LEESE et al v. MARTIN et al
Filing
16
OPINION. Signed by Judge Noel L. Hillman on 4/11/2012. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MICHAEL LEESE, ASHLEY LEESE,
and A. LEESE, I. LEESE, and
A.K. LEESE, their minor
children,
Plaintiffs,
CIVIL NO. 11-5091(NLH)(AMD)
OPINION
v.
LOCKHEED MARTIN,
Defendant.
APPEARANCES:
JULIE A. LAVAN
11 EAST MAIN STREET
2ND FLOOR
MOORESTOWN, NJ 08057
On behalf of plaintiffs
ROBERT L. EBBY
ROBERT ANDREW WIYGUL
HANGLEY ARONCHICK SEGAL & PUDLIN
ONE LOGAN SQUARE
27TH FLOOR
PHILADELPHIA, PA 19103
On behalf of defendant
HILLMAN, District Judge
This case involves allegations of environmental contamination.
Presently before the Court is defendant’s motion to dismiss all
claims in plaintiffs’ complaint.
defendant’s motion will be denied.
For the reasons expressed below,
BACKGROUND1
On June 7, 2003, plaintiffs, Michael and Ashley Leese,
purchased a new-construction home in Moorestown, New Jersey in a
development called Wexford at Moorestown.
The site is across the
street from defendant, Lockheed Martin Corporation.
Lockheed
Martin’s property had been owned until 2002 by its predecessor-ininterest, Martin Marietta Company.
In the agreement of sale for the new home, plaintiffs were
informed that the ground water beneath the southeastern quarter of
the Wexford site had been contaminated by trichloroethylene
(“TCE”)2 through migration from the adjacent Lockheed Martin
1
The background facts come from plaintiffs’ amended
complaint and the documents attached to their complaint.
2
The U.S. Environmental Protection Agency explains:
TCE has been produced commercially since the 1920s in
many countries by chlorination of ethylene or
acetylene. Its use in vapor degreasing began in the
1920s. In the 1930s, it was introduced for use in dry
cleaning. This use was largely discontinued in the
1950s and was replaced with tetrachloroethylene [PCE]
(ATSDR, 1997c). More recently, 80-90% of TCE
production worldwide is used for degreasing metals
(IARC, 1995a). It is also used in adhesives, paint
stripping formulations, paints, lacquers, and varnishes
(SRI, 1992). A number of past uses in cosmetics,
drugs, foods, and pesticides have now been discontinued
including use as an extractant for spice oleoresins,
natural fats and oils, hops, and decaffeination of
coffee (IARC,1995a), and as a carrier solvent for the
active ingredients of insecticides and fungicides, and
for spotting fluids (ATSDR, 1997c; WHO, 1985).
U.S. EPA. (U.S. Environmental Protection Agency). (September
2011). Toxicological review of Trichloroethylene (CASRN 79-01-6)
2
property.
The New Jersey Department of Environmental Protection
(“NJDEP”) had found Lockheed Martin to be the responsible party,
and had approved a remediation plan on the Lockheed Martin site to
treat the TCE contamination on its property.
The NJDEP determined
that because of Lockheed Martin’s remediation efforts on its
property, no remediation was necessary on the Wexford site.
The
NJDEP indicated that a letter of “No Further Action” would be
issued.
The NJDEP never issued that letter, however, and in September
2008, the NJDEP informally requested that Lockheed Martin conduct
vapor intrusion testing on residential properties across the
street.
In December 2008, Lockheed Martin conducted near slab
(within 10 feet from foundation) and subslab (beneath the basement)
soil vapor testing at plaintiffs’ property.
On January 12, 2009,
plaintiffs were informed by Lockheed Martin that their testing did
not detect TCE, but did detect levels of tetrachloroethylene
in support of summary information on the Integrated Risk
Information System (IRIS). (EPA/635/R-09/011F), at 2-2, available
at http://www.epa.gov/iris/toxreviews/0199tr/0199tr.pdf. In
consideration of this motion to dismiss, the Court properly takes
judicial notice of U.S. EPA reports. See Southern Cross Overseas
Agencies, Inc. v. Kwong Shipping Group Ltd., 181 F.3d 410, 426
(3d Cir. 1999); Animal Science Products, Inc. v. China Nat.
Metals & Minerals Import & Export Corp., 596 F. Supp. 2d 842, 855
(D.N.J. 2008) (citing Fed. R. Evid. 201(b)) (explaining that
pursuant to or the purposes of final disposition, either on
merits or on procedural grounds, a federal court may take
judicial notice of facts “capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned”).
3
(“PCE”)3 in the three samples taken, with two showing levels in
excess of NJDEP screening levels.
Subsequent indoor air testing of
plaintiffs' house a few weeks later revealed no detectable level of
TCE in the home, but PCE was detected in the basement and first
floor, with the basement level registering above NJDEP screening
levels.
Plaintiffs claim that despite installation of a filtration
system on Lockheed Martin’s property, the Lockheed Martin property
continues to test above the legal level for TCE and PCE.
Plaintiffs claim that these continued elevated levels of TCE and
PCE indicate an ongoing discharge of these chemicals by Lockheed
Martin.
3
Plaintiffs further claim that their property is
The U.S. Department of Environmental Protection explains:
Tetrachloroethylene [PCE] is a widely used solvent that
is produced commercially for use in dry cleaning,
textile processing, and metal-cleaning operations. It
has the following use pattern: 55% as a chemical
intermediate, 25% for metal cleaning and vapor
degreasing, 15% for dry cleaning and textile
processing, and 5% for other unspecified uses.
Tetrachloroethylene has been detected in ground
water and surface water as well as in air, soil, food,
and breast milk. The primary exposure routes of concern
are inhalation of vapor and ingestion of contaminated
water.
U.S. EPA (U.S. Environmental Protection Agency). (February 2012).
Toxicological review of Tetrachloroethylene (Perhloroethylene)
(CASRN 127-18-4) in support of summary information on the
Integrated Risk Information System (IRIS). (EPA/635/R-08/011A),
at 2-1, available at
http://www.epa.gov/iris/toxreviews/0106tr.pdf.
4
continually being contaminated because it is in the path of the
ground water flow from, and is within the “calculated plume” of,
Lockheed Martin.
Plaintiffs claim that these carcinogenic chemicals have
damaged not only their home’s value, but also caused them serious
negative health effects, including two children who refused to eat
as babies, fell off the growth charts, and are currently below the
10th percentile for height and weight for their ages, and a third
child who has developmental issues.
Plaintiffs have also suffered
from the severe stress of living on a contaminated property.
On July 26, 2011, plaintiffs filed a complaint in New Jersey
Superior Court, Burlington County, against Lockheed Martin,4
alleging violations of the New Jersey Spill Act, the New Jersey
Water Pollution Control Act, the federal Resource Conservation and
Recovery Act, and New Jersey common law for nuisance, trespass,
strict liability, and negligence.
Lockheed Martin removed
plaintiffs’ case to this Court, and soon thereafter filed a motion
to dismiss plaintiffs’ complaint in its entirety.
Plaintiffs filed
an amended complaint, and Lockheed Martin again moved to dismiss
plaintiffs’ complaint.5
Plaintiffs have opposed the motion.
4
Plaintiffs also filed suit against the homebuilder, but
due to its bankruptcy proceedings, those claims were dismissed.
5
The filing of plaintiffs’ amended complaint mooted
Lockheed Martin’s first motion to dismiss. The Order
accompanying this Opinion will reflect that procedural
development.
5
ANALYSIS
A.
Jurisdiction
Two bases for subject matter jurisdiction exist in this case.
Plaintiffs’ claim under the Resource Conservation and Recovery Act,
42 U.S.C. § 6972(a), gives this Court jurisdiction pursuant to 28
U.S.C. § 1331, and supplemental jurisdiction over plaintiffs’ state
law claims pursuant to 28 U.S.C. § 1367.
This Court also has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because
there is complete diversity of citizenship between the parties6 and
the amount in controversy exceeds $75,000.
B.
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to Fed.
R. Civ. P. 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the plaintiff.
351 (3d Cir. 2005).
Evancho v. Fisher, 423 F.3d 347,
It is well settled that a pleading is
sufficient if it contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed. R. Civ. P.
Under the liberal federal pleading rules, it is not
necessary to plead evidence, and it is not necessary to plead all
6
Plaintiffs are citizens of New Jersey, and Lockheed Martin
is a citizen of Maryland, where it is incorporated and has its
principal place of business.
6
the facts that serve as a basis for the claim.
Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf
However, “[a]lthough
the Federal Rules of Civil Procedure do not require a claimant to
set forth an intricately detailed description of the asserted basis
for relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon which
it rests.”
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks “‘not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.’”
Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . . .”);
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal
. . . provides the final nail-in-the-coffin for the ‘no set of
facts’ standard that applied to federal complaints before
Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under Rule
12(b)(6).
First, the factual and legal elements of a claim should
be separated; a district court must accept all of the complaint's
well-pleaded facts as true, but may disregard any legal
7
conclusions.
1950).
Fowler, 578 F.3d at 210 (citing Iqbal, 129 S. Ct. at
Second, a district court must then determine whether the
facts alleged in the complaint are sufficient to show that the
plaintiff has a “‘plausible claim for relief.’”
Iqbal, 129 S. Ct. at 1950).
Id. (quoting
A complaint must do more than allege
the plaintiff's entitlement to relief.
Id.; see also Phillips v.
County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that
the “Supreme Court's Twombly formulation of the pleading standard
can be summed up thus: ‘stating . . . a claim requires a complaint
with enough factual matter (taken as true) to suggest’ the required
element.
This ‘does not impose a probability requirement at the
pleading stage,’ but instead ‘simply calls for enough facts to
raise a reasonable expectation that discovery will reveal evidence
of’ the necessary element”).
A court need not credit either “bald
assertions” or “legal conclusions” in a complaint when deciding a
motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1429-30 (3d Cir. 1997).
The defendant bears the burden
of showing that no claim has been presented.
Hedges v. U.S., 404
F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Finally, a court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents attached
thereto as exhibits, and matters of judicial notice.
Southern
Cross Overseas Agencies, Inc. v. Kwong Shipping Group Ltd., 181
8
F.3d 410, 426 (3d Cir. 1999).
A court may consider, however, “an
undisputedly authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff’s claims are based
on the document.”
Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
If any other
matters outside the pleadings are presented to the court, and the
court does not exclude those matters, a Rule 12(b)(6) motion will
be treated as a summary judgment motion pursuant to Rule 56.
Fed.
R. Civ. P. 12(b).
C.
Analysis
Lockheed Martin argues in its motion to dismiss that
plaintiffs’ claims wholly fail to allege sufficient facts to hold
it liable for any claims that it discharged TCE and PCE in the
past, is currently discharging these chemicals, or how these
chemicals have purportedly come from Lockheed Martin’s property
onto their property.
Lockheed Martin also argues that most of
plaintiffs’ claims are barred by the applicable statute of
limitations because of when plaintiffs became aware of their
alleged claims.
In opposition, plaintiffs argue that their
pleadings are sufficient to maintain all their claims, and that the
discovery rule, the continuing tort doctrine, or both, save their
claims from any statute of limitations.
The facts alleged by plaintiffs in their complaint and
attached documents relevant to the discharge of chemicals are:
9
For TCE
•
TCE is a known carcinogen.
•
As of June 2003, TCE was in the ground water beneath
plaintiffs’ property, and the NJDEP determined that the
TCE migrated from Lockheed Martin’s property.
•
Plaintiffs knew that TCE was in the ground water below
their property when they purchased their house.
•
Despite the remediation underway since at least 1995, and
despite improved concentrations of TCE in the water,
Lockheed Martin’s property continues to test above the
legal level of TCE.
•
Continued levels of TCE on Lockheed Martin’s property
indicates an ongoing discharge.
•
TCE remains in the ground water under plaintiffs’ home.
•
Plaintiffs are in the path of the ground water flow and
within a calculated plume of Lockheed Martin’s property.
•
As of December 2008 and January 2009, no TCE was found in
the soil or air in and around plaintiffs’ home.
For PCE
•
PCE is a known carcinogen.
•
Plaintiffs did not know about the presence of PCE on
their property when they bought their home.
10
•
As of December 2008, three soil samples taken from under
and near plaintiffs’ basement revealed the presence of
PCE, with two showing levels in excess of NJDEP screening
levels.
•
As of January 2009, indoor air testing of plaintiffs’
house found PCE in the basement and first floor, with the
basement level registering above NJDEP screening levels.
•
Lockheed Martin’s property continues to test above the
legal level for PCE.
•
Continued levels of PCE on Lockheed Martin’s property
indicates an ongoing discharge.
•
Plaintiffs are in the path of the ground water flow and
within a calculated plume of Lockheed Martin’s property.
Accepting as true these facts alleged by plaintiffs, the Court
finds that at this stage of the litigation plaintiffs have stated
sufficient facts to give Lockheed Martin fair notice of their
claims, and to raise a reasonable expectation that discovery will
reveal evidence to support the elements of all their claims.
Additionally, it is not clear from the face of their complaint that
any applicable statute of limitations bars their claims.7
7
In its motion to dismiss, Lockheed Martin has challenged
the validity of plaintiffs’ claims one-by-one. Aside from a
standing argument to be addressed infra, the crux of defendant’s
motion to dismiss each of these claims is plaintiffs’ failure to
allege enough facts to make out a plausible claim that Lockheed
11
In its motion to dismiss, however, Lockheed Martin questions
all of plaintiffs’ theories, and argues that plaintiffs’ claims are
too vague.
With regard to TCE, it argues that even though TCE is
in the ground water beneath plaintiffs’ home, it has not and cannot
cause plaintiffs harm.
Moreover, Lockheed Martin argues that it is
not responsible for past TCE contamination even if the ground water
is still contaminated.
Lockheed Martin also challenges plaintiffs’
contention that it continues to discharge TCE into the ground
water.
With regard to PCE, Lockheed Martin argues that the PCE
affecting plaintiffs’ soil and air has not come from the ground
water, and, therefore, it has not, and is not, coming from its
Martin has discharged, continues to discharge, or is the party
responsible for the discharge of TCE and PCE onto Plaintiffs’
property. As we conclude in the body of this Opinion, whether
asserted as claims pursuant to the New Jersey Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11 (Count One), and the New
Jersey Water Pollution Control Act, N.J.S.A. 58:10A-31 (Count
Two), both brought pursuant to the New Jersey Environmental
Rights Act, N.J.S.A. 2A:35A-4; the federal Resource Conservation
and Recovery Act, 42 U.S.C. § 6921 (Count Three), or under state
common law claims of Private Nuisance (Count Four), Trespass
(Count Five), Strict Liability (Count Six), or Negligence (Count
Seven), plaintiffs have pleaded sufficient facts to allow all of
these claims to go forward at this time.
As for Defendant’s assertion that Plaintiffs lack standing
to assert a claim under the Water Pollution Control Act, that
assertion is only half-correct. While no private action per se
exists under that Act, here Plaintiffs merely assert such a
violation as a predicate to their claim under the New Jersey
Environmental Rights Act, N.J.S.A. 2A:35A-4. Accordingly, this
legal defense will turn, as will the other claims, on Lockheed’s
role, if any, in any past or continuing unlawful discharge.
Thus, discovery will affect both the viability of plaintiffs’
claims, as well as the validity of defendant’s standing and
statute of limitations defenses.
12
property, but from some other source.
Overall, Lockheed Martin argues that it is properly
remediating the TCE issue in consultation with the NJDEP, and
because plaintiffs have not articulated what else it should be
doing with regard to TCE (or PCE), plaintiffs are not entitled to
injunctive or any other relief.
It also contends that because
plaintiffs have been aware of TCE since 2003, and PCE since January
2009, many of their claims are time-barred, and plaintiffs’ general
claim that “continued elevated levels of PCE and TCE on
[plaintiffs’] Property indicate an ongoing discharge” cannot save
their claims on a theory of a continuing tort.
Initial discovery exchanges will soon confirm or refute the
validity of plaintiffs’ primary contention regarding the ongoing
discharge of TCE and PCE from the Lockheed Martin property.
Both
parties will need to reveal if or when these chemicals have been
detected on their properties or in the ground water beneath their
properties.8
That data will inform whether plaintiffs can (1)
8
In its brief, Lockheed Martin contends that plaintiffs
have not and cannot allege that the presence of TCE in the
groundwater beneath plaintiffs’ home has exposed them to TCE.
(Def. Br. at 25 n.14.) This contention is incorrect, in that
plaintiffs do allege that TCE is in the ground water beneath
their home and they have been damaged by it. Moreover, the Court
notes that “TCE can be released to indoor air from use of
consumer products that contain it (i.e., adhesives and tapes),
vapor intrusion (migration of volatile chemicals from the
subsurface into overlying buildings) and volatilization from the
water supply.” U.S. EPA. (U.S. Environmental Protection Agency).
(September 2011). Toxicological Review of Trichloroethylene, at
13
sustain their claim of ongoing discharge, (2) avoid the tolling of
various statutes of limitations, and (3) support their contention
that Lockheed Martin is the source of TCE and PCE.9
Of course,
beyond these basic findings, plaintiffs maintain the burden of
proving causation, damages, and the other elements of their claims,
and should discovery reveal evidence to support what Lockheed
Martin has argued in its current motion, it is free to file a
properly supported motion for summary judgment.
To preclude
plaintiffs from pursuing their case, however, where information to
potentially support their claims is only known by the defendant,
2-10. Of course, it is plaintiffs’ burden to prove their claims
regarding TCE contamination, including the timing of their
exposure and the causal connection to their alleged injuries and
damages.
9
In order to prove that Lockheed Martin’s discharge of the
chemicals is ongoing, and constitutes a continuing tort in order
to avoid the running of any applicable statute of limitations,
plaintiffs will have to show that “the ultimate cause of the
harm” has not been removed. Russo Farms, Inc. v. Vineland Bd. of
Educ., 675 A.2d 1077, 1086 (N.J. 1996) (explaining that "a
nuisance is continuing when it is the result of a condition that
can be physically removed or legally abated. In such a case, it
is realistic to impute a continuing duty to the defendant to
remove the nuisance, and to conclude that each new injury
includes all elements of a nuisance, including a new breach of
duty. On the other hand, when the nuisance cannot physically be
removed, it is unfair to impose a continuing, impossible to
fulfill duty to remove the nuisance; when a court will not order
defendant to abate the nuisance, it is inconsistent to recognize
a duty to do so” (citations omitted)). Lockheed Martin has asked
the Court to find, on the face of plaintiffs’ pleadings, that any
chemical discharge from its property is not its responsibility
because it is only consequential continuing damage and not a
continuing tort. As explained above, the Court cannot make that
determination at this time.
14
and where sufficient facts have been pled to raise plausible
claims, would be too strict an application of the motion to dismiss
standard.
Consequently, Lockheed Martin's motion to dismiss plaintiffs'
complaint must be denied.
An appropriate Order will be issued.
Date: April 11, 2012
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?