Opinion
Case No.: 2:21-cv-03138-SB-MAA
02-14-2022
Beverly MOISTNER et al. v. AEROJET ROCKETDYNE INC. et al.
Anthony G. Graham, Graham and Martin LLP, Newport Beach, CA, Neal Alison Roberts, Roberts Partners, Santa Monica, CA, for Beverly Moistner. Tammy Ann Tsoumas, David A. Klein, Jonathan Samuel Goldstein, Kirkland and Ellis LLP, Los Angeles, CA, Kevin T. Van Wart, Pro Hac Vice, Kirkland and Ellis LLP, Chicago, IL, for Aerojet Rocketdyne Inc., The Boeing Company.
Anthony G. Graham, Graham and Martin LLP, Newport Beach, CA, Neal Alison Roberts, Roberts Partners, Santa Monica, CA, for Beverly Moistner.
Tammy Ann Tsoumas, David A. Klein, Jonathan Samuel Goldstein, Kirkland and Ellis LLP, Los Angeles, CA, Kevin T. Van Wart, Pro Hac Vice, Kirkland and Ellis LLP, Chicago, IL, for Aerojet Rocketdyne Inc., The Boeing Company.
Proceedings: ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [Dkt. No. 52]
STANLEY BLUMENFELD, JR., United States District Judge
Plaintiff Beverly Moistner alleges a variety of state-law claims arising from her exposure over the last several decades to both radioactive and nonradioactive toxic materials allegedly released from an industrial laboratory near her home. Defendants Aerojet Rocketdyne Inc. (Rocketdyne) and The Boeing Company (Boeing) removed the case and now move to dismiss Plaintiff's Second Amended Complaint for failure to state a claim. Dkt. No. 52 (Motion). As explained more fully below, the Court grants the Motion because Plaintiff's claims are preempted by the Price–Anderson Act (PAA) and she has not stated a plausible claim upon which relief may be granted.
BACKGROUND
Plaintiff owns a house in Bell Canyon, Ventura County, where she has lived since 1981. Dkt. No. 50 ¶ 3 (2d Am. Compl.). Plaintiff's home is within five miles of the Rocketdyne Facility, a large open-air laboratory in the Simi Hills that has been used, among other things, to "test[ ] prototypes for nearly every rocket engine used in the U.S. Space Program" and for nuclear reactor testing. Id. ¶¶ 3, 5, 14.
Since the Rocketdyne Facility opened in 1946, it has been principally operated by Rocketdyne, which is now a division of Boeing. Id. ¶ 5. Plaintiff alleges that "operations at the Rocketdyne Facility have involved the use and/or generation of vast amounts of hazardous and toxic materials," including both radioactive waste and nonradioactive chemicals such as "hexavalent chromium, a highly potent known carcinogen, and such volatile organic compounds as TCE, oxidizers, kerosene-based fuels, liquid metals, asbestos, PCB's and hydraulic oil." Id. ¶ 11. Plaintiff alleges that "several partial meltdowns" of the nuclear reactors and "a number of releases and other ‘accidents,’ " along with discharges and spills of chemicals, have released dangerous levels of radiation and toxic chemicals into the air, soil, water, and food chain. Id. ¶¶ 14–18. These accidents, some of which occurred as early as the 1950s, allegedly include "numerous releases of hazardous substances from the Rocketdyne Facility since [Plaintiff] purchased the land." Id. ¶ 18.
Plaintiff has been diagnosed with two serious cancers, requiring her to undergo major surgery in August 2020. Id. ¶ 3. Plaintiff alleges that in connection with this surgery she "first confirmed Defendants’ property as a likely origin or source for her cancers when her doctor so informed her." Id. Plaintiff also alleges that the release of toxic and hazardous substances from the Rocketdyne Facility has decreased the value of her property. Id. ¶ 9.
Plaintiff filed suit in state court, alleging only state law claims against Defendants. Dkt. No. 1-1. Defendants removed the case based on both preemption under the PAA and the federal officer removal statute, 28 U.S.C. § 1442. Dkt. No. 1. In denying Plaintiff's frivolous motion to remand (which resulted in monetary sanctions being imposed on Plaintiff's counsel, Dkt. No. 41), the Court found that it had federal jurisdiction under the PAA without reaching the federal officer statute. Dkt. No. 39. The Court granted leave for Plaintiff to amend her pleadings twice. Dkt. Nos. 43, 49. Plaintiff's Second Amended Complaint alleges claims under California law for (1) public nuisance, (2) private nuisance, (3) strict liability for ultra-hazardous activity, (4) negligence, (5) negligence per se, (6) trespass, and (7) violation of the Unfair Competition Law (UCL), Cal. Bus. & Prof. Code 17200 et seq. Dkt. No. 50. Defendants move to dismiss, arguing that the PAA governs Plaintiff's claims, Plaintiff has not alleged a viable claim under the PAA, and Plaintiff's trespass and UCL claims are additionally barred by the statute of limitations. Dkt. No. 52.
Todd Moistner, who appears to be Plaintiff's son, was also originally a plaintiff in this action, but his claims were dropped from the Second Amended Complaint.
The Second Amended Complaint erroneously repeats the seventh cause of action.
LEGAL STANDARD
Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. A plaintiff must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has "facial plausibility" if the plaintiff pleads facts that "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
In resolving a Rule 12(b)(6) motion, a court must accept all well-pleaded factual allegations as true, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937. That is, a pleading must set forth allegations that have "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Assuming the veracity of well-pleaded factual allegations, a court next must "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937. There is no plausibility "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Id.
DISCUSSION
The PAA provides that a federal court has original jurisdiction over "any public liability action" involving a "nuclear incident" occurring in its district. 42 U.S.C. § 2210(n)(2). A "public liability action" is generally one seeking to impose "legal liability arising out of or resulting from a nuclear incident." Id. §§ 2014(w), (hh). The term "nuclear incident" is broadly defined to include "any occurrence" in the United States that causes personal injury or property damage "arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material." Id. § 2014(q). "Upon motion of the defendant ..., any such action pending in any State court ... shall be removed ... to the United States district court having venue ...." Id. § 2210(n)(2) ; see also El Paso Nat. Gas Co. v. Neztsosie , 526 U.S. 473, 484, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999) (noting that "the Price–Anderson Act transforms into a federal action ‘any public liability action arising out of or resulting from a nuclear incident’ " and authorizes removal); Beneficial Nat'l Bank v. Anderson , 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) (holding that the Price–Anderson Act "expressly provides for removal of such actions brought in state court even when they assert only state-law claims").
Both Plaintiff's original pleading and her Second Amended Complaint allege harm arising from "nuclear incidents" as that term is defined in the PAA, including partial meltdowns of nuclear reactors and spills and releases of radioactive hazardous materials. "The Price–Anderson Act is the exclusive means of compensating victims for any and all claims arising out of nuclear incidents." Golden v. CH2M Hill Hanford Grp., Inc. , 528 F.3d 681, 683 (9th Cir. 2008) (cleaned up). "Every federal circuit that has considered the appropriate standard of care under the PAA has concluded that nuclear operators are not liable unless they breach federally-imposed dose limits." In re Hanford Nuclear Rsrv. Litig. , 534 F.3d 986, 1003 (9th Cir. 2008) (collecting cases).
Plaintiff has not alleged that she was exposed to a radiation dose exceeding the federal limits. Instead, Plaintiff complains that Defendants have not provided her with "basic information" and then makes general allegations about public exposure:
Thus, on information and belief, and based in part on Defendants’ recalcitrance and refusal to disclose this most basic information (which would clearly be relevant to any defense they might suggest and thus should have been provided in their Initial Disclosures) Plaintiff thus asserts that, due to Defendants[’] actions and inactions, individual members of the pubic [sic] are likely to receive a dose equivalent to [sic] in excess of 10 mrem (0.1 mSv) per year from these emissions.
Dkt. No. 50 ¶ 31.
This vague allegation about likely public exposure, based on "information and belief" and an alleged discovery violation, is plainly deficient. As Defendants point out, Plaintiff neither directly alleges that she was exposed to radiation in excess of 10 mrem per year nor alleges any facts indicating more than a mere possibility of such exposure. Plaintiff asserts in a footnote that "[i]f the Court deems it necessary, ... Plaintiff could amend to more explicitly state that she has likely been exposed [to] a dose equivalent to [sic] in excess of 10 mrem (0.1 mSv) per year from these emissions." Dkt. No. 53 at 4 n.2. This assertion is, to say the least, enigmatic in light of the pleading history in this case. In July 2021, defense counsel met and conferred with Plaintiff's counsel and explained that the original complaint was deficient because it failed to allege that Plaintiff was exposed to radiation in excess of federal regulatory dose limits, Dkt. No. 48 at 1. Plaintiff then filed her First Amended Complaint in August 2021. Dkt. No. 45. In September 2021, the parties met and conferred about the viability of the First Amended Complaint because Plaintiff still failed to address whether she was exposed to radiation in excess of federal limits. During the meeting, Plaintiff's counsel represented that he would meet with an expert to determine if he could correct the deficiency. According to the parties’ stipulation:
Plaintiff attempts to draw a negative inference from what she characterizes as Defendants’ refusal to provide information about radiation emissions, but Plaintiff did not move to compel production of any documents, and fact discovery is now closed. But even if Plaintiff were able to rely on an unadjudicated assertion of a discovery violation, her counsel conceded he has no legal authority to support his contention that a pleading can satisfy Twombly ’s plausibility threshold based on an adverse inference that undisclosed information would support a plaintiff's claim.
In the same footnote, Plaintiff states that "[she] is of course a member of the public." But the above-quoted allegation obviously cannot mean that every member of the public was exposed to radiation in excess of federal regulatory dose limits—irrespective of distance from, and duration of exposure to, a radioactive release. And in the context of a meet-and-confer process that focused on the need for Plaintiff to specifically allege the requisite exposure (see discussion in text infra ), she cannot reasonably explain the omission of her exposure as inadvertent.
Plaintiffs’ counsel also informed Defendants’ counsel that he requires 30 days to file a second amended complaint so that he can discuss with an expert whether Ms. Moistner can allege in a second amended complaint exposure to radiation in excess of federal regulatory dose limits as required by the PAA[.]
Dkt. No. 48 at 3.
Thus, Plaintiff was plainly on notice of the need for such allegations to support a claim under the PAA and was granted two opportunities by stipulation to do so. Her failure to allege in the Second Amended Complaint that she was exposed to radiation in excess of the federal limits is fatal to her claims based on the discharge of radioactive matter. Hanford , 534 F.3d at 1003 ; see also O'Connor v. Boeing N. Am., Inc. , No. CV 00-0186 DT RCX, 2005 WL 6035255, at *39 (C.D. Cal. Aug. 18, 2005) (collecting cases for rule that "[a]n essential element of any [public liability action under the PAA] is that the plaintiff's exposure exceed the federal dose limits").
Relying exclusively on Cook v. Rockwell Int'l Corp. , 618 F.3d 1127 (10th Cir. 2010), Plaintiff argues that her claims survive preemption because she may nevertheless be able to prevail based on state tort standards of care. But Cook expressly acknowledged that the Ninth Circuit and at least four other circuits "have concluded federal nuclear safety standards control in a PAA action, rather than traditional state tort standards of care." Id. at 1144 n.19. Under binding Ninth Circuit law, Plaintiff fails to state a claim for harm based on radiation exposure. See Hanford , 534 F.3d at 1003 ("To allow a jury to decide on the basis of a state's reasonableness standard of care would ‘put juries in charge of deciding the permissible levels of radiation exposure and, more generally, the adequacy of safety procedures at nuclear plants—issues that have explicitly been reserved to the federal government.’ This result would undermine the purpose of a comprehensive and exclusive federal scheme for nuclear incident liability." (citation omitted)). Plaintiff therefore fails to state a claim under the PAA.
A question remains about the proper scope of dismissal. Citing Golden , Defendants argue that Plaintiff's claims should be dismissed in full because they are based on Plaintiff's combined and inseparable exposure to radioactive and nonradioactive materials. Golden involved an accident in which the plaintiff was splashed with liquid that contained both radioactive material and nonradioactive heavy metals. 528 F.3d 681. The Ninth Circuit concluded that "[i]nsofar as [the plaintiff] suffered separately identifiable harm from a cause not related to the harmful properties of the radioactive materials, his claim for such damages would not be preempted by the Price–Anderson Act," but that if the plaintiff "suffered fear and depression as a consequence of having had gallons of harmful sludge spilled on him, rather than having separately identifiable fears from heavy metal and radiation exposure" and "can only show emotional distress arising out of a general fear for his future health that is intertwined with his exposure to radioactive materials," then "the Price–Anderson Act will apply and his emotional distress claim for exposure to nonradioactive materials will be preempted." Id. at 684.
Plaintiff argues that the Second Amended Complaint distinguishes between two separate sources of her injuries—radioactive and nonradioactive hazardous materials. But as Defendants correctly argue, Plaintiff alleges that her damages—especially her cancers—were caused by exposure to all the hazardous materials discharged by Defendants, without identifying any harms that are attributable only to nonradioactive discharges. At the hearing, Plaintiff's counsel confirmed that Plaintiff is claiming her cancers were caused by exposure to both radioactive and nonradioactive hazardous materials. Although Plaintiff's counsel suggested that, with more information, Plaintiff's experts might be able to pinpoint specific radioactive or nonradioactive substances as the cause of Plaintiff's cancer, he conceded that Plaintiff lacked the information required to make any such allegation at this time. Thus, the harms Plaintiff alleges from her exposure to nonradioactive hazardous materials are "intertwined" with the harms from her exposure to radioactive materials, and in the absence of "separately identifiable" harms, her claims are preempted by the PAA. Id. at 684.
The Court therefore does not reach Defendants’ additional arguments regarding the statute of limitations.
LEAVE TO AMEND
Plaintiff does not expressly request leave to amend her pleadings, and the Court declines to grant leave sua sponte. Although "[t]he court should freely give leave [to amend a pleading] when justice so requires," Fed. R. Civ. P. 15(a)(2), leave to amend may be denied for such reasons as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment," Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
Plaintiff filed this suit in March 2021, nearly a year ago, and has already been granted leave to amend her pleadings twice to respond to the precise deficiencies raised by Defendants in their Motion. The deadline for moving to amend pleadings—September 10, 2021—has long passed. Fact discovery, moreover, has been completed. The May 24, 2021 case management order set a fact discovery deadline of January 28, 2022, so Plaintiff has had eight months to obtain discovery. Dkt. No. 26. Allowing Plaintiff to file a Third Amended Complaint at this late stage is not warranted in light of Plaintiff's repeated failures to cure the deficiencies in her pleadings.
Even if the other factors did not counsel against granting leave to amend, "[f]utility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon , 59 F.3d 815, 845 (9th Cir. 1995). Plaintiff was twice notified of the specific pleading deficiencies, and her counsel claimed that he would consult an expert for the very purpose of addressing the issue of his client's exposure. And while this type of investigation generally should precede the filing of a lawsuit, Plaintiff has had the further benefit of many months of informal and formal discovery to try to cure the pleading deficiencies, if they are in fact curable. Fact discovery is now closed, and Plaintiff has still failed to allege either a viable claim under the PAA or a non-preempted claim arising from distinct harms caused by exposure only to nonradioactive materials.
Despite this history and the current procedural posture, the Court provided Plaintiff an opportunity at the motion hearing and in a subsequent supplemental filing to demonstrate whether she could plausibly allege exposure to radiation above the federal limits. At the hearing, the Court questioned Plaintiff's counsel about his factual basis for so alleging. In response, Plaintiff's counsel identified (1) the opinion of Plaintiff's treating physician, Dr. Hale, that Plaintiff's cancers were caused by carcinogens released from the Rocketdyne Facility and (2) the 2014 study produced by Dr. Adrienne Katner and her team (the Katner Study), which is referenced in the Second Amended Complaint.
At the hearing, Plaintiff's counsel conceded that Dr. Hale did not distinguish between the radioactive and nonradioactive carcinogens at the Rocketdyne Facility. Moreover, Dr. Hale was deposed later in the day of the motion hearing and testified that he never spoke with any of Plaintiff's lawyers about the case, and that he never rendered an opinion regarding the causation of Plaintiff's cancers or told her what he believed caused her illness. Dkt. No. 63-1 (Ex. B, at 16–17.) Plaintiff moves to strike Defendant's submission of this deposition excerpt because it exceeds the scope of what the Court permitted in its order allowing a supplemental filing. Dkt. No. 64. The Court declines to do so. It is true that the Court did not invite Defendants to file a supplement, but Defendants made a reasonable effort to get Plaintiff's counsel to correct the record, and the Court would have expected Plaintiff's counsel to do so even in the absence of adversarial encouragement. The Court disclosed through its questioning at the hearing that it was considering whether to allow leave to amend; Plaintiff's counsel affirmatively relied at the hearing on statements about exposure and causation purportedly made by Dr. Hale to Plaintiff; and Plaintiff's counsel knew hours later that Dr. Hale denied having made any such statements.
Once again, the Court emphasizes that it considers the information outside the pleadings solely for purposes of determining the propriety of allowing leave to amend.
As for the Katner Study, Plaintiff's counsel acknowledged that it does not identify a particular level of radiation to which Plaintiff or other members of the public were exposed but represented that it "says [the radiation level is] above federally mandated standards." Dkt. No. 60 at 8:17–20 (transcript of January 28, 2022 motion hearing). Defense counsel disagreed with this representation. In order to evaluate whether the Katner Study provided a factual basis for Plaintiff's radiation-based claims such that leave to amend would not be futile, the Court directed Plaintiff to file the Katner Study, highlighting "the passage that states that radiation levels exceeded the federal limits." Dkt. No. 59.
Plaintiff produced a February 2, 2006 Final Draft Report produced by Dr. Katner and her team and slides from a June 18, 2014 presentation by Dr. Katner. Dkt. No. 62. Plaintiff highlighted more than a dozen passages, but none of them contains a statement that any person or the general public was exposed to radiation in excess of the federal limits. The report contains repeated references to contamination—not exposure—in excess of "health-based standards" or "background levels"—not federal radiation dose limits. E.g. , Dkt. No. 62 at 32 of 75. Moreover, it appears from the Court's review of the full Katner Study that Plaintiff has misrepresented its conclusions not only at the hearing but also in her pleadings. Plaintiff alleges that Dr. Kanter's study "specifically found Bell Canyon (where Plaintiff has resided for 40 years) to be a ‘hot spot ,’ " and Plaintiff repeats this characterization in her production of the Katner Study. Dkt. No. 50 ¶ 19; Dkt. No. 62 at 5. The Katner Study in fact identified Bell Canyon only as one of several "Potential Hotspots." Dkt. No. 62 at 70 of 75 (emphasis in original). Moreover, the presentation defines "Potential ‘Hot Spot’ " as an area where "1. contaminant levels exceed health-based standards; ii. exposure is possible; [and] iii. exposure could result in an adverse health effect at the levels detected." This definition illustrates both the distinction between contaminant levels and exposure and also that the study found only that exposure was "possible" even in the potential hot spots. Id. ; see also id. at 56 of 75, 60 of 75 (emphasizing among its "Limitations" that the report identifies "potential exposures" and contains "Data Gaps" including "Questionable data quality"). Thus, Plaintiff's allegation that "[t]he study concluded that people like Plaintiff would be exposed ," Dkt. No. 50 at 12 (emphasis added), appears to mischaracterize the Katner Study.
Plaintiff's allegation that the Katner Study was conducted in 2014 therefore appears to be erroneous, although immaterial.
The Court continues to have concerns about Plaintiff's counsel's lack of care or candor in accurately presenting facts to the Court, particularly after the Court has sanctioned him monetarily and repeatedly cautioned him to pay closer attention to the Court's rules. The Court declines to impose further sanctions at this time.
Accordingly, Plaintiff has not identified any factual basis for amending her pleadings to allege that she has been exposed to radiation in excess of the federal limits, which is required to state a plausible claim under the PAA. Moreover, Plaintiff conceded at the hearing that she lacks information that would allow her to identify distinct harms attributable only to the nonradioactive harmful substances to which she may have been exposed. Since fact discovery has now closed, any attempt to replead a non-preempted claim based only on harms not caused by radiation exposure would be futile. Therefore, and especially in light of the fact that Plaintiff has already been given multiple opportunities to amend her pleading, amendment is not warranted and Plaintiff's claims are dismissed with prejudice.
ORDER
Because Plaintiff's claims are preempted by the PAA and she has not stated a plausible claim upon which relief may be granted, Defendants’ motion to dismiss is GRANTED and Plaintiff's claims are DISMISSED on the merits with prejudice.
A final judgment will be entered separately.