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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


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


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.


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.


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 do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("Iqbal . . . provides the final nail-in-the-coffin for the 'no set of facts' standard that applied to federal complaints before Twombly.").

Following the Twombly/Iqbal standard, the Third Circuit has instructed a two-part analysis in reviewing a complaint under Rule 12(b)(6). First, the factual and legal elements of a claim should be separated; a district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Fowler, 578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950). Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Id. (quoting Iqbal, 129 S. Ct. at 1950). A complaint must do more than allege the plaintiff's entitlement to relief. Id.; see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element"). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). If any other matters outside the pleadings are presented to the court, and the court does not exclude those matters, a Rule 12(b)(6) motion will be treated as a summary judgment motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

C. Analysis

Lockheed Martin argues in its motion to dismiss that plaintiffs' claims wholly fail to allege sufficient facts to hold it liable for any claims that it discharged TCE and PCE in the past, is currently discharging these chemicals, or how these chemicals have purportedly come from Lockheed Martin's property onto their property. Lockheed Martin also argues that most of plaintiffs' claims are barred by the applicable statute of limitations because of when plaintiffs became aware of their alleged claims. In opposition, plaintiffs argue that their pleadings are sufficient to maintain all their claims, and that the discovery rule, the continuing tort doctrine, or both, save their claims from any statute of limitations.

The facts alleged by plaintiffs in their complaint and attached documents relevant to the discharge of chemicals are:


* TCE is a known carcinogen.

* As of June 2003, TCE was in the ground water beneath plaintiffs' property, and the NJDEP determined that the TCE migrated from Lockheed Martin's property.

* Plaintiffs knew that TCE was in the ground water below their property when they purchased their house.

* Despite the remediation underway since at least 1995, and despite improved concentrations of TCE in the water, Lockheed Martin's property continues to test above the legal level of TCE.

* Continued levels of TCE on Lockheed Martin's property indicates an ongoing discharge.

* TCE remains in the ground water under plaintiffs' home.

* Plaintiffs are in the path of the ground water flow and within a calculated plume of Lockheed Martin's property.

* As of December 2008 and January 2009, no TCE was found in the soil or air in and around plaintiffs' home.


* PCE is a known carcinogen.

* Plaintiffs did not know about the presence of PCE on their property when they bought their home.

* As of December 2008, three soil samples taken from under and near plaintiffs' basement revealed the presence of PCE, with two showing levels in excess of NJDEP screening levels.

* As of January 2009, indoor air testing of plaintiffs' house found PCE in the basement and first floor, with the basement level registering above NJDEP screening levels.

* Lockheed Martin's property continues to test above the legal level for PCE.

* Continued levels of PCE on Lockheed Martin's property indicates an ongoing discharge.

* Plaintiffs are in the path of the ground water flow and within a calculated plume of Lockheed Martin's property.

Accepting as true these facts alleged by plaintiffs, the Court finds that at this stage of the litigation plaintiffs have stated sufficient facts to give Lockheed Martin fair notice of their claims, and to raise a reasonable expectation that discovery will reveal evidence to support the elements of all their claims. Additionally, it is not clear from the face of their complaint that any applicable statute of limitations bars their claims.*fn7

In its motion to dismiss, however, Lockheed Martin questions all of plaintiffs' theories, and argues that plaintiffs' claims are too vague. With regard to TCE, it argues that even though TCE is in the ground water beneath plaintiffs' home, it has not and cannot cause plaintiffs harm. Moreover, Lockheed Martin argues that it is not responsible for past TCE contamination even if the ground water is still contaminated. Lockheed Martin also challenges plaintiffs' contention that it continues to discharge TCE into the ground water. With regard to PCE, Lockheed Martin argues that the PCE affecting plaintiffs' soil and air has not come from the ground water, and, therefore, it has not, and is not, coming from its property, but from some other source.

Overall, Lockheed Martin argues that it is properly remediating the TCE issue in consultation with the NJDEP, and because plaintiffs have not articulated what else it should be doing with regard to TCE (or PCE), plaintiffs are not entitled to injunctive or any other relief. It also contends that because plaintiffs have been aware of TCE since 2003, and PCE since January 2009, many of their claims are time-barred, and plaintiffs' general claim that "continued elevated levels of PCE and TCE on [plaintiffs'] Property indicate an ongoing discharge" cannot save their claims on a theory of a continuing tort.

Initial discovery exchanges will soon confirm or refute the validity of plaintiffs' primary contention regarding the ongoing discharge of TCE and PCE from the Lockheed Martin property. Both parties will need to reveal if or when these chemicals have been detected on their properties or in the ground water beneath their properties.*fn8 That data will inform whether plaintiffs can (1) sustain their claim of ongoing discharge, (2) avoid the tolling of various statutes of limitations, and (3) support their contention that Lockheed Martin is the source of TCE and PCE.*fn9 Of course, beyond these basic findings, plaintiffs maintain the burden of proving causation, damages, and the other elements of their claims, and should discovery reveal evidence to support what Lockheed Martin has argued in its current motion, it is free to file a properly supported motion for summary judgment. To preclude plaintiffs from pursuing their case, however, where information to potentially support their claims is only known by the defendant, and where sufficient facts have been pled to raise plausible claims, would be too strict an application of the motion to dismiss standard.

Consequently, Lockheed Martin's motion to dismiss plaintiffs' complaint must be denied. An appropriate Order will be issued.


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