United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
DONATO UNITED STATES DISTRICT JUDGE
Gardner has filed a second amended complaint alleging claims
under the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. §§ 9606 et
seq. (“CERCLA”), and for declaratory
judgment, trespass and nuisance. Dkt. No. 45. This is
actually Gardner’s third try at stating a claim. She
filed the original complaint as a pro se plaintiff, and the
Court dismissed that complaint with leave to amend along with
specific suggestions on facts and issues she might want to
address in an amended complaint. Dkt. No. 25. Because the
case involves a fairly technical federal environmental
statute, the Court also urged Gardner to retain an attorney
to represent her. Dkt. No. 21.
hired a lawyer who filed an amended complaint re-alleging the
CERCLA claim and attendant state law claims. Dkt. No. 27. The
amended complaint showed little substantive improvement over
the original and made no effort to address the issues raised
by the Court in the dismissal order, and so the Court again
dismissed it with leave to amend. Dkt. No. 40.
Gardner’s attorney failed to appear without good cause
at the oral argument on the amended complaint, which resulted
in an order to show cause and the imposition of sanctions.
Dkt. No. 43.
second amended complaint under consideration here is
basically unchanged from the prior version. For the most
part, the amendments consist of moving into the pleadings
snippets of text drawn from environmental reports that were
attached to the preceding complaint. Compare Dkt.
No. 27-1 with Dkt. No. 45.
Chevron Capital Corporation (“Chevron”)
challenges the complaint on several potentially viable
grounds under Federal Rule of Civil Procedure 12(b)(6) but
just one is enough to dismiss it. As alleged in the
complaint, Gardner’s claims arise out of property in
Oakland, California, that had been the site of a gas station
up until about 1973. Dkt. No. 45. According to a “Site
Investigation Report and Closure Request” prepared in
2014, which is attached to the complaint and incorporated by
reference, and so properly considered by the Court in this
motion to dismiss, see, e.g., Henderson
v. Select Portfolio Servs., Inc., No. 3:15-CV-03028-JD,
2016 WL 1059414, at *1 n.1 (N.D. Cal. Mar. 17, 2016), two
underground storage tanks for gasoline were removed in 2007
and petroleum hydrocarbons were discovered in the soil around
the tanks. Dkt. No. 45-1 at 2. The site investigation in 2014
was commissioned “to evaluate petroleum hydrocarbons in
soil and groundwater” at the property. Id. The
investigation found evidence of petroleum hydrocarbons from
gasoline and diesel fuel, and fractional petroleum compounds
such as benzene, ehtylbenzene and xylenes. Id. at 5.
No non-petroleum compounds are identified in the report or in
any other attachment to the complaint. Although not at all
clear from the complaint, Gardner appears to have bought the
property in 2010 allegedly without knowledge of the petroleum
contamination. Dkt. No. 45 at 2.
allegations mandate dismissal of the complaint. CERCLA
expressly excludes “petroleum, including crude oil or
any fraction thereof” from the definition of hazardous
substances covered by the statute. 42 U.S.C. § 9601(14);
see also Southern Pacific Transportation Co. v.
Caltrans, 790 F.Supp. 983, 984 (C.D. Cal. 1991). The
petroleum exclusion applies to benzene, ehtylbenzene, xylene
and other petroleum constituents “even though
CERCLA-listed hazardous substances are indigenous in the
petroleum or are additives normally added to the petroleum
during the refining process.” Southern
Pacific, 790 F.Supp. at 984-85; see also Wilshire
Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d
801, 804 (9th Cir. 1989).
complaint plausibly alleges only the presence of petroleum
products and compounds that fall squarely within
CERCLA’s petroleum exclusion. Consequently, it cannot
state a CERCLA claim, including a claim for declaratory
relief And since the complaint appears to be premised on
federal question jurisdiction and makes no allegations of
diversity jurisdiction, the Court declines to exercise
supplemental jurisdiction over the state law trespass and
nuisance claims. See Casillas v. MTC Fin., Inc., No.
15-CV-00085-JD, 2015 WL 2120565, at *3 (N.D. Cal. May 5,
remaining question is whether dismissal should be with
prejudice. The Court’s discretion to dismiss with
prejudice is “particularly broad” after prior
leave to amend has been granted. Salameh v. Tarsadia
Hotel,726 F.3d 1124, 1133 (9th Cir. 2013). In this
case, Gardner has had three full opportunities to state a
plausible CERCLA claim, along with more than typical guidance
from the Court on ways to improve the complaint. That is more
than enough. The CERCLA claims are consequently dismissed
with prejudice. Because the state law claims are dismissed
for lack of jurisdiction, they are dismissed without
prejudice. See Doe v. Sempervirens Mental Health
Facility, No. 14-CV-00816-JD, 2015 WL 4238242, at *5
(N.D. Cal. July 13, 2015) (“Dismissals for lack of