United States District Court, N.D. California
Northern California River Watch, a 501(c)(3) non-profit Public Benefit Corporation, Plaintiff,
Fluor Corporation, a corporation, and DOES 1-30, inclusive, Defendants, The Shiloh Group, LLC, a California limited liability company, Intervenor/Plaintiff,
Fluor Corporation, a corporation, and DOES 31-60, inclusive, Defendants.
ORDER GRANTING FLUOR'S MOTION TO DISMISS INTERVENOR COMPLAINT; GRANTING REQUEST TO STRIKE ATTORNEYS' FEES RE: DKT. NO. 153
WILLIAM H. ORRICK, District Judge.
Intervenor/plaintiff The Shiloh Group LLC ("TSG") has filed a complaint in intervention (the "Intervenor Complaint") against defendant Fluor Corporation, seeking damages and other relief necessitated by Fluor's contamination of TSG's property. Fluor moves to dismiss part of the first cause of action for contribution for cleanup costs under CERCLA and the seventh cause of action for injunction and to strike TSG's requests for attorneys' fees. Dkt. No. 153.
Pursuant to Local Rule 7-1(b), this matter is suitable for determination without oral argument and I vacated the hearing scheduled for October 1, 2014. Fluor's motion is GRANTED. TSG conceded in its opposition that its first and seventh causes of action are not properly stated, so the only question remaining is whether to strike TSG's requests for attorneys' fees. Because TSG has not stated causes of action under which it would be entitled to attorneys' fees, the fees requests are STRUCK.
The Intervenor Complaint relates to the underlying lawsuit in this action between Northern California River Watch and Fluor arising from Fluor's industrial use between 1953 to 1972 of real property located in Windsor, California. See Fourth Amended Compl. (Dkt. No. 106). River Watch filed suit against Fluor under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. and the Clean Water Act, 33 U.S.C §1251 et seq., alleging that Fluor spilled chemicals that contaminated the soil of the property. Id. ¶¶ 1-3, 5-9. TSG purchased a portion of the property in 1999. Intervenor Compl. ¶ 20. At that time, TSG was aware that Fluor was in the process of cleaning up an area that lies on the property, known as the "Pond Site, " pursuant to an order issued by the California Department of Toxic Substances Control in 1989. Id. The Pond Site shows levels of lead and other contamination. Id. ¶ 13. TSG believes that Fluor caused the contamination at the Pond Site. Id.
TSG alleges that in late 2011 a Regional Water Quality Control Board employee detected lead and other metals at elevated levels in storm water exiting a concrete lined ditch that forms the western boundary of the TSG property. Id. ¶¶ 13-15. The Water Board "urged" TSG to promptly clean up the ditch. Id ¶ 24. The cleanup cost TSG over $117, 000. Id. TSG requested reimbursement from Fluor and Fluor refused. Id. ¶ 25. TSG's environmental consultant conducted tests in June 2013 that showed elevated lead levels in multiple locations. Id. ¶¶ 29-30. TSG provided these test results to Fluor who did not provide TSG with any evidence that the lead came from some other source. Id ¶ 30.
TSG filed this Intervenor Complaint on July 30, 2014, alleging seven causes of action: (i) contribution for cleanup costs incurred under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et. seq.; (ii) contribution for cleanup costs incurred under the Carpenter-Presley-Tanner Hazardous Substance Account Act ("HSAA"), California Health & Safety Code § 25363(e); (iii) negligence; (iv) trespass; (v) private nuisance; (vi) declaratory relief; and (vii) injunction. Dkt. No. 147.
I. MOTION TO DISMISS (RULE 12(b)(6))
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). This standard is not akin to a probability requirement. There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics, " a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
If the court dismisses the complaint, it "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making this determination, the court should consider factors such as "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to ...