Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 1 of 21 PageID 262

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

DERETHA MILLER, LUETRICIA FREEMAN )

BECKER, RALPH HENRY, NOEMY )
RODRIGUEZ, WILLIE BLANKS, and )
TAMBITHA BLANKS, individually, and on )
behalf of a class of persons similarly situated, )
)
Plaintiffs, )
v. ) Case No: 2:18-cv-195-SPC-CM
)
THE CITY OF FORT MYERS, a Municipality, )
MAYOR RANDALL P. HENDERSON JR., in )
his official capacity as City of Fort Myers Mayor, )
and SAEED KAZEMI, in his official capacity )
as City of Fort Myers Manager, )
)
Defendants. )

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO

DISMISS FIRST AMENDED COMPLAINT

Plaintiffs, as individuals, and on behalf of a class of other people similarly situated, by and

through their undersigned counsel, submit this Response to Defendant City of Fort Myers, Florida

(“City” or “Fort Myers”), and its Mayor and City Manager in their official capacities (collectively,

the “Defendants”) Motion to Dismiss First Amended Complaint [Doc. 18], and respectfully

request that the Court deny Defendants’ motion in its entirety.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). To

survive a motion to dismiss for failure to state a claim, a complaint need not contain “detailed

factual allegations,” but instead must contain enough factual matter that, when accepted as true
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 2 of 21 PageID 263

and viewed in the light most favorable to the plaintiff, “state[s] a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (U.S. 2007)); Cooper v. Progressive Am. Ins. Co., 2017 WL 784816

at *1 (M.D. Fla. Mar. 1, 2017). A claim for relief is “plausible on its face” when the pleaded

factual content enables the court “to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Iqbal, 556 at 679. This plausibility standard does not require that the

defendant’s liability is probable; rather, this standard merely requires something “more than a

sheer possibility that a defendant has acted unlawfully.” Id. at 678.

When considering a FED. R. CIV. P. 12(b)(6) motion, the court may not, with limited

exceptions,1 consider any facts or allegations beyond the four corners of the complaint. Milburn

v. U.S., 734 F.2d 762, 765 (11th Cir. 1984); Randles v. Hester, 2001 WL 1736881 (M.D. Fla.

2001). This hornbook law notwithstanding, Defendants, while expressly moving solely pursuant

to FED. R. CIV. P. 12(b)(6), expediently ignore this limitation and improperly provide over two and

a half pages of inadmissible factual content entitled the “History of the South Street Property

Leading to Plaintiffs’ Complaint.” [Doc. 18, pp. 2-4]. This Court should strike and/or disregard

Section I.A. of the Defendants’ Motion to Dismiss, as well as all other places throughout the brief

where such “facts” outside the four corners of the Complaint are improperly inserted into the

record and relied upon by Defendants to support their arguments.

1
Defendants requested no judicial notice of any public documents, or otherwise attempted to properly authenticate any of the
purported facts contained in Section I.A. of their brief and repeated throughout their brief. Most notably, on the face of
Plaintiffs’ Complaint, it is not apparent that Defendants ceased dumping of the contaminated sludge at the Dunbar site prior
to the enactment of RCRA. See [Doc. 14, ¶¶ 25, 27]. Defendants make this misrepresentation throughout their brief, and it
is the sole basis for many of Defendants’ arguments, which also fail for the reasons discussed infra.

2
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 3 of 21 PageID 264

ARGUMENT

I. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF FOR DEFENDANTS’

VIOLATION OF RCRA’S PROHIBITION ON OPEN DUMPS.

Defendants do not contend that Plaintiffs failed to adequately plead the elements of an

open dumping claim. Instead, Defendants argue that Plaintiffs’ open dumping claim fails to state

a claim2 because the City’s actual dumping of sludge at the Dunbar Site predated the enactment of

RCRA. However, Defendants’ erroneously focus on the wrong conduct: the City’s initial

dumping of the arsenic contaminated sludge. This disregards the well-pleaded allegations of the

conduct violating RCRA’s prohibition on open dumping: the continued presence of the

contaminated arsenic sludge and its ongoing effects on the environment.

Section 7002(a)(1)(A) of RCRA permits citizen suits against any person “who is alleged

to be in violation of” any permit, standard, regulation, condition, requirement, or order which has

become effective pursuant to RCRA. 42 U.S.C. § 6972(a)(1)(A) (emphasis added). Pursuant to

Gwaltney v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60-61 (1987), wholly past violations

cannot be the subject of citizen suits under section 7002(a)(1)(A); see also Gache v. Town of

Harrison, 813 F. Supp. 1037, 1041 (S.D. N.Y. 1993). In Gache, defendant Town argued that it

was entitled to summary judgment on plaintiff’s open dumping claim because it had stopped

dumping waste on the property at issue prior to commencement of the citizen suit, thereby causing

no present or ongoing RCRA violation. Id. at 1041. The court found that this argument

“overstate[d] the Gwaltney holding” and rejected the Town’s focus on the act of dumping as “an

2
While expressly moving pursuant to Rule 12(b)(6), Defendants also make passing reference to a “lack of subject matter
jurisdiction” pertaining to Plaintiffs’ open dumping claim. Regardless, the Court should treat Defendants’ motion as it is
styled and argued throughout – as a Rule 12(b)(6) motion – and not as a Rule 12(b)(1) challenge to jurisdiction. At best,
Defendants’ RCRA argument is a facial attack under Rule 12(b)(1).

3
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 4 of 21 PageID 265

overly narrow view of the violation that occurred.” Id. Furthermore, based on the plain meaning

of section 7002(a)(1)(A), the court held that “the continued presence” of improperly dumped

materials constitutes “being in violation” of RCRA. Id. The court reasoned:

The environmental harms do not stem from the act of dumping when waste
materials slide off of the truck but rather after they land and begin to seep into the
ground, contaminating the soil and water. So long as wastes remain in the landfill
threatening to leach into the surrounding soil and water, a continuing violation
surely may exist.

Id. (emphasis added); see also Goldfarb v. Mayor and City Council of Baltimore, 791 F. 3d 500,

513 (4th Cir. 2015) (holding that “to be in violation of” language in section 7002(a)(1)(A) does not

require that a defendant be currently engaged in activity causing the ongoing RCRA violation);

South Road Associates v. Int’l Business Machines Corp., 216 F.3d 251, 254 (2nd Cir. 2000)

(holding that “a defendant’s current activity at the site is not a prerequisite for finding a current

violation” under 42 U.S.C. § 6972(a)(1)(A)) (emphasis added);3 Tennessee Riverkeeper, Inc. v.

Hensley-Graves Holdings, LLC, 2013 WL 12304022 at *8 (N.D. Ala. Aug. 20, 2013) (denying

defendant’s motion to dismiss plaintiff’s open dumping claim in part because the court could find

“nothing in the statute or the regulations requiring active participation by the violating party” in

the disposal at issue).

Similarly, in Fallowfield Development Corp. v. Strunk, 1990 WL 52745 (E.D. Pa. April

23, 1990), a case directly analogous to this case, defendants sought dismissal of plaintiffs’ section

7002(a)(1)(A) citizen suit because their disposal of hazardous waste occurred prior to the

enactment of the EPA regulations under RCRA. Id. at *7, *11. Following a comprehensive

3
In South Road Associates v. Int’l Business Machines Corp., 216 F.3d 251 (2nd Cir. 2000), a case cited by defendants
in their Memorandum, the Second Circuit held that RCRA draws no distinction between “open dumps” and “open
dumping.” Id. at 255, n 3. Defendants’ attempt to create such a distinction here is without merit.

4
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 5 of 21 PageID 266

analysis of the plain language of 42 U.S.C. § 6972(a)(1)(A), the Supreme Court’s Gwaltney

decision, and other case law, including the Ninth Circuit’s decision in Ascon Properties, Inc. v.

Mobil Oil Co., 866 F. 2d 1149 (1989), the court held that defendants were subject to liability for

the continuing violations of RCRA occurring after the effective date of the regulations. Id. The

court held:

If a person disposes of a hazardous waste on a parcel of property, the hazardous

waste remains in that property, insidiously infecting the soil and groundwater
aquifers. In other words, the violation continues until the proper disposal
procedures are put into effect or the hazardous waste is cleaned up.

Id. at *10 (emphasis added).4 The court stated that, once the regulations came into effect,

defendants had two options: (1) to comply with the newly-effective regulations; or (2) face the

consequences of inaction. Id. at *12. Like Defendants here, defendants chose the latter avenue,

and the court refused to dismiss the complaint. Id.

The reasoning of Gache, Fallowfield, and the other cases cited supra represents the

majority rule in terms of what it means “to be in violation of” section 7002(a)(1)(A). See Acme

Printing Ink Co. v. Menard, Inc., 891 F. Supp. 1289, 1301-1302 (E.D. Wis. 1995) (the continued

presence of improperly dumped materials generally constitutes a continuing violation of RCRA

which is cognizable under § 6972(a)(1)(A)); California v. M & P Investments, 308 F.Supp.2d

1137, 1147-1148 (E.D. Cal. 2003) (denying summary judgment to defendant based on lack of

evidence showing that either proper disposal procedures had been put in place or that the hazardous

waste had been cleaned up and the environmental effects are no longer remediable); Marrero

4
The court based this holding on the fact that improperly disposed of waste remains a remediable threat to the
environment, “Congress intended to allow citizen suits under section 7002(a)(1)(A) of RCRA for past violations where
the effects of the violation remain remediable.” Id. at *11 (emphasis added).

5
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 6 of 21 PageID 267

Hernandez v. Esso Standard Oil Co., 597 F.Supp.2d 272, 283-284 (D. P.R. 2009) (denying

defendant’s motion for summary judgment as to plaintiff’s section 7002(a)(1)(A) citizen suit, as

defendant’s violations were not “wholly past” as they had failed to take corrective action regarding

the petroleum contamination and plaintiffs presented evidence of continued migration of the

released petroleum); City of Toledo v. Beazer Materials and Services, Inc., 833 F. Supp. 646, 655

(N.D. Ohio 1993) (the continued presence of unremediated wastes constituted an ongoing violation

of RCRA, despite fact they were disposed of years earlier by prior owner of the site).

In sharp contrast is the cases relied on by Defendants, and Mervis Industries v. PPG

Industries, 2010 WL 1381671 (S.D. Ind. March 30, 2010), Sullins v. Exxon/Mobil Corp., 2010

WL 1980218 (N.D. Cal. May 17, 2010), and South Road Associates in particular, as these cases

make up the minority line of authority which has not been followed by the District Courts of the

Eleventh Circuit.5 Moreover, Defendants’ reliance on Ascon Properties, Inc. v. Mobil Oil Co.,

866 F. 2d 1149 (1989) is misplaced, as Ascon stands for nothing more than the proposition that

section 7002(a)(1)(A) is not available to remedy past violations; in other words, a proper defendant

in a section 7002(a)(1)(A) citizen suit “must not have solely have violated RCRA in the past but

must currently be ‘in violation’ of RCRA.” Dydio v. Hesston Corp., 887 F.Supp. 1037, 1043 (N.D.

Ill. 1995) (emphasis added).

Furthermore, while the Eleventh Circuit has not expressly addressed this issue, District

Courts within the Eleventh Circuit have uniformly followed the “majority rule” discussed supra -

that the continuing presence of hazardous waste constitutes a current violation of RCRA, even

5
OSI, Inc. v. U.S., 510 F.Supp.2d 531(M.D. Ala. Jan. 3, 2007), cited by Defendants, is inapposite because the court
found that the government was, unlike Defendants in the instant matter, in current compliance with all applicable
regulations. Id. at 540.

6
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 7 of 21 PageID 268

though the defendant’s actual conduct occurred in the past. In Cameron v. Peach County, Georgia,

2004 WL 5520003 at *27 (M.D. Ga. June 28, 2004), the court cited to Gache and several other

cases discussed supra, stated it would follow the “majority rule,” and held:

From these cases, a general rule may be gleaned that the disposal of wastes can
constitute a continuing violation … as long as the waste has not been cleaned up and
the environmental effects remain remedial.

Id. at *27 (internal citations and quotations omitted); see also Williams v. Alabama Dep’t of

Transportation, 119 F.Supp.2d 1249, 1255 (M.D. Ala. 2000) (citing Gache and City of Toledo and

holding that the continued presence of improperly dumped materials constitutes a violation of

RCRA); Scarlett & Assoc., Inc. v. Briarcliffe Center Partners, LLC, 2009 WL 3151089 at *10

(N.D. Ga. Sept. 30, 2009) (holding that the RCRA violation continues until the proper disposal

procedures are put into effect or the hazardous waste is cleaned up); Tennessee Riverkeeper, 2013

WL 12304022 at *8 (noting that RCRA prohibits any disposal6 that constitutes open dumping, and

denying motion to dismiss as plaintiffs alleged that waste had continued to “leak” from the

landfill).

Here, Plaintiffs have alleged, inter alia: that Defendants have violated and are currently

in violation of 42 U.S.C. § 6945(a) by maintaining an open dump on the Dunbar Site [Doc. 14, ¶¶

52, 75, 78]; that the arsenic sludge has contaminated both the soil and groundwater aquifer [Id.,

¶¶ 30, 33, 35, 47, 50-51, 77, 94]; and that the City has failed to either put into effect proper disposal

practices or remove the contaminated sludge. [Id., ¶¶ 29-30, 79, 95]. Thus, Plaintiffs have stated

a claim for Defendants’ violation of RCRA’s prohibition on open dumps.

6
RCRA defines “disposal” to mean “the discharge, deposit, injection, dumping, leaking, or placing of any solid waste in to
or on any land or water.” 42 U.S.C. § 6903(3) (emphasis added); see also [Doc. 14, ¶ 52] [alleging that the City’s disposal of
waste is ongoing through the leaching of water through the Sludge Dump into the groundwater and surface water] [emphasis
added].

7
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 8 of 21 PageID 269

II. PLAINTIFFS’ STATE LAW CLAIMS ARE NOT BARRED BY THE STATUTE OF
LIMITATIONS BECAUSE THEY ARE BASED ON CONTINUOUS ACTS OF
DEFENDANTS.

A. PLAINTIFFS’ STATE LAW CLAIMS CONSTIUTE CONTINUING TORTS.

Florida recognizes the continuing torts doctrine, distinguishing “between a single act that

causes multiple, cascading harms, and recurrent, repetitive acts excepted from the running of the

statute of limitations.” Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1042 (11th

Cir. 2014). To allege a continuing tort, plaintiff must establish “continual tortious acts, not [a]

continual harmful effect [ ] from an original, completed act.” Suarez v. City of Tampa, 987 So.2d

681, 686 (Fla. 2d DCA 2008) (citations omitted). Importantly, for purposes of Defendants’ Rule

12(b)(6) motion, Florida courts have repeatedly held that once “the plaintiff has alleged some

continuing conduct on the part of the defendants, a jury must decide whether a continuing tort has

occurred.” See, e.g., Spadaro v. City of Miramar, 855 F. Supp. 2d 1317, 1330 (S.D. Fla. 2012)

(citing Pearson v. Ford Motor Co., 694 So.2d 61, 68 (Fla. 1st DCA 1997)).

Plaintiffs’ First Amended Complaint contains well-pled allegations of Defendants’

continuous tortious acts and conduct adequately stating a claim for each of their state law causes

of action, and thus dismissal is improper. Regarding Plaintiffs’ negligence claim, Plaintiffs have

alleged, inter alia: that Defendants have breached duties by failing to bring the Sludge Dump into

compliance with RCRA landfill standards or removing the arsenic sludge [Doc. 14, ¶ 95]; and that

Defendants have breached duties by failing to comply with FDEP directives for performing a

remedial investigation and removing the arsenic sludge [Doc. 14, ¶ 96]. In their Negligent Failure

to Warn claim, Plaintiffs have alleged, inter alia, that the City has breached duties owned to

Plaintiffs by failing to warn of the presence of the arsenic sludge in the Sludge Dump and in the

8
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 9 of 21 PageID 270

soil and groundwater both on and off the site [Doc. 14, ¶ 108]; see also [Doc. 14, ¶¶ 109-114]. For

their strict liability claims, Plaintiffs have alleged that Defendants are continuing to permit, cause,

or otherwise allow hazardous substances to be emitted, transferred, leaked, released, dumped, and

otherwise discharged from the Dunbar Site onto private property [Doc. 14, ¶ 122] [emphasis

added]; further, Plaintiffs have expressly alleged that the statute of limitations does not bar

Plaintiffs’ strict liability claim, as the soil and groundwater contamination caused by the City has

not been abated on Plaintiffs’ properties [Doc. 14, ¶ 123]. Similarly, Plaintiffs nuisance and

attractive nuisance claims are based on this same continuous conduct of Defendants, and their

Medical Monitoring Claim alleges continued exposure to elevated levels of arsenic, [Doc. 14, ¶

142], and further alleges that the City’s negligent acts and omissions as set out in the First

Amended Complaint proximately caused such exposure. [Doc. 14, ¶ 145].

Courts have found continuing torts where “evidence was ignored or withheld,” Spadaro,

855 F. Supp. 2d at 1330; where flooding occurred continually over a period and the tortious act

was abatable, Carlton v. Ger. Hammock Groves, 803 So. 2d 852 (Fla. 4th DCA 2002); where a

restrictive covenant was continually violated by the operation of a horse farm in excess of its

livestock restrictions, Barker v. Jeremiasen, 676 P.2d 1259, 1260–61 (Colo. App.1984) (relied

upon in Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1043-44 (11th Cir. 2014));

in the act of violating a restrictive covenant each time defendants mowed a lawn, Black Island

Homeowners Ass'n v. Marra, 588 S.E.2d 250, 251–52 (2003) (relied upon in Winn-Dixie Stores,

Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1043-44 (11th Cir. 2014)); and where there was

continuous wrongdoing. Perera v. Wachovia Bank, N.A., No. 09-23773-CV, 2010 WL 1375635,

*2 (S.D. Fla. Mar. 15, 2010). Thus, although Suarez provides guidance regarding the legal

9
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 10 of 21 PageID 271

standard for continuing torts, to the extent that Defendants’ rely on Suarez as factually analogous,

their reliance is misplaced. Significantly, the Suarez defendants neither owned nor operated the

property in question, Suarez, 987 So.2d at 685-86, whereas the City has owned the Dunbar site at

all times material to this matter. [Doc. 14, ¶ 19]. In addition, the Suarez court did not find a

continuing tort of trespass, which is not at issue in this case, because they found that, for purposes

of the statute of limitations, the claim accrued when the property owners sent a letter alerting the

defendant to the contamination on the property and requesting to resolve the issue. Id.

B. THE COURT SHOULD ESTOP DEFENDANTS FROM RAISING A STATUTE

OF LIMITATIONS DEFENSE.

Alternatively, should the Court find that the continuous tort doctrine is not applicable to

any of Plaintiffs’ state law claims, the Court should estop Defendants from asserting a statute of

limitations defense because the Defendants’ acts/omissions prevented Plaintiffs from filing their

claims sooner. Equitable estoppel is based on principles of fair play and essential justice and arises

when one party lulls another party into a disadvantageous legal position. Major League Baseball

v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001). As noted by Morsani Court:

The doctrine of estoppel is applicable in all cases where one, by word, act or
conduct, willfully caused another to believe in the existence of a certain state of
things, and thereby induces him to act on this belief injuriously to himself, or to
alter his own previous condition to his injury.

Id. (emphasis added) (internal citations omitted).

Here, the residents of the Dunbar neighborhood were unaware of – and in fact unable to

participate in – the City’s decision to locate the arsenic Sludge Dump in their neighborhood in the

early 1960’s. [Doc. 14, ¶ 26]. Defendants knew for many years that the Sludge Dump is neither

lined nor covered to prevent migration of arsenic into groundwater and/or the air or surface, and

10
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 11 of 21 PageID 272

that residents of the Dunbar community had unrestricted access to the Sludge Dump. [Id., ¶ 29].

Despite this fact, the City sold some of the lots within the Sludge Dump to private parties for

residential use, including some of the Plaintiffs, and never disclosed to any of these buyers that the

property was a Sludge Dump. [Id., ¶ 28]. Furthermore, Defendants knew – in 2007 at the latest –

that the Dunbar Site contained elevated and unsafe levels of arsenic contamination in both soil and

groundwater due to the dumping of arsenic contaminated sludge at the site [Id., ¶¶ 33-35].

However, the City took no action to address this contamination, even when repeatedly directed to

do so by FDEP [Id., ¶¶ 36-44]. Indeed, at no time between 2007 and 2017 did the City notify

Plaintiffs or any residents of the Dunbar community of the existence of the arsenic contaminated

soil or groundwater contamination, nor did it post any warning signs at the Dunbar site or in any

manner restrict access to the Sludge Dump. [Id., ¶ 46]. Instead, it was not until a media story

about the Sludge Dump went public in June of 2017 that the City finally took any action; and then,

it only partially fenced off the Sludge Dump. [Id.] Indeed, even after service of several pre-suit

Notices of Intent to Sue, and the filing of the instant lawsuit, Defendants chose to continue to

dispute the harms associated with the Sludge Dump and litigate this action rather than work with

the Dunbar community to right these wrongs and remediate the Sludge Dump. [Doc. 14, ¶¶ 48-

49].

In Morsani, the court noted that equitable estoppel presupposes a legal shortcoming in a

party’s case that is directly attributable to the opposing party’s misconduct, and bars the wrongdoer

from profiting from his or her own misconduct. 790 So.2d at 1077. The foregoing conduct of the

Defendants is precisely the type of misconduct that the Morsani court was referencing, and this

11
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 12 of 21 PageID 273

Court should protect the Plaintiffs from the Defendants’ wrongdoing by a grant of equitable

estoppel to any statute of limitations defense.

III. THE COURT SHOULD NOT DISMISS ANY PORTION OF PLAINTIFFS’

NEGLIGENCE CLAIM.
Defendants contend that ¶ 90 of the First Amended Complaint should be dismissed because

it is an allegation of negligence “premised upon RCRA.” However, this contention misrepresents

the substance of this allegation, which is simply a statement of the City’s duty at common law to

protect residents of the Dunbar community from the effects of exposure to the arsenic contaminated

sludge it dumped on the Dunbar Site. As such, even to the extent the Court finds ¶ 90 is even

partially premised upon RCRA, a breach of that duty is simply evidence of negligence and is

actionable under the common law.

IV. PLAINTIFFS’ CAUSE OF ACTION FOR STRICT LIABILITY UNDER 376.313 IS

NOT BARRED BY SOVEREIGN IMMUNITY.

Section 376.313, Florida Statutes, provides for the right of private parties to sue for

damages resulting from a discharge or other condition of pollution covered by Section 376.30-

376.319. Fla. Stat. See Aramark Uniform. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 22

(Fla. 2004) (holding that Section 376.313, which allows private parties to sue for damage resulting

from a discharge or other condition of pollution, created a new cause of action for strict liability).

Defendants contend that statutory strict liability is inapplicable to this matter because (1) the City’s

dumping occurred prior to the statute’s effective date and (2) that sovereign immunity bars strict

liability claims.

Defendants’ first contend that there have been no violations of the statute after the 1983

effective date of Section 376.313. [Doc. 18, pp. 15-17]. However, Plaintiffs' Complaint alleges

12
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 13 of 21 PageID 274

that during the City’s ownership and use of the Dunbar Site, some form of emissions, leakages,

seeping, blowing, releases, transfers, dumping, emptying, pouring or otherwise prohibited

discharges of pollutants, contaminants, hazardous substances, pollutants, and/or pollution have

occurred and continue to occur. [Doc. 14, ¶¶ 119-120] [emphasis added]. Further, as discussed in

Sections I and II, supra, Defendants have been and continue to be engaged in recurrent and

repetitive acts and inaction facilitating, exacerbating and allowing for the continued violation of

Florida Statute § 376.313. These allegations of a continuing tort state a claim and should

ultimately be decided by a jury. See, e.g., Pearson, 694 So.2d at 68.

Next, citing Schick, Defendants allege that sovereign immunity bars a claim for strict

liability against the City. [Doc. 18, p. 15-16]; see Schick v. Florida Department of Agriculture,

504 So. 2d 1318, 1319 (Fla. 1st DCA 1987). Notably, Schick holds that sovereign immunity is

waived to the extent specified in the Florida Tort Claims Act (“FTCA”), which addresses harm,

including strict liability, arising under the common law. Id. at 1322. The court's decision in Schick

regarding the applicability of the sovereign immunity waiver does not apply in this instance, where

the harm arises from Section 376.313, a Florida Statute. Id. at 1321-22. In fact, the Florida

Supreme Court acknowledged in Aramark that the legislative intent of the statute is to liberally

construe the effect of the purposes set forth under the statute. 894 So. 2d at 23. The court explained

that based on this, Section 376.313(3) departed from the common law by creating a damages

remedy for the non-negligent discharge of pollution without proof that the defendant caused it. Id.

at 24.

In other words, there can be strict liability claims not arising in the common law for the

discharge of pollution. Florida Statute § 376.313 imposes statutory strict liability and states:

13
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 14 of 21 PageID 275

Nothing in this chapter shall prohibit or diminish a party's right to contribution

from other parties jointly or severally liable for a prohibited discharge of
pollutants or hazardous substances or other pollution conditions …. The only
defenses to such cause of action shall be those specified in s. 376.308.

Fla. Stat. § 376.313 (2017). Sovereign immunity is not included in the permissible defenses that

apply to Section 376.313. Fla. Stat. § 376.308. Operators or owners of polluting facilities are to

be held liable. Fla. Stat. § 376.308(1) (2017). While the statute acknowledges that an act of

government can be a defense, it explicitly states that persons claiming the defense cannot be the

governmental body that acted. Fla. Stat. § 376.308(2) (2017).

V. PLAINTIFFS’ ALLEGE THAT THE CITY’S CONTINUAL TORTIOUS ACTS ARE

AN OPERATIONAL LEVEL FUNCTIONS.

Section 768.28, Florida Statutes, waives the City’s sovereign immunity with respect to

Plaintiffs’ tort claims only to the extent (1) a common law duty of care exists and (2) the allegations

relate to operational activities, as opposed to planning or discretionary decisions. Lee v. Dep’t of

Health & Rehab. Services, 698 So. 2d 1194, 1198 (Fla. 1997). An exception to this waiver of

sovereign immunity exists only if the challenged acts of the state agent were “discretionary”

governmental acts rather than merely “operational” ones. Ermini v. Scott, 249 F. Supp. 3d 1253,

1280–81 (M.D. Fla. 2017) (emphasis added). Discretionary, or planning, functions include

functions such as development and planning of governmental goals and policies. Id. An

operational function is one that is not necessary to or inherent in policy or planning that merely

reflects a secondary decision as to how those policies or plans will be implemented. Id.

In arguing that the acts at issue in this matter are planning level functions, Defendants cite

to the four conditions elucidated by Commercial Carrier v. Indian River County, 371 So. 2d 1010

(Fla. 1979) that need to be met in order to determine that an act is discretionary. [Doc. 18, p. 18];

14
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 15 of 21 PageID 276

Commercial Carrier, 371 So. 2d at 1019 (finding that the county was not immune from tort liability

as the maintenance of the traffic light was operational level activity). The Florida Supreme Court

applied the Commercial Carrier factors three years later in City of St. Petersburg, Fla. v. Collom,

419 So. 2d 1082 (Fla. 1982). In Collom, the court specifically held “that when a governmental

entity creates a known dangerous condition, which is not readily apparent to persons who could

be injured by the condition, a duty at the operational-level arises to warn the public of, or protect

the public from, the known danger.” Id. at 1083 (emphasis added); see also Savignac v. Dep’t of

Transp., 406 So. 2d 1143 (Fla. 2d DCA 1981). In fact, “once a once a governmental entity builds

or takes control of property or an improvement, it has the same common law duty as a private

person to properly maintain and operate the property” and those duties, as challenged by Plaintiffs

in this case, are operational level duties. Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468

So. 2d 912, 921 (Fla. 1985); see also Dep’t of Transp. v. Neilson, 419 So. 2d 1071, 1078 (Fla.

1982) (“The failure to so warn of a known danger is, in our view, a negligent omission at the

operational level of government and cannot reasonably be argued to be within the judgmental,

planning-level sphere.”).

This is in contrast to Rumbough v. City of Tampa, cited inaccurately as factually analogous

by the Defendants, where the court applied the Commercial Carrier factors and found that in

expanding (rather than operating) a landfill, the city was exercising a discretionary function which

could not create liability. Rumbough v. City of Tampa, 403 So. 2d 1139, 1140 (Fla. 2d DCA 1981).

Unlike the appellants in Rumbough - who failed to assert that the landfill was constructed or was

being operated in breach of common law and statutory duties - Plaintiffs have alleged that the

Defendants not only breached their duties in the disposal of the arsenic sludge and the operation

15
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 16 of 21 PageID 277

and maintenance of the Sludge Dump, creating a known dangerous condition, but that it has

continuously and repetitively maintained, operated and used the Dunbar Site in violation of the

law, breaching its common law and statutory duties to the Plaintiffs. See supra, Section II.B.

VI. PLAINTIFFS HAVE ADEQUATELY ALLEGED THE “ALLURE” ELEMENT OF

ATTRACTIVE NUISANCE.

Defendants contend that Florida’s attractive nuisance law not only requires that children

were allured to the danger, but also requires that the property owner’s actions create the allure

[Doc. 18, p. 20]. First, Defendants are incorrect in the contention that Florida’s attractive nuisance

law hinges liability on whether the property owner’s actions created the allure, as an attractive

nuisance exists when a property owner maintains an artificially constructed danger in a place that

naturally allures children. See Stark v. Holtzclaw, 105 So. 330, 331 (Fla. 1925) (holding that a

naturally occurring tree allured a child who was subsequently electrocuted); Peters v. City of

Tampa, 155 So. 854 (Fla. 1934) (holding that children were allured to artificially constructed

danger by naturally-occurring sandy banks and running water). Even if Defendants’ interpretation

of the law were correct, the allegations regarding “quicksand” and the “Orange Slide” would

remain valid fulfillments of the “allure” requirement, as both of those attractions are composed of

the lime sludge dumped there by the Defendants. [Doc. 14, ¶¶ 32-33].

There are two categories of factual allegations in the Complaint that support finding both

that the Dunbar Site had alluring conditions and that those conditions in fact allured children to

the dangerous toxic Site. First, Plaintiffs alleged that children played on the site regularly, played

in the sludge and pooled water, referred to the sludge as “quicksand,” and referred to the discolored

embankment of the Dunbar Site’s contaminated vernal pools as the “Orange Slide”. [Doc. 14, ¶¶

12, 28]. The second category includes the Dunbar Site’s park-like appearance and features,

16
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 17 of 21 PageID 278

including open space, grass, trees, and pooled water, as well as the complete absence of any fences,

signs, or other forms of warning. [Doc. 14, ¶¶ 134-138].

The Supreme Court of Florida has held that sand is as alluring to a child as meat is to a

dog. Allen v. William P. McDonald Corp, 42 So. 2d 706, 707 (Fla. 1949). See also Peters, 155 So.

at 854 (finding that children were allured to sandy river bank); In re Estate of Starling, 451 So. 2d

516, 519 (holding that cause of action under attractive nuisance doctrine existed because child

plaintiff was attracted to sand on edge of pond). The children of the Dunbar community perceived

and treated the Sludge Dump as an enticing type of sandbox—one where they could imitate

countless adventure and scenes involving quicksand. Correspondingly, the same reasoning applies

to slides. Slides are a staple of any playground; they are found at nearly all schools and daycares.

In addition to the “Orange Slide” and “quicksand” created by Ft. Myers’ dumping of the sludge,

the Dunbar Site naturally resembled a park. The Dunbar Site’s open space, grass, trees, and pooled

water among an area otherwise entirely devoted to residential housing made the Site look like a

designated park for recreational activities. With no fencing, signs, or other forms of warning, from

the perspective of the children of Dunbar, this is exactly what the Dunbar Site was: a public area

for playing.

Plaintiffs, such as Luetricia Freeman Becker, and many others played on the Dunbar Site

as children. In response to the statute of limitations arguments put forward by the Defendants,

Plaintiffs reassert their arguments in Section II regarding continuing torts and equitable estoppel.

In addition, children within the Exposure Class played upon the Dunbar Site up until the time that

the contamination was made public and at which point the Defendants finally took simple, basic

care to fence off the property and erect signs. Defendants, and the public, were well-aware of the

17
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 18 of 21 PageID 279

fact that children were playing on the Dunbar Site, however it was only Defendants who knew of

the contamination; children plaintiffs within the Exposure Class seek to hold the Defendants

accountable for the attractive nuisance that they have created.

VII. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF FOR MEDICAL

MONITORING.

As acknowledged by Defendants, [Doc. 18, p. 23], dismissal of class-action allegations

under Rule 12(b)(6) requires a determination that class certification is “impossible.” Wagner v.

CLC Resorts and Developments, Inc., 32 F.Supp.3d 1193, 1198 (M.D. Fla. 2014). Stated

differently, “[D]ismissal at [the 12(b)(6)] stage is an extreme remedy appropriate only where a

defendant demonstrates from the face of the complaint that it will be impossible to certify the

classes alleged by plaintiffs regardless of the facts that plaintiffs may be able to prove.” Id.

(emphasis added) (internal citations omitted). In fact, this Court has gone further and held that

“compliance with Rule 23 is not to be tested by a motion to dismiss for failure to state a claim.”

Smith v. Rainey, 2011 WL 4352179 at *3 (M.D. Fla. Sept. 16, 2011) (emphasis added); see also

Shamblin v. Obama for America, 2014 WL 631931 at *2 (M.D. Fla. Feb. 18, 2014) (holding that

whether plaintiff’s claim deserves class treatment is a fact-dependent inquiry unsuitable for a

motion to dismiss); Romano v. Motorola, Inc., 2007 WL 4199781 at *3 (S.D. Fla. Nov. 26, 2007)

(“To dismiss Plaintiff’s class allegations before discovery would be an acknowledgment by this

court that class certification is impossible, an assertion that this Court is not inclined to make);

Chaney v. Crystal Beach Capital, LLC, 2011 WL 17639 at *2 (M.D. Fla. Jan. 4, 2011) (“The

question of class certification is generally not addressed on a motion to dismiss”).

Plaintiffs have alleged, inter alia: (1) that they and Members of the Exposure Class have

been exposed to arsenic at greater than background levels [Doc. 14, ¶ 129]; (2) that arsenic is a

18
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 19 of 21 PageID 280

proven hazardous substance, which can cause a wide range of serious latent diseases, including

but not limited to bladder cancer, lung cancer, and cardiovascular disease [Id., ¶ 142]; (3) that the

City’s negligence caused Plaintiffs’ and Exposure Class Members’ exposure to arsenic at greater

than background levels [Id., ¶ 145]; (4) that Plaintiffs and Members of the Exposure Class, as a

proximate result of their exposure to arsenic from the Sludge Dump, have a significantly increased

risk of contracting serious latent disease, including but not limited to bladder cancer, lung cancer,

and cardiovascular disease [Id., ¶ 146]; (5) that Monitoring procedures exist, including tests for

arsenic in blood serum, urine, hair, and nail clippings, LDCT, EKG, stress echocardiogram,

cardiology consult, and urinalysis, which can make early detection of bladder cancer, lung cancer,

and cardiovascular disease possible, and these procedures are different from that normally

recommended in the absence of exposure to arsenic [Id., ¶ 147]; and (6) that the proscribed

monitoring regime set forth in ¶ 147 of the First Amended Complaint is reasonably and medically

necessary for Plaintiffs and Members of the Exposure Class according to contemporary scientific

procedures [Id., ¶ 148]. See Petito v. A.H. Robbins Co., 750 So.2d 103, 106-107 (Fla. 3rd DCA

1999) (articulating elements that must be met to state a claim for medical monitoring).

Plaintiffs have stated a claim for class wide medical monitoring, and Defendants have not

made the required “extreme” showing of impossibility required to dismiss Plaintiffs’ class action

allegations. In fact, despite the governing law set forth above, Defendants’ rely on two inapposite

cases, Wyeth, Inc. v. Gottlieb, 930 So.2d 635 (Fla. 3d DCA. 2006), and Rink v. Cheminova, Inc.,

203 F.R.D. 648 (M.D. Fla. 2001), both of which were decided at the class certification stage. Put

simply, dismissal at this stage would be premature, as this action was only recently commenced

and there has been no discovery. As such, Defendants’ motion should be denied.

19
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 20 of 21 PageID 281

CONCLUSION

For all of the foregoing reasons, Plaintiffs and Members of the above proposed Classes

respectfully request this Court to deny Defendants’ Motion to Dismiss, or in the alternative to

dismiss without prejudice with leave to amend.

/s/ Ralf Brookes

Ralf Brookes
Ralf Brookes Attorney
Florida Bar No. 0778362
1217 E Cape Coral Parkway #107
Cape Coral, Florida 33904
Telephone: (239) 910-5464
Facsimile: (866) 341-6086
Ralf@RalfBrookesAttorney.com
RalfBrookes@gmail.com

Lead Attorney and Trial Counsel

Gary A. Davis
N.C. Bar No. 25976 (admission pro hac vice)
James S. Whitlock
N.C. Bar No. 34304 (admission pro hac vice
requested)
DAVIS & WHITLOCK, P.C.
21 Battery Park Ave., Suite 206
Asheville, NC 28801
Telephone: (828) 622-0044
Facsimile: (828) 398-0435
gadavis@enviroattorney.com
jwhitlock@enviroattorney.com

20
Case 2:18-cv-00195-SPC-CM Document 20 Filed 06/06/18 Page 21 of 21 PageID 282

CERTIFICATE OF SERVICE

I hereby certify that on June 6, 2018, the foregoing document was filed electronically. Notice

of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated

on the electronic filing receipt. Parties may access this filing through the Court’s electronic filing

system.

/s/ Ralf Brookes

Attorney

21