J&P Dickey Real Estate Family Limited Partnership et al v. Northrop Grumman Guidance and Electronics Company, Inc. et al

Filing 33

ORDER granting in part and denying in part 24 Motion to Dismiss. Signed by Magistrate Judge Dennis Howell on 3/19/12. (nll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
2:11cv37
J&P DICKEY REAL ESTATE
FAMILY LIMITED PARTNERSHIP,
et al.,

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Plaintiffs,
v.

ORDER

NORTHROP GRUMMAN GUIDANCE )
& ELECTRONICS COMPANY, INC.,
)
et al.
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Defendants.
)
___________________________________
)
Pending before the Court is Defendants’ Motion to Dismiss [# 24].
Plaintiffs brought this action against Defendants asserting a number of
claims arising out of the alleged contamination of Plaintiffs’ property.
Defendants now move the Court to dismiss the Complaint pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Court
GRANTS in part and DENIES in part the motion [# 24].
I.

Background

A.

The Parties to this Dispute

Plaintiff J&P Dickey Real Estate Family Limited Partnership (“J&P”)
is a Georgia limited partnership that owns a parcel of property located in
Cherokee County, North Carolina. (Pls.’ Compl. ¶¶ 1, 7.) Plaintiffs Jerry L.
Dickey and P-Nut Dickey (collectively, the “Individual Plaintiffs”) are citizens
of Cherokee County, North Carolina and the predecessors in title of Plaintiff
J&P’s property. (Id.¶¶ 2, 9.) Plaintiffs gained partial ownership of this
property in 1999 and acquired full ownership by 2004. (Ex. 1 to Defs.’ Mot.
1

Dismiss at p. 2-7.)
Defendant Northrop Grumman Guidance and Electronics Company,
Inc. (“Northrop Grumman”) is a Delaware corporation. (Pls.’ Compl. ¶ 3.)
Defendant Northrop Grumman acquired a parcel of property known as the
Clifton Precision Site in 1966.1 (Id. ¶¶ 4, 13.) Plaintiffs’ property is located
approximately .06 miles from the Clifton Precision Site and adjoins Slow
Creek. (Id. ¶ 18.)
Defendant Moog, Inc. is a New York corporation and the current owner
of the Clifton Precision Site. (Id. ¶¶ 5-6, 8.) Defendant Moog acquired the site
and its manufacturing facility in 2003. (Ex. 2 to Defs.’ Mot. Dismss ¶ 23.)
B.

The Alleged Environmental Contamination

Approximately a year after acquiring the Clifton Precision Site,
Defendant Northrop Grumman began operating an electronic components
manufacturing plant on this site. (Pls.’ Compl. ¶ 16.) Part of the
manufacturing process at this plant involved the use of chemicals. (Id. ¶ 15.)
In order to contain the hazardous chemicals, including tetrachloroethene and
trichloroethylene, Defendant Northrop Grumman installed several
underground storage and treatment tanks. (Id. ¶ 19.) These tanks leaked,
which resulted in the discharge of hazardous chemicals into Slow Creek and
the groundwater. (Id. ¶¶ 20, 22.) In addition, the storage and treatment pits
at the Clifton Precision Site also resulted in the discharge of hazardous
chemicals into the ground. (Id. ¶ 21.) As a result of these leaks and the
discharge of chemicals, Plaintiffs contend that Slow Creek, the ground water,
and the soil on and around the Clifton Precision Site are contaminated, and
that the contamination migrated to Plaintiffs’ property. (Id. ¶¶ 23-24, 26.)
1
Although Litton Systems, Inc. was the entity that acquired the Clifton Precision Site, Defendant Northrop
Grumman subsequently acquired Litton Systems, Inc. (Pls.’ Compl. ¶ 3-4; Ex. 2 to Defs.’ Mot. Dismiss at ¶ 22.)
The Court, therefore, has used Northrop Grumman and Litton Systems Inc. interchangeably in this Order.

2

Plaintiffs further allege that the migration of hazardous chemicals from the
Clifton Precision Site to their property has devalued the property, rendered it
unmarketable, and interfered with their use and enjoyment of the property.
(Id. ¶ 30.) The Individual Plaintiffs also allege that they have been exposed
to harmful levels of hazardous chemicals that has resulted in “permanent and
debilitating illnesses.” (Id.¶ 32.)
C.

EPA Ordered Remediation

While conducting the closure of one of the underground tanks on the
site in 1986, Defendant Northrop Grumman discovered that the groundwater
was contaminated. (Ex. 2 to Defs.’ Mot. Dismiss at ¶¶ 29-30.) Defendant
Northrop Grumman notified the State of North Carolina, Department of
Environment and Natural Resources of the contamination. (Id. ¶ 30.) On
April 27, 1988, Defendant Northrop Grumman entered into an
Administrative Order on Consent with the Environmental Protection Agency
to perform remediation at the site. (Id. ¶ 34; Pls.’ Compl. ¶ 28.) As part of
this Administrative Order on Consent, Defendant Northrop Grumman agreed
to implement a comprehensive groundwater monitoring and remediation plan
and program. (Ex. 2 to Defs.’ Mot. Dismiss at ¶¶ 46-47; Pls.’ Compl. ¶ 30.)
This remediation has been ongoing since 1988. (Ex. 2 to Defs.’ Motion
Dismiss at ¶¶ 34-47.)
D.

The Claims Asserted in Plaintiff’s Complaint

As a result of the alleged migration of hazardous chemicals onto
Plaintiffs’ property, Plaintiffs brought this case in Superior Court of Cherokee
County, North Carolina on September 13, 2011. The Complaint asserts eight
claims against Defendants, including: (1) violation of the North Carolina Oil
Pollution and Hazardous Substances Control Act; (2) violation of the North
3

Carolina Groundwater Classification and Standards; (3) a claim under the
Comprehensive Environmental Response Compensation and Liability Act for
response costs; (4) violation of the Resource Conservation and Recovery Act;
(5) negligence per se; (6) negligence; (7) trespass; and (8) nuisance. (Pls.’
Compl. ¶¶ 33-73.) Subsequently, Defendants removed the case to this Court.
After removing the case to federal court, Defendants moved to dismiss
the Complaint in its entirety on November 22, 2011. Plaintiffs, however,
failed to file a response to the Motion to Dismiss. Accordingly, the Court
entered an Order directing Plaintiffs, who are represented by counsel, to
respond to the Motion to Dismiss by December 23, 2011. (Order, Dec. 19,
2011.) The Court also warned Plaintiffs that the failure to file a response
would result in the Court deeming the claims asserted against Defendants
waived and dismissing the Complaint with prejudice. (Order, Dec. 19, 2011.)
Plaintiffs then filed a Response to Defendants’ Motion to Dismiss (“Pls.’
Resp.”). Plaintiffs, however, failed to respond to Defendants’ Motion to
Dismiss to the extent it sought dismissal of a number of Plaintiffs’ claims.
Defendants’ motion is now properly before the Court.
II.

Legal Standard

The central issue for resolving a Rule 12(b)(6) motion is whether the
complaint states a plausible claim for relief. See Francis v. Giacomelli, 588
F.3d 186, 189 (4th Cir. 2009). In considering a defendant’s motion to dismiss,
the Court accepts the allegations in the complaint as true and construes them
in the light most favorable to plaintiff. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588
F.3d at 190-92. Although the Court accepts well-pled facts as true, it is not
required to accept “legal conclusions, elements of a cause of action, and bare
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assertions devoid of further factual enhancement . . . .” Consumeraffairs.com,
591 F.3d at 255; see also Giacomelli, 588 F.3d at 189.
The complaint need not contain “detailed factual allegations,” but must
contain sufficient factual allegations to suggest the required elements of a
cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964-65 (2007); see also Consumeraffairs.com, 591 F.3d at 256. “[A]
formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. Nor will mere labels and legal
conclusions suffice. Id. Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. ____, 129 S. Ct. 1937, 1949 (2009).
The complaint is required to contain “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S. Ct. at
1974; see also Consumeraffairs.com, 591 F.3d at 255. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. ____, 129 S. Ct. at 1949; see also
Consumeraffairs.com, 591 F.3d at 255. The mere possibility that the
defendants acted unlawfully is not sufficient for a claim to survive a motion to
dismiss. Consumeraffairs.com, 591 F.3d at 256; Giacomelli, 588 F.3d at 193.
Ultimately, the well-pled factual allegations must move a plaintiff’s claims
from possible to plausible. Twombly, 550 U.S. at 570, 127 S. Ct. at 1974;
Consumeraffairs.com, 591 F.3d at 256.2

2

Plaintiffs contention that this Court should apply the North Carolina standard for ruling on a motion to
dismiss is without merit, as the law is clear that after removal of an action from state court, the case proceeds as if it
was originally brought in federal court, and the case will be governed by the Federal Rules of Civil Procedure. 14C
Charles Alan W right, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and Procedure §
3738 (4th ed. 2009).

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III.

Analysis

A.

Plaintiffs have Abandoned Counts Two, Four, and Five

In its prior Order, the Court warned Plaintiffs that the failure to
respond to Defendants’ Motion to Dismiss would result in the Court deeming
the claims waived and dismissing the claims with prejudice. Although
Plaintiffs filed a response to the Motion to Dismiss, they failed to address
Defendants’ motion as to their claims for negligence per se, violation of the
Resource Conservation and Recovery Act, and violation of the North Carolina
Groundwater Classification and Standards. Accordingly, the Court deems
these claims abandoned because Plaintiffs have waived any opposition to
Defendants’ motion by failing to fully comply with the Court’s Order. See
generally, Brand v. N.C. Dep’t of Crime Control and Pub. Safety¸ 352 F. Supp.
2d 606, 618 (M.D.N.C. 2004) (finding that by failing to respond to motion for
summary judgment on hostile work environment claim, plaintiff conceded
that the hostile work environment claim failed to state a claim); Straszheim
v. Gerdau Ameristeel U.S., Inc., No. 3:08cv602, 2010 WL 883665, at *3
(W.D.N.C. Mar. 5, 2010) (Conrad, C.J.); Jimoh v. Charlottee-Mecklenburg
Hous. P’ship, Inc ., 2010 WL 1924480, at *3 (W.D.N.C. May 12, 2010)
(Conrad, C.J.); Adams v. White, No. 1:11cv323, 2011 WL 3875422 (E.D. Va.
Aug. 31, 2011). The Court GRANTS the motion [# 24] as to Counts Two,
Four, and Five.
B.

Plaintiffs’ Oil Pollution and Hazardous Substances Control Act
Claim

Count One asserts a claim for damages against Defendant Northrop
Grumman pursuant to the Oil Pollution and Hazardous Substances Control
Act (“OPHSCA”). The OPHSCA makes it unlawful:
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for any person to discharge, or cause to be discharged, oil or other
hazardous substances into or upon any waters, tidal flats, beaches,
or lands within this State, or into any sewer, surface water drain or
other waters that drain into the waters of this State, regardless of
the fault of the person having control over the oil or other hazardous
substances, or regardless of whether the discharge was the result of
intentional or negligent conduct, accident or other cause.
N.C. Gen. Stat. § 143-215.83. A “hazardous substance” within the meaning of
the OPHSCA includes any of the chemicals included on the list of hazardous
substances set out in 40 C.F.R. § 116.4. See N.C. Gen. Stat. § 143-215.77A; 33
U.S.C. § 1321(b)(2)(A); 40 C.F.R. § 116.4; Rudd v. Electrolux Corp., 982 F. Supp.
355, 362 (M.D.N.C. 1997).
The OPHSCA defines “discharge” as:
any emission, spillage, leakage, pumping, pouring, emptying, or
dumping of oil or other hazardous substances into waters of the
State or into waters outside the territorial limits of the State which
affect lands, waters or uses related thereto within the territorial
limits of the State, or upon land in such proximity to waters that oil
or other hazardous substances is reasonably likely to reach the
waters, but shall not include amounts less than quantities which
may be harmful to the public health or welfare as determined
pursuant to G.S. 143-215.77A
N.C. Gen. Stat. § 143-215.77(4). A quantity is harmful within the meaning of
the OPHSCA where the quantity of substance released equals the threshold
amount set forth in 40 C.F.R. § 117.3. Rudd, 982 F. Supp. at 363-64.
Defendants contend that Plaintiffs have not stated a claim under the
OPHSCA because they have failed to set forth the particular hazardous
chemicals discharged or the amount of chemicals released. (Defs.’ Mot.
Dismiss at p. 12.)
The Court finds that the Complaint sufficiently sets forth both the
identity of the alleged hazardous chemicals discharged as well as the amount
of chemicals discharged. Specifically, the Complaint alleges that the
following chemicals were discharged by Defendant Northtop Grumman: 17

trichloroethylene, 2-transdichloroethylene, perchloroethylene, chloroform,
and carbon tetrachloride (Pl.’s Compl. ¶ 23), at least one of which is a
hazardous substance within the meaning of the OPHSCA, see 40 C.F.R. §
116.4. The Complaint also alleges that the amount of these chemicals
discharged exceeded the compliance standards established by the EPA. (Pls.’
Compl. ¶¶ 23 28.) Although Plaintiff will ultimately have the burden of
proving that a hazardous substance was actually discharged in an amount
equal to the threshold amount set forth in 40 C.F.R. § 117.3, Plaintiffs have
set forth sufficient factual allegations to state a claim. Accordingly, the Court
DENIES Defendants’ motion [# 24] as to Count One.

C.

Plaintiffs’ Comprehensive Environmental Response
Compensation and Liability Act Claim

Count Three asserts a claim for the recovery of response costs under the
Comprehensive Environmental Response Compensation and Liability Act
(“CERCLA”). CERCLA allows certain individuals to bring an action to
recovery any “necessary costs of response incurred by any other person
consistent with the national contingency plan” as well as any “damages for
injury to, destruction of, or loss of natural resources.” 42 U.S.C.§
9607(a)(4)(B), (C). In order to prevail on their CERCLA claim, Plaintiffs will
have to show the release or threatened release of a hazardous substance from
the Clifton Precision Site caused Plaintiffs to incur response costs that are
consistent with the National Contingency Plan. White v. County of
NewBerry, 985 F.2d 168, 172, 174 (4th Cir. 1993); see also The SherwinWilliams Company v. Artra Group, Inc. 125 F. Supp. 2d 739, 751 (D. Md.
2001). Defendants only challenge the final element of a CERCLA claim,
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arguing that the Complaint fails to sufficiently allege that Plaintiffs incurred
response costs consistent with the National Contingency Plan. (Defs.’ Mot.
Dismiss at p. 7-9.)
The Complaint alleges that Plaintiffs “incurred response costs that are
consistent with the National Contingency Plan. Such response cost included
but are not limited to, expenses for testing of ground water and soil and
surveillance.” (Pls.’ Compl. ¶ 48.) Plaintiffs, however, must allege more than
a formalistic recitation of the elements of a CERCLA claim to state a claim in
federal court. See Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. The
Complaint contains no factual allegations supporting the claim that the soil
and water testing and surveillance are consistent with the National
Contingency Plan. Absent supporting factual allegations supporting this
element of a CERCLA claim, the claim is subject to dismissal. See Ford
Motor Co. v. Mich. Consol. Gas. Co., No. 08cv13503-DT, 2010 WL 3419502, at
*5-6 (E.D. Mich. Aug. 27, 2010); Franciso-Sanchez v. Esso Standard Oil de
Puerto Rico, Inc., No. 08-2151, 2010 WL 682542, at * 4 (D.P.R. Feb. 22, 2010).
The Court GRANTS the motion [# 24] as to Count Three.
D.

Plaintiffs’ Claim for Trespass

Count Seven of the Complaint asserts a claim for trespass against
Defendants Northrop Grumman and Moog. North Carolina law defines
trespass as the unauthorized entry upon the land of another. Hoffman v.
Vulcan Materials Co., 91 F. Supp. 2d 881, 887 (M.D.N.C. 1999); Singleton v.
Haywood Elec. Membership Corp., 588 S.E.2d 871, 874 (N.C. 2003). In order
to state a claim for trespass, a plaintiff must allege: (1) possession of the
property when the alleged trespass was committed; (2) an unauthorized entry
upon the property by defendant; and (3) damages. Singleton, 588 S.E.2d at
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874; Shepard v. Bonita Vista Props., L.P., 664 S.E.2d 388, 399 (N.C. Ct. App.
2008). The Complaint alleges that Plaintiff was in possession of the property
when chemicals spread from Defendants’ property onto Plaintiffs’ property,
which resulted in damages. (Pls.’ Compl. ¶¶ 29, 65-69.) The Complaint
specifically alleges that the migration of these chemicals from Defendants’
property to Plaintiffs’ property is ongoing. (Id. ¶ 29.) These factual
allegations are sufficient to state a claim for trespass. Although Defendants
may be able to demonstrate that any such trespass occurred prior to
Plaintiffs’ purchase of the property, this is a factual question for either
summary judgment or trial. The Court DENIES the motion [# 24] as to
Count Seven.
E.

Plaintiffs’ Claim for Nuisance

Count Eight of the Complaint asserts a claim for nuisance against
Defendants Northrop Grumman and Moog. In order to prevail on their claim
for nuisance under North Carolina law, Plaintiffs must demonstrate “an
unreasonable interference with the use and enjoyment of their property.”
Jordon v. Foust Oil Co., Inc., 447 S.E.2d 491, 498 (N.C. Ct. App. 1994); see
also Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 553 S.E.2d 431, 455
(N.C. Ct. App. 2001). The Complaint alleges that Defendants maintain the
Clifton Precision Site in a manner that unreasonably interferes with their use
and enjoyment of the property as a result of the release of hazardous
chemicals on the Clifton Precision Site, which have traveled to Plaintiffs’
property. (Pls.’ Compl. ¶¶ 19-24 , 29, 70-73.) The Complaint specifically
alleges that the migration of these chemicals from Defendants’ property to
Plaintiffs’ property is ongoing. (Id. ¶ 29.) Such allegations are sufficient to
state a claim for nuisance under North Carolina law. The Court DENIES the
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motion [# 24] as to Count Eight.

F.

The Statutes of Limitations and Repose

The three year statute of limitation found in N.C. Gen. Stat. § 1-52(2)
applies to Plaintiffs’ OPHSCA claim. Wilson v. McLeod Oil Co., Inc., 298
S.E.2d 586, 596 (N.C. 1990); James v. Clark, 454 S.E.2d 826, 829 (N.C. Ct.
App. 1995). The three year statute of limitations set forth in N.C. Gen. Stat.
§ 1-52 also applies to a claim of nuisance and trespass. Wilson, 398 S.E.2d at
511; Robertson, 497 S.E.2d 300, 302 (N.C. Ct. App. 1998); Crawford v.
Boyette, 464 S.E.2d 301, 303 (N.C. Ct. App. 1995). Finally, Plaintiffs’
negligence claim is governed by the three year statute of limitations in § 152(5). Wilson, 398 S.E.2d at 512.
In addition, N.C. Gen. Stat. § 1-52(16) provides that:
Unless otherwise provided by statute, for personal injury or physical
damage to claimant's property, the cause of action . . . shall not
accrue until bodily harm to the claimant or physical damage to his
property becomes apparent or ought reasonably to have become
apparent to the claimant, whichever event first occurs. Provided
that no cause of action shall accrue more than 10 years from the last
act or omission of the defendant giving rise to the cause of action.
The provisions of N.C. Gen. Stat. § 1-52(16), including the ten year statute of
repose, apply to Plaintiffs’ claims. See Wilson, 398 S.E.2d at 513; Hodge, 631
S.E.2d at 144-45; Crawford, 464 S.E.2d at 303-4. “The plain language of the
statute indicates that in cases involving property damage, no cause of action
may be brought more than ten years after the defendant’s last act or
omission.” Hodge, 631 S.E.2d at 145. “A complaint which seeks to impose
liability upon a previous landowner or operator for adjoining land
contamination constitutes an action for physical damage to claimant’s
property, and is thus governed by N.C. Gen. Stat. § 1-52(16).” Id.
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Plaintiffs contends that the statute of limitations for each of these
claims began running in 2007 when it first learned of the contaminated
ground water on their property. In contrast, Defendants contend that the
existence of the EPA Order put Plaintiffs on notice of the potential claims as
early as 1988. Defendants, however, have not cited the Court to any North
Carolina authority supporting their position. Although Defendants may
prevail at the summary judgment stage on their statute of limitations
argument, the Court cannot say as a matter of law that the contamination on
their property was apparent or ought to have been reasonably apparent to
Plaintiffs prior to 2007 based on the allegations in the Complaint and the
record before the Court. Similarly, there is insufficient evidence before the
Court to find that as a matter of law no recurring trespass occurred in this
case. The statute of limitations argument made by Defendants is fact
intensive and more appropriate for a motion for summary judgment.
Defendants may renew their statute of limitations argument at the summary
judgment stage when there is evidence in the record for the Court to consider.
Similarly, the Court cannot hold as a matter of law that the claims are
barred by the statute of repose. Like Defendants’ statute of limitations
argument, whether or not the statute of repose bars Plaintiffs’ claims involves
factual questions that are not appropriate at the motion to dismiss stage.
Unlike the situation in Waldburger v. CTS Corporation, No. 1:11cv39, 2011
WL 7153937, at *3 (W.D.N.C. Oct. 4, 2011) (Howells, Mag. J.), Defendants did
not sell the property more than ten years before Plaintiffs brought this suit.
Put simply, it is not clear from the allegations in the Complaint and the
record before the Court that the last act or omission of the Defendants giving
rise to the state law causes of action occurred more than ten years prior to
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Plaintiffs filing their Complaint. In fact, the Complaint alleges that the
migration of the hazardous chemicals is still ongoing. 3 Accordingly, the Court
DENIES the motion [# 24] as to the statute of limitations and the statute of
repose arguments. Defendants may renew these arguments at the summary
judgment stage.
G.

Plaintiffs’ Claims for Injunctive Relief

Finally, to the extent that Plaintiffs seek an Order from this Court
directing Defendants to remove hazardous materials from their property, the
Clifton Precision Site, and Slow Creek, such relief is preempted by the EPA’s
Consent Order. See Feikema v. Texaco, Inc., 16 F.3d 1408, 1416 (4th Cir.
1994). Accordingly, the Court GRANTS the motion to dismiss [# 24] as to
Plaintiffs’ requests for injunctive relief.
IV.

Conclusion

The Court GRANTS in part and DENIES in part the Motion to
Dismiss [# 24] The Court GRANTS the motion as to Counts Two, Three,
Four, and Five, as well as Plaintiffs’ requests for injunctive relief. The
Court DENIES the motion as to the remaining claims.

Signed: March 19, 2012

3

In making factual allegations such as these in the Complaint, Counsel for Plaintiffs is
bound by the requirements of Rule 11 of the Federal Rules of Civil Procedure.
13