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Clark v. Ashland Inc.

United States District Court, M.D. Florida, Fort Myers Division

February 3, 2017

NOEL D. CLARK, JR., individually, Plaintiff,
v.
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

          JOHN E. STEELE UNITED STATES DISTRICT JUDGE.

         This 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's[1]Motion 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.

         I.

         This 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.

         A. Jurisdiction of Court

         Plaintiff's 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.

         B. Summary of Factual Allegations

         In brief, the Fourth Amended Complaint (Doc. #178) alleges the following underlying material facts:

         On an 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.)

         On an 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.

         In 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.)

         On an unstated date Daniel Mahler inherited the Property from Herbert Hutner and Ms. Barbara. (Id. ¶ 27.)

         In 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. ¶ 79.)

         In 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.)

         Plaintiff 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.)

         Plaintiff 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, 161.)

         Plaintiff 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).

         II.

         Under 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, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In 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.

         “Generally, 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).

         A 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.

         III.

         Once 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.

         A. Claims Against Hercules and Ashland: Counts I Through V

         Counts 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.

         (1) Count I: Violation of the Florida Pollutant Discharge and Control Act;

         Count IV: Violation of Chapter 376, Florida Statutes

         Count I 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.

         (a) Failure to State a Claim Under Florida Pollutant Discharge Prevention and Control Act - Count I

         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.)[2] 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. ¶¶ 144-45.)

         Hercules 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. 14.)

         The 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 interest.

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.

         Plaintiff 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 years.

         While 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.

         Fla. 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.

         The 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) (emphasis added).

         Read 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.

         In sum, 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 defendant Hercules.

         (b) Failure to State a Claim Under Chapter 376 - Count IV

         Count 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.).

         This 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 s. 376.308.

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.

         Once 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.

         As 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 Hercules.

         Defendants 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.

         The 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.

         Plaintiff's 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. ΒΆΒΆ 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 ...


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