Conneaut Apartments, Ltd. et al v. Perleen's Gas Services II, Inc. et al

Filing 36

Memorandum Opinion and Order denying defendant Tarrify Property's Motion to dismiss (Related Doc #28 ). Judge Donald C. Nugent 3/23/17(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CONNEAUT APARTMENTS LTD., et al.,
Plaintiff,
v.

PERLEEN’S GAS SERVICES, INC.,
Defendant.

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CASE NO. 1:16 CV 2272

JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER

This matter is before the Court on the Motion to Dismiss Amended Complaint
Alternatively Motion for Definite Statement (Docket #28) filed by Defendant, Tarrify Properties,
LLC (‘Tarrify”). Tarrify argues that the Amended Complaint fails to state a Federal claim under
Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 U.S.C. § 9601. In the alternative, Tarrify asks that the Court order Plaintiffs
to amend their Amended Complaint, arguing that the Amended Complaint is vague and
ambiguous, preventing Tarrify from preparing a response.
Discussion
A motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) allows
a defendant to test the legal sufficiency of a complaint, in this case whether the Court has subject
matter jurisdiction over the claims raised by Plaintiffs, without being subject to discovery. See
Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003). In evaluating the motion to

dismiss, the court must construe the complaint in the light most favorable to plaintiffs, accept its
factual allegations as true, and draw reasonable inferences in favor of the plaintiffs. See Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
The Court has reviewed the allegations in Plaintiffs’ Amended Complaint, and the Briefs
submitted by the Parties, in conjunction with applicable law. Accepting the factual allegations
set forth in the Amended Complaint as true, the contamination at issue involves the commingling
of petroleum products and other hazardous substances and, therefore, Tarrify is not entitled to
dismissal of Plaintiffs claim under CERCLA’s petroleum exclusion. Furthermore, Plaintiffs
have sufficiently pled that a release of hazardous substances occurred, and have sufficiently
articulated response costs as contemplated under CERCLA. The allegations set forth in the
Amended Complaint are sufficient to withstand dismissal and are not so vague and ambiguous so
as to warrant further amendment pursuant to Fed. R. Civ. P. 12(e).
Conclusion
The Motion to Dismiss (Docket #28) filed by Defendant, Tarrify Property LLC, is hereby
DENIED.
IT IS SO ORDERED.
s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge

DATED: March 23, 2017

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