The Cnty. Comm'n of Fayette Cnty. v. Gadsden, Gaillard, & W., LLC

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THE COUNTY COMMISSION OF FAYETTE COUNTY, WEST VIRGINIA, Ex Rel. ANTHONY CILIBERTI, ESQ., Fayette County Prosecuting Attorney, Plaintiffs, v. GADSDEN, GAILLARD, AND WEST, LLC, a South Carolina Limited Liability Company, and DENNIS EUGENE WEST, an Individual and Resident of South Carolina, Defendants.

Civil Action No. 2:22-cv-00441

United States District Court, S.D. West Virginia, Charleston Division

March 8, 2023

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, UNITED STATES DISTRICT JUDGE

The Court has reviewed the Verified Complaint (Document 1-2), the Defendants' Motion to Dismiss All Counts of Plaintiff's Complaint (Document 4), the Memorandum of Law in Support of Defendants' Motion to Dismiss All Counts of Plaintiff's Complaint (Document 5), the Governmental Plaintiff's Response in Opposition to Defendants' Motion to Dismiss All Counts of Plaintiff's Complaint (Document 16), and the Reply in Support of Defendants' Motion to Dismiss All Counts of Plaintiff's Complaint (Document 17), as well as all attached exhibits. For the reasons stated herein the Court finds that the motion should be denied.

FACTUAL ALLEGATIONS

The Fayette County Prosecuting Attorney, Anthony Ciliberti brought this action on behalf of the County Commission of Fayette County, West Virginia. The Defendants are Gadsden Gaillard, and West, LLC, a commercial trucking service, and Dennis Eugene West, an officer and member of Gadsden Gaillard, and West, LLC. Mr. West was driving a tractor trailer on I-77 near Pax, Fayette County, West Virginia, on August 24, 2022, when the truck crashed and overturned, blocking both the northbound and southbound lanes of I-77. The truck was carrying twelve 275-gallon totes of a chemical used as a marine cleaning agent, EMPIGEN® AS-F90. The containers were breached and the chemical spilled, entering the “surface and subsurface soils, surface waters, surface water sediments and groundwater within the Paint Creek Watershed.” (Compl. at ¶ 4.) The EMPIGEN® AS-F90 is a hazardous waste that was released into the environment as a result of the crash. The release of the chemical has adversely impacted groundwater and surface water resources, including “the loss of beneficial uses of these surface water and groundwater resources, specifically including the ability to use those water resources as a public drinking water supply or safe recreational water locations without incurring excessive treatment costs.” (Id. at ¶ 49.)

The Complaint alleges the following causes of action: Count One - Judicial Abatement of a Continuing Per Se Public Nuisance Declared by the General Law of West Virginia; Count Two - Judicial Abatement of a Continuing Per Se Public Nuisance Declared by Section V of Fayette Co. Ordinance No. 2018-001, Pursuant to Section XXII of that Ordinance, and Related Declaratory Relief; Count Three - Judicial Abatement of a Continuing Public Nuisance Pursuant to the Common Law of West Virginia; Count Four - Declaratory and Corresponding Injunctive Relief Providing for Recovery of (i) County Costs Incurred with Respect to the Subject Property; and (ii) Recovery of the County's Reasonable Attorneys' Fees and Court Costs Incurred Herein Pursuant to W.Va. Code § 7-1-3ff(h)(4); Count Five - Damages for Injury to, Loss of, and Destruction of Natural Resources Within Fayette County Pursuant to Section VI(a)(19)(E) of Fayette County Public Nuisance Ordinance; and Count Six - Unjust Enrichment. The Plaintiffs seek a variety of declaratory and monetary relief.^[1]

STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

The Court must “accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore, the court need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.'” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate facts, when accepted as true, that ‘show' that the plaintiff has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

DISCUSSION

The Defendants contend that Count One fails to allege the elements necessary to prove a public nuisance and relies on the false premise that the West Virginia Solid Waste Management Act establishes that all Open Dumps (as defined in the Act) are per se public nuisances. They next argue that Count Two must be dismissed because the county Ordinance declaring certain conditions to constitute a per se nuisance exceeded the county's authority. They further argue that state law requires certain pre-suit procedures prior to seeking judicial abatement of a public nuisance, and the Plaintiff did not comply with those procedures. They contend that Count Three must be dismissed because there is no allegation that the Defendants “are maintaining a continuing public nuisance.” (Def.s' Mem. at 14, emphasis in original.) They argue that Count Four, like Count Two, fails because the Plaintiff did not follow the required pre-suit procedures. In addition, the Defendants assert that Counts Four, seeking attorneys' fees and costs, and Count Five, seeking damages for injury, loss, and destruction of natural resources, seek forms of relief, rather than stating standalone causes of action. They argue that the Complaint does not plead the elements of unjust enrichment, alleged in Count Six, and that the unjust enrichment claim is duplicative.

In response, the Plaintiff argues that “the Fayette County Commission is authorized to exercise the full range of legal authorities available to the Sovereign of this State under the Public Nuisance Doctrine embodied in the common law of the State of West Virginia,” with the exception of imposition of felony-level criminal penalties. (Pl.'s Resp. at 2.) It contends that state law defines all open dumps to be a public nuisance, that all open dumps are illegal in West Virginia, and Count One therefore states a viable cause of action. The Plaintiff argues that it is “expressly authorized...to declare by ordinance what is a Public Nuisance...and to provide for the proper abatement of such Public Nuisance.” (Id. at 15.) It argues that the procedural requirements cited by the Defendants as to Counts Two and Four are not applicable because the claims related to the Ordinance arise under W.Va Code § 7-1-3kk, not § 7-1-3ff, and as such the procedures set forth in §7-1-3ff are inapplicable. The Plaintiff argues that its allegations, that the Defendants caused a public nuisance with continuing impacts and have failed to adequately abate the toxic contamination, meet the pleading requirements as to Count 3. The Plaintiff next contends that Count Four is permissible, and “any concerns of alleged violation of due process for lack of strict adherence to the citation-complaint-order administrative procedures outlined in § 7-1-3ff are wholly alleviated by submission of the matter to this Court's jurisdiction.” (Id. at 21-22.) It argues that Count Five is a valid legal cause of action stating an independent basis for liability. The Plaintiff argues that the claim for unjust enrichment contained in Count Six pleads the elements of the claim, in that the Defendants...