Posted on November 22, 2010 by John Barkett
Recent Supreme Court opinions interpreting Rule 12(b)(6) have been applied in an environmental context. A state agency cost recovery action was dismissed for failure to plead facts sufficient to show a plausible claim for relief, resulting in unnecessary additional litigation costs.
WhenBell Atlantic v. Twombly, 550 U.S. 554 (2007) was decided, many lawyers lamented the loss of Conley v. Gibson, 355 U.S. 41 (1957) (in effect, if there is a claim somewhere within the four corners of a complaint, a motion to dismiss will be denied) as the governing case in Rule 12(b)(6) jurisprudence. Then Ashcroft v. Iqbal, 129 S.Ct. 1937 (May 18, 2009) came down. The laments became cries for action to restore Conleylegislatively, and, indeed, such legislation was introduced in the Congress by Senator Specter who was not returned to office. For now, Iqbal and Twombly remain the law.
For those few lawyers who may not be familiar with Twombly or Iqbal, both cases dealt with the sufficiency of allegations in a complaint to state a cause of action. Twombly dealt with parallel conduct in an antitrust setting that was consistent with lawful behavior but was alleged conclusorily to represent a conspiracy in restraint of trade. Without fact allegations to show why lawful parallel conduct was in fact unlawful anticompetitive behavior, the complaint did not survive. Iqbal dealt with claims against the Attorney General and the Director of the FBI for post-9/11 activities that restrained the liberty of the plaintiffs for a period of time. Other defendants remained in the case. The Supreme Court held that the complaint’s allegations against these two executives were not “plausible.” Hence, they were dismissed.
What is a “plausible” claim? The Supreme Court gave this answer in Iqbal: “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” This plausibility standard is not “akin to a probability requirement,’ but it asks for more than “a sheer possibility that the defendant has acted unlawfully.”
It has not taken long for Iqbal and Twombly to be applied in an environmental dispute. Just ask Pennsylvania’s Department of Environmental Protection (DEP). On November 3, 2010, Magistrate Judge Lenihan in the Western District of Pennsylvania, citing this Supreme Court precedent and the Third Circuit’s interpretation of it in Fowler v. UPMC Shadyside, 578 F.3d 203 (3rd Cir. 2009), dismissed a CERCLA amended complaint with prejudice. The 2009 action involved $3.7 million in costs incurred in a landfill response action that was completed in 2004. The DEP characterized the excavation, drum and soil removal, and restoration work it conducted as a remedial action for which it had six years within which to file suit under CERCLA. Three defendants argued that the DEP had engaged in a removal action for which it had only three years from the conclusion of the removal action within which to bring suit. The magistrate judge agreed with the defendants and because suit was brought beyond three years, the case was dismissed. The magistrate accepted the factual averments in the amended complaint as true but disregarded the DEP’s “legal conclusions.” Because the actions described in the complaint were “the equivalent of a CERCLA removal action,” she held, the DEP had failed “to set forth sufficient factual matter to show a plausible claim for relief.”
The magistrate judge was persuaded by the administrative record that “repeatedly and consistently” characterized the DEP’s response action as “interim.” The DEP was not helped by its 2002 “Analysis of Alternatives” under Pennsylvania’s Hazardous Sites Cleanup Act which stated that the interim response was warranted but that the response as then proposed “is not a final remedial response.” The magistrate judge rejected the DEP’s argument that a “prompt interim response” would be a removal action in CERCLA terms but that a “limited interim response” in fact was the same as a remedial action under CERCLA.
Under Conley, it is likely that the motion to dismiss would have been denied, discovery would have occurred, and the limitations question would have been decided under Rule 56’s summary judgment standards. Had the DEP filed suit before Twombly, it would have been able to so argue. Of course, if it had done that, it could have been within the three-year removal action window. Not having done so, it had to deal with Iqbal and Twombly’spreference for using the motion to dismiss as a way to address escalating discovery costs in federal court litigation where a claim is not “plausible.”