Parrish et al v. JCI Jones Chemicals, Inc.

Filing 151

ORDER GRANTING DEFENDANT JCI JONES CHEMICALS, INC.'S MOTION FOR JUDGMENT ON THE PLEADINGS re 62 - Signed by JUDGE JILL A. OTAKE on 3/27/2019. In accordance with the foregoing, the Court GRANTS Defendant's Motion because Plaintiffs' negligence and strict liability claims are expressly preempted by the HMTA and HMR. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAll
LUCAS PARRISH ; MELINA
PARRISH, Individually and as prochien
ami for minor Children E.L.P., born in
2002; and E .D .P., born in 2002,
Plaintiffs,

CIVIL N O. 17-00518 JAO-RLP

ORDER GRANTING DEFENDANT
JCI JONES CHEMICALS, INC.'S
MOTION FOR JUDGMENT ON
THE PLEADINGS

vs.
JCI JONES CHEMICALS, INC., a for
profit N ew York Corporation; JOHN
DOES 1-10; DOE CORPORATIONS 110; DOE PARTNERSHIPS 1-10; and
DOE ENTITIES 1-10,
Defendants.

ORDER GRANTING DEFENDANT JCI JONES CHEMICALS, INC.'S
MOTION FOR JUDGMENT ON THE PLEADINGS
Before the Court is Defendant JCI Jones Chemicals, Inc.'s Motion for
Judgment on the Pleadings filed October 15, 201 8. Doc. No. 62. Plaintiffs Lucas
and Melina Parrish filed their response and opposition on January 25, 201 9. Doc.
No. 100. The Motion was heard on February 15, 201 9. For the reasons set forth
below, the Court GRAN TS Defendant 's Motion .

I.
A.

BACKGROUND

Facts
This action arises from Plaintiff Lucas Parrish 's alleged exposure to

hazardous chemicals at a Hilo facility run by his employer, BEI Hawaii. Doc. No.
1, Ex. A at ¶¶ 26–34. In and prior to September 2016, Defendant supplied chlorine
cylinders and salvage vessels to the BEI Hawaii facility. Id. at ¶ 23−24. On
September 22, 2016, a leak was discovered in one of the chlorine cylinders. Id. at
¶ 26. The cylinder was placed in a salvage vessel, but the salvage vessel also had a
leak. Id. at ¶ 27–28. Hazardous materials personnel employed by the County of
Hawai‘i and State of Hawai‘i responded to the leak and instructed the facility to
place the salvage vessel and cylinder in a tub of water. Id. at ¶ 29. On the morning
of September 23, 2016, more chlorine leaked from the cylinder than what the water
could absorb, and high levels of chlorine entered the facility’s environment. Id. at
¶ 33. Plaintiff Lucas Parrish arrived at work that morning and was exposed to high
amounts of chlorine gas, which he alleges severely and permanently damaged his
lungs. Id. ¶ 34.
B.

Procedural History
On August 22, 2017, Plaintiffs initiated this action in the Circuit Court of the

Third Circuit, State of Hawai‘i, asserting negligence (Count I) and strict liability
(Count II) claims against Defendant. Doc. No. 1, Ex. A. Defendant removed the
action on the basis of diversity jurisdiction on October 13, 2017. In its answer,
Defendant alleges that the Hazardous Materials Transportation Act (“HMTA”), 49
U.S.C. § 5101–5128, and the Hazardous Materials Regulations (“HMR”), 49
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C.F.R. Parts 171–179, preempted Plaintiffs’ state-law claims. Id. at ¶ 67.
On October 15, 2018, Defendant filed the instant Motion. Doc. No. 62.
Magistrate Judge Puglisi granted in part Plaintiffs’ request to file an amended
complaint, Doc. No. 77, and Plaintiffs filed an Amended Complaint on November
26, 2018, Doc. No. 80. Defendant thereafter filed its Answer, again asserting that
Plaintiffs’ claims were preempted by the HMTA and HMR. Doc. No. 85 at ¶ 68.
II.

LEGAL STANDARD

Rule 12(c) of the Federal Rules of Civil Procedure (“FRCP”) states, “After
the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard governing the
Rule 12(c) motion for judgment on the pleadings is the same as that governing a
Rule 12(b)(6) motion to dismiss. Dworkin v. Hustler Magazine, Inc., 867 F.2d
1188, 1192 (9th Cir. 1989); see also McGlinchy v. Shell Chemical Co., 845 F.2d
802, 810 (9th Cir. 1988). Accordingly, “[a] judgment on the pleadings is properly
granted when, taking all allegations in the pleading as true, the moving party is
entitled to judgment as a matter of law.” Enron Oil Trading & Transp. Co. v.
Walbrook Ins. Co., 132 F.3d 526, 528 (9th Cir. 1997) (citing McGann v. Ernst &
Young, 102 F.3d 390, 392 (9th Cir. 1996)).
As with a motion to dismiss, a claim may survive a motion for judgment on
the pleadings if the complaint “contain[s] sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Facial plausibility exists “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although a court
must accept as true all allegations contained in the complaint, this obligation does
not extend to legal conclusions. Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citing Twombly,
550 U.S. at 557). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it
has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (citing Fed.
Sprewell, 266 F.3dR. Civ. P. 8(a)(2)) (some alterations in original).
Under Rule 12(b)(6), review is ordinarily limited to the contents of the
complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). A 12(b)(6) motion is treated as a
motion for summary judgment if matters outside the pleadings are considered.
Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
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To determine whether Plaintiffs’ claims are preempted by the HMTA and
HMR, the Court must determine whether the claims fall within the domain of
§ 5125(b)(1), the HMTA’s express preemption clause. See Roth v. Norfalco LLC,
651 F.3d 367, 376 (3d Cir. 2011). To do this, the Court must first analyze the text
of the preemption clause and determine its scope. Id. Next, the Court must
“identify the contours of the non-federal law, regulation, order, or requirement at
issue in the case.” Id. The Court “must [then] ascertain (1) whether § 5125(b)(1)
applies to the non-federal law, regulation, order, or requirement [] identified, and
(2) whether the non-federal requirement is ‘substantively the same as’ the
conditions imposed by federal hazardous materials law.” Id. If the non-federal
requirement is substantively the same as the federal law, then the claims are not
preempted. See id.
III.

DISCUSSION

Defendant moves for judgment on the pleadings, arguing that the state-law
duties that Plaintiffs seek to impose on Defendant are expressly preempted by the
HMTA. Plaintiffs oppose the Motion, arguing that (1) the requirements at issue
are beyond the HMTA’s domain, (2) the state-law requirements Plaintiffs seek to
impose on Defendant are substantially the same as the HMTA’s requirements, and
(3) the HMTA does not extend to “end users” such as Mr. Parrish.

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A.

Express Preemption
Defendant argues that the HMTA’s preemption provision expressly

preempts the imposition of state-law duties related to the packaging, distribution,
handling, transporting and labeling of chlorine. Plaintiffs argue that the duties at
issue in their Amended Complaint are beyond the HMTA’s domain.
The Supremacy Clause of the United States Constitution states that the
Constitution, the laws of the United States, and all Treaties “shall be the supreme
Law of the Land.” Art. VI cl. 2. Under the Supremacy Clause, “state laws that
interfere with, or are contrary to the laws of [C]ongress, made in pursuance to the
[C]onstitution are invalid.” Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 604
(1991) (internal citation omitted). “Federal preemption may be express or
implied.” Donell v. Kowell, 533 F.3d 762, 775 (9th Cir. 2008). When Congress
has included a provision explicitly addressing preemption, the preemptive scope of
the statute “is governed entirely by the express language.” Congress Cipollone v.
Liggett Grp., Inc., 505 U.S. 504 (1992).
A court must analyze the language of an express preemption provision to
“identify the domain expressly pre-empted” by the provision. Medtronic, Inc. v.
Lohr, 518 U.S. 470, 484 (1996) (internal quotation omitted). Assessment of an
express preemption provision’s domain “must begin with its text . . . . [T]hat
interpretation is informed by two presumptions about the nature of pre-emption.”
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Id. at 484–85. The first presumption is that “the purpose of Congress is the
ultimate touchstone in every pre-emption case,” and the second is that “the historic
police powers of the States [are] not to be superseded by the Federal Act unless
that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S.
555, 565 (2009) (internal citation and quotation omitted). However, “[w]here the
intent of a statutory provision that speaks expressly to the question of preemption
is at issue, [courts] do not invoke any presumption against pre-emption but instead
focus on the plain wording of the clause, which necessarily contains the best
evidence of Congress’ pre-emptive intent.” Atay v. Cty. of Maui, 842 F.3d 688,
699 (9th Cir. 2016) (internal quotation omitted).
The HMTA contains an express preemption clause, which addresses, among
other matters, the packaging, handling, and transporting of hazardous material:
(1) Except as provided in subsection (c) of this section and
unless authorized by another law of the United States, a law,
regulation, order, or other requirement of a State . . . about any
of the following subjects, that is not substantively the same as a
provision of this chapter, a regulation prescribed under this
chapter, or a hazardous materials transportation security
regulation or directive issued by the Secretary of Homeland
Security, is preempted:
(A) the designation, description, and classification of
hazardous material.
(B) the packing, repacking, handling, labeling, marking,
and placarding of hazardous material.
(C) the preparation, execution, and use of shipping
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documents related to hazardous material and
requirements related to the number, contents, and
placement of those documents.
(D) the written notification, recording, and reporting of
the unintentional release in transportation of hazardous
material and other written hazardous materials
transportation incident reporting involving State or local
emergency responders in the initial response to the
incident.
(E) the designing, manufacturing, fabricating, inspecting,
marking, maintaining, reconditioning, repairing, or
testing a package, container, or packaging component
that is represented, marked, certified, or sold as qualified
for use in transporting hazardous material in commerce.
46 U.S.C.A. § 5125 (emphasis added). Section 5102 defines “transports” or
“transportation” as “the movement of property and loading, unloading, or storage
incidental to the movement.” 49 U.S.C.A. § 5102 (emphasis added).
The Third Circuit analyzed this language and determined the scope of
§ 5125(b)(1) in Roth v. Norfalco LLC. The Roth court confirmed what the text of
§ 5125(b)(1) makes plain: “the HMTA preempts state common law claims that, if
successful, would impose design requirements upon a package or container
qualified for use in transporting hazardous materials in commerce.” 651 F.3d at
379. The court explained that § 5125(b)(1)(E) “concerns the ‘design[]’ of a
‘package, container, or packaging component that is . . . qualified for use in
transporting hazardous materials in commerce.’” Id. (quoting 42 U.S.C.
§ 5125(b)(1)); see Chlorine Inst., Inc. v. California Highway Patrol, 29 F.3d 495,
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494 (9th Cir. 1994) (identifying the HMTA as “a uniform, national scheme of
regulation regarding the transportation of hazardous materials”).
Having considered the scope of § 5125(b)(1), the Court must next identify
the non-federal requirements at issue in this case. Id. at 376. Plaintiff asserts
negligence claims under Hawai‘i state law. In pertinent part, Plaintiff alleges:
17. Defendant JCI has and has [sic] assumed the duty of
“Responsible Care” regarding the use of chlorine it sells to its
customers and distributors.
18. The duty of Responsible Care include [sic] the duty to audit
and prescreen customers and distributors for competence in the
safe handling of chlorine gas, offering and providing education
and training to customers and distributors who are not prepared
to reliably handle chlorine in a safe manner, and enforcing
safety standards with customers and distributors who do not
become competent in safe handling of chlorine by refusing to
sell chlorine to them.
…
22. BEI never conducted a prescreening or audit of BEI to
determine whether BEI was competent to safely handle
chlorine. In and prior to September 2016, JCI supplied salvage
vessels to customer BEI, located in Hilo, Hawaii for use in
containing chlorine leaks from cylinders.
…
30. JCI has a duty to use reasonable care to inspect and test the
chlorine cylinders it supplies to its customers, before it supplies
them, in order to make sure they will not leak chlorine.
31. JCI has a duty to use reasonable care to inspect and test
salvage vessels it supplies to its customers, before it supplies
them, in order to make sure they will contain chlorine that
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leaks from a cylinder placed inside of the salvage vessel.
…
47. The subject chlorine cylinder was defective in that it failed
to contain chlorine gas against leaking out of the cylinder and
into the environment.
48. The subject chlorine cylinder was defective in that the valve
fuse plug was damaged, improperly installed, missing or
otherwise in such condition as would allow chlorine gas
contained within the cylinder to leak into the environment.
49. The subject salvage vessel was defective in that it failed to
contain chlorine gas that leaked from the subject leaking
cylinder that was placed inside of it.
50. The salvage vessel was defective in that chlorine gas was
able to escape the vessel through a breach in the vessel wall.
51. The chlorine cylinder and salvage vessel were defective in
that they lacked sufficient warnings and instructions regarding
leaking chlorine.
…
53. The subject chlorine cylinder and salvage vessel were
dangerously defective when used in their intended or reasonably
foreseeable use, including such uses as are described above at
the BEI facility.
Compl. at ¶¶ 17–18, 22, 30–31, 47–51, 53 (emphasis added).
According to the Amended Complaint, Plaintiffs seek to impose the
following non-federal requirements on Defendants: (1) the duty to prescreen
customers and distributors for competence in the safe handling of chlorine gas,
(2) the duty to offer and provide education and training to chlorine customers and
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distributors, (3) the duty to inspect and test chlorine cylinders before supplying
them to customers, (4) the duty to inspect and test salvage vessels, and (5) the duty
to label the chlorine cylinders and salvage vessels with warnings about leaking
chlorine. Compl. at ¶¶ 18, 30–31, 51. Having identified the non-federal
requirements at issue in the case, the Court must next determine
whether § 5125(b)(1) applies to these requirements. Roth, 651 F.3d at 376.
The duty to inspect and test chlorine cylinders and salvage vessels relates to
Defendant’s “designing, manufacturing, fabricating, inspecting, marking,
maintaining, reconditioning, repairing, or testing” of “packaging component[s]”
used in the transporting of chlorine. 1 See 46 U.S.C.A. § 5125(b)(1)(E). Section
5125(b)(1) also applies to Defendant’s supposed obligation to prescreen customers
for competence and provide education regarding the handling and maintenance of
chlorine. See 46 U.S.C.A. § 5125(b)(1)(B), (E). Similarly, the HMTA addresses
the labeling and marking of hazardous materials and therefore covers the adequacy
of Defendant’s warnings. See 46 U.S.C.A. § 5125(b)(1)(B). Section
5125(b)(1) clearly applies to the non-federal duties Plaintiffs seek to impose on
Defendants as part of their maintaining and manufacturing of hazardous materials.
B.

Substantively the Same
Next, the Court must determine whether the non-federal requirements are

1

There is no dispute that chlorine is a “hazardous material.” 49 C.F.R. § 172.101.
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‘substantively the same as’ the conditions imposed by federal hazardous materials
law. Roth, 651 F.3d at 376. Plaintiffs argue that to the extent that their claims
implicate the HMTA, their claims would impose substantially the same
requirements on Defendant as the HMTA. Defendant argues that the requirements
Plaintiffs’ Amended Complaint would impose, as pleaded, are not the same.
A state requirement is “substantively the same” as the federal requirement—
and thus immune to preemption—when it “conforms in every significant respect to
the Federal requirement.” 49 C.F.R. § 107.202(d). “To state a parallel claim, a
plaintiff must allege the violation of a specific federal requirement applicable . . .
and the violation of an identical state law duty.” Martin v. Medtronic, Inc., 2017
WL 825410, at *4 (E.D. Cal. Feb. 24, 2017) (citing Wolicki-Gables v. Arrow
International, Inc., 634 F.3d 1296, 1300-01 (11th Cir. 2011)).
Plaintiffs do not allege that Defendant violated any federal law. The
Amended Complaint does not mention the HMTA or HMR. Plaintiffs’ claims are
therefore not pleaded with the specificity required for a parallel claim. In addition,
imposing tort liability on Defendant would not be “substantively the same as” the
federal law requirements. The HMTA requires that the law be violated
“knowingly” or “willfully or recklessly,” a higher mens rea standard than that
required of negligence and strict liability claims. 49 U.S.C. § 5123(a), § 5124(a).
Accordingly, the requirements Plaintiffs’ Amended Complaint would impose are
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not substantially the same as those imposed by the HMTA.
Thus, Plaintiffs’ negligence and strict liability claims are expressly
preempted by the HMTA. See Mawa Inc. v. Univar USA Inc., No. CV 15-6025,
2016 WL 2910084, at *5 (E.D. Pa. May 19, 2016) (finding preemption when
plaintiff sought to impose on [defendant] a specific set of handling, testing,
maintaining, and labeling requirements beyond those imposed by the
HMTA/HMR); see also Roth, 651 F.3d at 376; Colorado Public Utilities Com’n v.
Harmon, 951 F.2d 1571, 1581–83 (10th Cir. 1991) (finding state permit
requirements for shipment of nuclear materials preempted because they “clearly
exceed the information and documentation requirements set forth in [the HMR]”);
Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian
Community, 991 F.2d 458, 461–62 (8th Cir.1993) (finding licensing and prenotification requirements for transportation of nuclear materials preempted because
they “greatly exceed the federal provisions and create the exact inconsistency the
[federal hazardous material law] intends to prevent”).
C.

End User
Plaintiffs argue that the HMTA only covers the regulation of hazardous

materials while they are in transport, and therefore the HMTA no longer controlled
once Mr. Parrish’s employer received the chlorine cylinder from Defendant.
Defendant argues that there is no such “end user” exception to the HMTA, and
13

even if there was, Mr. Parrish was not an “end user.”
The plaintiff in Roth similarly argued that his common law claims were
outside the HMTA’s preemptive scope because he was injured after delivery of the
hazardous material. The court rejected this argument, pointing to its inherent
illogic and the plain language of the HMTA. Roth, 651 F.3d at 380 (quoting 42
U.S.C. § 5125(b)(1)). The court held:
“[T]he HMTA plainly encompasses Roth’s common law
claims. It is irrelevant what Roth was doing at the precise
moment of his injury. This only makes sense, for it cannot be
the case that the comprehensive design requirements erected by
the HMTA cease to govern simply because the tank car was
emptied of its contents days after its delivery. The tank car is,
at all times, a container qualified for use in transporting
hazardous materials. The proposed design requirement is
expressly preempted.”
Id. at 378 (emphasis added); see also Common Law Tort Claims Concerning
Design and Marking of DOT Specification 39 Compressed Gas Cylinders, 77 FR
39567-01 (“[T]he ‘substantively the same as’ preemption provision in 49 U.S.C.
5125(b)(1)(E) must govern the adequacy of the cylinder at all times that it is
represented, marked, certified, or sold as qualified for use in transporting
hazardous material in commerce, and not just the period in time when it was used
to transport hazardous material.” (some quotations omitted)).
As in Roth, what is relevant here is not whether the chlorine was literally in
transport, but rather whether Plaintiffs seek to impose requirements on devices
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used in transporting hazardous materials. Indeed, Plaintiffs seek to mandate new
state-law conditions on Defendant’s maintenance and handling of cylinders,
valves, and salvage vessels used in the transportation of hazardous materials.
Therefore, Plaintiffs’ claims are preempted by federal law regardless of what Mr.
Parrish was doing at the time of the injury.
Plaintiffs have failed to identify any binding authority recognizing an end
user exception in the HMTA. Even if the Court found such an exception in the
HMTA, Plaintiffs have not pleaded facts to support an inference that Parrish was
an end user. The Amended Complaint does not indicate how long the chlorine
cylinder and salvage vessel had been at the facility, or whether the chlorine had
reached its final destination. Although Plaintiffs could have anticipated
Defendant’s federal preemption defense, which Defendant asserted in its Answer,
Doc. No. 12 at ¶ 67, Plaintiffs did not seek leave to amend their Amended
Complaint to address the HMTA. It is not the Court’s duty to fill in unalleged
facts to support Plaintiff’s claim. See Stewart v. U.S. Bancorp, 297 F.3d 953, 959
(9th Cir. 2002) (finding that once plaintiffs were on notice that their claims were
preempted, it was their burden to amend their complaint to survive defendant’s
motion to dismiss). A complaint is insufficient “if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 557). The Court therefore rejects Plaintiffs’ “end user” argument.
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IV.

CONCLUSION

In accordance with the foregoing, the Court GRANTS Defendant’s Motion
because Plaintiffs’ negligence and strict liability claims are expressly preempted
by the HMTA and HMR.
IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, March 27, 2019.

/s/ Jill A. Otake________
Jill A. Otake
United States District Judge

Civil No. 17-00518 JAO-RLP; Parrish v. JCI Jones Chemicals; ORDER GRANTING
DEFENDANT JCI JONES CHEMICALS, INC.’S MOTION FOR JUDGMENT ON THE
PLEADINGS

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