judicial power to decide
cases and controversies. Id. “[T]he question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498 (1975). This is a threshold issue in every
federal case. Id.
“[A] plaintiff who invokes the jurisdiction of a federal court bears the
burden to show (1) an injury-in-fact, meaning an injury that is concrete and
particularized, and actual or imminent, (2) a causal connection between the injury
and the [challenged] conduct, and (3) a likelihood that the injury will be redressed
by a favorable decision.” CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451

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F.3d 1257, 1269 (11th Cir. 2006) (internal quotation marks omitted). Standing
“must be supported in the same way as any other matter on which the plaintiff
bears the burden proof,” that is, “with the manner and degree of evidence required
at the successive stages of the litigation.” CAMP, 451 F.3d at 1269 (quoting
Lujan, 504 U.S. at 561).
To demonstrate an injury-in-fact for purposes of Article III standing, “a
plaintiff must point to some type of cognizable harm, whether such harm is
physical, economic, reputational, contractual, or even aesthetic.” Koziara v. City
of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004) (citations and internal
quotation marks omitted). “But the injury in fact test requires more than an injury
to a cognizable interest. It requires that the party seeking review be himself among
the injured.” Id. In other words, the Plaintiffs must show that they are directly
impacted, and the Defendants’ conduct affects them “in a personal and individual
way.” Id.
When a Defendant asserts a facial attack on the Complaint, the Court is
required to “merely look and see if [the] plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his complaint are taken as true for
the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990) (citations internal quotation marks omitted). Factual attacks on the

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Complaint “challenge the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such as testimony
and affidavits, are considered.” Id. On a facial attack, the Court accepts all
allegations in the Complaint as true in deciding whether to grant the motion. Id.
B.

Analysis

The Complaint recites a wide range of violations of the federal and state
environmental laws. Plaintiffs contend that Defendants violated these laws, and
continue to violate these laws, and conclude each count with the conclusory
allegation that “Plaintiffs and the environment have suffered harm as a result of
Defendants’ actions.” Compl. at ¶¶ 74, 95, 103, 112, 121, 132, 143, 154, 162, 172,
181, 189. The Complaint, however, is devoid of allegations showing that Plaintiffs
are directly impacted by the Defendants’ conduct, and it is devoid of facts alleging
the specific “physical, economic, reputational, contractual, or even aesthetic harm”
required to demonstrate Article III standing. Koziara, 392 F.3d at 1305. It is also
devoid of any allegation of specific, particularized harm to any person and what is
alleged does not give rise to an inference of a particularized harm.
In their Response to the Defendants’ Motion to Dismiss, Plaintiffs contend
that the Defendants presented the Court with “misrepresentations” and argue that,
in their view, the “Complaint is replete with specific charges” regarding violations

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of federal and state environmental laws, and “each of these violations by
Defendants has cause[d] [sic] a concrete and individualized injury to Plaintiffs as
employees working in the Ellenwood and Forest Park, Georgia facilities . . . ” Pls.’
Opp’n to Defs.’ Mot. to Dismiss or Stay at 3.
Plaintiffs specifically contend that paragraphs ¶¶ 38-39 allege that the
storage and disposal of hazardous waste creates a dangerous and unhealthy work
environment. This claim misrepresents the Plaintiffs’ own Complaint. Paragraphs
¶¶ 38-39 do not contain the phrase “dangerous and unhealthy work environment”
and no assertion in these paragraphs can be construed to suggest that Plaintiffs are
affected by the Defendants’ conduct in a personal and individual way.
Plaintiffs also assert in their response that paragraphs ¶¶ 48-51, which allege
that the Defendants violated OSHA standards, demonstrate an injury-in-fact
because Defendants failed to provide training for hazardous waste material, failed
to provide protective equipment, and failed to develop a respiratory protection plan
to protect Plaintiffs from exposure to harmful fumes. The Complaint does not
explain how the alleged violation of the OSHA standards harms them in a
“physical, economic, reputational, contractual, or even aesthetic” way. Koziara,
392 F.3d at 1305. In paragraph ¶ 50, Plaintiffs argue that the “stacking of several
pallets for supporting totes weighing in excess of 1,000 pounds constitutes a

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serious hazard of the workplace. Workers could be crushed, pinned, receive a
concussion, or come into contact with highly hazardous materials if the tote were
to fall from the stack of pallets, which are not in any way secured in place.”
Compl. at ¶ 50. “Speculative and imaginary threats will not confer standing.”
White’s Place Inc. v. Glover, 222 F.3d 1327, 1329 (11th Cir. 2000). Plaintiffs do
not allege in paragraph ¶ 50 that a serious hazard in the workplace has caused, or
will imminently cause, death or serious physical harm to them in violation of
OSHA’s General Duty Clause. That “workers could be” physically harmed by the
Defendants’ conduct is too abstract and speculative to confer Article III standing.
The Court also notes that paragraph ¶ 50 of the Complaint is the only place in the
section on the Defendants’ alleged violations of OSHA standards, and perhaps in
the entire Complaint itself, where Plaintiffs point to an injury to a cognizable
interest. Koziara, 392 F.3d at 1305. Nowhere else in the section on alleged OSHA
violations do the Plaintiffs allege that they have been injured by the Defendants’
conduct. 1 The allegations in paragraph ¶ 50 of the Complaint do not confer
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For example, paragraph ¶ 48 of the Complaint alleges that Defendants did not
provide their employees with training regarding the hazardous chemicals, but the
Complaint fails to allege that Plaintiffs are injured, or may imminently be injured,
as a result of the Defendants’ failure to provide the required training. Similarly,
paragraph ¶ 49 alleges that Defendants failed to provide a respiratory protection
program, but Plaintiffs do not allege that the absence of a respiratory protection
program injured them or that an injury to them is imminent.
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standing because Article III “requires that the party seeking review be himself
among the injured,” and the Plaintiffs do not explain how they are either injured or
that an injury to them is imminent due to the Defendants’ conduct.
Plaintiffs also rely on paragraphs ¶¶ 41-42, 44-47, and 52-53 to assert that
“as Plaintiffs are employees and thereby protected by OSHA regulations designed
to ensure a safe work environment, Plaintiffs have suffered an injury due to
Defendants’ conduct. Each of the violations above affects Plaintiffs based on their
position as employees for Defendants.” Pls.’ Opp’n to Defs.’ Mot. to Dismiss or
Stay at 10. This conclusory claim does not appear anywhere in the cited
paragraphs of the Complaint. To the extent that the Plaintiffs now rely on this
claim to demonstrate an injury-in-fact, the Court cannot speculate that “subject
matter jurisdiction exists on the basis of information which was not contained in
the Complaint” given that the Defendants have facially attacked the Complaint.
Pennsylvania Prot. and Advocacy, Inc. v. Houston, 136 F. Supp. 2d 353, 367 (E.D.
Pa. 2001) (citations omitted). Even if the Court considered the newly raised claim
in the Plaintiffs’ response, the claim is conclusory and it does not sufficiently show
that the Plaintiffs were directly impacted by the Defendants’ conduct in a personal
and individual way.

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III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss is

GRANTED [6].
IT IS FURTHER ORDERED that the Plaintiffs’ Complaint is
DISMISSED WITHOUT PREJUDICE.2
IT IS FURTHER ORDERED that the Defendants’ Motion to Stay all
Proceedings is DENIED AS MOOT [6].
IT IS FURTHER ORDERED that the Plaintiffs’ Motion to Consolidate
this case with the pending FCA action in Potra v. Jacobson Companies Inc., et al.,
No. 1:12-cv-1600-WSD is DENIED AS MOOT [8].

SO ORDERED this 27th day of March 2014.

2

The Defendants’ request to dismiss the Plaintiffs’ Complaint with prejudice is
DENIED. Because the Court has no subject matter jurisdiction over the
Complaint, it has no power to render a judgment on the merits. See Stalley v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1234 (11th Cir. 2008).

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