United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge.
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.
Standards of Review
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).
Fed. R. Civ. P. 12(b)(6)
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).
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
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
PFOS and PFOA
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.
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. ¶¶
The Fire Training Property
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.
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.
The Town's Water Supply
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.
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.
The Litigation between the Town and the County and the
County's Response to the Alleged
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.
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. ¶
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.
Request for Judicial Notice
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.
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).
The Court Takes Judicial Notice of the Pleadings from the
Related State Court Action
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
“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).
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.
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.
these reasons, the Court will take judicial notice of the
state court filings for the limited purpose noted above.
The Court Takes Judicial Notice of the ...