Taylor et al v. Denka Performance Elastomer LLC et al
Filing
100
ORDER AND REASONS granting 46 Motion to Dismiss; granting 47 Motion to Dismiss. Signed by Judge Martin L.C. Feldman on 7/26/2018. (Reference: Both Cases)(clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT TAYLOR, JR., ET AL.
CIVIL ACTION
v.
NO. 17-7668
c/w 18-5739 1
DENKA PERFORMANCE ELASTOMER LLC, ET AL.
SECTION "F"
ORDER AND REASONS
Before
the
Court
are
two
Rule
12
motions:
(1)
Denka
Performance Elastomer LLC’s motion to dismiss; and (2) E.I. du
Pont de Nemours and Company’s motion to dismiss. For the reasons
that follow, DuPont’s motion is GRANTED, and Denka’s motion is
GRANTED without prejudice to the plaintiffs’ opportunity to amend
their deficient nuisance allegations in their complaint.
Background
This environmental tort litigation arises from the production
of neoprene, which allegedly exposes those living in the vicinity
of the manufacturing plant to concentrated levels of chloroprene
well above the upper limit of acceptable risk, resulting in a risk
of cancer more than 800 times the national average.
1
Thirteen
This Order and Reasons applies to Civil Action Number 17-7668.
1
people living in what environmentalists and the media have dubbed
“Cancer Alley” filed this lawsuit seeking injunctive relief in the
form of abatement of chloroprene releases from their industrial
neighbor, the Pontchartrain Works facility, the only facility in
the United States still manufacturing a synthetic rubber called
neoprene, which is made from chloroprene, which the Environmental
Protection Agency has classified as a “likely human carcinogen.”
These facts are drawn from the allegations advanced in the
second amended complaint.
neoprene in 1931.
E.I. Dupont de Nemours & Co. invented
Neoprene is a synthetic rubber used in chemical
and weather resistant products such as wet suits and orthopedic
braces.
It is also used as a base resin in adhesives, electrical
insulation,
and
coatings.
In
1969,
DuPont
built
a
neoprene
manufacturing unit at its Pontchartrain Works facility in LaPlace,
Louisiana.
Chloroprene, a component of neoprene, is manufactured
at the site.
During the manufacturing process, chloroprene is
emitted into the air and discharged into the water.
By 2008, DuPont had consolidated its neoprene production to
its Pontchartrain Works facility (PWF), which is now the only
facility manufacturing neoprene in the United States.
November
1,
2015,
DuPont
sold
2
the
PWF
to
Denka
Effective
Performance
Elastomer LLC (DPE or Denka), but DuPont retained ownership of the
land underlying the facility.
It is alleged that as early as 1988 DuPont knew “of the
deleterious effects of exposure to chloroprene emissions,” and
that DPE had the same knowledge of such harms when it bought the
Pontchartrain Works facility.
It is alleged that both DuPont and
DPE concealed from the Environmental Protection Agency (EPA) and
the Louisiana Department of Environmental Quality (LDEQ) their
knowledge regarding chloroprene’s harmful effects.
In 2010, the
EPA classified chloroprene as a “likely human carcinogen.”
In its
Integrated Risk Information System assessment of chloroprene, the
EPA explained that chloroprene was “likely to be carcinogenic to
humans’ [sic] through a mutagenic mode of action and that the
primary exposure route of concern is the inhalation pathway.”
Additionally, the EPA has noted that
[s]ymptoms reported from acute human exposure to high
concentrations
of
chloroprene
include
giddiness,
headache, irritability, dizziness, insomnia, fatigue,
respiratory irritation, cardiac palpitations, chest
pains, nausea, gastrointestinal disorders, dermatitis,
temporary hair loss, conjunctivitis, and corneal
necrosis....
Acute exposure may [also]: damage the
liver, kidneys, and lungs; affect the circulatory system
and immune system; depress the central nervous system
(CNS); irritate the skin and mucous membranes; and
cause...respiratory difficulties in humans.
3
In December 2015, the EPA again classified chloroprene as a likely
human carcinogen when it released a screening-level National Air
Toxics
Assessment
(NATA),
which
analyzes
exposure
levels
to
toxins, estimates the expected number of incidences of cancer per
one million people based on exposure to air toxins from industry,
and also announces an upper limit of “acceptable risk” threshold. 2
The NATA acceptable risk exposure threshold for chloroprene was
established as 0.2 µg/m³; that is, chloroprene emissions must stay
below .2 micrograms per cubic meter 3 in order to comply with the
limit of acceptable risk threshold (which is a risk of 100 in one
million people).
Despite knowledge of this upper limit of the acceptable risk
threshold
for
exposure
to
chloroprene
concentrations,
it
is
alleged that DPE continues to emit chloroprene at hundreds of times
the 0.2 µg/m³ threshold.
It is alleged that, historically, the
Pontchartrain Works facility emitted chloroprene air emissions
well in excess of the 0.2 µg/m³ threshold.
Since May 25, 2016,
the EPA has collected 24-hour air samples every three days from
six locations around the Pontchartrain Works facility; air samples
at all six locations are frequently up to 700 times the 0.2 µg/m³
Exposure above the designated “acceptable risk” represents an
unacceptable risk of cancer from exposure from the toxin.
3 The concentration of an air pollutant is measured in units of
density.
4
2
threshold, or more. 4
surrounding
the
DPE’s own sampling numbers at five locations
facility
indicate
that
average
chloroprene
emissions range from 20.4 to 33.25 times the 0.2 µg/m³ threshold.
The EPA’s National Enforcement Investigation Center (NEIC)
conducted a Clean Air Act (CAA) inspection of the Pontchartrain
Works facility in June 2016. 5
A copy of the redacted inspection
report from the EPA’s CAA inspection was publicized on April 3,
2017.
The NEIC inspection report revealed various areas of non-
compliance by both DuPont and DPE in their operation of the
facility,
including
failure
to
adhere
to
monitoring,
recordkeeping, and reporting requirements for the chloroprene vent
condenser; failure to replace leaking valves; failure to include
appropriate emissions factors in air permit application materials;
and failure to institute appropriate emissions controls for the
chloroprene Group I storage tank.
On January 6, 2017, DPE entered into an Administrative Order
on Consent (AOC) with LDEQ with a target to reduce its chloroprene
emissions by 85 percent.
Even if this reduction is achieved, the
The EPA did not report its sampling results until October 2016.
Meanwhile, representatives of DuPont and DPE told members of the
community that there was no danger arising from the facility’s
chloroprene emissions. On December 8, 2016, LDEQ Secretary Chuck
Brown told members of the community that those expressing concern
regarding chloroprene emissions were “fearmongerers” and, he said,
“forget about 0.2.”
5
4
5
plaintiffs allege that DPE’s emission levels will nevertheless
exceed the 0.2 µg/m³ threshold.
In any event, it is alleged that
DPE has failed to meet all interim requirements for emission
controls and emissions concentrations that it agreed to in the
AOC.
According to the EPA, “[t]he top 6 census tracts with the
highest NATA-estimated cancer risks nationally are in Louisiana
due to Denka (formerly DuPont) chloroprene emissions.”
The NATA
assessment reports that the cancer risk for the census tracts in
the vicinity of the Pontchartrain Works facility is 3.365 per
million, while the cancer risk from chloroprene exposure in those
census tracts ranges from 158.515 to 768.46 per million, all well
above the acceptable risk level recommended by the EPA.
Instead of reducing chloroprene emissions in compliance with
the
EPA’s
0.2
µg/m³
threshold,
on
June
26,
2017,
DPE
representatives submitted a Request for Correction to the EPA in
which they sought to increase the 0.2 µg/m³ threshold in order “to
prevent further significant damage to” their business. 6
It is
alleged the DPE representatives have lobbied members of the U.S.
On January 25, 2018, the EPA wrote a detailed letter to DPE,
rejecting its Request for Correction. The EPA’s response leaves
undisturbed its determinations that chloroprene is a likely human
carcinogen and 0.2 µg/m³ is the upper limit of acceptable risk
exposure threshold for chloroprene.
6
6
Congress to undermine the EPA and support reduction or removal of
emissions restrictions at the facility.
Robert Taylor, Jr., individually and on behalf of his minor
daughter, N.T., Kershell Bailey, Shondrell P. Campbell, Gloria
Dumas,
Janell
Emery,
George
Handy,
Annette
Houston,
Rogers
Jackson, Michael Perkins, Allen Schnyder, Jr., Larry Sorapuru,
Sr., Kellie Tabb, and Robert Taylor, III are all individuals living
near PWF in Reserve, Edgard, and LaPlace, Louisiana.
On June 29,
2017, these individuals, individually and as representatives of a
putative
class
of
similarly
situated
plaintiffs,
sued
Denka
Performance Elastomer LLC and E.I. DuPont De Nemours and Company
in the Louisiana 40th Judicial District Court in St. John the
Baptist Parish.
The plaintiffs allege that DuPont has emitted
chloroprene for many years at levels resulting in concentrations
many times the upper limit of acceptable risk, and DPE continues
to do so.
The plaintiffs advance Louisiana state law causes of
action for nuisance, trespass, negligence, and strict liability;
they seek injunctive relief in the form of abatement of chloroprene
releases such that the concentration of chloroprene does not exceed
the 0.2 µg/m³ threshold; damages for deprivation of enjoyment of
occupancy of property; punitive damages; and additional damages
7
including medical monitoring to the extent personal injury claims
become mature. 7
The defendants jointly removed the lawsuit, invoking this
Court’s diversity jurisdiction.
motion to remand. 8
extend
the
The plaintiffs filed an untimely request to
deadline
defendants opposed.
The Court denied the plaintiffs’
to
seek
class
certification,
which
the
The Court denied the plaintiffs’ request to
extend the deadline to seek class certification, and later denied
the plaintiffs’ motion to reconsider its ruling.
See Order and
Reasons dtd. 2/22/18 (denying plaintiffs’ motion to reconsider,
denying the plaintiffs’ untimely motion for class certification,
and granting DuPont’s motion to dismiss class allegations).
The
The plaintiffs allege that they do not now seek to recover for
personal injury damages due to chloroprene exposure; rather, they
allege that they “seek to preserve” the right to bring claims to
recover compensatory damages when evidence linking chloroprene
emissions to physical injury may be developed.
8 The plaintiffs timely moved to remand, arguing both that removal
was procedurally defective (because the defendants failed to
sufficiently allege their citizenship at the time of removal) and
that the Court lacked diversity jurisdiction over the lawsuit.
The defendants opposed the plaintiffs’ motion to remand and, in
response to the plaintiffs’ argument that the allegations of
citizenship
were
technically
defective,
the
defendants
additionally requested leave to file an amended joint notice of
removal to correct any technically defective allegations. The
Court denied the plaintiffs’ motion to remand and granted the
defendants’ request for leave to file an amended notice of removal.
Meanwhile, the plaintiffs filed an unopposed motion for leave to
file a second amended and restated class action complaint; the
motion was granted.
8
7
defendants now move to dismiss the plaintiffs’ claims for lack of
subject matter jurisdiction or failure to state a claim. 9
I.
A.
The subject matter jurisdiction of federal courts is limited.
Kokkonen v. Guardina Life Ins. Co. of Am., 511 U.S. 375, 377
(1994).
Indeed, "[i]t is to be presumed that a cause lies outside
this limited jurisdiction," the Supreme Court has observed, "and
the burden of establishing the contrary rests upon the party
asserting jurisdiction."
Id. (citations omitted).
Motions filed
under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow
a party to challenge the Court’s subject matter jurisdiction. Fed.
R. Civ. P. 12(b)(1).
A lawsuit must be dismissed if it appears that the Court lacks
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1), (h)(3).
The
burden of proof for a Rule 12(b)(1) motion to dismiss is on the
party asserting jurisdiction.
King v. U.S. Dep't of Veterans
Meanwhile, the defendants recently removed from state court
another lawsuit alleging exposure to chloroprene emissions, Lydia
Gerard v. Denka Performance Elastomer LLC, Civil Action Number 185739, which has been consolidated with this matter. Ms. Gerard
alleges that she has experienced some of the symptoms identified
by the EPA as a result of chloroprene exposure, and she seeks to
recover not more than $50,000 under theories of nuisance,
negligence, strict liability, and civil battery. She has filed a
motion to remand, which is pending and shall be resolved by
separate order.
9
9
Affairs, 728 F.3d 410, 416 (5th Cir. 2013); Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
other
Rule
12
motions,
jurisdictional
When presented with
challenges
should
be
resolved first.
In addition to the jurisdictional challenge, the defendants
also seek dismissal of the plaintiffs’ claims for failure to state
a claim under Rule 12(b)(6).
motions
to
dismiss
under
The standard of review applicable to
Rule
12(b)(1)
is
similar
to
that
applicable to motions to dismiss under Rule 12(b)(6). See Williams
v. Wynne, 533 F.3d 360, 364-65 n.2 (5th Cir. 2008)(observing that
the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but
noting that applying the Rule 12(b)(1) standard permits the Court
to consider a broader range of materials in resolving the motion).
The Court may find a plausible set of facts to support subject
matter jurisdiction by considering any of the following: “(1) the
complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the court's resolution of disputed facts.”
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996). In the absence of a motion by one of the parties, the Court
may also examine the basis of its jurisdiction on its own. Crone
v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
10
B.
In addition to the jurisdictional challenge, the defendants
also seek dismissal of the plaintiffs’ claims for failure to state
a claim under Rule 12(b)(6).
Rule 12(b)(6) of the Federal Rules
of Civil Procedure allows a party to move for dismissal of a
complaint for failure to state a claim upon which relief can be
granted.
Such a motion is rarely granted because it is viewed
with disfavor.
See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242,
247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales, Inc.
v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he
pleading
'detailed
factual
standard
Rule
8
allegations,'
announces
but
it
does
demands
not
more
require
than
an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
11
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the
complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
footnote omitted).
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
that
the
defendant
is
liable
for
the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”).
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
Id. at 679.
“Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
12
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
II.
"Article
III
of
the
Constitution
limits
federal
jurisdiction to certain 'Cases' and 'Controversies.'"
courts'
Clapper v.
Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1146 (2013)(“The
law of Article III standing, which is built on separation-ofpowers principles, serves to prevent the judicial process from
being used to usurp the powers of the political branches.”).
“No
principle is more fundamental to the judiciary’s proper role in
our system of government than the constitutional limitation of
federal court-jurisdiction to actual cases and controversies.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)(citation
omitted).
Justiciability doctrines -- standing, mootness, political
question, and ripeness -- give meaning to Article III’s case or
controversy
establishing
requirement.
standing
and
A
plaintiff
ripeness
13
bears
under
the
Article
burden
III.
of
See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 and n.3 (2006)(in
a case removed from state court, “[w]hatever the parties’ previous
positions on the propriety of a federal forum, plaintiffs, as the
parties seeking to establish federal jurisdiction, must make the
showings required for standing.”); see also Miss. State Democratic
Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008).
"One element
of the case-or-controversy requirement" -- standing to sue -commands that a litigant must have standing to invoke the power of
a federal court.
See Clapper, 133 S. Ct. at 1146 (citation
omitted);
Inc.
Spokeo,
(2016)(citations
v.
omitted)(the
Robins,
136
standing
S.
Ct.
doctrine
1540,
1545
“limits
the
categories of litigants empowered to maintain a lawsuit in federal
court to seek redress for a legal wrong.”); see also National
Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202,
208 (5th Cir. 2011).
A.
Standing
Three
elements
comprise
the
“irreducible
constitutional
minimum” of standing:
A plaintiff must show (1) it has suffered an “injury in
fact” that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by
a favorable decision.
14
Friends of the Earth, Inc. v. Laidlaw Env’l Services (TOC), Inc.,
528 U.S. 167, 185 (2000).(citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)).
“The injury-in-fact requirement
requires a plaintiff to allege an injury that is both ‘concrete
and particularized.’”
Spokeo, 136 S. Ct. at 1545 (quoting Friends
of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 180-81 (2000)(emphasis in Spokeo)).
“For an injury
to be particularized, it must affect the plaintiff in a personal
and individual way.”
omitted).
Id. at 1548 (internal quotations, citation
For an injury to be concrete, “it must actually exist[;
it must be] real, and not abstract.”
Id. (internal quotations and
citations omitted).
The parties invoking federal jurisdiction, here, each of the
plaintiffs, bear the burden of establishing standing as to each
claim alleged.
Clapper, 133 S.Ct. at 1146; DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 342 (2006); Miss. State Democratic Party v.
Barbour, 529 F.3d 538, 545 (5th Cir. 2008); Doe v. Tangipahoa
Parish School Bd., 494 F.3d 494, 499 (5th Cir. 2007)(“Standing to
sue must be proven, not merely asserted, in order to provide a
concrete case or controversy and to confine the courts’ rulings
within our proper judicial sphere.”).
“[E]ach element must be
supported in the same way as any other matter on which the
15
plaintiff bears the burden of proof, i.e., with the manner and
degree
of
evidence
litigation.”
required
at
the
successive
stages
of
the
Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334,
2342 (2014) (citing Lujan, 504 U.S. at 561).
To meet the irreducible constitutional minimum of standing to
seek injunctive relief, each plaintiff must establish that “he has
sustained or is immediately in danger of sustaining some direct
injury as the result of the challenged ... conduct.”
City of Los
Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)(citations and internal
quotations omitted).
However, a plaintiff may not simply rely on
past injury to satisfy the injury requirement; he must show a
likelihood that he will be injured in the future.
See O’Shea v.
Littleton,
that
414
U.S.
488,
495-96
(1974)(holding
“[p]ast
exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief...if unaccompanied by
any continuing present adverse effects).
To
satisfy
constitutional
standing,
the
plaintiffs
must
demonstrate that each form of relief they seek will redress their
injuries.
Here,
the
plaintiffs
concede
that
any
claims
for
physical injury (or property damage) are not ripe and therefore
not at stake in this litigation; they only seek injunctive relief
in the form of abatement of chloroprene releases above a certain
16
threshold.
An injunctive remedy is an appropriate form of redress
if it will effectively abate or deter illegal conduct that is
ongoing at the time of the lawsuit.
Friends of the Earth, Inc. v.
Laidlaw Env’l Services (TOC), Inc., 528 U.S. 167, 185 (2000).
Here, the plaintiffs claim that the defendants continue to emit
harmful levels of chloroprene from the PWF and that this lawsuit
seeks an injunction to abate that conduct. But an injunction would
only abate Denka’s conduct; the plaintiffs fail to reconcile the
prospective nature of the relief sought with their allegation that
DuPont neither owns nor operates the offending neoprene facility. 10
The
plaintiffs
simply
have
neither
alleged
nor
advanced
any
argument that any nuisance or deprivation they are experiencing
(and will continue to experience in the future if emissions are
not abated) is traceable to DuPont’s present or future conduct.
More significantly, the plaintiffs fail to allege facts sufficient
to support a finding that a favorable judgment against DuPont would
redress their forward looking injury.
To be sure, the plaintiffs’
own allegations concede that DuPont is no longer operating the
neoprene plant; they fail to explain how DuPont could comply with
an injunction ordered by this Court. 11
The plaintiffs allege that DuPont sold the PWF in 2015, but that
it retained ownership of the land underlying the facility.
11
The Court underscores that the plaintiffs in this lawsuit do
not seek redress in the form of damages linked to DuPont’s past
17
10
The
plaintiffs
have
failed
to
carry
their
burden
to
demonstrate that they have standing to sue DuPont in their quest
for injunctive relief only.
The plaintiffs wholly ignore their
obligation to satisfy the Court that they have standing to pursue
their injunctive remedy against DuPont.
that
they
“have
alleged
that
DuPont
They limply assert only
still
owns
the
property
underlying the chloroprene production facility and that DuPont
still
derives
benefit
from
the
continuing
operations
at
the
facility; the level of DuPont’s control over what happens on its
property is a fact question not amenable to resolution at the Rule
12(b)(6) stage.”
fact
that
an
This argument glaringly fails to overcome the
injunction
enjoining
DuPont
from
exceeding
the
emissions threshold suggested by the EPA would not prevent or deter
Denka, the only party alleged to be operating the plant emitting
chloroprene, from violating the suggested emissions threshold. 12
Because the injunctive remedy the plaintiffs seek against
DuPont would not redress the alleged nuisance or deprivation
(because it would not abate Denka’s emission of chloroprene), the
conduct as responsible for emissions in its capacity of owner and
operator of the PWF.
12 The standing test is directed to defendant’s conduct; not
ownership of land on which the allegedly harmful conduct is
occurring. It is not the land that is creating a nuisance; it is
the operation of the neoprene facility.
18
plaintiffs lack standing to maintain their claims against DuPont.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107
(1998)(“Relief that does not remedy the injury suffered cannot
bootstrap a plaintiff into federal court; that is the very essence
of the redressability requirement.”); Lujan, 540 U.S. at 560 (no
standing
where
unfettered
a
choices
claim
made
could
by
be
redressed
independent
only
through
“the
actors...”)(citations
omitted); see also Bd. of Supervisors of La. State Univ. v.
Fleming, 265 F.2d 736, 738 (5th Cir. 1959)(“The law does not
require the doing of a vain and useless thing.”); Sancho v. U.S.
Dep’t of Energy, 392 Fed.Appx. 610, 611-12 (9th Cir. 2010)(the
plaintiff lacked standing to pursue an injunction against the
Department of Energy because it had no control over the operations
plaintiff sought to enjoin such that a favorable decision “would
not afford [the plaintiff] the relief he seeks”).
The plaintiffs’ own allegations against DuPont are selfdefeating.
The plaintiffs concede that their claims arise from
continuing active releases; in this lawsuit they do not seek to
recover money damages for personal injuries contributed to by past
chloroprene emissions.
It is alleged that the source of the
chloroprene emissions that the plaintiffs seek to enjoin is the
neoprene production facility at the Pontchartrain Works; DuPont
sold the facility and neoprene business to Denka on November 1,
19
2015; Denka has owned and operated the facility since then; it is
Denka and its neoprene business that is subject to comprehensive
regulations
and
permit
requirements
related
to
the
neoprene
production operations that the plaintiffs seek to enjoin; Denka is
working with the LDEQ to reduce emissions; Denka has entered into
an Administrative Order on Consent with state regulators.
The
plaintiffs offer no basis for this Court to plausibly infer that
any injunctive relief that could be granted enjoining DuPont would
have the effect of abating chloroprene emissions from a facility
it no longer owns nor operates.
Because the injunctive relief the
plaintiffs seek from DuPont would not abate emissions, it would
not redress their injury.
Accordingly, the plaintiffs have failed
to carry their burden to show that they have standing to pursue an
injunction against DuPont. 13
2.
Ripeness
A case or controversy “must be ripe for decision, meaning
that it must not be premature or speculative.”
Lower Colorado
River Authority v. Papalote Creek II, L.L.C., 858 F.3d 916, 922
(5th Cir. 2017)(citing Shields v. Norton, 289 F.3d 832, 836-37
(5th Cir. 2002)).
The Court “should dismiss a case for lack of
The Court does not reach DuPont’s arguments directed to whether
the plaintiffs have stated plausible claims concerning DuPont’s
conduct or whether any claims are time-barred.
20
13
‘ripeness’
when
the
(citation omitted).
case
is
abstract
or
hypothetical.”
Id.
"The 'basic rationale [behind the ripeness
doctrine] is to prevent the courts, through avoidance of premature
adjudication,
disagreements.'"
from
entangling
themselves
in
abstract
Roark & Hardee LP v. City of Austin, 522 F.3d
533, 544 (5th Cir. 2008) (quoting Abbott Labs. v. Gardner, 387
U.S. 136, 148 (1967)).
The two key considerations for a ripeness
determination are "the fitness of the issues for judicial decision
and
the
hardship
consideration."
to
the
parties
of
withholding
court
Roark & Hardee LP v. City of Austin, 522 F.3d
533, 545 (5th Cir. 2008).
"A case is generally ripe if any
remaining questions are purely legal ones . . . ."
Id.
Paragraphs 62 and 80 of the second amended complaint state:
Plaintiffs also reserve their rights to assert claims
for damages due to any personal injury or property damage
from exposure to chloroprene emissions, should such
injury or damage become manifest and such claims ripen
and no longer be immature torts. 14
The plaintiffs allege that, if their reserved immature tort
claims become mature, they seek as damages the cost of testing
class members for chloroprene exposure, the cost of research to
determine
the
carcinogenicity
of
exposure
to
chloroprene
emissions,
treatment
of
physical
symptoms
of
exposure,
compensation for reasonable and justified fear of cancer due to
exposure, medical monitoring for development of cancer and other
maladies due to chloroprene exposure, and diminution of property
value due to the presence of chloroprene concentrations exceeding
the acceptable risk level of 0.2 µg/m³.
21
14
Insofar as the plaintiffs’ allegations can be read as an attempt
to allege “immature torts” or claims for personal injury and
property damages, the defendants seek to dismiss such claims as
not
ripe.
The
plaintiffs
concede
that
whether
or
not
the
plaintiffs will develop compensable personal injury or property
based damages claims in the future is, at this point, hypothetical.
Accordingly, insofar as the plaintiffs attempted to state a claim
for or hold a place for personal injury or property based damage
claims, any such claims must be dismissed without prejudice.
Simply put, the plaintiffs’ mere wish to reserve their right to
assert certain damage-based claims, combined with the absence of
any
alleged
factual
predicate
supporting
personal
injury
or
property damage caused by exposure to chloroprene emitted from the
PWF renders any such claims not yet ripe for adjudication.
All
“immature tort” claims are dismissed without prejudice.
III.
Denka moves to dismiss for failure to state a claim the
plaintiffs’ causes of action for nuisance, trespass, negligence,
“strict liability,” as well as the plaintiffs’ demand for punitive
damages.
As a threshold matter, the Court observes that two
factors hinder this Court’s review of the plausibility of these
22
causes of action.
First, this case was originally styled as a
putative class action, and no amended complaint was filed after
the class allegations were dismissed.
Therefore, absent from the
complaint are any specific factual allegations concerning each
plaintiffs’
exposure
or
linking
manifestations of emissions.
plaintiffs
to
any
(unstated)
This impairs the Court’s assessment
of both a determination as to whether each of these plaintiffs has
standing to pursue a claim against Denka, and also unnecessarily
complicates a determination as to whether each plaintiff has stated
a plausible claim for relief.
Second, that the plaintiffs concede
that their “immature tort” claims based on personal injury or
property damage are not yet ripe necessarily informs the Court’s
determination as to whether they have stated a plausible claim for
trespass, negligence, and strict liability (given that causation
and damages are elements of these causes of action).
The plaintiffs offer a detailed “background facts” section
providing an overview of the PWF and the EPA’s designation of
chloroprene as a likely human carcinogen. Although the “background
facts” section of the second amended complaint also lists various
symptoms that the EPA says is caused by acute chloroprene exposure,
not one of the plaintiffs alleges that he or she has experienced
any of these symptoms.
concrete
way
how
Nor do any of the plaintiffs allege in any
chloroprene
exposure
23
manifests
any
physical
injury,
disease,
or
nuisance;
they
simply
conclude
that
emissions interfere with the enjoyment of their property.
the
It is
this lack of factual predicate that dooms the plaintiffs’ claims.
Paragraph 50 of the second amended complaint states that the
plaintiffs “have suffered trespass and nuisance due to the regular
and repeated exposure to concentrations of chloroprene emissions
in excess of levels the Defendants know are unsafe—as demonstrated
by
the
peer-reviewed
scientific
analysis
relied
on
in
EPA’s
issuance of the 0.2 µg/m³ threshold and as a result have sustained
damages pursuant to La. C.C. art. 667.”
The remaining defendant,
Denka, challenges the sufficiency of the plaintiffs’ allegations
as to each cause of action asserted on the ground that the
plaintiffs fail to allege a factual predicate for any actual harm
or damages, or what precisely is the predicate for the alleged
nuisance.
The Court agrees.
However, because leave to amend
should be granted when justice requires, the Court will allow the
plaintiffs fourteen days to amend their complaint to cure their
defective nuisance allegations and to add factual allegations to
support the now conclusory allegations (as well as to remove the
class allegations, which were previously dismissed).
The Court turns briefly to address the distinct causes of
action the plaintiffs purport to allege.
24
1.
Nuisance, La. C.C. arts. 667-669
The plaintiffs first allege that the chloroprene emissions
violate
the
defendants’
obligations
of
vicinage,
found
in
Louisiana Civil Code articles 667-669. The Louisiana Supreme Court
has observed:
These obligations of vicinage are legal servitudes
imposed on the owner of property.
These provisions
embody a balancing of rights and obligations associated
with the ownership of immovables. As a general rule,
the landowner is free to exercise his rights of ownership
in any manner he sees fit. He may even use his property
which “...occasion some inconvenience to his neighbor.”
However, his extensive rights do not allow him to do
“real damage” to his neighbor.
Rodrigue v. Copeland, 475 So.2d 1071, 1077 (La. 1985).
Nuisance
describes the type of conduct that violates these articles.
Louisiana Civil Code article 667, Limitations on use of
property, states:
Although a proprietor may do with his estate whatever he
pleases, still he cannot make any work on it, which may
deprive his neighbor of the liberty of enjoying his own,
or which may be the cause of any damage to him. However,
if the work he makes on his estate deprives his neighbor
of enjoyment or causes damage to him, he is answerable
for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known that his
works would cause damage, that the damage could have
been prevented by the exercise of reasonable care, and
that he failed to exercise such reasonable care....
25
Louisiana Civil Code article 668, Inconvenience to neighbor,
states:
Although one be not at liberty to make any work by which
his neighbor’s buildings may be damaged, yet every one
has the liberty of doing on his own ground whatsoever he
pleases, although it should occasion some inconvenience
to his neighbor.
Thus he who is not subject to any servitude originating
from a particular agreement in that respect, may raise
his house as high as he pleases, although by such
elevation he should darken the lights of his neighbor’s
house, because this act occasions only an inconvenience,
but not a real damage.
Louisiana
Civil
Code
article
669,
Regulation
of
inconvenience, states:
If the works or materials for any manufactory or other
operation, cause an inconvenience to those in the same
or in the neighboring houses, by diffusing smoke or
nauseous smell, and there be no servitude established by
which they are regulated, their sufferance must be
determined by the rules of the police, or the customs of
the place.
Brushing broadly, the plaintiffs allege that the chloroprene
emissions are a nuisance within the meaning of Louisiana Civil
Code articles 667-669. They allege that the emissions from Denka’s
plant have deprived them of enjoyment of their property, and at
paragraph 56, state that “chloroprene emissions...are sufficient
to cause physical discomfort and annoyance to Plaintiffs, who must
confine themselves indoors to escape the excess concentrations of
chloroprene emissions, and those emissions cause a nuisance.”
26
Absent from these allegations, however, is any factual content.
What
precisely
annoyance?
is
the
source
A noxious smell?
of
the
physical
discomfort
Throat irritation?
and
How does this
nuisance physically manifest, if at all?
The plaintiffs simply
omit
nature
any
facts
that
might
indicate
the
or
degree
of
intrusion, or its relative persistence or duration.
The plaintiffs do not suggest what about the emissions makes
them remain indoors or how they are aware of the emissions. 15
merely
recite
and
intone
generic
and
formulaic
They
conclusions.
Another point of deficiency is the absence of any individualized
allegations regarding each plaintiff’s experience. 16 Nevertheless,
because the plaintiffs may indeed be able to cure these wholly
defective allegations and because injunctive relief to abate an
airborne nuisance could be plausible, the Court again provides the
plaintiffs with fourteen days to amend their deficient allegations
by adding some factual content specific to each plaintiff.
They allege that mutagenic metabolites reside in their bodies.
The Court assumes without deciding that this allegation without
additional factual content is insufficient to state a plausible
claim for nuisance.
16 This matter was originally a putative class action, but those
class action allegations have been dismissed.
Each and every
plaintiff must allege facts sufficient to have standing to seek
injunctive relief and to allege facts that, if true, would
plausibly entitle them to relief.
27
15
2.
Trespass
The plaintiffs allege that the defendants’ operation of the
PWF caused excess levels of chloroprene to encroach upon the
property where they “live or are otherwise occupants,” and that
the “actual physical invasion...is continuing.”
The excess levels
of chloroprene is allegedly “unauthorized...and continue[s] to
cause damages to the plaintiffs.” Notably, the plaintiffs disclaim
any property damage at this time and seek only prospective relief.
Denka urges the Court to dismiss this cause of action because the
plaintiffs fail to allege specific facts supporting how transient
air emissions have physically invaded the plaintiffs’ properties.
The Louisiana Civil Code recognizes the tort of trespass under
article 2315.
Cir. 2009).
Richard v. Richard, 24 So. 3d 292, 296 (La. App. 3
"A trespass occurs when there is an unlawful physical
invasion of the property or possession of another."
Id.
There is
no trespass when the landowner gives consent to the presence.
Beals v. Griswold, 468 So. 2d 641, 644 (La. App. 4 Cir. 1985).
“Damages are recoverable for ‘unconsented to activities performed
on the property of another, based on physical property damage,
invasion
of
suffering.”
privacy,
inconvenience,
and
mental
and
physical
Richard, 24 So. 3d at 296 (“The tort of trespass has
long been recognized by courts...as a means to correct the damage
28
caused when an owner is unjustly deprived of the use and enjoyment
of
his
immovable.”)(citations
omitted).
“In
an
action
for
trespass,...the plaintiff [must] show damages based on the result
or the consequences of an injury flowing from the act of trespass.”
Harrington v. Abshire, 732 So. 2d 677, 682 (La.App. 3 Cir. 1999).
Seeking to save their broadly recited trespass claim from
dismissal, the plaintiffs invoke two cases which they say embrace
the principle that trespass has long been held to include the
trespass of airborne emissions from industrial operations onto
neighboring
applicable.
properties.
But
the
cases
they
invoke
are
not
One, Sevenson v. E.I. Dupont de Nemours & Co., 327
F.3d 400, 406 (5th Cir. 2003) applied the law of Texas, not
Louisiana law.
And the other, Tilton v. New Orleans City R. Co.,
35 La. Ann. 1062, 1072 (La. 1883), concerned a nuisance lawsuit
seeking an injunction and damages to prevent the defendant from
running and stationing their cars and trains in front of the houses
and stores of the plaintiffs on the neutral ground of Canal Street
between Rampart and Bourbon and Carondelet Streets.
There, the
plaintiffs specifically complained that the cars caused noises and
29
motions that disturbed them and that the engines emitted noxious
odors.
Id. 17
The plaintiffs fail to offer any legal support or factual
allegations indicating that they might plausibly recover on a
trespass theory having only alleged transient airborne emissions,
especially where, as here, they disclaim any property damage or
impact whatsoever.
There is no allegation by the plaintiffs that
their properties have been impacted by the chloroprene emissions.
The plaintiffs have failed to allege any facts that, if proved,
would entitle them to relief under a trespass theory of recover.
3.
Negligence, La. C.C. art. 2315
The plaintiffs allege that the defendants have a duty to
protect the plaintiffs and their property from the effects of
excessive chloroprene emissions, that defendants breached this
duty knowing the hazardous nature of the excess emissions, that
defendants failed to act reasonably to prevent excess emissions,
failed to warn or disclose to plaintiffs, the EPA, that LDEQ, or
The plaintiffs cherry pick from the concurring opinion this
comment in support of their trespass claim: “One has as much right
to protection from gases and mephitic odors transmitted through
the air, as to protection from trespass upon his soil, and there
is no good reason why courts should not guard the one as jealously
as the other.” Such comment might be sympathetic to plaintiffs,
but is of no binding or helpful precedent.
30
17
government or community members.
The plaintiffs allege that the
defendants should be enjoined from further emissions exceeding the
0.2 µg/m³ threshold.
disclaimer
prevents
negligence.
Denka contends that the plaintiffs’ damage
them
from
stating
a
cause
of
action
for
Denka is correct, and the Court agrees.
"Every act whatever of man that causes damages to another
obliges him by whose fault it happened to repair it."
Code art. 2315(A).
La. Civ.
"Every person is responsible for the damage he
occasions not merely by his act, but by his negligence, his
imprudence, or his want of skill."
La. Civ. Code art. 2316.
Courts employ the duty-risk analysis to determine whether to impose
liability based on these broad negligence principles.
See Lemann
v. Essen Lane Daiquiris, 923 So. 2d 627, 633 (La. 2006).
Here, the plaintiffs not only fail to allege that they have
suffered harm or damages, they disclaim physical injury damages
because they do not dispute that they cannot prove a causal link
between chloroprene emissions exposure and personal injury.
The
plaintiffs’ allegations that chloroprene emissions have caused
mutagenic
metabolites
to
reside
in
their
bodies
is
entirely
speculative and insufficient to support a negligence claim in which
injunctive relief to the exclusion of damages is sought.
31
4.
Strict Liability, La. C.C. arts. 2317-2317.1.
Louisiana
Civil
Code
article
2317
states,
“We
are
responsible, not only for the damage occasioned by our own act,
but for that which is caused by . . . the things which we have in
our custody.”
Article 2317.1 provides:
The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only
upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or
defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care,
and that he failed to exercise such reasonable care.
To prevail on a custodial liability claim, a plaintiff must prove:
"(1) the object was in the defendant's custody; (2) the thing
contained a vice or defect which presented an unreasonable risk of
harm to others; (3) the defective condition caused the damage; and
(4) the defendant knew or should have known of the defect."
Cormier v. Dolgencorp, Inc., 136 Fed.Appx. 627, 627-28 (5th Cir.
2008)(citing La. C.C. arts 2317, 2317.1).
Under Louisiana law, a
claim for “strict” liability requires that a duty of care was
breached, just as a negligence claim does.
Bd. of Commissioners
of Southeast La. Flood Protection Authority-East v. Tennessee Gas
Pipeline Company, LLC, 850 F.3d 714, 729 (5th Cir. 2017)(citing
32
Oster v. Dep’t of Transp. & Dev., 582 So.2d 1285, 1288 (La. 1991)).
In fact, “[t]here is essentially no difference between the two
types of claims under Louisiana law.”
Id.
A custodian’s duty is
the same as that under the general negligence doctrine of article
2315.
Carroll v. American Empire Surplus Lines Ins. Co., 289 F.
Supp. 3d 767, 771 (E.D. La. 2017)(citation omitted)(Milazzo, J.).
The plaintiffs allege that the operation of the PWF including
all units that emit chloroprene exceeding the 0.2 µg/m³ threshold
“is the cause-in-fact for Plaintiffs’ damages;” that the defects
in operation of the PWF caused the plaintiffs to be exposed to an
unreasonable
risk
of
harm;
and
the
defendants
knew
of
the
unreasonable risks; and the defendants should be enjoined from any
emissions of chloroprene that will result in further exposure to
excess chloroprene emissions.
This focus on the operation of the
PWF undermines any attempt to claim that a “ruin, vice, or defect”
caused the plaintiffs harm.
The plaintiffs counter that their
allegations must be read in the context of the EPA materials
including an inspection report that revealed “ruin” and “vice” in
the equipment itself, in the form of leaking valves and open-ended
lines and the lack of appropriate emission controls on various
components of the chloroprene facility.
Even if the plaintiffs
sufficiently alleged facts indicating a flaw or condition of
relative permanence inherent in the PWF equipment, the plaintiffs’
33
strict or custodial liability claim fails the plausibility test
for the same reason as their negligence claim:
in this lawsuit,
they disclaim that they can prove that chloroprene emissions have
caused personal injury damages. The plaintiffs’ attempt to proceed
under a strict liability theory of recovery therefore appears to
be another immature tort claim that is not yet ripe.
6.
Punitive Damages
The
plaintiffs
seek
“[p]unitive
permitted under any applicable law.”
damages
to
the
extent
Denka contends that recovery
of punitive damages is limited and the plaintiffs fail to identify
any provision of Louisiana law authorizing recovery of punitive
damages.
The Court agrees.
Louisiana law permits recovery of punitive damages only in
limited circumstances when expressly authorized by law; even when
authorized, the statute is strictly construed. See Ross v. Conoco,
Inc., 828 So. 2d 546, 555 (La. 2002).
The Civil Code permits
punitive
arising
damages
in
causes
of
action
out
of
child
pornography (article 2315.3), driving while intoxicated (article
2315.4), child molestation (article 2315.7), and domestic abuse
article 2315.8).
See Moore v. Wayne Smith Trucking, Inc., No. 14-
1919, 2015 WL 471606, at *3 (E.D. La. Feb. 4, 2015)(Vance, J.).
Former article 2315.3 (effective in 1984 and repealed as of April
34
16, 1996) authorized recovery of punitive damages against a party
that wantonly or recklessly disregarded public safety in the
storage or handling of hazardous toxic substances.
Given the
article’s repeal, the offending conduct must have occurred between
the article’s passage in 1984 and its repeal in 1996; and the
plaintiffs must plead facts that establish their cause of action
during the effective period.
See Brownell Land Co., L.L.C. v.
Apache Corp., No. 05-322, 2005 WL 3543772, at *6 (E.D. La. Oct.
13, 2005)(Africk, J.).
Here, the plaintiffs allege that “chloroprene emissions and
discharges have been released into the environment around the
Pontchartrain Works facility for 48 years[,]” but that “nationwide
chloroprene emissions have been concentrated almost exclusively in
LaPlace” since 2007.
The plaintiffs fail to plead facts that
establish a cause of action for the effective period of former
article
2315.3.
A
common
sense
reading
of
allegations triggers Denka’s recent conduct:
the
plaintiffs’
the plaintiffs’
request for injunctive relief focuses on Denka’s present and
continuing conduct; and, in particular, its failure to heed the
limit of acceptable risk threshold for chloroprene emissions as
35
recently identified by the EPA, below .2 micrograms per cubic
meter. 18
Accordingly, for the foregoing reasons, IT IS ORDERED: that
DuPont’s Rule 12 motion is GRANTED; Denka’s Rule 12(b)(1) and
12(b)(6)
motion
plaintiffs’
is
also
opportunity
GRANTED,
to
amend
without
their
allegations if they can in good faith do so.
prejudice
deficient
to
the
nuisance
Any amended complaint
must be filed within 14 days. 19
New Orleans, Louisiana, July 26, 2018
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
18
It is worth noting that there are no allegations that any of
these plaintiffs were injured by conduct between 1984 and 1996.
According to the dismissed class allegations, the plaintiffs
restricted the putative class members to persons living in the
vicinity after January 1, 2011.
The attention of all counsel in this case is drawn to the
provisions of 28 U.S.C. § 1927, which if they are not already
familiar with...they should be.
36
19
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