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Barnstable County v. 3M Company

United States District Court, D. Massachusetts

December 18, 2017



          Denise J. Casper, United States District Judge.

         I. Introduction

         Plaintiff Barnstable County has filed this lawsuit against 3M Company (“3M”), Chemguard, Inc. (“Chemguard”), Buckeye Fire Equipment Company (“Buckeye”), United Technologies Corporation (“United Tech”), National Foam, Inc. (“National Foam”), Tyco Fire Products LP (“Tyco”) and John Doe Defendants 1-49 (collectively, “Defendants”). D. 1. Barnstable County alleges that Defendants manufactured and sold a firefighting agent that contained chemicals that present risks to human health and the environment, which led to a breach of the implied warranty of merchantability and constituted negligence. Id. ¶¶ 1-6, 60-74. Plaintiffs also seek indemnification and contribution for costs and damages incurred as well as a declaratory judgment. Id. ¶¶ 75-93. 3M, Chemguard, Tyco, United Tech and Buckeye have filed motions to dismiss. D. 42; D. 48; D. 54; D. 57. National Foam has filed a motion for joinder in Tyco and Chemguard's motion to dismiss. D. 52; D. 83. Tyco, Chemguard and United Tech separately request this Court to take judicial notice of various documents. D. 50; D. 56. For the reasons stated below, the Court GRANTS in part and DENIES in part Tyco and Chemguard's request for judicial notice, D. 50, and GRANTS in part and DENIES in part United Tech's request for judicial notice, D. 56. For the reasons below, the Court GRANTS IN PART 3M's motion to dismiss, D. 42, GRANTS IN PART Tyco and Chemguard's motion to dismiss, D. 48, GRANTS IN PART United Tech's motion to dismiss, D. 54, and GRANTS IN PART Buckeye's motion to dismiss, D. 57.

         II. Standards of Review

         A. Fed.R.Civ.P. 12(b)(1)

         A defendant can move to dismiss an action based upon a lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). “This rule is a large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction” including those challenges “grounded in considerations of ripeness, mootness, sovereign immunity, and the existence of federal question jurisdiction.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001) (collecting cases). When considering a motion to dismiss for lack of subject matter jurisdiction, “the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff.” Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). The Court, however, may also look beyond the pleadings to any evidentiary materials submitted by the parties to determine whether it has jurisdiction. Martínez-Rivera v. Puerto Rico, 812 F.3d 69, 74 (1st Cir. 2016).

         B. Fed. R. Civ. P. 12(b)(6)

         The Court will grant a motion to dismiss pursuant to Rule 12(b)(6) if the complaint fails to plead sufficient facts that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). At this stage, the Court must “assume the truth of ‘the raw facts' set forth in the complaint.” In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 750 (1st Cir. 2016) (quoting In re Bos. Sci. Corp. Sec. Litig., 686 F.3d 21, 27 (1st Cir. 2012)). The Court, however, need not consider “naked assertion[s] devoid of further factual enhancement.” San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st Cir. 2012) (quoting Twombly, 550 U.S. at 557)). Similarly, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)) (internal quotation mark omitted).

         “When a court is confronted with motions to dismiss under both Rules 12(b)(1) and 12(b)(6), it ordinarily ought to decide the former before broaching the latter” because “if the court lacks subject matter jurisdiction, assessment of the merits becomes a matter of purely academic interest.” Déniz v. Municipality of Guaynabo, 285 F.3d 142, 149-50 (1st Cir. 2002) (citing Ne. Erectors Ass'n of the BTEA v. Sec'y of Labor, Occupational Safety & Health Admin., 62 F.3d 37 (1st Cir. 1995)).

         III. Factual Background

         Unless otherwise noted, the following summary is based upon the factual allegations in the complaint, D. 1, and are accepted as true for the consideration of the Defendants' motions to dismiss.

         A. PFOS and PFOA

         Aqueous film forming foam (“AFFF”) is a firefighting agent that was developed in the 1960s as an alternative to the existing protein-based firefighting foams. Id. ¶ 29. AFFF contains a class of chemicals known as perfluoroalkyl substances (“PFAS”). Id. ¶¶ 16-17. Specifically, the AFFF manufactured by Defendants contained fluorinated surfacants perfluorooctanesulfonic acid (“PFOS”) and perfluooctanoic acid (“PFOA”) or its precursors. Id. ¶ 3. Both PFOS and PFOA are chemicals that are resistant to metabolic and environmental degradation, such that they persist in the environment and the human body and have the potential to bioaccumulate and biomagnify in wildlife. Id. ¶¶ 19-20. In a similar vein, PFOS and PFOA degrade very slowly, if at all, in groundwater and can migrate from soil to groundwater. Id. ¶ 22. Typical municipal water treatment plants are unable to filter or treat PFOS and PFOA. Id. ¶ 24.

         A number of health risks result when humans are exposed to PFOS and PFOA. Id. ¶ 26. Furthermore, there is at least some evidence that suggests that PFOS and PFOA are possibly carcinogenic to humans. Id. ¶¶ 27-28.

         B. The Fire Training Property

         Enoch Cobb (“Cobb”) was the owner of approximately one hundred acres of land (the “Property”) in and around the Town of Barnstable (the “Town”). Id. ¶ 33. At his death, Cobb bequeathed the Property to the Town through a trust. Id. On or around June 1, 1956, the Town leased the Property to Barnstable County on the condition that the Property be used for a firing training school, which was to provide training in combatting, controlling and extinguishing fires to the fire departments and districts in Barnstable County. Id. ¶¶ 34-35. The Town entered into two more similar leases with Barnstable County, one of which again restricted the use of the land to fire training and the second of which included a condition that the land only be used for police and fire training purposes. Id. ¶¶ 36-37. Finally, in May of 1983, Barnstable County purchased the Property from the trust. Id. ¶¶ 38-39.

         Since 1956, firefighters, fire brigades, private industry, fire departments and fire districts have used the Property to complete fire training, including practice of firefighting techniques with the use of live fires and the application of AFFF-a firefighting agent used for fighting Class B fires. Id. ¶¶ 2, 41. Trainings at the Property included the use of AFFF until about 2009. Id. ¶ 41.

         C. The Town's Water Supply

         In the 1970s, Barnstable Water Company installed public water supply wells (“the Wells”) that were proximate to and downgradient of the Property. Id. ¶ 45. The Wells' water provided Town residents with drinking water from the 1970s until 2005. Id. ¶ 46. In May 2005, the Town acquired the Barnstable Water Company and the Wells, and thereafter contracted with the Connecticut Water Company to continue water management and operations under the Town's direction. Id. ¶¶ 47-48. Currently, the Town's water system consists of twelve well pumping stations and provides drinking water to approximately 18, 000 residents. Id. ¶ 49.

         In November 2013, groundwater samples were collected from the Property and the analysis confirmed that PFOS was present in the Property's groundwater. Id. ¶ 54. Groundwater samples taken downgradient of the Property in June of 2014 also revealed the presence of PFOS. Id. In July 2015, the County activated a pump and treat system to capture a defined high concentration level of PFOS in the groundwater. Id. ¶ 55. In January 2016, the Town notified the County that its groundwater drinking water supply was contaminated with PFOS. Id. ¶ 50. The Town asserts that this contamination resulted from the use of AFFF by the County at the Property. Id.

         D. The Litigation between the Town and the County and the County's Response to the Alleged Contamination

         After alerting the County to the PFOS water contamination, the Town filed a lawsuit against the County, seeking costs and damages in excess of five million dollars. Id. ¶¶ 50-51. The litigation is currently pending in Barnstable Superior Court. Id. ¶ 51.

         In August 2016, the Massachusetts Department of Environmental Protection (“DEP”) issued a Notice of Responsibility to the County, requiring the County to prepare an Immediate Response Action (“IRA”) Plan to perform immediate actions in response to the release of PFOS to, at and from the Property. Id. ¶ 56. Accordingly, the County submitted an IRA Plan to the DEP, which included action items of undertaking further investigation and assessment as well as evaluating long-term and emergency remedial actions to be taken. Id. ¶ 57. In addition, the County has committed substantial funds to investigate the sources of the alleged PFOS and PFOA contamination, treat groundwater emanating from the Property and extract and properly treat and/or dispose of all contaminated soils. Id. ¶ 58. The County continues to investigate and take remedial activities resulting from the presence of PFOS, PFOA and other PFAS chemicals in the soil and groundwater. Id. ¶ 59.

         IV. Procedural History

         Barnstable County instituted this action on January 9, 2017. D. 1. 3M filed a motion to dismiss. D. 42. Thereafter, Chemguard and Tyco, United Tech and Buckeye filed their respective motions to dismiss. D. 48; D. 54; D. 57. The Court heard the parties on the pending motions and took these matters under advisement. D. 101.

         V. Request for Judicial Notice

         As a precursor to their arguments for dismissal, Defendants urge this Court to take judicial notice of several documents filed in the Town's state court action against the County and several reports. See D. 43; D. 50; D. 56; D. 58.

         At the motion to dismiss stage, “[o]rdinarily . . . any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden.” Rock v. Lifeline Sys. Co., No. 13-cv-11833-MBB, 2014 WL 1652613, at *11 (D. Mass. Apr. 22, 2014) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). Nevertheless, in ruling on a motion to dismiss, “a judge can mull over ‘documents incorporated by reference in [the complaint], matters of public record, and other matters susceptible to judicial notice.'” Lydon v. Local 103, International Brotherhood of Electrical Workers, 770 F.3d 48, 53 (1st Cir. 2014) (quoting Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008)) (alteration in original); see Rock, 2014 WL 1652613, at *12. Accordingly, the Court can take notice and consider any facts at the motion to dismiss stage that are “not subject to reasonable dispute” because that fact is either “generally known within the trial court's territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” Lopes v. Riendeau, 177 F.Supp.3d 634, 666 (quoting Fed.R.Evid. 201(d)) (internal quotation mark omitted). “A high degree of indisputability is the essential prerequisite” to taking judicial notice of any fact. Fed.R.Evid. 201, advisory committee notes to subdivision (a).

         A. The Court Takes Judicial Notice of the Pleadings from the Related State Court Action

         Defendants Tyco, Chemguard, Buckeye and United Tech request that the Court take judicial notice of the answer, counterclaim and third-party complaint from the state court action as well as the Town of Barnstable's complaint from the state court action. D. 50 ¶ 10; D. 58 at 7; see D. 56 at 2-3.

         It is “well-accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand.” Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990); see Giragosian, 547 F.3d at 66. Generally, court filings are recognized not for the truth of the matters asserted within them, but instead only to establish the fact that related litigation has been initiated or to establish that the fact that documents have been filed in that related case. See, e.g., Jergens v. Ohio Dep't of Rehab. & Corr. Adult Parole Auth., 492 F. App'x 567, 568-69 (6th Cir. 2012); Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008); see Brody v. Hankin, 145 F. App'x 768, 771-73 (3d Cir. 2005) (concluding that the lower court impermissibly considered the facts found within a related arbitration proceeding instead of solely considering the existence of an arbitration award). That is, the Court may take judicial notice of the related state court documents “to establish the existence of the [related] litigation, what claims were asserted, and what issues were argued and decided.” Clark v. Kitt, No. 12-cv-8061 CS, 2014 WL 4054284, at *8 (S.D.N.Y. Aug. 15, 2014), aff'd, 619 F. App'x 34 (2d Cir. 2015).

         As a result, the Court takes judicial notice of the state court documents proffered by Defendants to confirm the existence of the related state court action, the claims asserted by the Town against the County and what issues were argued and decided to the extent that any of the foregoing is relevant to deciding this motion to dismiss. See, e.g., Clark, 2014 WL 4054284, at *6; Glob. Relief v. N.Y. Times Co., No. 01-cv-8821, 2002 WL 31045394, at *4-5 (N.D. Ill. Sept. 11, 2002). The Court will not, however, take the allegations lodged in the Town's complaint, the County's counterclaim or the third-party complaint for the truth of the matter asserted-i.e., issues still reasonably in dispute-because doing so would constitute “a plainly improper use of the doctrine.” In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 754 (E.D. Pa. 2014).

         This, however, does not resolve the parties' dispute as to all of the state court filings. Tyco and Chemguard assert that one portion of the state court documents-alleged admissions made by the County in its state court answer and counterclaim to the Town's complaint-be considered for their truth in this federal litigation. D. 50 ¶ 10; D. 80 at 9-10. That is, Tyco and Chemguard contend that that this Court should assume that the County adopted a policy in 2009 that prohibited the use of all Class B AFFF on the Property because the County states that it did so in its answer and counterclaim in the Town's state action against the County. D. 80 at 9-10. Given that the facts as to AFFF use on the Property are still subject to reasonable dispute, they are not suitable for judicial notice here at this juncture.

         For these reasons, the Court will take judicial notice of the state court filings for the limited purpose noted above.

         B. The Court Takes Judicial Notice of the ...

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