Adams v. Atl. Richfield Co.

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DASHEENA ADAMS, et al., Plaintiffs, v. ATLANTIC RICHFIELD COMPANY, et al., Defendants.

No. 2:18-CV-375-JVB-JPK

United States District Court, N.D. Indiana, Hammond Division

September 23, 2022

OPINION AND ORDER

JOSHUA P. KOLAR UNITED STATES DISTRICT COURT MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs' Motion for Leave to File Second Amended Complaint [DE 162], and Defendant DuPont's Request for Judicial Notice [DE 168]. On October 15, 2021, presiding District Judge Joseph S. Van Bokkelen granted Defendants' motion to dismiss, but permitted Plaintiffs to file a motion to amend the complaint. Oral argument was heard on April 28, 2022. For the reasons discussed below, the motion to amend is granted for relief different than requested, and Plaintiffs will be permitted to pursue some of their proposed claims.

I. FACTUAL BACKGROUND

The proposed amended complaint names 10 defendants^[1]: Tesoro Corporation; BP Amoco PLC; BP West Coast Products, LLC; E.I Dupont de Nemours and Company (“DuPont”); the Chemours Company (“Chemours”); U.S. Smelter and Lead Refinery, Inc. (“U.S. Smelter”); Hammond Group, Inc.; Hammond Lead Products, LLC; Halstab, LLC; and Halox, LLC (collectively, the “Hammond Defendants”). The general allegations are similar to those in the prior complaint. Defendants allegedly owned or purchased lead refineries and other manufacturing facilities in the Calumet neighborhood of East Chicago, Indiana. The 84 plaintiffs were residents of the nearby West Calumet Housing Complex (the “Complex”). Plaintiffs allege that, at various times between 1920 and 1985, Defendants introduced contaminants (including lead, cadmium, antimony, and mercury) into the air, soil, and/or groundwater. This caused Plaintiffs to suffer an increased risk of a variety of illnesses, as well as severe emotional distress. Some have already developed illnesses allegedly caused by the contaminants.

Defendants failed to warn Plaintiffs about the contamination. Plaintiffs were unaware of the contamination and had no reason to know about it until July 25, 2016, when East Chicago Mayor Anthony Copeland sent a letter to the Complex's residents, informing them that the ground within the Complex was highly contaminated with lead and arsenic. The City of East Chicago told the residents that they had to move within 30 to 60 days.

In their prior complaint [DE 59], Plaintiffs brought claims of strict liability, negligence, nuisance, trespass, intentional infliction of emotional distress, and negligent infliction of emotional distress. In dismissing that complaint, Judge Van Bokkelen determined as follows:

• Based on Plaintiffs' allegations, they did not learn about the danger posed by the contamination until July 25, 2016, and therefore the lawsuit would not be dismissed for failure to file within the applicable limitations period;

• With regard to the negligence claims, the complaint plausibly alleged that the defendants owed a duty to protect neighboring properties, including the Complex, from contamination^[2];

• Although Plaintiffs had alleged they were exposed to contaminants, they had not sufficiently alleged injury, as was required to sustain negligence and strict liability claims; • Plaintiffs had not sufficiently alleged that Defendants acted with the intent to harm Plaintiffs emotionally, as required for a claim of intentional infliction of emotional distress.

[DE 157]. Judge Van Bokkelen granted Plaintiffs until December 15, 2021, to file this motion to amend the complaint.

Plaintiffs now seek to bring claims of strict liability, negligence, negligent infliction of emotional distress, and a separate cause of action for medical monitoring, against all defendants, as well as a nuisance claim against Defendant DuPont. They argue that they have cured the deficiencies in their previous claims by “flesh[ing] out their damages and more fully stat[ing] the specific harms” they suffered. [DE 162].

II. ANALYSIS

When a party seeks leave to amend a complaint, the “court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Seventh Circuit encourages granting one chance to amend after the dismissal of a complaint, to ensure that cases are resolved on the merits rather than technicalities of pleading: “[I]t is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 520 (7th Cir. 2015) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).

Leave to amend may be denied “where there is undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice . . . or futility of the amendment.” Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir. 1991). “Futile repleadings include restating the same facts using different language, reasserting claims previously determined, and the inability to survive a motion to dismiss.” Naperville Smart Meter Awareness v. City of Naperville, 114 F.Supp.3d 606, 610 (N.D. Ill. 2015) (citing Garcia v. City of Chicago, Ill., 24 F.3d 966, 970 (7th Cir. 1994)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 685 (7th Cir. 2014). The Court must therefore consider whether the facts alleged are sufficient to state a claim under Indiana law. “Where state law provides the rule of decision, the federal courts must predict how the highest court of the state would decide the case if presented with the case today.” Klunk v. Cnty. of St. Joseph, 170 F.3d 772, 777 (7th Cir. 1999). Decisions of the Indiana Court of Appeals provide a “strong indication of how [the Indiana] Supreme Court would decide a similar question, unless there is a persuasive reason to believe otherwise.” Gen. Accident Ins. Co. of Am. v. Gonzales, 86 F.3d 673, 675 (7th Cir. 1996).

Nonetheless, “a court should deny leave to amend only if it is certain that amendment would be futile or otherwise unwarranted.” Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022). In summary, the Court will attempt to discern whether any or all of Plaintiffs' claims would survive a motion to dismiss. But unless the Court is “certain” of dismissal, the proposed amendment will not be denied as futile. See also Barry Aviation Inc. v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 687 (7th Cir. 2004) (“Unless it is certain from the face of the complaint that any amendment would be futile . . . [the] court should grant leave to amend after granting a motion to dismiss.”).

A. Request for Judicial Notice

Defendants DuPont and Chemours ask the Court to take judicial notice of an August 24, 2021 EPA report pertaining to the site, and a case management order in the state court case of Adams, et al. v. City of East Chi., Cause No. 45D01-1809-CT-000526 (Lake Superior Ct.). As Judge Van Bokkelen explained in addressing previous requests, “[p]ublic records-such as court orders, agency decisions, administrative body reports, and government websites-are appropriate subjects of judicial notice.” [DE 157 at 2] (citing In re Lisse, 905 F.3d 495, 496 (7th Cir. 2018) (Easterbrook, J., in chambers) (court orders), Opoka v. I.N.S., 94 F.3d 392, 394-95 (7th Cir. 1996) (agency decisions), et al.).

No party has filed a response or objection to this request. The Court takes judicial notice of the fact “that the documents exist [and that] they say what they say.” Our Country Home Enters. v. Comm'r of Internal Revenue, 855 F.3d 773, 782 n.1 (7th Cir. 2017). However, this does not establish any fact therein that is subject to reasonable dispute. Specifically: DuPont and Chemours cite the EPA report for the premise that four of the plaintiffs currently live in an area of the site that “the EPA has remediated.” [DE 167 at 2]. The cited portion of the report reads: “The remedy at ¶ 1^[3] is expected to be protective of human health and the environment upon completion. In the interim, remedial activities that have been completed to date in OU1 have adequately addressed all exposure pathways that could result in unacceptable risks in these areas.” [DE 167-1 at 20] (emphasis added). The statement is unclear as to what the current risk is for a resident of that area. In fact, the report indicates that the remediated area OU1 encompasses the soil, but not the groundwater. See id. at 5 (further noting that “hazardous substances, pollutants, or contaminants remain at the Site above levels that allow for unlimited use and unrestricted exposure”), 7, 15. To the extent DuPont and Chemours argue that completion of interim remedial activities precludes any current, compensable risk from contamination, that is not established by the Court taking judicial notice of the report. See Fed.R.Evid. 201(b)(2) (judicial notice of a fact is appropriate if it can be “readily determined” from the source).

B. Prejudice/Undue Delay/Bad Faith

Several Defendants object to the proposed amendment on the grounds of prejudice or undue delay. Although the passage of time can support denial of a motion to amend, “[d]elay must be coupled with some other reason. Typically [that is] prejudice to the non-moving party.” Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) (quoting Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir. 2004)). Courts consider factors such as the number of previous amendments, the reason for the delay, how long the plaintiff knew about any newly pled facts,...