Recently, there has been an explosion of litigation involving per- and polyfluoroalkyl substances (“PFAS”) contamination. In SUEZ Water New York Inc. v. E.I. du Pont de Nemours and Company, et al., No. 20-CV-10731 (LJL), 2022 WL 36489, at *1 (S.D.N.Y. Jan. 4, 2022), a federal district court dismissed PFAS related contamination claims against four Delaware corporate defendants: E.I. du Pont de Nemours and Company, Inc. (“Old DuPont”), The Chemours Company (“Chemours”), DuPont de Nemours, Inc (“New DuPont”), and Corteva, Inc. (“Corteva”) (collectively “Defendants”). The court dismissed the Complaint against New DuPont and Corteva due to lack of personal jurisdiction over each defendant. Although the court found that personal jurisdiction existed over Old DuPont and Chemours, it ultimately still dismissed the Complaint against these defendants due to Plaintiff’s failure to state a claim against each of them.
This case involved PFAS contamination in New York’s drinking water. PFAS are man-made chemicals used in numerous industrial and commercial products. The United States Environmental Protection Agency (“EPA”) has concluded that PFAS can be released into the environment “during the manufacture, use, and disposal of PFAS and PFAS-containing products, as well as during the biodegradation of products that contain PFAS.” Perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) are two commonly used PFAS. The New York State Department of Environmental Conservation (“DEC”) added PFOA and PFOS to a regulatory list of hazardous substances. The New York State Department of Health’s Public Health and Health Planning Committee then approved the adoption of Maximum Contaminant Levels (“MCLs”) for PFOA and PFOS in New York’s public water system.
Plaintiff SUEZ Water New York Inc. (“SUEZ”) operates five public water systems in New York. Monitoring has shown that certain of SUEZ’s systems have concentrations of PFOS and/or PFOA that exceed New York’s MCLs. Consequently, SUEZ filed suit against the Defendants, alleging that “it has incurred, and will continue to incur, significant expenses related to remedying the PFAS contaminations to comply with the relevant MCLs for PFOA and PFOAS and related to monitoring for PFOA and PFOS.” Specifically, SUEZ maintains that Defendants “placed PFAS and products that contain PFAS into the stream of commerce,” which resulted in contamination that “has affected the water sources that SUEZ uses to provide drinking water to its customers throughout New York.” Plaintiff alleged that Old DuPont and Chemours’ PFAS ended up in New York waters either as a result of their use by industrial manufacturers and licensees or by end-users of PFAS-containing products who subsequently disposed of those products. With respect to New DuPont and Corteva, Plaintiff alleged that New DuPont and Corteva had contractually assumed certain environmental liabilities of Old DuPont, and consequently Old DuPont’s “contacts with New York are therefore imputed to them.”
The Defendants sought to dismiss the Complaint against them on the basis that the court lacked personal jurisdiction over each of them (Rule 12(b)(2) Motion), or in the alternative, that Plaintiff had failed to state a claim (Rule 12(b)(6) Motion).
RULE 12(b)(2) ANALYSIS – OLD DUPONT AND CHEMOURS
The court denied Old DuPont and Chemours’ motion to dismiss for lack of personal jurisdiction. A court has personal jurisdiction if either general or specific jurisdiction exists. Plaintiff alleged that specific personal jurisdiction existed with respect to Old DuPont and Chemours. “Personal jurisdiction may be established over a defendant in a diversity action if: (1) ‘the exercise of jurisdiction is appropriate under [the forum state’s long-arm] statute’; and (2) ‘such exercise comports with the requisites of due process.’”
The court determined that the personal jurisdiction requirements of New York’s long-arm statute and Constitutional due process were established with respect to Old DuPont and Chemours. First, New York’s long-arm jurisdictional statute’s requirements were satisfied because “[the] allegations of repeated direct sales into New York to New York customers, over a lengthy and continuous period of time, taken as true for the purposes of the motions … demonstrate that [Old DuPont and Chemours] ‘purposefully availed’ themselves of ‘the privilege of conducting business in New York,’ thereby ‘transact[ing] business’ for the purposes of N.Y. C.P.L.R. § 302(a)(1). Furthermore, the court also concluded that “there is ‘a relatedness between’ Plaintiff’s claims [of PFAS contamination] and [Old DuPont and Chemours’] actions supplying PFAS and PFAS-containing products, including PFOA and PFOS, to entities in New York, that makes them ‘not completely unmoored’ from each other and sufficient to permit personal jurisdiction.”
Additionally, the court concluded that its exercise of personal jurisdiction did not violate due process because by purposefully availing themselves of the benefits of transacting business in New York, Old DuPont and Chemours had the requisite minimum contacts with New York for jurisdiction to be proper.
RULE 12(b)(2) ANALYSIS – NEW DUPONT AND CORTEVA
In contrast with its conclusion with respect to Old DuPont and Chemours, the court granted New DuPont and Corteva’s motion to dismiss for lack of personal jurisdiction. Plaintiff argued that the court could exercise jurisdiction over New DuPont and Corteva because they had contractually assumed certain environmental liabilities of Old DuPont, and consequently Old DuPont’s “contacts with New York are therefore imputed to them.” The court disagreed. Because New DuPont and Corteva were not “mere continuations” of Old DuPont and because there was not “continuity of ownership” between Old DuPont and Corteva or New DuPont, successor personal jurisdiction was not proper in this case.
RULE 12(b)(6) ANALYSIS – OLD DUPONT AND CHEMOURS
After concluding that personal jurisdiction existed over Old DuPont and Chemours, but not over New DuPont and Corteva, the court next analyzed Old DuPont and Chemours’ motions to dismiss for failure to state a claim. After its extensive analysis, the court granted Old DuPont and Chemours’ motions, concluding that plaintiff had failed to state a claim against these defendants.
To survive a Rule 12(b)(6) motion to dismiss, a compliant must include ‘sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’’ ‘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.’
The court separately evaluated the Plaintiff’s allegations of causation and also Plaintiff’s separate causes of action and concluded that the Complaint failed to state a claim for relief for numerous reasons.
In New York, “an act or omission is regarded as a legal cause of an injury ‘if it was a substantial factor in bringing about the injury.’” Federal Rule of Civil Procedure 8(a)(2) only requires a “‘short and plain statement of the claim showing that the pleader is entitled to relief.’” The court found that Plaintiff had failed to state a claim with respect to causation because the Plaintiff had not alleged “facts, based on either the chemicals the … Defendants sold, their market share of the polluting chemicals, or the location to which … Defendants sold and delivered the chemicals, that would establish that the conduct of the … Defendants was a substantial factor in the alleged injury.” Notably, the court highlighted that Plaintiff made many allegations concerning PFAS generally, as opposed to PFOS and PFOA specifically, the specific PFAS relevant to the lawsuit. Moreover, the court held that “[e]ven assuming that some of the PFAS the … Defendants sold, licensed, and distributed to industrial manufacturers and other downstream entities were PFOA or PFOS, and that some of the complained-of releases of PFAS contained PFOA or PFOS, Plaintiff does not allege that the share of PFOA or PFOS sold by … Defendants into New York was anything but miniscule.” Additionally, the court determined that Plaintiff’s “allegations are bereft of any facts regarding market share, the identity of customers, or the location where the customers resided, or what would tie … Defendants’ conduct to Plaintiff’s alleged injury.” Consequently, the court determined that Plaintiff’s allegations of causation were too attenuated and speculative to state a claim for relief.
The court held that the Plaintiff’s private and public nuisance claims failed because
SUEZ’s claim amounts to the assertion that because Defendants introduced in the stream of commerce a product that, by its nature, would contaminate the waterways and ultimately affect the water systems of SUEZ, Defendants are liable for whatever damage caused by that contamination, regardless of where the … Defendants directed or controlled their conduct or had specific knowledge of the mechanisms by which the product was being improperly handled. The theory violates the principle that New York courts will not extend liability to anyone contributing in some way or another to a nuisance or its maintenance ‘no matter how far removed from defendants’ lawful business practices the harm is felt. To hold otherwise would open the door to ‘lawsuits [being] leveled … against countless … types of commercial enterprises, in order to address a myriad of societal problems … regardless of the distance between the ‘cause’ of the ‘problems’ and their alleged consequences.’
Even if the court concluded that Plaintiff adequately plead causation, which it did not, the court would have still dismissed the negligence claim because “a defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.” Here, plaintiff alleged that other parties ultimately deposited the PFAS in the waterways that resulted in contamination. Plaintiff did not allege that the Defendants had any control over these other parties with respect to what they did with the PFAS or PFAS-containing products.
The court also held that Plaintiff failed to state a claim for trespass. The court noted that “[w]ith respect to the intent element in water contamination cases, ‘the appropriate standard is whether [the defendant] (i) ‘intend[ed] the act which amounts to or produces the unlawful invasion,’ and (ii) had good reason to know or expect that subterranean and other conditions were such that there would be passage [of the contaminated water] from defendant’s to plaintiff’s land.”’ Here, the court determined that the Complaint did not plausibly allege that “the intrusion into SUEZ’s water systems was ‘the immediate’ consequence of any action that was willfully done by the … Defendants or that it was the ‘inevitable consequence.”’
Strict Liability Claim
The court also concluded that Plaintiff’s strict liability claims for abnormally dangerous activities, defective design, and failure to warn all failed as well. With respect to the claim that Defendants were engaged in abnormally dangerous activities, the court disagreed, noting that this theory of liability does not create a cause of action for the manufacture or sale of an unreasonably dangerous product or substance. Additionally, the court determined that the Complaint failed to sufficiently allege that the disposal of the PFAS was abnormally dangerous and/or that the Defendants “intentionally undertook or joined in that abnormally dangerous activity.”
With respect to the design defect claim, the court held that plaintiff’s claim failed because plaintiff failed to plead facts that would plausibly indicate that an alternative feasible design was available for the PFAS-containing products. The court also stated that
[t]o the extent that Plaintiff is asserting a defective-design claim on the PFAS made by … Defendants, rather than their PFAS-containing products, Plaintiff’s allegations appear to be that the design was defective because PFAS should not have been use at all. [However,] ‘[a]s courts in this circuit have noted, ‘alleging that the product should not be used at all is insufficient to satisfy the feasible alternative design element.’
Finally, with respect to the failure to warn claim, the court dismissed the claim because Plaintiff did not “allege facts from which it can be reasonably inferred that the failure to warn was a proximate cause of its harm.” Notably, the court stated that Plaintiff did not allege facts indicating what warning should have been given, and if warnings had been given, “how the industrial manufacturers or the end-users would have responded or how the harm to Plaintiff would have been averted.”
In sum, the court granted New DuPont and Corteva’s motion to dismiss for lack of personal jurisdiction because successor jurisdiction was not warranted in this case. In contrast, the court denied Old DuPont and Chemours’ motion to dismiss for lack of personal jurisdiction because the court concluded that those defendants’ contacts with New York satisfied both New York’s long-arm statute and Constitutional due process. However, the court ultimately also dismissed the Complaint against Old DuPont and Chemours because Plaintiff’s Complaint failed to state a claim.