Young v. Kerr-McGee Corp.

658 F.Supp.3d 1028

Ernest James YOUNG, THROUGH Surviving Souse Michelle YOUNG;and Daughter and Heir, Amanda Fries, Plaintiffs, v. KERR-MCGEE CORP., a Delaware Corporation, et al., Defendant.

Case No. 22-280-EFM

United States District Court, E.D. Oklahoma

Signed March 1, 2023

Cheryl Minnix Thigpen, Roger Brent Blackstock, Brent Blackstock, PLC, Tulsa, OK, for Plaintiffs.

Duke K. McCall, III, Pro Hac Vice, Lindsey Titus Levy, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Washington, DC, Leah T. Rudnicki, The Rudnicki Firm, Oklahoma City, OK, for Defendants Kerr-McGee Corp., Anadarko Petroleum Corp., Occidental Petroleum Corp.

N. Lance Bryan, Linda C. Martin, Doerner Saunders Daniel & Anderson, Tulsa, OK, Michael English, Doerner Saunders Daniel & Anderson, Oklahoma City, OK, for Defendants Sequoyah Fuels Corp., General Atomics.

Linda C. Martin, Doerner Saunders Daniel & Anderson, Tulsa, OK, Michael English, Doerner Saunders Daniel & Anderson, Oklahoma City, OK, for Defendant Sequoyah Holding Corp.

Anthony Wade Merrill, Pro Hac Vice, Michael C. Ford, Pro Hac Vice, Snell & Wilmer, Phoenix, AZ, Bradley W. Welsh, GableGotwals, Tulsa, OK, for Defendant Quivira Mining Corp.

MEMORANDUM AND ORDER

ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

Plaintiffs Michelle Young and Amanda Fries allege that Ernest James Young (respectively, their husband and father) died as the result of his exposure to toxins released from the uranium processing plant in Gore, Oklahoma. Plaintiffs bring this claim for wrongful death against seven corporations they tie, in one manner or another, to that processing plant. Defendants Kerr-McGee, Anadarko Petroleum, and Occidental Petroleum have moved to dismiss for a lack of personal jurisdiction. (Doc. 38). The remaining Defendants have filed separate Motions to Dismiss (Doc. 40, 41, 42, 46) which raise a variety of issues. By the present Order, the Court grants the Motions to Dismiss of Kerr-McGee, Anadarko, Occidental, General Atomics and Sequoyah Holdings. The remaining Motions (Doc. 40, 42) are granted in part and denied in part.

I. Factual and Procedural Background¹

Ernest Young died on April 9, 2020, as a result of Defendants' acts and omissions. Amanda Fries is the daughter and heir of decedent Ernest James Young. This action is prosecuted by and through Young's surviving spouse and daughter.

Mr. Young lived in Gore, Oklahoma for approximately the first 22 years of his life, and during this timeframe he was exposed to uranium, uranium-containing contaminates, and other toxic substances. In approximately August of 2018, Mr. Young was diagnosed with the pancreatic cancer which caused his death in 2020.

All Defendants are Delaware Corporations except General Atomics, which is a California Corporation

The present litigation arises from events at the Sequoyah Fuels Nuclear Plant near Gore, Oklahoma, close to the Illinois River, the Arkansas River, and Interstate 40. This uranium processing facility opened in 1970, and was owned by Kerr-McGee Nuclear Corporation until 1983.

Kerr-McGee Nuclear Corp. was then a subsidiary of what is known as "Old" Kerr-McGee Corporation, an entity formed in 1929. Plaintiffs allege that Old Kerr-McGee Corp. "was succeeded by" Kerr-McGee Operating Corporation, which later became Tronox Worldwide LLC "[t]hrough a series of mergers and name changes" in 2005. Plaintiffs allege that "New" Kerr-McGee Corporation came into existence in the early 2000s as a spinoff from Old Kerr-McGee.

Plaintiffs allege that in 1983, Kerr-McGee Nuclear Corp. created a wholly owned subsidiary, Sequoyah Fuels Corporation, which then took control of the Plant. That same year, Kerr-McGee Nuclear Corporation changed its name to Quivira Mining Company.

In 1988 General Atomics bought Sequoyah Fuels, and at about the same time created Sequoyah Holding Corporation, while Rio Algom Mining Corporation bought Quivira Mining.

Plaintiffs generally allege the Defendant corporate entities are mutually liable for what occurred at the Plant:

28. The personalities and assets of Kerr-McGee Nuclear Corporation and (Old) Kerr-McGee Corp., were so indistinct that adherence to the corporate fictions will defeat public convenience, justify wrong, or protect fraud. Thus, Kerr-McGee Nuclear Corp. was the mere instrumentality or alter ego of its parent corporation, Old Kerr-McGee.

29. Upon information and belief, there is a lack of distinction between (Old) Kerr-McGee and (New) Kerr-McGee, Anadarko Petroleum Corporation, and Occidental Petroleum Corporation. Thus, these corporations are ultimately the mere instrumentalities or alter egos of their predecessors.

30. Upon information and belief, the funds and assets of some or all of the Defendants named in paragraph 29 are commingled.

31. The principals of equity require that (new) Kerr-McGee, Anadarko, and Occidental be held jointly and severally liable to the debts and liabilities stemming from one another.

The Plant worked to turn crushed uranium ore into the fine powder used for nuclear reactors fuel rods, as well as making the uranium used for armor-piercing bullets and shells. Plaintiffs allege that similar plants "have been known to produce dangerous concentrations of toxic gases," and that the named Defendants mishandled and released hazardous and toxic contaminants at the Plant, which then migrated beyond the Plant through groundwater and the air. In particular, Plaintiffs allege that a January 4, 1986 chemical leak and explosion killed one Plant worker, and injured 130 others, as well as causing extreme groundwater and soil contamination across the 600-acre site. Plaintiffs allege Plant workers were poorly trained and their equipment poorly maintained. The Plant was decommissioned in 1993.

The Amended Complaint further alleges that Mr. Young was born on July 17, 1962, and by living in proximity to the Plant for two decades, he was for a long time exposed to its contamination of the nearby water and soil. Plaintiffs allege that Mr. Young's death from pancreatic cancer on April 9, 2020, when he was 57 years of age, was caused by that exposure.

The Amended Complaint brings claims for both negligence (under "the common law as well as relevant Federal and Oklahoma statutes, and relevant Federal and Oklahoma environmental statutes and regulations — including the Price-Anderson Act") and strict liability. As to both claims, Plaintiffs allege that Defendants Sequoyah Fuels, Sequoyah Holding, General Atomics, and Quivira Mining are directly liable, while Defendants Kerr-McGee, Anadarko, and Occidental are liable as the mere instrumentality/alter-ego of Old Kerr-McGee.

II. Legal Standard

Under Rule 12(b)(2), a defendant may move for dismissal if the court lacks personal jurisdiction over him.² However, "if a party fails to assert the defense of lack of personal jurisdiction in his answer or pre-answer motion, he waives the defense."³ "A personal defense may not be raised by another on behalf of a party."⁴ A defendant may explicitly consent to the court's jurisdiction.⁵ Alternatively, a defendant may implicitly consent to the court's jurisdiction by voluntarily appearing before the court and participating in the proceedings.⁶

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.⁷ Upon such motion, the court must decide "whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.' "⁸ A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.⁹ The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of claims as well the grounds on which each claim rests.¹⁰ Under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint, but need not afford such a presumption to legal conclusions.¹¹ Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.¹² If the allegations in the complaint are "so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.' "¹³

III. Analysis

A. The Court lacks personal jurisdiction over Anadarko, Occidental and Kerr-McGee.

For the Court to exercise personal jurisdiction over a nonresident Defendant in this diversity action, Plaintiffs' well-pled allegations must show that the Defendant has "minimum contacts" with Oklahoma such that maintaining the suit here conforms with "traditional notions of fair play and substantial justice."¹⁴ "Minimum contacts" may take either a "general" (suit-unrelated) or "specific" (suit-related) form. The former requires Plaintiffs to show a Defendant maintained "general business contacts" with Oklahoma so "continuous and systematic" as to make it "essentially at home" in Oklahoma.¹⁵ The latter, specific personal jurisdiction, exists if the alleged injury to Plaintiffs "arise[s] out of or relate[s] to" activities that a Defendant "purposefully directed" at Oklahoma.¹⁶

Defendants Kerr-McGee, Anadarko, and Occidental argue that the Court lacks either general jurisdiction or specific jurisdiction. They contend that the principle place of business of each of the companies is Texas, and that they do no business in Oklahoma. Further, they argue that they simply could not have engaged in conduct giving rise to the alleged injuries, as the new Kerr-McGee only came into existence in the early 2000s following a complicated devolution of the related "old" Kerr-McGee entities, long after the events giving rise to the present cause of action, and Occidental and Anadarko entered the picture even later.

In their Response, Plaintiffs make no attempt to show that these three Defendants have engaged in business generally in...