JOSEPH ADINOLFE, еt al., Plaintiffs-Appellants, versus UNITED TECHNOLOGIES CORPORATION, d.b.a. Pratt & Whitney, Defendant-Appellee.
Nos. 12-16396, 12-16397
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
October 6, 2014
D.C. Docket Nos. 9:10-cv-80840-KLR, 9:10-cv-80883-KLR
Appeals from the United States District Court for the Southern District of Florida
(October 6, 2014)
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and FRIEDMAN,* District Judge.
JORDAN, Circuit Judge:
Given the analytical difficulties caused by the parties’ schizophrenic presentations on appeal, we begin by explaining why a Lone Pine order like the one entered in this case should not be used as a pre-discovery case management tool before a district court rules on the legal sufficiency of a complaint. Turning to the merits of the district court‘s dismissal orders, we reverse.
I
The plaintiffs initially asserted Florida common-law claims sounding in negligence, negligence per se, strict liability, trespass, and nuisance, as well as a statutory claim under
In January of 2011, the district court dismissed the initial complaints in Pinares and Adinolfe without prejudice. It ruled, in relevant part, that the plaintiffs had not alleged that their properties were actually contaminated, had not identified
A
After it moved to dismiss the initial complaints, P&W asked the district court to enter a Lone Pine case management order in the two cases. The plaintiffs objected, arguing in part that they should not be required to submit prima facie proof of their claims before discovery, that the requested order served as an improper substitute for summary judgment, and that the Federal Rules of Civil Procedure counseled against granting P&W‘s request. At around the same time that it granted the motions to dismiss the initial complaints, the district court granted the motions for the Lone Pine case management orders. The district court explained that it was “neither efficient nor fair” to require P&W to “proceed on the issues implicated” by the plaintiffs’ requested discovery until after the plaintiffs “ha[d] adequately demonstrated a prima facie basis for the allegations in their complaint.” Pinares v. United Techonologies Corp., No. 10-80883, 2011 WL 240512, at *2 (S.D. Fla. Jan. 10, 2011).
In its subsequent Lone Pine orders, the district court stayed all discovery and required the plaintiffs to provide, within 60 days, “all evidence they contend
The Lone Pine orders also required the plaintiffs to submit “sworn statements of an expert or experts” with opinions (and the factual bases for any opinions) on a number of factual issues: (i) whether particular parcels owned by the plaintiffs contained hazardous contaminants; (ii) whether particular parcels owned by the plaintiffs were contaminated; (iii) whether P&W caused contamination on a particular parcel owned by a plaintiff or plaintiffs; (iv) what materials or substances allegedly caused the contamination to each plaintiff‘s parcel, including the toxicological, medical, or other basis for the allegation that the presence of the alleged contaminant poses a risk to human health or otherwise causes each plaintiff to suffer damage; and (v) the value of each plaintiff‘s property after the claimed date of contamination. The orders further provided that P&W could, within 60 days of receiving the plaintiffs’ evidence, “file a motion directed to whether [the plaintiffs] complied with this order.”
B
Just as predictably, the plaintiffs argued in their responses that they had complied with the Lone Pine orders, that the orders did not require the testing of groundwater under each plaintiff‘s property, and that the orders did not prevent their experts from using extrapolative techniques to form their opinions. They pointed out that drilling a test well on each of the 17,000 parcels of property in The Acreage, combined with the concomitant laboratory analysis of each sample of groundwater, would cost about $382 million. The plaintiffs also argued that P&W could not attempt to litigate factual issues such as contamination and causation by submitting its own expert affidavits:
“By attempting to turn its [m]otion to [d]ismiss into a dispositive motion on the merits, or a Daubert hearing, P&W is unfairly exploiting and further abusing the already oppressive (and in this case inappropriate) Lone Pine process. If P&W‘s [m]otion to [d]ismiss is to bе resolved based on the affidavits of the parties’ experts, [the] [p]laintiffs’ due process rights are violated as they would be deprived of the benefits and protections afforded by mutual discovery under Rules 26 through 37, formal notice, a formal summary judgment motion under Rule 56, and an evidentiary hearing under Daubert.”
Nevertheless, the plaintiffs hedged their bets by submitting supplemental declarations from some of their own experts to counter the affidavits of P&W‘s experts.
In reply, P&W argued that, “[b]efore proceeding with this alleged toxic tort case, [the] [p]laintiffs must show that their properties are contaminated and that [P&W] caused the contamination.” P&W also asserted that the opinions of the plaintiffs’ experts were shown to be deficient by the analyses and reports of P&W‘s own experts, that a showing of actual contamination was required by Florida law, and that it was not seeking a battle of the experts at the Lone Pine stage of the case, but merely submitting “expert affidavits to provide information that [the] [p]laintiffs simply did not provide—for example, the results of [state]
C
At a hearing on P&W‘s motions to dismiss the plaintiffs’ amended complaints, the district court told the parties several times that it did not want to discuss the expert testimony and evidence contained in the Lone Pine filings, and was just going to determine whether the complaints stated claims for relief under cases like Twombly. Nevertheless, during the hearing, the district court and the parties frequently strayed beyond the four corners of the complaints and discussed the expert testimony and factual submissions contained in the Lone Pine filings.
In March of 2012, following the hearing, the district court entered orders dismissing the amended complaints in Pinares and Adinolfe without prejudice. The plaintiffs then filed second amended complaints in both cases, asserting common-
The district court later dismissed the second amended complaints, this time with prejudice. The plaintiffs now appeal. Before addressing the sufficiency of the complaints, we discuss the district court‘s Lone Pine orders.
II
District courts have “broad discretion in deciding how best to manage the cases before them,” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997) (quotation omitted), and
A couple of our sister circuits have spoken favorably about Lone Pine orders. See Acuna, 200 F.3d at 338-40; Abuen v. Gen. Elec. Co., 3 F.3d 329, 331 (9th Cir. 1993). But there is a time and place for everything, cf. NEW AMERICAN BIBLE, THE BOOK OF ECCLESIASTES 3:1 (Oxford 1990), and “even when appropriate,” Lone Pine orders “may not be suitable at every stage of the litigation.” In re Vioxx Prod. Liab. Litig., 557 F. Supp. 2d 741, 744 (E.D. La. 2008) (using Lone Pine order after case had been pending for three years and “much discovery hа[d] taken place“).
As a general matter, we do not think that it is legally appropriate (or for that matter wise) for a district court to issue a Lone Pine order requiring factual support for the plaintiffs’ claims before it has determined that those claims survive a
Here, for example, despite the district court‘s best efforts, everyone at the motion to dismiss hearing repeatedly intermingled legal arguments going to thе sufficiency of the second amended complaints with factual arguments derived from the expert testimony and other evidence produced pursuant to the Lone Pine orders. Indeed, P&W went so far as to tell the district court that these factual matters could and should be considered in ruling on its pending
Whatever the general propriety and/or utility of Lone Pine orders—matters we do not pass on today—they should not be used as (or become) the platforms for pseudo-summary judgment motions at a time when the case is not at issue and the parties have not engaged in reciprocal discovery. After all, “if [a district court] considers materials outside of the complaint, [it] must [generally] convert [a] motion to dismiss into a summary judgment motion.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). Critically, such a conversion requires notice to the parties and an opportunity for mutual discovery. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). And if these procedural safeguards are not enforced, then Lone Pine orders might become the practical equivalent of a heightened, court-imposed quasi-pleading standard, something the Supreme Court has frowned on. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166-68 (1993) (rejecting a “more stringent” and court-devised pleading standard intended to weed out non-meritorious municipal liability claims under 42 U.S.C. § 1983 and shield municipalities from “expensive and time-consuming discovery“).
We understand the district court‘s concern that, without a Lone Pine order, a defendant in a case like this one would have to engage in expensive and time-consuming discovery without the plaintiffs first demonstrating some factual support for their claims. That concern may be a valid one, but it cannot be allayed by use of a scheduling order that runs counter to the adversarial process envisioned by and detailed in the Federal Rules of Civil Procedure. See, e.g., Williams v. Georgia Dept. of Human Resources, 789 F.2d 881, 882-83 (11th Cir. 1986) (reversing the grant of a pretrial “directed verdict” based on the submission of the evidence the parties would present at trial, because Rule 16 did not give the district court authority to direct a verdict at the pretrial stage of the case).
III
We now turn to the district court‘s dismissal of the second amended complaints. “We review de novo the district court‘s grant of a defendant‘s motion to dismiss under Rule 12(b)(6) for failure to state a claim, accepting the [factual] allegations in the complaint as true and construing them in the light most favorable to the plaintiffs.” Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008) (citation omitted). In order to avoid dismissal, a complaint must allege “enough
A
We first summarize the pertinent allegations of the second amended complaints in Pinares and Adinolfe, and then analyze the district court‘s reasons for dismissal. Unless otherwise noted, the allegations in the two complaints are the same.
The plaintiffs are residents and owners of real property in The Acreage. They contend that P&W has contaminated The Acreage.
P&W‘s industrial operations, which are located close to the northern edge of The Acreage, generate toxic wastes and chemicals, which are discharged or released into P&W‘s own surface water and groundwater. These wastes and chemicals are sometimes collected or buried at sites “from which they have, in рart, leaked or escaped.” In November of 2008, the Environmental Protection Agency found 24 contaminants in the soil and water on P&W‘s property. Testing conducted for P&W has confirmed that contaminants “are present in high concentration in the groundwater under and around its property.”
Hydrologic studies have shown that P&W, the adjacent Corbett Wildlife Management Area, and The Acreage are “underlain by, and share the same . . . aquifer.” Because groundwater in the contaminated aquifer flows from the north to
Test wells drilled in The Acreage have revealed the presence of certain contaminants called trihalomethanes (specifically Bromodichloromethane, Methylene Chloride, and Chloroform) in the groundwater underlying The Acreage and the properties of the plaintiffs. These contaminants were spilled, discharged, released, or disposed of by P&W on its property and in the Corbett Wildlife Management Area, and experts (hydrologists and toxicologists) confirm that the contaminants “have travelled to and physically invaded The Acreage and are present in its groundwater.” These chemicals, moreover, “will continue to move south through the aquifer and contaminate the shared water of The Acreage, which is dependent on groundwater and does not have municipal, city, or community water.” Over 300 of the 384 individual plaintiffs in Adinolfe specifically alleged that their property in The Acreage “has been contaminated by P&W.” The remaining plaintiffs in Adinolfe – the “proximity” and “anticipated contamination” plaintiffs – alleged one of two things: (1) that, although their property or groundwater has not yet been contaminated by P&W‘s wastes and chemicals, they
The Pinares plaintiffs tested their well water, which they have used for drinking, cooking, showering, and other activities of daily life since May of 2001. Those tests revealed that the water was contaminated with Bromodichloromethane, Methylene Chloride, and Chloroform. Significantly, these contaminants are genotoxic, which means that they do not require any specific concentration or amount of absorption individually or in combination for them to cause clear cell renal carcinoma, a certain type of cancer. One of the Pinares plaintiffs, Magaly Pinares, developеd this type of cancer as a result of her ingestion and absorption of these contaminants.
In the late 1980s, the P&W property was evaluated for designation as a Top 10 Superfund site, but the EPA discontinued the evaluation at P&W‘s request because remediation efforts were underway. These efforts, however, did not eliminate the injurious concentration of contaminants in the groundwater that flowed from P&W‘s property to The Acreage. Nor did they include measures to halt the movement of contaminated groundwater that had ended up in The
In July of 2009, a television station in Palm Beach County reported that, according to a 2003 report of the Florida Fish and Wildlife Conservation Commissiоn, metal drums marked “hazardous waste” were found dumped on the P&W side of the property line shared with the Corbett Wildlife Management Area. The report further indicated that a plume containing 1, 4-dioxane had spread from the drums.
In February of 2010, the Palm Beach County Health Department designated The Acreage as a “cancer cluster.” Additional cases of children with cancerous brain tumors in The Acreage began to emerge, prompting a multi-agency investigation into the cause of the tumors. At least three adult residents of The Acreage (including Ms. Pinares) who were exposed to the contaminated groundwater have developed clear cell renal carcinomas “as a result of their ingestion, inhalation, and dermal absorption.”
The Federal Housing Administration, acting in August of 2010, “imposed a warning advising appraisers that a state-declared cancer cluster may be harming home values in the central Palm Beach County community.” Due to the
B
As it had done with the previous two incarnations of the plaintiffs’ complaints, P&W moved to dismiss the second amended complaints under
IV
A
As an initial matter, we summarily reject P&W‘s argument, see Br. For Appellee at 55-57, that the plaintiffs lack Article III standing because they have not
B
In the first 229 paragraphs of the Adinolfe second amended complaint, each of the the 300+ “contamination” plaintiffs alleged that each of their properties “has been contaminated by P&W.” Although this allegation may appear conclusory when read in isolation, the complaint provides additional factual allegations that easily push the “contamination” plaintiffs’ “claims across the line from conceivable to plausible.” See Twombly, 550 U.S. at 570.
The Adinolfe second amended complaint described the proximity of the P&W site to The Acreage and the Corbett Wildlife Management Area. The plaintiffs alleged that, through its industrial operations, P&W generated and released or discharged contaminants into the soil, surface water, and groundwatеr below and surrounding both its own property and the adjacent Corbett Wildlife Management Area. They then alleged that these contaminants migrated south to The Acreage; The Acreage and the P&W plant sit above the same aquifer, and water in the aquifer flows in a southerly direction as a result of the pull of water wells in The Acreage and other hydrologic principles.
P&W contests the accuracy of a numbеr of the factual allegations that the plaintiffs have pled, but we must accept them as true at this stage of the case. See Mills, 511 F.3d at 1303. Taken together, the plaintiffs’ allegations set forth facts that amount to substantially “more than labels and conclusions” concerning the matter of contamination. Twombly, 550 U.S. at 554. See also Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (observing that, although “the line between ‘facts’ and ‘conclusions’ is often blurred,” facts are typically “susceptible to objective verification” while conclusions most often amount to “‘inferences from’ the underlying facts“), overruled on other grounds by Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004).
Along similar lines, the district court erred in ruling that each individual property owner must plead that he or she tested for contaminants on his or her property to properly allege actual contamination. Proof of such individualized
C
The district court also concluded that the plaintiffs could not state a claim without alleging that contamination on their property “exceeds the regulatory safe drinking water standard.” Under Florida law, the district court should not have imposed that requirement.
To support the proposition that only contamination above the applicable regulatory standard is actionable under Florida law, P&W relies on The St. Joe Co. v. Leslie, 912 So. 2d 21 (Fla. 1st DCA 2005). We acknowledge that this case contains language suggesting in passing that a plaintiff cannot maintain a contamination claim unless “the waste . . . exceeded [the Florida Department of
The First District‘s statement in Leslie, written in the context of a class certification discussion, fails to take into account the substantial body of Florida law endorsing the basic tort principle that “while one‘s compliance with a statute or an ordinance may amount to evidence of reasonableness, such compliance is not tantamount to reasonableness as a matter of law.” Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959, 964 (Fla. 1989). Accord Fla. Power & Light Co. v. Glazer, 671 So. 2d 211, 214 (Fla. 3d DCA 1996) (“While compliance with a statutory standard is evidence of due care, it is not conclusive on the issue. Such a standard is no more than a minimum, and it does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions“) (citing PROSSER AND KEETON ON THE LAW OF TORTS § 36, at 233 (5th ed. 1984)); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 856 (Fla. 3d DCA 1989) (“while proof of compliance with a statute is evidencе of due care, it is not conclusive on the issue“) (citing RESTATEMENT (SECOND) OF TORTS § 288C (1979)). In fact, in two opinions issued well before Leslie, the First District stated that proof of compliance with a standard is merely non-conclusive evidence of a lack of negligence. See Jackson v. H.L. Bunton Co., 630 So. 2d 1173, 1175 (Fla. 1st DCA 1994); St. Louis-San Francisco Ry. Co. v. White, 369 So. 2d 1007, 1011 (Fla. 1st DCA 1979). Although P&W argues that no additional precautions were reasonably necessary here, resolution of that question would be improper (and impossible) at the motion-to-dismiss stage. In sum, while the applicable regulatory standard may be instructive for a trier of fact as evidence of what the government deems safe for the public, see Glazer, 671 So. 2d at 214, it does not amount to an all-purpose benchmark for determining as a matter of law how much one can reasonably contaminate another‘s private property, much less a threshold issue that plaintiffs must preemptively address at the pleading stage to state tort claims under Florida law.
What we have said so far applies at least to the plaintiffs’ nеgligence and nuisance claims, both of which require a showing of unreasonable conduct. See Beckman v. Marshall, 85 So. 2d 552, 555 (Fla. 1956) (nuisance); R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 717 (Fla. 4th DCA 2011) (negligence). And we cannot discern a reason why the plaintiffs’ strict liability claim would include a minimum contamination level requirement. Although some courts in other jurisdictions have held that a plaintiff cannot show cognizable injury or damages stemming from groundwater contamination unless the level of pollution exceeds the regulatory maximum contaminant level, that view is not unanimous, and
As for the plaintiffs’
D
The district court also ruled that the plaintiffs had failed to sufficiently plead causation. We disagree.
First, a claim under
Second, with respect to the common-law tort claims, the allegations of the second amended cоmplaints sufficiently set forth a plausible causal chain connecting P&W with the alleged contamination. The complaints link P&W‘s release of contaminants onto its own property and the adjacent Corbett Wildlife Management Area, the southward migration of these pollutants to The Acreage, the digging of test wells in The Acreage and the subsequent confirmation of the presence of contaminants in groundwater, the discovery of metal drums marked “hazardous waste,” and the designation of The Acreage as a cancer cluster. In the aggregate, these assertions give rise to a “reasonable inference that [P&W] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In sum, where necessary, the plaintiffs’ allegations are sufficient to raise a “reasonable expectation” or “render plausible” that their properties are contaminated and that P&W is the cause of that contamination. Twombly, 550 U.S. at 570. The district court mistakenly concluded otherwise.
IV
The “proximity” and “anticipated contamination” plaintiffs in Adinolfe alleged that, although their land was not currently contaminated, they had suffered a diminution in value because their properties were near to arеas where the groundwater was contaminated or would soon be contaminated. Pointing to the “elementary law of science . . . that groundwater is not static,” these plaintiffs alleged that there was a “scientific basis to postulate that [their] properties will become contaminated,” based on “a reasonable degree of hydrologic and geologic probability and certainty.”
A
Our review of Florida law yields a conclusion different from that of the district court. As we read the relevant Florida cases, the lack of actual contamination does not prevent the “proximity” and “anticipated contamination” plaintiffs from suing P&W.
In Leslie, which we discussed earlier as to the minimum contamination issue, the First District reversed the trial court‘s order granting class certification in a case in which property owners were suing a paper company (for trespass, nuisance, unjust enrichment, strict liability, negligence, and violation of
If Leslie were the only case in Florida touching upon these matters, we might well be required to follow it. As we have said before, if the Florida Supreme Court has not spoken on an issue, we should adhere to the decisions of Florida‘s intermediate appellate courts “unless there is some persuasive indication” that the Florida Supreme Court “would decide the issue [differently].” Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982). Leslie, however, is not the sum and substance of Florida law on the claims raised by the “proximity” and “anticipated contamination” plaintiffs.
B
Starting with the nuisance claim, the critical case is Jones v. Trawick, 75 So. 2d 785 (Fla. 1954), where the Florida Supreme Court allowed adjoining homeowners to pursue a nuisance claim to enjoin a proposed cemetery even
[The plaintiffs] did not buy [their homes] with the expectation of living forever in the gloomy shadow of death, and with the disquieting interruptions of their normal pastimes and peaceful pursuits accasioned by constantly recurring funeral services. We know of no one who would not object to the thought of drinking water that had been drawn from a surface so near the dead, no matter how pure the health authorities had stated it to be.
Significantly, Leslie did not cite or discuss Jones in ruling that a nuisance claim requires “physical harm,” and instead relied on a Fourth Circuit case applying Virginia law for that proposition. See 912 So. 2d at 24 n.1 (citing Adams v. Star Enterprise, 51 F.3d 417, 423 (4th Cir. 1995)). It is difficult for us to see how, given the holding and rationale of Jones, actual contamination of a parcel of property is a requisite for a nuisance claim under Florida law. To the extent that the district court dismissed the nuisance claim of the “proximity” and “anticipated contamination” plaintiffs for failure to allege contamination of their own properties, it therefore erred. See also A. & P. Food Stores, Inc. v. Kornstein, 121 So. 2d 701, 703 (Fla. 3d DCA 1960) (concluding that excessive noise created by air conditioning units adjacent to plaintiffs’ property constituted a nuisance); RESTATEMENT (SECOND) OF TORTS § 821D (1979) (defining a private nuisance as a
C
Based on the Florida Supreme Court‘s decision in Curd, we come to the same conclusion with respect to the strict liability, negligence, and
In Curd, decided five years after Leslie, commercial fishermen alleged that contaminants from wastewater in a storage area had polluted Tampa Bay, the body of water from which they earned a livelihood. The fishermen, who did not claim an ownership in the damaged plant and marine life in Tampa Bay, sued the owner of the storage area, asserting negligence and strict liability claims, as well as a claim under
Answering a certified question, the Florida Supreme Court ruled that under
We recognize that Curd is not on all fours, but it does not need to be given that the district court‘s sole basis for dismissing the claims of the “proximity” and “anticipated contamination” plaintiffs was the lack of contamination in their properties. P&W did not move to dismiss the negligence claims of the “proximity” and “anticipated contamination” plaintiffs based on the lack of any duty owed to those plaintiffs. As a result, our interpretation and application of the Curd duty rationale in Virgilio v. Ryland Group, Inc., 680 F.3d 1329, 1339-40 & n.30 (11th Cir. 2012), does not control here.
Nor did P&W move to dismiss the strict liability claim of those plaintiffs on the ground that there were insufficient allegations of an ultrahazardous activity. So we have no need to analyze Florida cases addressing what sort of activity is ultrahazardous for purposes of imposing strict liability. See, e.g., Morgan v. W.R. Grace & Co.-Conn., 779 So. 2d 503, 505 (Fla. 2d DCA 2000) (rejecting argument that “reclamation of phosphate lands is an ultrahazardous activity that justifies the imposition of strict liability“).
V
Despite having covered a fair amount of ground, we want to emphasize that our opinion addresses only the grounds for dismissal urged by P&W and relied upon by the district court. Those grounds, we hold, did not warrant dismissal of the second amended complaints. If P&W believes that the plaintiffs are unable to satisfy some or all of the elements of the four claims they have pled, it can seek judgment on the pleadings after it files its answers or move for summary judgment after discovery has closed.
REVERSED AND REMANDED.