Smith v. Republic Services, Inc. et al

Filing 34

MEMORANDUM AND ORDER. (See Full Order.) The Second Amended Complaint fails to state a claim upon which relief can be granted. As defendants' motion under Rule 12(b)(6) correctly points out, the Complaint does not allege the necessary elemen ts of any legally cognizable cause of action and contains insufficient factual allegations to establish any claim. The Complaint also violates the federal pleading requirements of Rules 8 and 10. Plaintiff's "Answer" in opposition t o dismissal was filed two days late and does not address the defendants' substantive legal arguments. The Court has given plaintiff multiple extensions of time and opportunities to correct his deficient pleadings. This case will be dismissed with prejudice. Accordingly, IT IS HEREBY ORDERED that defendants' Motion to Dismiss [# 29 is GRANTED. This case is dismissed with prejudice. Signed by District Judge Catherine D. Perry on 9/13/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL SMITH,
Plaintiff,
vs.
REPUBLIC SERVICES, INC., et al.,
Defendants.

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Case No. 4:17 CV 302 CDP

MEMORANDUM AND ORDER
This case is before me on defendants’ Motion to Dismiss. The Court’s
August 9, 2017, Order set a deadline for plaintiff to respond to defendants’ motion
and explicitly warned plaintiff that he needed to address all of defendants’
arguments for dismissal. Plaintiff filed an untimely response that failed to address
any of defendants’ substantive arguments. The Second Amended Complaint fails
to state legal elements or factual allegations sufficient to state a cause of action.
Defendants’ motion to dismiss under Rule 12(b), Fed R. Civ. P., will be granted.
Background
This case was removed to this court from the St. Louis County Circuit Court
by defendants on January 27, 2017, at which time defendants also filed a motion to
dismiss. On March 28, 2017, the Court issued a Show Cause Order asking
plaintiff’s counsel why he had failed to respond to the Clerk of Court’s multiple

notifications that he needed to register to be admitted to practice in this district
court. On May 23, 2017, the Court issued a second Show Cause Order
acknowledging that plaintiff’s counsel had completed the court admission process
but still had not responded to defendants’ motion to dismiss. Plaintiff requested an
additional thirty to sixty days to respond, stating that he was never served with the
motion to dismiss and was having difficulty with the federal electronic filing
system. At that time, I warned plaintiff that I had “reviewed the motion to dismiss,
the original state-court petition, and the amended petition and I agree[d] that the
current pleadings [were] subject to dismissal for the substantive reasons stated in
defendant’s motion.” However, rather than dismissing at that time, I granted
plaintiff forty-five days to file an amended complaint “that complies with the
federal rules.” I reminded plaintiff’s counsel that “he is expected to comply with
The Federal Rules of Civil Procedure and with the Local Rules of this court.” ECF
No. 23.
Plaintiff then filed documents that the Court interpreted to be a Response to
the motion to dismiss and a Second Amended Complaint. Defendants filed a new
motion to dismiss directed at the Second Amended Complaint. On August 9,
2017, I ruled the original motion to dismiss moot due to the filing of an amended
complaint, and I gave plaintiff a deadline of August 18, 2017, to respond to
defendants’ second motion to dismiss. In that order, I specifically warned plaintiff

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that “his response must address all issues raised by defendants.” ECF No. 31.
Plaintiff was also warned that failure to comply with the order could result in
dismissal of the case with prejudice.
On August 20, 2017 – two days late – plaintiff filed an “Answer to
Defendants’ Motion for Dismissal.” The “Answer” is a duplicate of the same
document plaintiff filed in response to defendants’ first motion to dismiss. He
made no changes to his response despite the Court’s warning that “his response
must address all issues raised by defendants” because the Court’s initial review of
the Second Amended Complaint indicated that defendants’ arguments were welltaken. ECF No. 31. As an exhibit to the “Answer,” plaintiff attached a document
titled “Plaintiff’s Response To Defendant’s Motion For Dismissal Of Plaintiff’s
Second Amended Petition For, ‘Failure To State A Claim Upon Which Relief Can
Be Granted.’ ” This “Response,” however, is essentially a duplicate of the
“Answer” to which it is attached. Both documents mostly repeat the language
from the Second Amended Complaint.
Motion to Dismiss Standard
Defendants seek dismissal of plaintiff’s Second Amended Complaint for
failure to state a claim upon which relief can be granted under Rule 12(b)(6). The
purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency
of the complaint. When considering a 12(b)(6) motion, the court assumes the

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factual allegations of the complaint are true and construes them in favor of the
plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.
Discussion
Plaintiff’s Second Amended Complaint (“Complaint”) is difficult to
understand and inconsistent, with unlabeled exhibits attached in no particular
order. Even in the Court’s best attempt at interpreting the allegations of the
Complaint in the light most favorable to plaintiff, I agree with defendants that the
Complaint fails to state a claim under Rule 12(b)(6).1 In the “Case Abstract” of the
Complaint, plaintiff states that his case is based on three legal theories which he
describes as “contract, property and tort laws.” ECF No. 25 at 2. The Complaint
1

Defendants argue that the Complaint fails to comply with multiple Federal Rules of Civil
Procedure; fails to plead the necessary elements of a private cause of action under CERCLA;
fails to state a legal basis for the attorneys’ fees request; and that the property “12746 San
Clemente Property, In Rem” cannot be a named plaintiff in a lawsuit.

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contains no allegations about a contract; therefore any contract claim fails. The
plaintiff makes several references in the Complaint to his rejection of a class action
settlement offer involving defendants. ECF No. 25 at 2-5. What may or may not
have happened in another case does not excuse plaintiff from pleading a claim
here, if he wants this case to proceed. The details of that settlement offer are not
admissible here and its existence is irrelevant to whether plaintiff’s Complaint can
state a claim under Rule 12(b)(6).
In Count I of the Complaint, plaintiff complains that his property values
have been diminished in reference to a “Nuisance” claim. It is unclear whether
plaintiff alleges a public or private nuisance; however, the Complaint contains
insufficient allegations to support either type of claim. In Missouri, a public
nuisance is “any unreasonable interference with common community rights such as
the public health, safety, peace, morals or convenience.” City of Lee’s Summit v.
Browning, 722 S.W.2d 114, 115 (Mo. Ct. App. 1986). In contrast, a private
nuisance rests on tort liability and involves a “nontrespassory invasion of another’s
interest in the private use and enjoyment of land.” Sofka v. Thal, 662 S.W.2d 502,
508 (Mo. 1983); Schwartz v. Mills, 685 S.W.2d 956, 958 (Mo. Ct. App. 1985).
Both types of nuisance claims require plaintiff to show a causal link between the
defendants and the alleged nuisance. City of St. Louis v. Varahi, Inc., 39 S.W.3d
531, 535-38 (Mo. Ct. App. 2001); Brown for Estate of Kruse v. Seven Trails

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Investors, LLC, 456 S.W.3d 864, 875 (Mo. Ct. App. 2014). The Complaint
contains no facts establishing a public or private nuisance, or allegations that
defendants caused any alleged nuisance. Also, plaintiff specifically states later in
his Complaint, and in his “Answer,” that he “is not invested in proving
Defendant’s Culpability for the Nuisance.” ECF No. 25 at 4 & No. 32 at 7. The
Complaint fails to state a claim for private or public nuisance under Missouri law.
Count II of the Complaint refers to “gross negligence,” but does not allege
the elements of a negligence claim under Missouri law.2 The required elements for
a claim of negligence in Missouri are: (1) defendant has a legal duty to use
ordinary care to protect plaintiff from injuries; (2) breach of that duty; (3)
proximate cause between the breach and resulting injury; and (4) actual damages to
plaintiff’s person or property. Phelps v. Bross, 73 S.W.3d 651, 657 (Mo. Ct. App.
E.D. 2002). “[W]hether negligence exists in a particular situation depends on
whether or not a reasonably prudent person would have anticipated danger and
provided against it.” Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. 1976).
Plaintiff’s Complaint does not assert facts establishing the elements of a negligence
claim nor does it allege that defendants failed to use reasonable care or breached

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The Court agrees with defendants’ argument that Missouri does not recognize a cause of action
for “gross negligence,” and therefore will interpret plaintiff’s allegations as a negligence claim.
See Warner v. SW. Bell Tel. Co., 428 S.W.2d 596, 603 (Mo. 1968).
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any duty owed to plaintiff. The Complaint fails to state a claim for negligence
under Missouri law.
Count III of the Complaint is brought under “Environmental Law” and
mentions the Comprehensive Environmental, Response, Compensation, and
Liability Act (CERCLA), but does not contain the necessary elements of such a
claim. A prima facie case for liability under CERCLA requires the plaintiff
establish that (1) the site is a “facility;” (2) a “release” or “threatened release” of a
“hazardous substance” from the site has occurred; (3) the release or threatened
release has caused the United States to incur response costs; and (4) the defendants
fall within at least one of the four classes of responsible persons described in 42
U.S.C. § 9607(a). U.S. v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1378-79 (8th
Cir. 1989). Plaintiff’s Complaint does not contain allegations that could establish
these necessary elements and therefore fails to state a claim under CERCLA.
A Complaint must comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Rule 8(a) requires that a complaint contain a short and plain statement
of the claim showing that the pleader is entitled to relief, and a demand for the
relief sought. Rule 10(b) requires that a party must state his claims in separately
numbered paragraphs, each limited as far as practicable to a single set of
circumstances. In other words, the complaint should not be overly wordy or
repetitive. It should instead be limited to the ‘who, what, when, and where’ of the

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facts of plaintiff’s claim or claims. Plaintiff’s “Answer” acknowledges Rule 8(a)
and the need for “numbering of paragraphs,” but the Complaint does not contain
numbered paragraphs, nor does it contain a short and plain statement of the claims.
The Complaint is overly wordy with an incomprehensible pattern of capitalized
and not capitalized words. It fails to clearly identify each defendant by name and
articulate specific facts about that defendant’s wrongful conduct. Plaintiff’s
Complaint fails to meet the requirements of the Federal Rules.
In addition, plaintiff’s “Answer” does not address the substantive legal
arguments made by defendants in their motion to dismiss, and blatantly ignores the
Court’s multiple warnings. The Court reminded plaintiff to follow the Federal
Rules of Civil Procedure and Local Rules of the Court, yet the Complaint fails to
meet pleading standards. Plaintiff ignored the Court’s explicit warning that all of
defendants’ legal arguments be addressed when he simply refiled the same
deficient response that he had filed against the first motion to dismiss.
Conclusion
The Second Amended Complaint fails to state a claim upon which relief can
be granted. As defendants’ motion under Rule 12(b)(6) correctly points out, the
Complaint does not allege the necessary elements of any legally cognizable cause
of action and contains insufficient factual allegations to establish any claim. The
Complaint also violates the federal pleading requirements of Rules 8 and 10.

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Plaintiff’s “Answer” in opposition to dismissal was filed two days late and does
not address the defendants’ substantive legal arguments. The Court has given
plaintiff multiple extensions of time and opportunities to correct his deficient
pleadings. This case will be dismissed with prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion to Dismiss [#29] is
GRANTED. This case is dismissed with prejudice.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 13th day of September, 2017.

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