LONNY R. SUKO, Senior District Judge.
A Fed. R. Civ. P. 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In reviewing a 12(b)(6) motion, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from such allegations. Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 460 (9th Cir. 1994); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The complaint must be construed in the light most favorable to the plaintiff. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The sole issue raised by a 12(b)(6) motion is whether the facts pleaded, if established, would support a claim for relief; therefore, no matter how improbable those facts alleged are, they must be accepted as true for purposes of the motion. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827 (1989). The court need not, however, accept as true conclusory allegations or legal characterizations, nor need it accept unreasonable inferences or unwarranted deductions of fact. In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1403 (9th Cir. 1996). "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)...." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). The factual allegations must allege a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951 (2009).
Defendant Teck Metals, Ltd. ("Teck") appears to concede, at least for the purposes of this motion, that a three year statue of limitations applies to all of Plaintiffs' claims (strict liability, nuisance and negligence) because they are based on personal injury. RCW 4.16.080(2). Teck contends "[i]t is apparent from the face of the [First Amended Class Action Complaint (ECF No. 28)] that all of Plaintiffs' claims have long since accrued and expired." More specifically, Teck contends all of the claims accrued before December 19, 2010, which is three years from December 20, 2013, the date on which Plaintiffs filed their original Class Action Complaint (ECF No. 1).
A statute of limitations defense, "if apparent from the face of the complaint," may properly be raised in a motion to dismiss. Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9
The "discovery rule" is a form of tolling. Under the discovery rule, the statute of limitations does not begin to run until a plaintiff discovers or reasonably could have discovered all the essential elements of the cause of action. Allyn v. Boe, 87 Wn.App. 722, 943 P.2d 364, 372 (1997). The discovery rule does not require knowledge of the existence of a legal cause of action itself, but merely knowledge of the facts necessary to establish elements of the claim. Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 814, 818 P.2d 1362 (1991). In Putz v. Golden, 2010 WL 5071270 (W.D. Wash. 2010) at *13, the court found the plaintiffs' allegations were sufficient to withstand a motion to dismiss based on the statute of limitations, noting that "[f]urther discovery may reveal that the exceptions of equitable tolling or the discovery rule should not apply, but the court expresses no opinion regarding the proper outcome at this stage of the litigation."
While the factual allegations in the Amended Complaint here do not point to a specific date of "discovery' for any of the named Plaintiffs, this is not critical so long as the allegations are sufficient to establish a potential defense to the statute of limitations. Plaintiffs are not required to allege, as maintained by Teck, "what previously unknown facts came to each individual's attention, when the facts were discovered, and how these facts supplied knowledge of elements of their claims that were previously unknown."
"A plaintiff is not required to negate an affirmative defense, such as the statute of limitations, in his complaint." Clark v. City of Braidwood, 318 F.3d 764, 767 (7
It is not apparent from the face of the First Class Action Amended Complaint that all of Plaintiffs' claims have accrued and expired. Therefore, resolution of whether the "discovery rule" applies to each claim should be based on evidence presented at summary judgment proceedings after discovery is completed or, if necessary, at trial. A liberal reading of the allegations in the Amended Complaint, and particularly those at Paragraphs 40-44, reasonably suggests it was not until after 2010 that individuals residing in the Upper Columbia River Region (UCRR), or who once resided there, knew or had reason to know that emissions from Teck's smelter could be responsible for their specific health problems and that the same was susceptible of proof so that they had a legal right to maintain an action against Teck.
Teck contends the Amended Complaint fails to allege any facts to establish causation which is an essential element of all of the Plaintiffs' claims. According to Teck, "absent . . . from the Amended Complaint are essential factual links in the causal chain between releases from the [Trail] Smelter and Plaintiffs' alleged diseases."
Teck asserts that Plaintiffs' allegations regarding general causation are insufficient because "[w]hile Plaintiffs have arguably alleged that certain chemicals can cause certain diseases
Even when it comes to proving specific causation, as opposed to merely pleading it, "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community." Henricksen v. ConocoPhillips Co., 605 F.Supp.2d 1142, 1157 (E.D. Wash. 2009). "While precise or exact information concerning dosage or the doseresponse relationship is not always required, the boundaries of allowable expert testimony are not so wide as to permit an expert to testify as to specific causation without having any measurements of a plaintiff's exposure to the allegedly harmful substance." Id., citing Hardyman v. Norfolk & Western Ry. Co., 243 F.3d 255, 264 (6
Teck asserts that "[b]ecause Plaintiffs plead no specific facts about their own exposure to hazardous substances, they fail to provide a plausible basis . . . to conclude their injuries are fairly traceable to Teck." According to Teck, Plaintiffs fail to plead "what specific metals or chemicals each was exposed to personally, the means by which each was exposed, or in what quantities and the periods of time during which each was exposed." This level of specificity is not required in order to establish "plausibility" regarding specific causation. What Plaintiffs have alleged in their Amended Complaint is sufficient to state a plausible claim for specific causation.
Plaintiffs allege actual exposure to Teck emissions via the air pathway over significantly long periods of time. Accordingly, while there are no specific allegations in the Amended Complaint about any of the Plaintiffs drinking river water or lake water, swimming in river or lake water, eating fish from the river or lakes, or eating vegetables from gardens they or others had in the UCRR, merely breathing the air in the UCRR for a prolonged period of time was enough according to the Amended Complaint: 1) "Between 1921 and 2005, it is estimated that Teck also emitted 38,465 tons of zinc, 22,688 tons of lead, 1,225 tons of arsenic, 1,103 tons of cadmium, and 136 tons of mercury
The court agrees with Plaintiffs that their action is on "all fours" with Brown v. Whirlpool Corporation, 996 F.Supp.2d 623 (N.D. Ohio 2014). In that case, Whirlpool contended the plaintiffs did not plausibly allege its dumping and emitting practices proximately caused plaintiffs' injuries. The district court disagreed:
Id. at 637-38.
The allegations in Whirlpool bear a close resemblance to the allegations in the Amended Complaint: 1) Plaintiffs allege Teck has polluted the air and the soil and the water in the UCRR for approximately the past 100 years (Paragraphs 17-33); 2) the Environmental Protection Agency (EPA) and others have determined that Teck is the principal source of contamination in the area (Paragraphs 34-39); 3) an informal health survey indicates Northport residents suffer from thyroid or endocrine disorders at six times the rate of the general population and found elevated rates of arthritis, cancer, inflammatory bowel disease, brain aneurisms, and Parkinson's disease; and 4) a subsequent health survey conducted by Dr. Korzenik found 17 confirmed cases of either ulcerative colitis or Crohn's disease, a cluster representing 10 to 15 times what would normally be seen in a population the size of Northport (Paragraphs 42-44).
Plaintiffs' Amended Complaint sets forth allegations plausibly establishing that Teck's emissions are the proximate cause of the diseases suffered by them. Proximate cause will be adjudicated based on the proof presented either at summary judgment or trial.
Washington courts recognize the doctrine of strict liability as set forth in Restatement (Second) of Torts §§ 519 and 520 (1977).
Restatement (Second) of Torts § 520 (1977).
Furthermore,
Klein, 117 Wn.2d at 7 (quoting Restatement (Second) of Torts § 520, cmt. f (1977).
The "Statement of Facts" section of Plaintiffs' Amended Complaint (Section IV) does not specifically address each of the six factors (i.e., does not specifically allege that lead/zinc smelting is not a matter of common usage and that it is inappropriate to the place where it is carried on). That is not fatal, however, because it is reasonable to infer from the alleged facts that one or more of the listed factors exist to support the conclusion as set forth in the strict liability claim for relief (Paragraph 108), that "[o]peration of the Trail Smelter constitutes an abnormally dangerous activity because Teck releases and has released hazardous and toxic substances, which create a high risk of significant harm."
Alleging a negligence claim (failure to exercise reasonable care) is not inconsistent with alleging a strict liability claim. Plaintiffs' strict liability claim asserts that even if Teck exercised reasonable care, it is still liable because it engaged in an abnormally dangerous activity. Plaintiff's negligence claim asserts that even if Teck did not engage in an abnormally dangerous activity, it still failed to exercise reasonable care and should be held liable. This distinction was explained in Roeder v. Atlantic Richfield, 2011 WL 4048515 (D. Nev. 2011) at *5:
Roeder was a class action arising out of alleged air and groundwater contamination by a mining company. The mine site consisted of an abandoned copper mine and extraction facility in Nevada. The companies who operated the mine from 1918 to 1982 extracted approximately 360 million tons of ore and debris from the open pit mine, much of which remained as waste in a "pit lake" and "tailings or leach heap piles." Toxic substances at the mine site included arsenic, chromium, lead, mercury, uranium, thorium, and radium. These substances had contaminated the local groundwater, surface water, soil, and air, leaving the plaintiffs exposed to them. The district court declined to dismiss plaintiffs' strict liability claims, finding they were available under the factor-based approach of the Restatement (Second) of Torts:
2011 WL 4048515 at *5.
The district judge in Roeder deemed the facts in his case most analogous to State Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983), where the State of New Jersey sued various corporations that had carried on mercury processing operations at a site for almost fifty years. The lawsuit sought recovery for the cost of the cleanup and removal of mercury pollution seeping from a forty-acre tract of land into a creek, a tidal estuary of the Hackensack River flowing through the Meadowlands. Based on consideration of the Restatement (Second) factors, the Supreme Court of New Jersey affirmed the trial court's finding that the corporations had engaged in abnormally dangerous activity for which they could be held strictly liable:
Id. at 159-60.
The allegations of Plaintiffs' Amended Complaint bear many similarities to the facts in Roeder and Ventron. Plaintiffs have alleged facts plausibly showing that Teck's smelter operations are abnormally dangerous so as to withstand a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Whether those operations will ultimately be deemed abnormally dangerous as a matter of law is a question which will be determined based on evidence presented at summary judgment or trial.
Congress has not authorized courts to develop a substantive law of air or water pollution and therefore, federal common law can only be fashioned if a "federal rule of decision is `necessary to protect uniquely federal interests.'" National Audubon Society v. Department of Water, 869 F.2d 1196, 1202 (9th Cir. 1988), quoting Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061 (1980). A "`uniquely federal interest' exists `only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of states or our relations with foreign nations, and admiralty cases.'" Id., quoting Texas Industries, 451 U.S. at 641.
Teck contends National Audubon Society precludes the Plaintiffs who are "private" parties, as opposed to state entities, from pursuing a federal common law pubic nuisance claim. In National Audubon Society, the Ninth Circuit reversed the district court's conclusion that the plaintiff had stated a federal common law nuisance claim based on air pollution where it had accepted the plaintiff's allegations that dust storms polluted not only the air of California, but also that of Nevada. Based on its review of two Supreme Court decisions, Georgia v. Tennessee Copper Company, 206 U.S. 230, 27 S.Ct. 618 (1907), and Illinois v. Milwaukee ("Milwaukee I"), 406 U.S. 91, 92 S.Ct. 1385 (1972), both of which "involved a state suing sources outside its domain which were causing pollution within the state," 869 F.2d at 1205, the Ninth Circuit concluded as follows:
Id. at 1205 (emphasis added).
National Audubon Society cannot be read for the proposition that only state entities can pursue a federal common law public nuisance claim. First of all, the Ninth Circuit made it explicitly clear that it was not going to address whether Audubon had standing to pursue such a claim as a private party. Secondly, the circuit's decision was narrowly limited to the particular facts of the case which the circuit concluded amounted to essentially an intrastate, domestic dispute. Those facts were the National Audubon Society suing the Los Angeles Department of Water and Power (DWP) for conditions at Mono Lake located in California. The federal nuisance claim was predicated on the assertion that Mono Lake was an "interstate or navigable" water in which there was an overriding federal interest, and that DWP's diversions of water to Los Angeles of four freshwater streams that would otherwise flow into Mono Lake were causing air pollution in the form of alkali dust storms from the newly exposed lake bed. The suit was brought in the Eastern District of California, the location of the source of the pollution (Mono Lake), against an entity based in California (the Los Angeles DWP). Arguably, California law was sufficient to address the source of the pollution in California and in the process, remedy both the air pollution in California and Nevada. Here, on the other hand, the source of the pollution is located outside the State of Washington (Teck's smelter in British Columbia) resulting in pollution inside the State of Washington. It is more in the way of an interstate dispute.
It appears that Judge Reinhardt in his dissenting opinion in National Audubon Society, 869 F.2d at 1210, thought the majority was limiting standing in federal common law nuisance actions to state complainants, a proposition with which he disagreed. Nevertheless, he noted that "[w]hile the majority discusses the need for state plaintiffs at some length, ultimately it appears to base its holding on the fact this case involves only California parties." Id. at 1211. National Audubon Society did not involve a dispute between parties from different states, unlike the dispute here between Teck, a Canadian corporation, and the Plaintiffs.
It is no wonder then that in Native Village of Kivalina v. ExxonMobil Corporation, 696 F.3d 849 (9
This court will not dismiss Plaintiffs' federal common law nuisance claims for lack of standing. Assuming they do have standing, the next question is whether those claims are nonetheless precluded because Congress has displaced them through the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §9601 et seq..
In Kivalina, the Ninth Circuit held that the Clean Air Act (CAA) and EPA action authorized by the CAA displaced plaintiffs' federal common law public nuisance claim for damages and affirmed the district court's dismissal of plaintiffs' action for lack of subject matter jurisdiction. Here, Teck contends that CERCLA displaces Plaintiffs' federal common law public nuisance claims for damages. No court has held whether CERCLA, by itself, is sufficient to displace a federal common law public nuisance claim for damages.
Claims can be brought under federal common law for public nuisance only when the courts are "compelled to consider the federal questions which cannot be answered from the federal statutes alone." Kivalina, 696 F.3d at 856, quoting City of Milwaukee v. Illinois ("Milwaukee II"), 451 U.S. 304, 314, 101 S.Ct. 1784 (1981). "The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute speak[s] directly to [the] question at issue." Id. quoting Connecticut v. Am. Elec. Power Co., Inc., ___ U.S. ___, 131 S.Ct. 2527, 2537 (2011) ("AEP"). "The existence of laws generally applicable to the question is not sufficient; the applicability of displacement is an issue-specific inquiry." Id. The question is "whether Congress has provided a sufficient legislative solution to the particular [issue] to warrant a conclusion that [the] legislation has occupied the field to the exclusion of federal common law." Id. quoting Mich. v. U.S. Army Corps of Eng'rs, 667 F.3d 765, 777 (7
"[T]he Supreme Court has instructed that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement." Kivalina, 696 F.3d at 857, citing Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605 (2008), and Middlesex County Sewerage Authority v. National Sea Clammers Ass'n., 453 U.S. 1, 4, 101 S.Ct. 2615 (1981). "Under Exxon and Middlesex, displacement of a federal common law right of action means displacement of remedies." Id. In Kivalina, the Ninth Circuit held the AEP case "extinguished Kivalina's federal common law public nuisance damage action, along with the federal common law public nuisance abatement actions." Id. "Judicial power can afford no remedy unless a right that is subject to that power is present." Id. Accordingly, the fact CERCLA does not provide a damages remedy for personal injuries is irrelevant to whether CERCLA displaces and precludes Plaintiffs' federal common law public nuisance claims in the case at bar.
Plaintiffs assert the "question at issue" is "whether Teck can be held liable for personal injuries caused by its contamination of the UCRR under the federal common law of nuisance." According to Plaintiffs, "the legislative history of CERCLA confirms that Congress rejected the inclusion of any statutory personal injury provisions within CERCLA and thus did not intend to occupy the field of personal injury liability caused by contaminants." This is too narrow a view of the "question at issue" and essentially focuses on the available remedies which, as noted above, is irrelevant. The "question at issue" is liability for the release and threatened release of hazardous substances. This is the harm of which Plaintiffs complain. Congress has spoken directly to this issue via CERCLA and has provided a "sufficient legislative solution" to warrant a conclusion that CERCLA occupies the field to the exclusion of federal common law. By way of CERCLA, Congress has provided a comprehensive liability and remediation scheme to address releases and threatened releases of hazardous substances by making polluters strictly liable for response costs to clean up the hazardous substances, and liable for natural resource damages to remedy harm to the environment for which they are responsible. CERCLA was enacted to "provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites." 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355, 1357 (9
Plaintiffs' federal common law public nuisance claims have been displaced by CERCLA and therefore, must be dismissed.
As an alternative to their federal common law public nuisance claims, the Plaintiffs plead state law public nuisance claims. In Washington, a nuisance is "an unreasonable interference with another's use and enjoyment of property...." Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 592, 964 P.2d 1173 (1998). Nuisance "consists in unlawfully doing
The court agrees with Teck that Plaintiffs seek to extraterritorially apply Washington's nuisance statute to Teck's activities in Canada. No court has ever sanctioned such an extraterritorial application. It is irrelevant that the Ninth Circuit Court of Appeals previously found in related environmental litigation that CERCLA is not being applied extraterritorially to Teck. Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1006 (9
Under Washington law, nuisance can be based upon intentional, reckless, or negligent conduct. Hostetler v. Ward, 41 Wn.App. 343, 357, 704 P.2d 1193 (1985). It is possible for the same act to constitute negligence and also give rise to a nuisance. Peterson v. King County, 45 Wn.2d 860, 863, 278 P.2d 774 (1954). However, "[s]eparate legal theories based upon one set of facts constitute `one claim' for relief under CR 54(b)." Snyder v. State, 19 Wn.App. 631, 635, 577 P.2d 160 (1975). "`[A] negligence claim presented in the garb of nuisance' need not be considered apart from the negligence claim." Atherton Condo. Apartment-Owners Ass'n Bd. of Dir. v. Blume Dev. Co., 115 Wn.2d 506, 527, 799 P.2d 250 (1990)(quoting Hostetler, 41 Wn.App. at 360.). "In those situations where the alleged nuisance is the result of defendant's alleged negligent conduct, rules of negligence are applied." Id. at 527.
Plaintiffs contend their state law public nuisance claims do not merge with their negligence claims because "[q]uite apart from the negligence which led to additional discharges . . . Plaintiffs' nuisance claim[s] arise[] from Teck's intentional discharge of toxins into the UCRR." As Teck points out, however, merely alleging intentional conduct is not enough to prevent merging of a nuisance and a negligence claim. "[N]uisance dependent upon negligence consists of anything lawfully but so negligently or carelessly done
Plaintiffs' Amended Complaint certainly alleges intentional conduct on the part of Teck (intentionally discharging slag into the river; intentionally emitting chemicals into the air). While it does not allege that Teck's smelting activities were unlawful or that Teck desired to cause the consequences of its intentional conduct, it alleges that Teck believed those consequences were substantially certain to follow from its intentional conduct. According to Paragraph 8 of the Amended Complaint:
(Emphasis added).
The court cannot conclude that Plaintiffs' nuisance claims are based on the same facts and allegations as their negligence claims such that the nuisance claims must be dismissed as duplicative. Nevertheless, this is inconsequential because as discussed above, the state law public nuisance claims fail because Washington's public nuisance statute cannot be applied extraterritorially to Teck's smelting activities in Canada.
In determining whether a defendant purposefully directed activities toward a forum state, courts in the Ninth Circuit employ the "effects test." Mavrix Photo, 647 F.3d 1218, 1228 (9
Teck contends Plaintiffs' Amended Complaint fails to allege that Teck "purposefully directed" its activities at the forum state (Washington) because the Amended Complaint does not allege that Teck caused harm to human health in Washington which it knew was likely to be suffered there (a "foreseeable" effect). According to Teck, "[t]he Amended Complaint fails to allege any facts to support the necessary inference that Teck foresaw that its releases in Canada were likely to cause harm to human health in Washington." This is inaccurate, as revealed by Paragraph 8 of Plaintiffs' Amended Complaint, quoted above, which was specifically pled in conjunction with Plaintiff's allegation in the same paragraph that "[t]he court's exercise of specific jurisdiction over Defendant is appropriate under the facts of this case." The facts alleged in Paragraph 8 of the Amended Complaint, if true, are sufficient to establish personal jurisdiction.
Defendant's motion to dismiss tests only the Plaintiffs' theory of jurisdiction. It attacks the face of Plaintiffs' Amended Complaint, rather than the underlying facts. In evaluating the Plaintiffs' jurisdictional theory, the court need only determine whether the facts alleged, if true, are sufficient to establish jurisdiction and no evidentiary hearing or factual determination is necessary. Credit Lyonnais Securities (USA), Inc. v. Alcantara, 183 F.3d 151, 153 (2
At this juncture, there is no basis for dismissing Plaintiffs' action for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). Based on the evidence presented at summary judgment or trial, the court may be required to revisit whether Teck foresaw impacts to human health such that the exercise of personal jurisdiction remains appropriate.
Defendant's Motion To Dismiss Amended Class Action Complaint (ECF No. 37) is
