United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiffs Town of Westport and Westport Community Schools ("Westport") have filed this lawsuit against Defendants Monsanto Company, Solutia, Inc. and Pharmacia Corporation, ("Defendants") alleging breach of implied warranty of merchantability by defective design (Count I), breach of implied warranty of merchantability by failure to warn (Count II), negligence (Count III), public nuisance (Count IV), private nuisance (Count V), trespass (Count VI) and violation of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Mass. Gen. L. c. 21E §§ 5(a)(3)-(5) (Count VII). D. 1. Defendants have moved to dismiss the public nuisance, private nuisance, trespass and Chapter 21E claims. D. 22. For the reasons stated below, the Court ALLOWS Defendants' partial motion to dismiss.
II. Standard of Review
When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court determines whether the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citing Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)). A complaint must include facts sufficient 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote omitted). This determination requires a two-step inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court distinguishes between factual and conclusory legal allegations in the complaint. Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224 (1st Cir. 2012). Then, taking the Plaintiff's factual allegations as true, the Court must draw "the reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). "[N]o single allegation need [establish]... some necessary element [of the cause of action], provided that, in sum, the allegations of the complaint make the claim as a whole at least plausible." Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 24 (1st Cir. 2014) (quoting Ocasio-Hernández, 640 F.3d at 14-15 (1st Cir. 2011)). "In determining whether a [pleading] crosses the plausibility threshold, the reviewing court [must] draw on its judicial experience and common sense.... This context-specific inquiry does not demand a high degree of factual specificity." García-Catalán, 734 F.3d at 103 (citations and internal quotation marks omitted).
III. Factual Background
This summary is drawn from the factual allegations in the complaint, D. 1, that for the purposes of this motion, are assumed to be true. Westport, which operates public schools and buildings in Westport, Massachusetts, has detected toxic chemical compounds known as polychlorinated biphenyls ("PCBs") in one or more of its facilities. D. 1 ¶ 1. Defendant companies are corporate spin-offs of Old Monsanto, the sole manufacturer of PCBs in the United States from 1935 to 1979. Id . ¶¶ 12-13, 21. Old Monsanto manufactured and distributed PCBs for use in many industrial and commercial contexts before Congress enacted the Toxic Substances Control Act ("TSCA") in 1979, which banned their manufacture and most uses. Id . ¶¶ 2, 4, 21-22, 55.
During the period before Congress enacted the TSCA, Old Monsanto produced PCBs for use in both "totally enclosed" materials such as transformers and lighting ballasts, as well as "non-totally enclosed" materials such as caulks, paints and sealants. Id . ¶¶ 21-25. Old Monsanto became aware of PCB's toxicity as early as the 1930s. Id . ¶ 42. Exposure to PCBs is associated with cancer and can effect a person's immune system, reproductive system, nervous system and endocrine system. Id . ¶¶ 3, 35. Young children may be more affected by PCBs than adults. Id . ¶ 41. PCBs can be ingested, inhaled, and absorbed through skin. Id . ¶ 31. PCBs can escape into the atmosphere during production and also through intended uses of products containing PCBs. Id . ¶ 4.
In May 2011, Westport detected PCBs in one or more of its schools that were built or renovated between 1950 and 1978. Id . ¶ 60. In May 2011, it detected dangerous levels of PCBs at the Westport Middle School. Id . In December 2013, the Environmental Protection Agency issued a press release warning that PCB-containing light ballasts installed prior to the ban on PCBs may still be in schools and may leak PCBs. Id . ¶ 57.
IV. Procedural History
Plaintiffs instituted this action on May 7, 2014. D. 1. Defendants have now moved to dismiss Counts IV through VII. D. 22. The Court heard the parties on the pending motion and took this matter under advisement. D. 39.
A. Public Nuisance (Count IV)
In Massachusetts, "[a] nuisance is public when it interferes with the exercise of a public right by directly encroaching on public property or by causing a common injury." Connerty v. Metro. Dist. Comm'n, 398 Mass. 140, 148 (1986), abrogated on other grounds by Jean W. v. Commonwealth, 414 Mass. 496 (1993). "Public nuisance liability can be based upon conduct that is intentional, and unreasonable or negligent, reckless or ultrahazardous." Connerty, 398 Mass. at 149 (citation omitted). Ordinarily, only the Attorney General may bring an action for public nuisance, but a private plaintiff may do so if she can "show that the public nuisance has caused some special injury of a direct and substantial character other than that which the general public shares.'" Sullivan v. Chief Justice for Admin & Mgmt. of Trial Court, 448 Mass. 15, 34-36 (2006) (quoting Connerty, 398 Mass. at 148) (dismissing public nuisance claim based on failure to protect courthouse workers from asbestos dislodged during building renovations when workers failed to allege a special injury distinct from the injury faced by others in the courthouse). To determine whether there has been an interference with a public right, a court considers "[w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience." Id. at 34. A town may bring a public nuisance action when it could be held liable for harm occurring as a result of the nuisance, which the Court assumes ...