United States District Court, M.D. Florida, Fort Myers Division
NOEL D. CLARK, JR., individually, Plaintiff,
ASHLAND, INC., a foreign corporation, HERCULES INC., a foreign corporation, TIM HASSETT, Ashland employee, individually, URS CORPORATION, a foreign corporation, BRUCE DESILET, individually, EDWARD W. SIERSEMA, JR., individually, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, STEVE BELL, individually, WILLIAM KUTASH, individually, HERSCHELL T. VINYARD, individually, JOHNATHON STEVENSON, individually, CAROLYN J. COOPER, individually, and MARY E. YEARGON, individually, Defendants.
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of the following
motions to dismiss: (1) State of Florida Department of
Environmental Protection and its current employees Jonathon
Stevenson and Mary E. Yeargan, and former employees Steve
Bell, William Kutash, and Herschell T. Vineyard, Motion to
Dismiss the Fourth Amended Complaint (Doc. #196) filed on
March 31, 2016; (2) Hercules Incorporated and Ashland
Inc.'s Motion to Dismiss Plaintiff's Fourth Amended
Complaint (Doc. #213) filed on September 16, 2016; (3)
Timothy Hassett and Carolyn J. Straton'sMotion to Dismiss
Plaintiff's Fourth Amended Complaint (Doc. #214) filed on
September 16, 2016; and (4) URS Corporation, Edward W.
Siersema, Jr., and Bruce Desilet's Motion to Dismiss
Plaintiff's Verified Fourth Amended Complaint and,
Alternatively, for a More Definite Statement (Doc. #215)
filed on September 19, 2016. Plaintiff filed Responses (Docs.
##224, 226, 227, 229) in opposition to each the motion.
matter arises out of the pollutant contamination of real
property in DeSoto County, Florida now owned by plaintiff
Noel D. Clark (plaintiff or Clark). Plaintiff's Fourth
Amended Complaint (Doc. #178) contains 232 paragraphs and
thirteen (13) counts against thirteen (13) defendants
alleging violations of various state and federal laws. All
defendants seek dismissal of all counts of the Fourth Amended
Complaint which relate to them.
Jurisdiction of Court
assertion of diversity jurisdiction (Doc. #178, ¶ 1) is
ineffective since he has not alleged the citizenship of all
parties, and it seems apparent that such allegations would
establish that the citizenship of at least one defendant is
non-diverse from plaintiff's citizenship. Plaintiff has,
however, alleged federal question jurisdiction based upon the
presence of causes of action premised on federal statutes.
Thus, the Court has subject matter jurisdiction to proceed
with the motions.
Summary of Factual Allegations
brief, the Fourth Amended Complaint (Doc. #178) alleges the
following underlying material facts:
unstated date, defendant Hercules, Inc. (Hercules), a
Delaware corporation (id. ¶ 5), bought the
subject real property (hereafter the Property) and conducted
a Stumping Operation on it from 1972 through 1978,
(id. ¶ 18). The Stumping Operation
“consisted of extracting and working with rosin to
produce turpentine, tall oil, rosin, derivatives, paper
chemicals, toxaphene, delnav, and agricultural
insecticides.” (Id. ¶ 19.) Hercules would
extract wood rosin from pine stumps, wash the extract in
water towers, and deposit the warm mixture into settling
basins. (Id. ¶ 20.) Hercules would remove the
remaining sludge and pump it directly from the settling
basins into a manmade retention pond through an underground
tank and pipe system, as well as “numerous above ground
tanks.” (Id. ¶ 21.) During this time,
Hercules discharged various pollutants onto the Property.
(Id. ¶ 22.)
unstated date, defendant Ashland, Inc. (Ashland), a Kentucky
corporation (id. ¶ 6), purchased Hercules and
its liabilities in the United States, (id. ¶
46). Plaintiff describes Ashland as “the informed
buyer” (id. ¶ 23), and “the buyer
of Hercules with full knowledge, ” (id. ¶
120). Few additional facts about Ashland are articulated.
1978, Hercules sold the Property to Herbert Hutner without
having remediated the contamination on the Property, in
violation of Chapter 376, Florida Statutes. (Id.
¶¶ 22, 25.) Hercules left behind the underground
storage tanks and piping from the Stumping Operation
(id. ¶¶ 66-67), which contained hazardous
and toxic substances, (id. ¶ 22). Over time the
underground storage tanks and piping began to rust and leak;
the hazardous substances migrated from the Property and
contaminated the groundwater, soil, and air on and around the
Property in violation of federal and Florida law.
(Id. ¶¶ 22, 59, 66-67.)
unstated date Daniel Mahler inherited the Property from
Herbert Hutner and Ms. Barbara. (Id. ¶ 27.)
2001, plaintiff Clark and former plaintiff B. Lynn Callaway
purchased the 81 acre Property from Daniel Mahler.
(Id. ¶¶ 28, 75, 79.) Plaintiff asserts
that at the time they purchased the Property, plaintiff
conducted a diligent search of the property title records and
found nothing indicating the existence of potentially
hazardous waste on the Property. (Id. ¶ 29.)
Despite the prior commercial stumping operation which had
been conducted on the Property, plaintiff alleges the
Property was zoned residential. (Id. ¶ 28.)
Plaintiff further alleges that he purchased the property for
the purpose of running a cattle ranch (id. ¶
30) and did so (id. ¶¶ 73-74, 79),
building cattle chutes and five separate holding pens,
fencing in the entire property, and placing three mobile
homes and one recreational vehicle on the property,
(id. ¶¶ 30, 79). Until relatively
recently, plaintiff resided on the Property. (Id.
2008, plaintiff received mail correspondence from the Florida
Department of Environmental Protection (FDEP) notifying him
for the first time of the potential contamination situation
involving Hercules and his Property. (Id. ¶
32.) This was the first notice plaintiff had of the possible
pollutant contamination of the Property. (Id.
¶¶ 32, 131.)
initially cooperated with the FDEP by allowing Hercules,
Ashland, FDEP, and other defendants onto the Property to take
steps to remediate the contamination (id. ¶
43), and by performing extensive work himself, (id.
¶¶ 71, 94). Plaintiff became convinced, however,
that they were on the Property “to destroy, hide, and
cover up the evidence and to misrepresent the extent of
damages caused by the site.” (Id. ¶¶
43, 46, 50.) Therefore, plaintiff issued a no trespass notice
to all named defendants unless an access agreement was
negotiated. (Id. ¶¶ 43, 45, 48-49, 123.)
There are no allegations that any defendant was on the
Property thereafter without plaintiff's permission.
Defendant URS prepared a report for FDEP in 2009, which
plaintiff asserts intentionally misrepresented the existence
of the underground tanks and pipes, and the chemicals leaking
therefrom. (Id. ¶¶ 66, 72.)
alleges that there is a continuing release of pollutants onto
the Property from the underground pipe and tank system, which
are now rusted and leaking, leaching hazardous wastes into
the soil groundwater. (Id. ¶ 59.) This
hazardous waste continues to migrate from the Property to
neighboring wells through the groundwater aquifers and to the
Peace River recreation area less than one-quarter mile away
from the Property. (Id. ¶¶ 63-68, 85.)
This has caused plaintiff a number of different types of
injuries and damages. (Id. ¶¶ 144-45,
alleges that the FDEP and its individually named employees
were malfeasant and conspired with Hercules and Ashland and
the other defendants to conceal the violations and
contamination of the Property. (Id. ¶¶
32-42, 48-51.) Plaintiff alleges that FDEP failed to
diligently perform its duties (id. ¶¶
41-42), and that all defendants made false representations to
him and were part of a racketeering enterprise concerning the
contamination of his Property, (id. ¶¶
45-47, 52-53, 72, 80-137).
Federal Rule of Civil Procedure 8(a)(2), a Complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth, ” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus,
the Court engages in a two-step approach: “When there
are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
the existence of an affirmative defense will not support a
motion to dismiss, ” Quiller v. Barclays
Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984),
aff'd on reh'g, 764 F.2d 1400 (11th Cir.
1985) (en banc) (per curiam) (reinstating panel opinion),
because plaintiffs are not required to negate an affirmative
defense in their complaint. La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). A
complaint may be dismissed, however, when the existence of an
affirmative defense “clearly appears on the face of the
complaint.” Quiller, 727 F.2d at 1069. See
also La Grasta, 358 F.3d at 845 (“[A] Rule
12(b)(6) dismissal on statute of limitations grounds is
appropriate only if it is ‘apparent from the face of
the complaint' that the claim is time-barred”
(quoting Omar ex rel. Cannon v. Lindsey, 334 F.3d
1246, 1251 (11th Cir. 2003))); Douglas v. Yates, 535
F.3d 1316, 1321 (11th Cir. 2008)(same).
pleading drafted by a party proceeding pro se, like the
Fourth Amended Complaint at issue here, is held to a less
stringent standard than one drafted by an attorney, and the
Court will construe the allegations contained therein
liberally. Jones v. Fla. Parole Comm'n, 787 F.3d
1105, 1107 (11th Cir. 2015). “This liberal
construction, however, does not give a court license to serve
as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.'”
Hickman v. Hickman, 563 F. App'x 742, 743 (11th
Cir. 2014) (internal quotation marks and citations omitted).
Pro se parties are still required to conform to the
procedural rules. Id.
again, plaintiff's complaint is a shotgun pleading which
hinders any reasonable construction of his claims. If
plaintiff has valid causes of action, he has obfuscated them
by incorporating over 120 paragraphs into each of his
thirteen counts. Most of the incorporated paragraphs have
nothing to do with the specific cause of action, but simply
force the Court and opposing parties to sift through
irrelevant allegations and decide for themselves which are
material to each count. Strategic Income Fund, L.L.C. v.
Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295
nn.9 & 10 (11th Cir. 2002). Given the age of the case,
the Court makes one last effort to determine if plaintiff has
plausibly stated any cause of action.
Claims Against Hercules and Ashland: Counts I Through V
I through Count V purport to state causes of action against
only Hercules and Ashland. The Court will address these five
counts first, beginning with Counts I and IV.
Count I: Violation of the Florida Pollutant Discharge and
IV: Violation of Chapter 376, Florida Statutes
and Count IV of the Fourth Amended Complaint both purport to
set forth statutory causes of action under Chapter 376 of the
Florida Statutes. Chapter 376 addresses “Pollutant
Discharge Prevention and Removal” and contains a series
of statutes addressing those goals. The first portion of
Chapter 376 is the Florida “Pollutant Discharge
Prevention and Control Act, ” which is set forth in
sections 376.011-376.21, Florida Statutes, and addresses
pollution of coastal waters and land. See Fla. Stat.
§ 376.011. Other portions of Chapter 376 address
pollution of surface and ground waters, Fla. Stat.
§§ 376.30-376.319, as well as other aspects of
pollution discharge prevention and removal.
Failure to State a Claim Under Florida Pollutant Discharge
Prevention and Control Act - Count I
of plaintiff's Fourth Amended Complaint alleges Hercules
and Ashland are strictly liable for damages for violation of
the “Florida Pollutant Discharge and Control
Act.” (Doc. #178, ¶ 139.) Count I asserts that
Hercules was the contaminator who illegally sold its
un-remediated, unabated facility, from which pollutants are
now trespassing on plaintiff's Property, thus qualifying
as a “person in charge” as defined in section
376.031(15), Florida Statutes (Doc. #178, ¶ 141); that
Hercules has not eliminated the hazardous substances or their
continuing discharges into the air and water table
(id. ¶ 142); that as the past owner of the
facility and past owner and contaminator of the Property,
Hercules is liable for contaminates which continue to flow
into and invade the Peace River and Joshua Creek, neighboring
residential wells, and plaintiff's Property,
(id. ¶ 143). Plaintiff alleges that he has
suffered a variety of personal injuries and monetary damages
as a direct and proximate result of the violation of the
Florida Pollutant Discharge and Control Act. (Id.
and Ashland assert that Count I cannot state a claim under
the Pollutant Discharge Prevention and Control Act, Fla.
Stat. §§ 376.011-376.21, because plaintiff has not,
and cannot, allege that the site has polluted any coastal
waters or lands, as required by the statute. (Doc. #213, p.
Pollution Discharge Prevention and Control Act prohibits
“[t]he discharge of pollutants into or upon any coastal
waters, estuaries, tidal flats, beaches, and lands adjoining
the seacoast of the state in the manner defined by ss.
376.011-376.21.” Fla. Stat. § 376.041. This
portion of Chapter 376 was first enacted in 1970 and
“provides a cause of action for parties harmed by
pollution of coastal waters and lands.” Curd v.
Mosaic Fertilizer, LLC, 39 So.3d 1216, 1229
(Fla. 2010) (Polston, J., concurring). That statutory cause
of action provides:
Notwithstanding any other provision of law, any person may
bring a cause of action against a responsible party in a
court of competent jurisdiction for damages, as defined in s.
376.031, resulting from a discharge or other condition of
pollution covered by ss. 376.011-376.21. In any such suit, it
shall not be necessary for the person to plead or prove
negligence in any form or manner. Such person need only plead
and prove the fact of the prohibited discharge or other
pollutive condition and that it occurred. The only defenses
to such cause of action shall be those specified in s.
376.12(7). The court, in issuing any final judgment in such
action, may award costs of litigation, including reasonable
attorney's and expert witness fees, to any party,
whenever the court determines such an award is in the public
Fla. Stat. § 376.205. Thus, “any person” may
bring a cause of action under section 376.205 if he
adequately alleges that: (1) defendant is a
“responsible party” under the Act; (2) plaintiff
suffered “damages” which are recoverable under
the Act; and (3) the recoverable damages result from a
discharge or other condition of pollution covered by sections
376.011-376.21. Fla. Stat. § 376.205.
Clark, of course, qualifies within the “any
person” phrase of section 376.205. Plaintiff may bring
this cause of action only against “a responsible party,
” which is defined in relevant part as “any
person owning or operating the facility.” Fla. Stat.
§ 376.031(20)(b). The Court finds that Count I
adequately alleges that Hercules was the owner and operator
of an onshore facility, and hence Hercules is sufficiently
alleged to be a responsible party. Ashland, however, was
never an owner or operator of the onshore facility. By the
time Ashland purchased the assets of Hercules in 2008 (Doc.
#36, ¶ 45), Hercules had long-since sold the Property
and thus had not been an owner or operator for about twenty
plaintiff has alleged numerous components of damages in Count
I, not all damages are recoverable under the Pollution
Discharge Prevention and Control Act. The statute contains a
limiting definition of “damage”:
“Damage” means the documented extent of any
destruction to or loss of any real or personal property, or
the documented extent, pursuant to s. 376.121, of any
destruction of the environment and natural resources,
including all living things except human beings, as the
direct result of the discharge of a pollutant.
Stat. § 376.031(5). While most of plaintiff's
claimed injuries and damages (Doc. #178, ¶ 144) are not
recoverable under the Act, plaintiff has alleged certain
monetary damages, including diminished value of his Property,
(id. ¶ 145). These are recoverable damages
under the statute. Adinolfe v. United Techs. Corp.,
768 F.3d 1161, 1175 (11th Cir. 2014). Therefore, plaintiff
has sufficiently pleaded this element of the cause of action.
final element of the cause of action is that the recoverable
damages must result from a discharge or other condition of
pollution covered by sections 376.011-376.21, Florida
Statutes. Fla. Stat. § 376.205. The prohibited act under
these statutes is the “discharge” of
“pollutants into or upon any coastal waters, estuaries,
tidal flats, beaches, and lands adjoining the seacoast of the
state in the manner defined by ss. 376.011 - 376.21.”
Id. § 376.041. “Discharge” is
defined to “include[ ], but is not limited to, any
spilling, leaking, seeping, pouring, emitting, emptying, or
dumping which occurs within the territorial limits of the
state or outside the territorial limits of the state and
affects lands and waters within the territorial limits of the
state.” Id. § 376.031(7). The physical
location of the discharge becomes important because the other
statutes in Chapter 376 prohibiting discharge of pollutants
on surface and ground waters only apply to discharge
“which occurs and which affects lands and the surface
and ground waters of the state not regulated by ss.
376.011-376.21.” Id. § 376.301(12)
liberally, plaintiff alleges that pollutants left in storage
tanks and piping on plaintiff's Property by Hercules have
leaked out and contaminated his Property and the surrounding
properties, including the Peace River and Joshua Creek. (Doc.
#178, ¶¶ 63, 85, 141, 143, 145, 159.) Assuming this
is factually true, as the Court must at this stage of the
proceedings, the discharge of pollutants may have been into
or upon “any coastal waters, estuaries, tidal flats,
beaches, and lands adjoining the seacoast of the state”
within the meaning of section 376.041, Florida Statutes.
While defendants argue to the contrary, they have not
provided the Court with any binding definition of these terms
or established that the discharges at issue cannot come
within the meaning of this phrase.
plaintiff has not plausibly stated a cause of action in Count
I against defendant Ashland, who has never been a
“responsible party, ” so Count I of the Fourth
Amended Complaint will be dismissed with prejudice as to
Ashland. Count I has not been shown to be implausible as to
Hercules, at least as to the limited damages allowed by
statute. The motion to dismiss Count I will be denied as to
Failure to State a Claim Under Chapter 376 - Count IV
IV of plaintiff's Fourth Amended Complaint alleges
Hercules and Ashland are strictly liable for damages for
violation of sections 376.12(5) and 376.313, Florida
Statutes. (Doc. #178, ¶ 157.) Count IV asserts that
Hercules owned and operated the Gulf Naval Stores, a
“facility” as defined by Florida Statute section
376.031(15), which is now owned by plaintiff. (Id.
¶ 159.) Count IV further alleges that plaintiff suffered
various personal injuries as a direct result of the violation
of “Strict Liability Florida Statutes 376” and
monetary damages. (Id. ¶¶ 160-62.) Count
IV does not specifically allege that either defendant
did anything, but the Court infers that the conduct
plaintiff intends to allege is the contamination of what is
now his Property, as had been described in Count I.
(Id. ¶¶ 141-43.).
portion of Chapter 376 was originally enacted as part of the
Water Quality Assurance Act of 1983, and comprises a
comprehensive statutory scheme designed to protect
Florida's surface and ground waters. Fla. Stat.
§§ 376.30-376.319. See Aramark Unif.
& Career Apparel, Inc. v. Easton, 894 So.2d 20, 22
(Fla. 2004). These statutes have their own private cause of
action provision, which provides:
Except as provided in s. 376.3078(3) and (11), nothing
contained in ss. 376.30-376.317 prohibits any person from
bringing a cause of action in a court of competent
jurisdiction for all damages resulting from a discharge or
other condition of pollution covered by ss. 376.30-376.317
and which was not authorized pursuant to chapter 403. Nothing
in this chapter shall prohibit or diminish a party's
right to contribution from other parties jointly or severally
liable for a prohibited discharge of pollutants or hazardous
substances or other pollution conditions. Except as otherwise
provided in subsection (4) or subsection (5), in any such
suit, it is not necessary for such person to plead or prove
negligence in any form or manner. Such person need only plead
and prove the fact of the prohibited discharge or other
pollutive condition and that it has occurred. The only
defenses to such cause of action shall be those specified in
Fla. Stat. § 376.313(3). See Curd, 39 So.3d at
1221. Thus, “any person” may bring a cause of
action under section 376.313(3) if he adequately alleges
that: (1) plaintiff suffered “damages”
recoverable under the statutes; and (2) the recoverable
damages resulted from a discharge or other condition of
pollution covered by sections 376.30-376.317. Fla. Stat.
§ 376.313(3). Plaintiff need not show that defendant
caused the discharge of pollutants. Aramark, 894
So.2d at 24.
again, plaintiff comes within the phrase “any
person” who may bring the cause of action. Under this
portion of Chapter “all damages” may by
recovered. Fla. Stat. § 376.313(3). Count IV adequately
pleads the damage element of the cause of action.
relevant to this case, the statutes prohibit the
“discharge [of] pollutants or hazardous substances into
or upon the surface and ground waters of the state or lands,
which discharge violates any departmental
‘standard' as defined in s. 403.803(13).”
Id. § 376.302(1)(a). Discharges governed by
these statutes must occur on land or waters “not
regulated by ss. 376.011-376.21.” Id. §
376.301(13). Once again, there are no allegations which
establish any basis for Ashland's liability, since it was
not an owner or operator of a facility at any time. Ashland
will be dismissed with prejudice. The Court concludes that
Count IV sufficiently alleges a cause of action against
Hercules, and the motion to dismiss Count IV is denied as to
also assert that plaintiff cannot state a claim in Count IV
because the doctrine of caveat emptor protects a seller of
commercial real property from any liability to the purchaser
from a condition of the property that preexists the sale.
(Doc. #213, pp. 15-17.) This potential affirmative defense,
however, cannot be resolved on the pleadings in this case.
doctrine of caveat emptor has been abolished in Florida for
residential real estate transactions. Johnson v.
Davis, 480 So.2d 625 (Fla. 1985); Mansur v.
Eubanks, 401 So.2d 1328 (Fla. 1981). Florida courts have
been at odds concerning its continued applicability in regard
to commercial real estate transactions and violations under
the Florida pollution statutes. Compare Mostoufi v.
Presto Food Stores, Inc., 618 So.2d 1372 (Fla. 2d DCA
1993), overruled on other grounds by Aramark, 849
So.2d 20, with Kaplan v. Peterson, 674 So.2d 201
(Fla. 5th DCA 1996). The Florida Supreme Court has not yet
resolved the conflict.
Fourth Amended Complaint contains allegations supporting both
a residential use and a commercial use of the Property.
Plaintiff alleges that the property at issue is residential
and that there are homes on the property. (Doc. #178,
¶¶ 28, 79.) Elsewhere plaintiff discusses his ranch
business and running a cattle ranch on the property.
(Id. ¶¶ 30, 74, 79.) Hercules does not
cite to any Florida decision discussing the application of
caveat emptor in such a mixed-use situation. Because the
existence of caveat emptor does not clearly appear on ...