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Michael Leese, Ashley Leese, and A. Leese, I. Leese, and A.K. Leese, Their Minor Children v. Lockheed Martin

April 11, 2012

MICHAEL LEESE, ASHLEY LEESE, AND A. LEESE, I. LEESE, AND A.K. LEESE, THEIR MINOR CHILDREN, PLAINTIFFS,
v.
LOCKHEED MARTIN, DEFENDANT.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

This case involves allegations of environmental contamination. Presently before the Court is defendant's motion to dismiss all claims in plaintiffs' complaint. For the reasons expressed below, defendant's motion will be denied.

BACKGROUND*fn1

On June 7, 2003, plaintiffs, Michael and Ashley Leese, purchased a new-construction home in Moorestown, New Jersey in a development called Wexford at Moorestown. The site is across the street from defendant, Lockheed Martin Corporation. Lockheed Martin's property had been owned until 2002 by its predecessor-in-interest, Martin Marietta Company.

In the agreement of sale for the new home, plaintiffs were informed that the ground water beneath the southeastern quarter of the Wexford site had been contaminated by trichloroethylene ("TCE")*fn2 through migration from the adjacent Lockheed Martin property. The New Jersey Department of Environmental Protection ("NJDEP") had found Lockheed Martin to be the responsible party, and had approved a remediation plan on the Lockheed Martin site to treat the TCE contamination on its property. The NJDEP determined that because of Lockheed Martin's remediation efforts on its property, no remediation was necessary on the Wexford site. The NJDEP indicated that a letter of "No Further Action" would be issued.

The NJDEP never issued that letter, however, and in September 2008, the NJDEP informally requested that Lockheed Martin conduct vapor intrusion testing on residential properties across the street. In December 2008, Lockheed Martin conducted near slab (within 10 feet from foundation) and subslab (beneath the basement) soil vapor testing at plaintiffs' property. On January 12, 2009, plaintiffs were informed by Lockheed Martin that their testing did not detect TCE, but did detect levels of tetrachloroethylene ("PCE")*fn3 in the three samples taken, with two showing levels in excess of NJDEP screening levels. Subsequent indoor air testing of plaintiffs' house a few weeks later revealed no detectable level of TCE in the home, but PCE was detected in the basement and first floor, with the basement level registering above NJDEP screening levels.

Plaintiffs claim that despite installation of a filtration system on Lockheed Martin's property, the Lockheed Martin property continues to test above the legal level for TCE and PCE. Plaintiffs claim that these continued elevated levels of TCE and PCE indicate an ongoing discharge of these chemicals by Lockheed Martin. Plaintiffs further claim that their property is continually being contaminated because it is in the path of the ground water flow from, and is within the "calculated plume" of, Lockheed Martin.

Plaintiffs claim that these carcinogenic chemicals have damaged not only their home's value, but also caused them serious negative health effects, including two children who refused to eat as babies, fell off the growth charts, and are currently below the 10th percentile for height and weight for their ages, and a third child who has developmental issues. Plaintiffs have also suffered from the severe stress of living on a contaminated property.

On July 26, 2011, plaintiffs filed a complaint in New Jersey Superior Court, Burlington County, against Lockheed Martin,*fn4 alleging violations of the New Jersey Spill Act, the New Jersey Water Pollution Control Act, the federal Resource Conservation and Recovery Act, and New Jersey common law for nuisance, trespass, strict liability, and negligence. Lockheed Martin removed plaintiffs' case to this Court, and soon thereafter filed a motion to dismiss plaintiffs' complaint in its entirety. Plaintiffs filed an amended complaint, and Lockheed Martin again moved to dismiss plaintiffs' complaint.*fn5 Plaintiffs have opposed the motion.

ANALYSIS

A. Jurisdiction

Two bases for subject matter jurisdiction exist in this case. Plaintiffs' claim under the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a), gives this Court jurisdiction pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. This Court also has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties*fn6 and the amount in controversy exceeds $75,000.

B. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they ...


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