Short et al v. Amerada Hess Corporation et al

MOTION to Dismiss for Failure to State a Claim

D.N.H.October 24, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE PATRICK SHORT, et al., Plaintiffs, v. AMERADA HESS CORPORATION, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 1:16-CV-00204-JL DEFENDANTS’ MOTION TO DISMISS Defendants1 respectfully submit this Motion to Dismiss plaintiffs’ complaint. In support therefore, defendants submit the accompanying Memorandum of Law in Support of Defendants’ Motion to Dismiss and state as follows: 1. The statute of limitations bars plaintiffs’ claims as to all defendants. 2. Plaintiffs’ claims are barred against CITGO and ExxonMobil under the doctrine of res judicata because plaintiffs impermissibly attempt to relitigate claims brought on their behalf by the State of New Hampshire in its parens patriae capacity. Similarly, plaintiffs’ claims against all defendants are barred under the doctrine of collateral estoppel, and as to CITGO, the doctrine of release. 3. Plaintiffs fail to state a claim for nuisance or trespass. 4. Plaintiffs lack standing to pursue a strict liability claim under RSA 146-A. 5. Plaintiffs’ injuries do not arise out of “trade or commerce” and thus do not support a claim under New Hampshire’s Consumer Protection Act. 1 This motion is brought on behalf of defendants CITGO Petroleum Corporation (“CITGO”), ExxonMobil Corporation and ExxonMobil Oil Corporation (collectively, “ExxonMobil”), Joseph Hart, Peterborough Oil Company, and Shri Ganesh Corp. Case 1:16-cv-00204-JL Document 20 Filed 10/24/16 Page 1 of 4 2 6. Due to the dispositive nature of this motion, undersigned counsel has not attempted to obtain opposing counsel’s assent to the relief sought herein. WHEREFORE, defendants respectfully request that this Court: A. Grant their Motion to Dismiss; and B. Grant such further relief that is just and equitable. Dated: October 24, 2016 Respectfully submitted, By: /s/ Peter W. Mosseau Peter W. Mosseau, Bar No. 1815 DEVINE MILLIMET 111 Amherst Street Manchester, NH 03101 (603) 669-1000 (603) 669-8547 (fax) pmosseau@devinemillimet.com Nathan P. Eimer (pro hac vice pending) Pamela R. Hanebutt (pro hac vice pending) Lisa S. Meyer (pro hac vice pending) EIMER STAHL LLP 224 S. Michigan Ave., Suite 1100 Chicago, IL 60604 (312) 660-7600 (312) 692-1718 (fax) neimer@eimerstahl.com phanebutt@eimerstahl.com lmeyer@eimerstahl.com Attorneys for CITGO Petroleum Corporation /s/ Deborah E. Barnard Deborah E. Barnard (No. 266583) HOLLAND & KNIGHT LLP 10 St. James Avenue Boston, MA 02116 (617) 854-2700 (617) 854-6850 (fax) deborah.barnard@hklaw.com Case 1:16-cv-00204-JL Document 20 Filed 10/24/16 Page 2 of 4 3 Attorney for Defendant Exxon Mobil Corporation and ExxonMobil Oil Corp. /s/ Steve J. Bonnette Steve J. Bonnette (No. 8127) BONNETTE LAW OFFICES PC 20 Central Sq., Ste 2A Keene, NH 03431 (603) 355-2900 sbonnette@bonnettelaw.com Attorney for Defendant Shri Ganesh Corp. /s/ Stephen H. Roberts Stephen H. Roberts (No. 2170) HOEFLE, PHOENIX, GORMLEY & ROBERTS, P.A. 127 Parritt Avenue Portsmouth, NH 03801 (603) 436-0666 (603) 431-0879 (fax) sroberts@ehpgrlaw.com Attorney for Defendants Joseph Hart and Peterborough Oil Company, Inc. Case 1:16-cv-00204-JL Document 20 Filed 10/24/16 Page 3 of 4 4 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on October 24, 2016, the foregoing was electronically filed with the Clerk of Court, via the ECF system. Service of that filing was made by operation of the United States District Court for the District of New Hampshire’s electronic filing system to ECF-registered counsel for plaintiffs and defendants. /s/ Peter W. Mosseau Case 1:16-cv-00204-JL Document 20 Filed 10/24/16 Page 4 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE PATRICK SHORT, et al., Plaintiffs, v. AMERADA HESS CORPORATION, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 1:16-CV-00204-JL MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 1 of 33 i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii BACKGROUND ............................................................................................................................ 2 I. PLAINTIFFS’ ALLEGATIONS...................................................................................... 2 II. THE STATE OF NEW HAMPSHIRE’S LITIGATION ....................................................... 3 ARGUMENT.................................................................................................................................. 5 I. THE STATUTE OF LIMITATIONS BARS PLAINTIFFS’ CLAIMS AS TO ALL DEFENDANTS. .......................................................................................................... 6 II. THE STATE’S PRIOR LITIGATION PRECLUDES PLAINTIFFS’ CLAIMS IN THIS ACTION. ................................................................................................................. 10 A. Res Judicata Bars All Claims Against CITGO and ExxonMobil But Plaintiffs’ Individual Claims..................................................................... 11 1. Same Parties or Privity.................................................................. 11 2. Same Cause of Action................................................................... 12 3. Final Judgment on the Merits ....................................................... 13 B. Collateral Estoppel Bars Plaintiffs’ Nuisance and Trespass Claims Against All Defendants............................................................................. 15 C. The Doctrine of Release Bars All Claims Against CITGO But Plaintiffs’ Individual Claims..................................................................... 17 III. PLAINTIFFS’ TRESPASS AND NUISANCE CAUSES OF ACTION SUFFER FROM FATAL DEFECTS..................................................................................................... 18 A. Plaintiffs Fail to State a Nuisance Claim. ................................................. 18 B. Plaintiffs’ Trespass Claim Fails to Allege an Intentional Invasion of Land Against All Defendants.................................................................... 20 IV. PLAINTIFFS CANNOT PURSUE THEIR STATUTORY CLAIMS AGAINST ANY DEFENDANT. .......................................................................................................... 21 A. Plaintiffs Have No Standing To Pursue Strict Liability Under RSA 146-A. ....................................................................................................... 21 B. Plaintiffs Fail To State A Consumer Protection Act Claim Because Their Alleged Injuries Do Not Arise Out Of Trade or Commerce. .......... 22 Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 2 of 33 ii CONCLUSION............................................................................................................................. 23 Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 3 of 33 iii TABLE OF AUTHORITIES Cases Allen v. State, 826 P.2d 200 (Wash. 1992) ........................................................................................................ 8 Armand Eng’g Co., Inc. v. Adrien A. Labrie, Inc., 427 A.2d 15 (N.H. 1981) .................................................................................................... 15, 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................................................... 6 Bogan v. City of Boston, 489 F.3d 417 (1st Cir. 2007)..................................................................................................... 15 Bourne v. Town of Madison, 494 F. Supp. 2d 80 (D.N.H. 2007)............................................................................................ 17 Brooks v. Trs. of Dartmouth C., 20 A.3d 890 (N.H. 2011) .................................................................................................... 12, 13 Brzica v. Trs. of Dartmouth C., 791 A.2d 990 (N.H. 2002) ........................................................................................................ 11 Cathedral of the Beechwoods v. Pare, 639 A.2d 1098 (N.H. 1994) ...................................................................................................... 13 City of Manchester v. Nat’l Gypsum Co., 637 F. Supp. 646 (D.R.I. 1986) .......................................................................................... 19, 21 Colebrook Water Co. v. Comm’r of Dep’t of Pub. Works & Highways, 324 A.2d 713 (N.H. 1974) ........................................................................................................ 17 Dobe v. Commissioner, New Hampshire Dep’t of Health and Human Servs., 791 A.2d 184 (N.H. 2002) .......................................................................................................... 7 E. Marine Constr. Corp. v. First S. Leasing, 525 A.2d 709 (N.H. 1987) ........................................................................................................ 13 Exxon Mobil Corp. v. New Hampshire, No. 15-933, 2016 WL 309800 (U.S. May 16, 2016).................................................................. 5 Forrester Envt’l Servs., Inc. v. Wheelabrator Tech., Inc., No. 10-cv-154-JL, 2012 WL 3420487 (D.N.H. Aug. 15, 2012), rev’d on other grounds, 715 F.3d 1329 (Fed. Cir. 2013) ................................................................................................ 23 Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 4 of 33 iv Gray v. Kelly, 13 A.3d 848 (N.H. 2010) .......................................................................................................... 11 Hughes v. DiSalvo, 729 A.2d 422 (N.H. 1999) ........................................................................................................ 22 Hughes v. Vanderbilt Univ., 215 F.3d 543 (6th Cir. 2000) ...................................................................................................... 8 In re Burbank Envtl. Litig., 42 F. Supp. 2d 976 (C.D. Cal. 1998) .......................................................................................... 8 In re Colonial Mortgage Bankers Corp., 324 F.3d 12 (1st Cir. 2003)......................................................................................................... 6 In re MTBE Prods. Liab. Litig., 379 F. Supp. 2d 348 (S.D.N.Y. 2005) .......................................................................... 18, 19, 20 In re Wingate, 813 A.2d 1176 (N.H. 2002) ...................................................................................................... 15 L.B. Corp. v. Schweitzer-Mauduit-Intern., Inc., 121 F. Supp. 2d 147 (D. Mass. 2000) ....................................................................................... 22 LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507 (1st Cir. 1998)....................................................................................................... 7 Mesiti v. Microdot, Inc., 739 F. Supp. 57 (D.N.H. 1990)................................................................................................. 21 Moulton v. Groveton Papers Co., 289 A.2d 68 (N.H. 1972) .................................................................................................... 16, 20 Plourde Sand & Gravel v. JGI Eastern, Inc., 917 A.2d 1250 (N.H. 2007) ........................................................................................................ 9 Roberts v. Enterprise Rent-A-Car Co. of Boston, Inc., 840 N.E.2d 541 (Mass. 2006) ................................................................................................... 23 Satsky v. Paramount Commc’ns, Inc., 7 F.3d 1464 (10th Cir. 1993) .................................................................................................... 14 Shea v. City of Portsmouth, 94 A.2d 902 (N.H. 1953) .......................................................................................................... 18 Sleeper v. Hoban Family P’ship, 955 A.2d 879 (N.H. 2008) ........................................................................................................ 11 Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 5 of 33 v Snelling v. City of Claremont, 931 A.2d 1272 (N.H. 2007) ...................................................................................................... 15 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)................................................................................................................ 9 State of New Hampshire v. City of Dover, 891 A.2d 524 (N.H. 2006) .................................................................................................. 11, 12 State of New Hampshire v. Exxon Mobil Corp., 126 A.3d 266 (N.H. 2015) .......................................................................................................... 5 State of New Hampshire v. Hess Corp., 20 A.3d 212 (N.H. 2011) .......................................................................................................... 12 Sutliffe v. Epping Sch. Dist., 627 F. Supp. 2d 41 (D.N.H. 2008).............................................................................................. 6 Texas v. United States, 523 U.S. 296 (1998).................................................................................................................... 9 Thompson v. Forest, 614 A.2d 1064 (N.H. 1992) ...................................................................................................... 20 Town of Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp. 126 (D.N.H. 1984)................................................................................... 18, 19, 21 T-Peg, Inc. v. Isbitski, No. Civ. 03-462-SM, 2005 WL 300061 (D.N.H. Feb. 9, 2005), rev’d on other grounds by T-Peg, Inc. v. Vermont Timber Works, Inc., 59 F.3d 97 (1st Cir. 2006) .................................. 22 United States v. Olin Corp., 606 F. Supp. 1301 (N.D. Ala. 1985)......................................................................................... 14 Statutes N.H. Rev. Stat. Ann. § 146-A:19.................................................................................................... 6 N.H. Rev. Stat. Ann. § 146-G:12.................................................................................................... 6 N.H. Rev. Stat. Ann. § 358-A:2.................................................................................................... 22 N.H. Rev. Stat. Ann. § 358-A:3(IV-a) ............................................................................................ 6 N.H. Rev. Stat. Ann. § 358-A:4(I) ................................................................................................ 23 N.H. Rev. Stat. Ann. § 358-A:4(III)(b)......................................................................................... 23 Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 6 of 33 vi N.H. Rev. Stat. Ann. § 485-F (2016) .............................................................................................. 5 N.H. Rev. Stat. Ann. § 485-F:3....................................................................................................... 2 N.H. Rev. Stat. Ann. § 508:4(I) .................................................................................................. 6, 7 N.H. Rev. Stat. Ann. § 6-D (2016) ................................................................................................. 5 N.H. Rev. Stat. Ann. 146-A:3-a.I. ................................................................................................ 22 Other Authorities HB 664, 2015 Leg. Sess. (N.H. 2015) .......................................................................................... 21 SB 380, 2016 Leg. Sess. (N.H. 2016)............................................................................................. 5 Rules FED. R. CIV. P. 12(b)(6) .............................................................................................................. 5, 6 FED. R. CIV. P. 8(a)(2)..................................................................................................................... 5 Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 7 of 33 1 Plaintiffs in this case are alleged to be certain residents near a service station in Swanzey, New Hampshire that had a historical release of gasoline containing the additive methyl tertiary butyl ether (“MTBE”). Plaintiffs’ complaint--which is vague, confusing and fails even to identify the specific properties at issue--purports to seek various categories of damages, including “damages for the contaminated water supply.” Compl. ¶ 7. This lawsuit cannot stand for several reasons.1 First, plaintiffs’ complaint comes far too late. They attribute their injuries to an alleged release of gasoline that was discovered on or about May 31, 1990. Compl. ¶ 83. They have filed this action more than 25 years after that release was allegedly discovered and investigated by the New Hampshire Department of Environmental Services (“NH DES”), see Compl. ¶ 83, and after at least 15 years of well-publicized discussion about MTBE in New Hampshire and nationwide. Moreover, plaintiffs cannot dispute that sampling for MTBE has been ongoing at certain of their properties for years. At least one plaintiff was advised that MTBE was present on his property in trace amounts in 1990. The three-year statute of limitations bars claims against all defendants by all plaintiffs, some of whom had actual notice and all of whom had imputed knowledge of their claims well before April 11, 2013. Second, the bulk of the claims asserted against CITGO and ExxonMobil have already been litigated in a complex and wide-ranging lawsuit filed by the State of New Hampshire on behalf of all its residents. See State v. Amerada Hess Corp., No. 03-C-550. In that case, the State sued CITGO and ExxonMobil, among other defendants, in its parens patriae capacity on behalf of all New Hampshire citizens for past, present, and future impacts to public and private water supplies from MTBE. That litigation, which spanned ten years, was comprehensive in 1 This motion is brought on behalf of CITGO Petroleum Corporation (“CITGO”), ExxonMobil Corporation and ExxonMobil Oil Corporation (collectively, “ExxonMobil”), Peterborough Oil Company (“Peterborough Oil”), Joseph Hart, and Shri Ganesh Corporation (“Shri Ganesh”). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 8 of 33 2 scope and resulted in a final judgment against ExxonMobil and a settlement with CITGO. The State has since established an MTBE Remediation Bureau within NH DES to design and implement “a comprehensive plan to investigate, cleanup, and remediate MtBE contaminated sites” in the State using the proceeds of the State’s litigation.2 Under the doctrines of res judicata, collateral estoppel, and release, that prior litigation bars all claims against CITGO and ExxonMobil except those that are purely private, such as claims for personal injury or diminution in property value. Third, plaintiffs have not properly pled nuisance or trespass claims.3 Moreover, plaintiffs lack standing to pursue their statutory claims under RSA 146-A and New Hampshire’s consumer fraud statute as to all defendants. BACKGROUND I. PLAINTIFFS’ ALLEGATIONS Plaintiffs filed this action on April 11, 2016, alleging injuries arising from a release of gasoline at a Swanzey, New Hampshire gasoline station that was alleged to have been discovered on or about May 31, 1990 (the “Gas Station”). Compl. ¶ 83. Plaintiffs do not allege the specific properties at issue or their relationship to any properties. Although plaintiffs’ complaint includes a list with their addresses, two plaintiffs appear to reside out of state, while some others appear to reside in other areas of New Hampshire as far as 90 miles away from Swanzey. See id., p. 44. Plaintiffs bring claims against CITGO and ExxonMobil as manufacturers, marketers, or suppliers of gasoline containing MTBE, which they allege has damaged their water supplies, 2 See http://des.nh.gov/organization/divisions/waste/mtbe/index.htm (last visited October 20, 2016); N.H. Rev. Stat. Ann. § 485-F:3 (NH DES “shall administer the drinking water and groundwater trust fund through the MTBE remediation bureau”). 3 Somewhat confusingly, plaintiffs assert duplicate negligence and trespass claims against Joseph Hart, Peterborough Oil, and Shri Ganesh. Compare Compl., Counts IV-V, with Compl., Count VIII. Both sets of claims are barred based on the various reasons set forth herein. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 9 of 33 3 caused them to suffer personal injuries, and diminished their property values. Id. ¶¶ 2-3, 28, 86. They have also sued Shri Ganesh, Joseph Hart, and Peterborough Oil for the same damages in their alleged capacity as the current and former owners of the Gas Station. Id. ¶ 28. Plaintiffs purport to assert Counts I through VII of their complaint against these three defendants, despite the nature of those claims and the fact that there are no allegations in the complaint that address any act or omission of Shri Ganesh, Joseph Hart, or Peterborough Oil to support them. See Compl. Counts I-VII, pp. 24-40. Plaintiffs also allege an additional negligence and trespass claim against Joseph Hart, Peterborough Oil, and Shri Ganesh in Count VIII of their complaint. See Compl. pp. 40-41. But plaintiffs specifically allege that the damages they sustained based on the alleged negligence and trespass relate to a release discovered May 31, 1990. Id. ¶ 149. Plaintiffs do not explain their delay in bringing their claims. II. THE STATE OF NEW HAMPSHIRE’S LITIGATION The State of New Hampshire filed suit in 2003 against several companies involved in the refining, supplying, and marketing of gasoline, including CITGO and ExxonMobil, for the “widespread contamination of the waters of the State” with MTBE. See Decl., State of New Hampshire v. Amerada Hess Corp., et al., No. 03-C-0550 (“Hess”) (N.H. Super Ct. Sept. 30, 2003) (Jud. Not. Mot. Ex. A).4 In 2008, the State filed its Second Amended Complaint in New Hampshire Superior Court, which remained the operative complaint for the remainder of the litigation. See Second Am. Compl., Hess (N.H. Super. Ct. Jan. 15, 2008) (“Hess SAC”) (Jud. Not. Mot. Ex. B). The State alleged that “the contamination of waters of the State by MTBE 4 Defendants support their motion with material that is in the public record or susceptible to judicial notice. In Defendants’ Motion for Judicial Notice, dated October 24, 2016 (the “Judicial Notice Motion”), and filed simultaneously herewith, defendants request that the Court take judicial notice of various records from the Hess proceeding, certain NH DES records, and newspaper articles regarding MTBE in support of this Motion to Dismiss. See Jud. Not. Mot. (explaining basis for judicial notice), and exhibits thereto. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 10 of 33 4 constitutes injury to the environment and to property held in public trust by the State for which the State seeks damages in its capacity as parens patriae.” Id. ¶ 9. It further alleged that the “cumulative effect of [] MTBE releases is the widespread degradation of the waters of the State.” Id. ¶ 40; see also id. ¶ 83 (“widespread, cumulative degradation of the State’s waters”); id. ¶ 93 (“MTBE contamination . . . is an indivisible injury to the State, as trustee of New Hampshire’s water resources”). The State sought broad categories of relief, including, among others: a declaration that defendants are liable “for the full cost of investigatory, remedial and other actions necessary” to detect and remediate MTBE in the waters of the State, testing of all public and private drinking water supplies, present and future monitoring of surface and groundwater, and all other damages including “remedial . . . expenses and compensation for damage to waters of the State.” Id. at Prayer for Relief, pp. 53-55. Plaintiffs’ complaint in this case is largely duplicative of the operative complaint in State v. Amerada Hess Corp. The State settled with all defendants other than CITGO and ExxonMobil prior to trial. CITGO and the State agreed to a settlement on January 15, 2013, just after the trial began, and the claims against it were severed while the case against ExxonMobil proceeded. See Jt. Mot. to Sever, Hess (N.H. Super Ct. Jan. 15, 2013) (Jud. Notice Mot. Ex. C). CITGO and the State executed a settlement agreement on February 12, 2013. See Settlement Agreement and Release Between the State of New Hampshire and CITGO Petroleum Corporation, Hess (N.H. Super. Ct. Feb. 12, 2013) (Jud. Not. Mot. Ex. D) (“CITGO Settlement”). The parties also submitted a stipulation of voluntary dismissal with prejudice of all claims against CITGO. See Jt. Proposed Order Dismissing All Claims Against CITGO Petroleum Corp. with Prejudice, Hess (N.H. Super. Ct. Feb. 12, 2013) (Jud. Not. Mot. Ex. D). On March 1, 2013, the court approved the CITGO Settlement and dismissed all claims against CITGO with prejudice. See entered Jt. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 11 of 33 5 Proposed Order Dismissing All Claims Against CITGO Petroleum Corp. with Prejudice, Hess (N.H. Super. Ct. Mar. 1, 2013) (Jud. Not. Mot. Ex. E). One of the terms of the settlement, which was incorporated in the court’s order, was that the majority of the proceeds from CITGO’s settlement were to be “placed into an account to be used for projects related to the remediation of MTBE in groundwater and drinking water in the State of New Hampshire.” See id.; see also CITGO Settlement p. 10, ¶ 11 (allocation of settlement proceeds to “be used for projects related to the remediation of MTBE in groundwater and drinking water”). The case went to trial against ExxonMobil on three causes of action: negligence, strict liability based on design defect, and strict liability based on failure to warn. See State of New Hampshire v. Exxon Mobil Corp., 126 A.3d 266 (N.H. 2015). The jury found in favor of the State on all three counts and awarded the State $816,768,018 in total damages, $236,372,664 of which were apportioned to ExxonMobil. See id. at 274-75. The State told the jury that more than half of the damages were for sampling all privately-owned wells in the State and treating any MTBE contamination found therein. See id. at 275. The verdict is final and there are no further appeals available. See id. at 273, 275; Exxon Mobil Corp. v. New Hampshire, No. 15- 933, 2016 WL 309800, at *1 (U.S. May 16, 2016) (denying ExxonMobil’s petition for writ of certiorari). Moreover, the State recently enacted a law creating a trust fund into which the majority of the damages paid by ExxonMobil are to be held for the purpose of addressing MTBE in groundwater and drinking water. See N.H. Rev. Stat. Ann. § 6-D (2016); N.H. Rev. Stat. Ann. § 485-F (2016); SB 380, 2016 Leg. Sess. (N.H. 2016). ARGUMENT Dismissal is appropriate where the complaint fails to “state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) “demands more Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 12 of 33 6 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In granting a Rule 12(b)(6) motion to dismiss, the Court may rely on “matters of public record, or other matters of which the court may take judicial notice, including the records of prior judicial proceedings.” Sutliffe v. Epping Sch. Dist., 627 F. Supp. 2d 41, 44 (D.N.H. 2008); see also In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003). I. THE STATUTE OF LIMITATIONS BARS PLAINTIFFS’ CLAIMS AS TO ALL DEFENDANTS. Plaintiffs filed their complaint on April 11, 2016. The conduct that plaintiffs complain of, however--the refining, manufacture, distribution, and marketing of gasoline with MTBE-- predates the filing of the complaint by nearly a decade, if not longer. The release to which they attribute their injuries occurred over two decades ago, as specifically alleged in the complaint. See Compl. ¶ 83. Plaintiffs do not allege any wrongful conduct in the three years preceding the complaint, which is the relevant limitations period.5 Indeed, CITGO, ExxonMobil, Peterborough Oil, and Shri Ganesh have been prohibited by law from bringing gasoline with MTBE into New Hampshire for more than nine years. See N.H. Rev. Stat. Ann. § 146-A:19 (MTBE ban as presently codified); N.H. Rev. Stat. Ann. § 146-G:12 (MTBE ban as originally enacted; repealed 2015). Moreover, concerns regarding MTBE have been well-publicized in New Hampshire for years, particularly in light of the State’s litigation, and the presence of MTBE at some of the plaintiffs’ residences has been known for over three years. In fact, plaintiffs’ counsel 5 See N.H. Rev. Stat. Ann. § 508:4(I) (three-year limitations period for all personal actions); N.H. Rev. Stat. Ann. § 358-A:3(IV-a) (three-year limitations period under unfair trade practices act). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 13 of 33 7 acknowledged only last year that his clients have been aware of the presence of MTBE in their community since the late 1980s. See Letter from D. Corley to NH DES (Oct. 7, 2015) (Jud. Not. Mot. Ex. F). As a result, the statute of limitations has run on plaintiffs’ claims. Plaintiffs cannot take advantage of New Hampshire’s discovery rule, which tolls the statute of limitations until a plaintiff “discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship” to the complained-of act. See N.H. Rev. Stat. Ann. § 508:4(I). Plaintiffs knew or should have known enough regarding allegations of MTBE in the water of the State of New Hampshire to bring their claims earlier. They have pleaded nothing to show that the discovery rule saves their claims.6 The State of New Hampshire’s action for statewide MTBE impacts was initially filed in 2003. On April 9, 2013, three years and two days before plaintiffs filed their complaint, the jury in the State’s case reached a verdict and a significant judgment was entered against the remaining defendant. See Jud. Not. Mot. Ex. G. The State’s case put plaintiffs on notice not just that MTBE may be present in their water supplies or releases may have occurred near their water sources, but also about MTBE’s supposed health effects. Plaintiffs have basically regurgitated the State’s same allegations in their complaint. Compare Compl. ¶ 2 (alleging “MTBE can cause significant adverse health effects”) with Hess SAC ¶ 4 (same). The State’s MTBE litigation was well-publicized. For example, the Keene Sentinel announced the verdict on April 9, 2013. See Jud. Not. Mot. Ex. H; see also Jud. Not. Mot. Ex. I (publicity regarding the State’s litigation). The public record is full of numerous other activities that also should have put plaintiffs on notice of their claims. See Jud. Not. Mot. Ex. J (press coverage regarding MTBE). Various 6 See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998) (affirming dismissal based on statute of limitations where plaintiff did not allege facts to halt the running of the limitations period); Dobe v. Commissioner, New Hampshire Dep’t of Health and Human Servs., 791 A.2d 184, 187 (N.H. 2002) (affirming dismissal on limitations grounds where plaintiff “has failed to allege any facts supporting the claim that he was unable to reasonably discover the cause of his injuries” earlier). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 14 of 33 8 pieces of legislation were introduced in New Hampshire pertaining to MTBE in the late 1990s and early 2000s, in addition to the State’s MTBE ban. See Jud. Not. Mot. Ex. K (press coverage of legislative and regulatory activities). In 2001, the NH DES Commissioner testified before Congress regarding the presence of MTBE in New Hampshire, stating “we know that MtBE contamination has had an impact on a significant number of private residential wells.” See Jud. Not. Mot. Ex. L. The NH DES website contains various press releases and information pertaining to MTBE, including a January 2, 2008 press release titled “MTBE Widespread in New Hampshire’s Groundwater,” and an April 9, 2013 announcement of the jury verdict in the State’s MTBE litigation.7 See Jud. Not. Mot. Exs. M and N. Given all this publicity, plaintiffs should have reasonably discovered their alleged injuries--which they claim stem from a release discovered 25 years before they filed their complaint--and what caused them well before April 11, 2013. See, e.g., Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000) (“[W]here events receive ... widespread publicity, plaintiffs may be charged with knowledge of their occurrence.”) (internal quotations omitted); In re Burbank Envtl. Litig., 42 F. Supp. 2d 976, 982 (C.D. Cal. 1998) (imputing knowledge of widespread news reports of environmental contamination); Allen v. State, 826 P.2d 200, 203-04 (Wash. 1992) (plaintiff could have discovered cause of action because of publicity of previous litigation). In fact, plaintiffs’ counsel admitted in an October 2015 letter to NH DES that plaintiffs have been aware of the presence of MTBE in their community dating back over two decades. See Letter from D. Corley to NH DES (Oct. 7, 2015) (“Prior to 1986 there were no complaints regarding MTBE contamination of private wells in the area. However, soon thereafter, a 7 http://des.nh.gov/media/pr/documents/080102_mbte.pdf; http://doj.nh.gov/media-center/press- releases/2013/20130410-exxon-mtbe.htm. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 15 of 33 9 complaint was made by a neighbor that resulted in testing which confirmed that MTBE was in fact in the water supply in the area.”) (Jud. Not. Mot. Ex. F). Moreover, the NH DES OneStop database, which is available to the public through the NH DES website, includes letters that were sent directly to certain of the named plaintiffs informing them of the presence of MTBE at their properties before April 2013, as well as many documents regarding sampling for MTBE in Swanzey generally.8 See, e.g., Letter from Hidell-Eyster Technical Servs, Inc. to NH DES (Nov. 26, 1990) (samples from Bedard property “indicate trace amount of MTBE”) (Jud. Not. Mot. Ex. Q); Letter from NH DES to D. Bashaw (Dec. 5, 2011) (MTBE detected below State standards) (Jud. Not. Mot. Ex. R); Letter from NH DES to S. Short (Oct. 12, 2011) (stating MTBE was detected at levels below State standards) (Jud. Not. Mot. Ex. S); Letter from GeoInsight (Jan. 12, 2012) (discussing environmental and sampling history near the Gas Station) (Jud. Not. Mot. Ex. T); Groundwater Management Permit (Aug. 19, 2012) (requiring sampling at Bedard, Short, Bashaw, and House wells) (Jud. Not. Mot. Ex. U). Plaintiff Short, in particular, has also been very vocal regarding his concerns about the presence of MTBE in his water supplies since at 8 Defendants’ review to date of publicly available information has revealed that plaintiffs have problems of standing, ripeness, and application of the economic loss doctrine. Plaintiffs identify no particular detections of MTBE in their water supplies, relying only on the vague, improperly plead in the aggregate allegation that “MTBE has been found in Plaintiffs [sic] water supplies in varying amounts and at varying times.” Compl. ¶ 78. But plaintiff Christine House’s water supply has been sampled 10 times from 2011 to the present and MTBE was not detected in any of those samples. See Sample Collection & Analysis Report - April 2016 at 1, Route 10 Mini Mart, NHDES #198500041 at 1, Figure 3, & Table 3 (May 20, 2016) (“Sampling Report”) (Jud. Not. Mot. Ex. O) (NH DES record displaying results of all sampling in connection with the Gas Station release from 1985-2016). Ms. House therefore lacks the concrete and particularized injury required for standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547- 48 (2016). The doctrine of ripeness also prevents Ms. House from suing now based on the contingency that MTBE might someday be detected at her property. See Texas v. United States, 523 U.S. 296, 296 (1998) (ripeness standards). Further, in the absence of actual impacts to her property, Ms. House also cannot recover for economic loss on her tort claims. See Plourde Sand & Gravel v. JGI Eastern, Inc., 917 A.2d 1250, 1254 (N.H. 2007) (discussing economic loss rule and citing cases). These issues will likely also exist for the remaining plaintiffs, for whom the publicly available sampling records of the State-supervised investigation at the Gas Station appear to reflect no testing at all. See Sampling Report (reflecting no sampling in connection with plaintiffs Arsenault, Cote, Desmond, Drouin, LeClair, Merrill, Shelley, Smith, Symonds, and Woods); see also In re MTBE Prods. Liab. Litig., Case No. 00-01898-SAS, Status Conf. Tr. at 56 (July 12, 2012) (“[Y]ou [plaintiff] haven’t met the Rule 11 standard with sites you’re putting in where there’s been no test at all. . . . People don’t bring anticipatory lawsuits.”) (Jud. Not. Mot. Ex. P). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 16 of 33 10 least 2011. See Swanzey Residents with Concerns About Cancer in the Area Call Meeting, Keene Sentinel, Sept. 23, 2014 (Jud. Not. Mot. Ex. V) (Mr. Short has been researching cancer cluster since August 2011); Swanzey Man Continues Fight to Prove Local Cancer Cluster, Keene Sentinel, Sept. 13, 2015 (Jud. Not. Mot. Ex. W) (Mr. Short “trying to shine some light” on MTBE “[d]uring at least the past four years”). Thus, at least plaintiffs Short, Bedard, and Beshaw had actual MTBE detections on their property more than three years ago. In the light of the actual notice to certain plaintiffs and public information available to all plaintiffs, all of the plaintiffs have been on notice of their purported claims for more than three years. Thus, the statute of limitations bars their claims. II. THE STATE’S PRIOR LITIGATION PRECLUDES PLAINTIFFS’ CLAIMS IN THIS ACTION. Plaintiffs state that they seek “damages for the contaminated water supply, personal injury and diminution in property value.” Compl. ¶ 7.9 However, their Prayer for Relief is much broader, and largely tracks the language used in the State of New Hampshire’s SAC, requesting compensatory damages to restore the waters to the residents of the Town of Swanzey to their original condition, testing and treatment of their water supplies, and monitoring to detect the presence of MTBE “around and on” their property.10 Compl. Prayer for Relief, pp. 42-43. This is the very same relief the State sought in its suit, and thus to the extent that plaintiffs seek damages for anything other than strictly personal claims such as personal injuries or diminution in property value, the State’s prior litigation precludes their claims. Plaintiffs are barred from proceeding under the doctrines of res judicata, collateral estoppel, and, as to CITGO, release. 9 See also id. ¶ 86 (“The damages suffered by the Plaintiffs to date, and continuing, include personal injury, diminution of property value, medical expenses, loss of life, and the cost of providing fresh water and remediating contaminated water supply, among other damages within the jurisdictional limits of this Court.”). 10 To the extent that plaintiffs seek to remedy any injury to Swanzey residents other than the named plaintiffs, they would not have standing to do so. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 17 of 33 11 A. Res Judicata Bars All Claims Against CITGO and ExxonMobil But Plaintiffs’ Individual Claims. Res judicata precludes relitigation of “matters actually litigated, and matters that could have been litigated” in an earlier action. Gray v. Kelly, 13 A.3d 848, 851 (N.H. 2010) (internal quotations and citation omitted). The doctrine is rooted in considerations of judicial economy and the notion that at some point litigation over a particular controversy should come to an end. Brzica v. Trs. of Dartmouth C., 791 A.2d 990, 999 (N.H. 2002). For res judicata to apply, three criteria must be met: “(1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered on the first action.” Id. The State’s prior litigation, the final judgment entered against ExxonMobil in it, and the State’s voluntary dismissal of CITGO with prejudice satisfy these criteria. 1. Same Parties or Privity Although plaintiffs were not named parties to the State of New Hampshire’s case, a nonparty may still be subject to preclusion if it is in a legal relationship with a bound party that creates privity. See Sleeper v. Hoban Family P’ship, 955 A.2d 879, 882-83 (N.H. 2008). The State brought its MTBE litigation in its parens patriae capacity, see, e.g., Hess SAC ¶ 9, and settled with CITGO in that same capacity, see CITGO Settlement ¶ 7. The State, acting as parens patriae, represented plaintiffs’ interests. The New Hampshire Supreme Court made clear the State acted on behalf of New Hampshire citizens and communities, and that it represented their interests in its case with respect to MTBE impacts in water supplies statewide. See State of New Hampshire v. City of Dover, 891 A.2d 524, 531 (N.H. 2006) (affirming dismissal of claims brought by the City of Dover where there was no basis to conclude that the State “will not seek to obtain full Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 18 of 33 12 compensation for all communities” and that the cities’ interests were “properly represented by the State” (emphasis added) (internal quotations omitted)). The court went so far as to hold that two MTBE actions brought by municipalities had to yield to the State’s case. See id. (“[T]he cities’ interests are represented by the State’s suit.”); id. at 534 (“Under our ruling, the cities are represented by the State, and the State has brought suit to redress harms from MTBE contamination.”). The State’s parens patriae standing also extended to damages associated with privately owned wells. See State of New Hampshire v. Hess Corp., 20 A.3d 212 (N.H. 2011). In 2011, the New Hampshire Supreme Court held that the State could pursue “damages for the costs of investigating, monitoring, treating, remediating, replacing, or otherwise restoring [privately- owned] wells.” Id. at 221; see also Order on Defs.’ Renewed Mot. for Partial Summ. J. on Claims for Private Damages, Hess (N.H. Super Ct. Sept. 26, 2012) (Jud. Not. Mot. Ex. X) (holding on remand that the State could pursue private well damages on behalf of all New Hampshire citizens).11 Plaintiffs were therefore represented by and in privity with the State for damages to private wells.12 The only carve-out from the State’s representative status was as to claims for “diminution in value of private property, lost business expenditures and other business and economic losses resulting from MTBE contamination” as they belong to private parties. Hess Corp., 21 A.3d at 221. 2. Same Cause of Action Reflecting the policy that the parties’ whole controversy should be brought in one proceeding, for res judicata purposes, the phrase “cause of action” broadly includes “all theories 11 The court excepted only private wells owned by New Hampshire Department of Environmental Services employees. 12 It makes no difference whether plaintiffs gave the State authority to pursue their claims or not. See Brooks v. Trs. of Dartmouth C., 20 A.3d 890, 692 (N.H. 2011). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 19 of 33 13 on which relief could be claimed on the basis of the factual transaction in question.” See E. Marine Constr. Corp. v. First S. Leasing, 525 A.2d 709, 712 (N.H. 1987) (citation omitted). Here, the same factual transactions--CITGO’s and ExxonMobil’s manufacture, supply, and marketing of gasoline containing MTBE--form the basis of both plaintiffs’ and the State’s claims. Compare Compl. ¶¶ 3-4 (defendants produced and/or supplied MTBE or gasoline containing MTBE to West Swanzey location and knew or should have known that MTBE would be released into the environment), with Hess SAC ¶¶ 5-6 (same but referring to supply into New Hampshire and waters of the State). Indeed, the plaintiffs’ complaint is almost entirely duplicative of the State’s complaint. As such, plaintiffs cannot be heard to complain that their claims do not arise out of the same factual transaction. See Brooks, 20 A.3d at 898 (same cause of action where “the same factual transaction-the change in the composition of the board of trustees-forms the basis of the” claims). With the exception of the purely private claims discussed above, any claims against ExxonMobil and CITGO pertaining to the presence of MTBE in waters of the State, including in Swanzey, were or could have been brought in the State’s action. 3. Final Judgment on the Merits The State’s litigation against ExxonMobil has completely concluded. A final judgment was rendered and all appeals are exhausted. See supra pp. 4-5. The State’s litigation against CITGO concluded with the execution of the CITGO Settlement, and the entry of an order dismissing all claims against CITGO with prejudice. See id. It is well-settled that a “voluntary dismissal with prejudice” constitutes a judgment on the merits for res judicata purposes. See, e.g., Brooks, 20 A.3d at 898 (voluntary dismissal with prejudice pursuant to stipulation was “on the merits”); Cathedral of the Beechwoods v. Pare, 639 A.2d 1098, 1099 (N.H. 1994) (dismissal Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 20 of 33 14 pursuant to settlement held to be “on the merits” where it expressly provides that “the plaintiff shall have no further cause of action” (quoting Moore v. Lebanon, 69 A.2d 516, 518 (N.H. 1949))). Other courts have similarly applied the res judicata elements and found citizens’ claims barred where the State previously represented their interests in a parens patriae action. For example, in United States v. Olin Corp., 606 F. Supp. 1301 (N.D. Ala. 1985), the court held that a consent decree entered into between the defendant corporation and the State of Alabama in its parens patriae capacity pertaining to alleged environmental contamination barred private plaintiffs’ later claims for injunctive relief arising out of the same allegations. See id. at 1304 (“The weight of authority indicates that once a state represents all of its citizens in a parens patriae suit, a consent decree or final judgment entered in such a suit is conclusive upon those citizens and is binding upon their rights.”); see also, e.g., Satsky v. Paramount Commc’ns, Inc., 7 F.3d 1464, 1470 (10th Cir. 1993) (“If the claims are for injuries to interests which all citizens hold in common, and for which the State has already recovered, the [prior consent judgment] acts as a bar.”). Standing in plaintiffs’ shoes, the State has received compensation for investigation, testing, and remediation of MTBE statewide, including private wells, and has in fact created an MTBE Remediation Bureau that is actively investigating MTBE in drinking water around the State, including in Swanzey. See MTBE Remediation Fund Annual Report (Sept. 2016) at 9 (Jud. Not. Mot. Ex. Y). Plaintiffs’ broad claims against CITGO and ExxonMobil for this same relief were extinguished when the State’s litigation against CITGO and ExxonMobil concluded. Not only does the doctrine of res judicata prohibit them from proceeding with those claims in this case, but doing so would also constitute an impermissible duplicative recovery against Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 21 of 33 15 defendants. See Bogan v. City of Boston, 489 F.3d 417, 425 (1st Cir. 2007) (“[t]he law abhors duplicative recoveries” (internal quotations and citation omitted)); Snelling v. City of Claremont, 931 A.2d 1272, 1288 (N.H. 2007) (“a plaintiff cannot claim multiple recoveries for the same loss even though different theories of liability are alleged”). B. Collateral Estoppel Bars Plaintiffs’ Nuisance and Trespass Claims Against All Defendants. The doctrine of collateral estoppel also bars plaintiffs from relitigating against ExxonMobil or CITGO any issues that the State previously litigated against them in Hess. Like res judicata, collateral estoppel protects litigants from “the burden of relitigating an identical issue” and promotes “judicial economy by preventing needless litigation.” Armand Eng’g Co., Inc. v. Adrien A. Labrie, Inc., 427 A.2d 15, 17 (N.H. 1981) (internal quotations and citations omitted). Collateral estoppel applies where (1) the issue is identical in each action; (2) the first action resolved the issue finally on the merits; (3) the finding on the issue was essential to the judgment; and (4) the party to be estopped was a party to or in privity with someone in the first action (5) who had a full and fair opportunity to litigate the issue. See In re Wingate, 813 A.2d 1176, 1180 (N.H. 2002). Collateral estoppel also bars the plaintiffs’ allegations as against Joseph Hart, Peterborough Oil, and Shri Ganesh. Although these defendants were not parties to the State’s litigation, the plaintiffs are in privity with the State and thus are estopped from asserting any claim where the State had a full and fair opportunity to litigate the issues. As with the bulk of their Complaint, plaintiffs copied their nuisance and trespass claims directly from the State’s complaint in Hess. Compare Compl. ¶¶ 110-18 (nuisance) & ¶¶ 124-31 (trespass), with Hess SAC ¶¶ 120-29 (nuisance) & ¶¶ 139-48 (trespass). For both claims, plaintiffs seek to hold all defendants liable in their alleged capacity as manufacturers, refiners, marketers, and suppliers of gasoline containing MTBE. See Compl. ¶ 28. In Hess, the New Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 22 of 33 16 Hampshire Superior Court dismissed the same nuisance claim because (a) the State did not seek to hold the defendants liable as landowners and (b) the defendants, as “manufacturers, marketers, and distributors of MTBE and/or gasoline containing MTBE” could not have “maintained [the] requisite minimal control of the product when the public nuisance is said to have occurred.” Order on Defs.’ Mot. to Dismiss Counts I, II, III and V of the State’s SAC at 12-13, Hess (N.H. Super. Ct. Sept. 16, 2008) (“Hess Motion to Dismiss Order”) (Jud. Not. Mot. Ex. Z). Similarly, the Hess court dismissed the same trespass claim on summary judgment because the defendants, as manufacturers, refiners, marketers, and suppliers of gasoline containing MTBE, could not have had the requisite intent to cause MTBE to invade the waters of the State. See Order on Defs.’ Mot. for Summ. J. on State’s Trespass and Negligence Claims at 6, Hess (N.H. Super. Ct. June 18, 2012) (“Hess Summary Judgment Order”) (Jud. Not. Mot. Ex. AA). A trespass is an “intentional invasion of property of another.” Moulton v. Groveton Papers Co., 289 A.2d 68, 72 (N.H. 1972) (emphasis added). In dismissing the claim, the court explained: The Defendants could not have intended, with substantial certainty, to cause the unlawful intrusion because their actions were not the immediate or inevitable consequence of what they willfully did. Importantly, the unlawful intrusion occurred when MTBE leaked into State waters either through leaking underground storage tanks or through accidental spills. The Defendants by their acts of manufacturing, designing, promoting, marketing, and selling MTBE gasoline did not produce the unlawful intrusions. In other words, manufacturing gasoline on its own will not cause an underground storage tank to leak. Thus, the Defendants could not have intended that their conduct result in such intrusions. Hess Summary Judgment Order at 6. The State, with whom plaintiffs stand in privity, see supra Part II.A.1, had a full and fair opportunity to litigate these exact issues in Hess, and the court resolved both issues finally on the merits. See, e.g., Armand Eng’g, 427 A.2d at 16-17 (affirming dismissal of claim based on collateral estoppel arising from prior summary judgment order); Colebrook Water Co. v. Comm’r Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 23 of 33 17 of Dep’t of Pub. Works & Highways, 324 A.2d 713, 715 (N.H. 1974) (dismissal for failure to state a claim is a dismissal on the merits that may have preclusive effect). Accordingly, plaintiffs are collaterally estopped from litigating again in this Court their duplicative nuisance and trespass claims against ExxonMobil, CITGO, Mr. Hart, Peterborough Oil, and Shri Ganesh. C. The Doctrine of Release Bars All Claims Against CITGO But Plaintiffs’ Individual Claims. The doctrine of release also bars plaintiffs’ claims against CITGO. The State’s release of CITGO (the “Released Party”) clearly encompassed the plaintiffs’ claims. It provided for the release of “any and all claims” the Releasor had or “may have in the future” against CITGO arising out of any of the following: (i) The actual, potential, or threatened presence of [MTBE], at any concentration level, in the waters of New Hampshire or elsewhere . . . (iii) The design, testing, manufacture, refining, blending, marketing, handling, sale, exchange, import, distribution or other use of or transactions involving MTBE or gasoline containing MTBE . . . and (v) All other MTBE-related matters that are or could have been asserted by the State in the Litigation. CITGO Settlement ¶ 7A (emphasis added). The “Releasor” is the State, “on behalf of all other persons or entities on whose behalf it has the power to sue, including without limitation its citizens . . . in its parens patriae capacity.” Id. ¶ 7. In addition, the agreement was entered into because the parties “desire[d] to resolve finally and fully all claims” that the State could assert on behalf of all persons for which it has the power to sue and “to buy peace for all Released Claims.” Id. ¶ 5. The release did not just end the State’s then-current controversy with CITGO, but also barred all future controversies that the State could have brought regarding the presence of MTBE in the State. See Bourne v. Town of Madison, 494 F. Supp. 2d 80, 99 (D.N.H. 2007) (purpose of release was to “buy peace” and bar future controversies from the “same set of operative facts”). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 24 of 33 18 III. PLAINTIFFS’ TRESPASS AND NUISANCE CAUSES OF ACTION SUFFER FROM FATAL DEFECTS. Even if plaintiffs were not collaterally estopped from bringing the trespass and nuisance claims, those claims must still be dismissed because plaintiffs have not stated a claim under New Hampshire law.13 Plaintiffs seek to hold defendants liable in this case for manufacturing, selling, or marketing gasoline containing MTBE that might have been supplied in Swanzey, New Hampshire. They may not proceed against CITGO or ExxonMobil under either nuisance or trespass on this basis. Their claims suffer from fatal defects as to the other defendants as well. A. Plaintiffs Fail to State a Nuisance Claim. To state a claim for nuisance, a plaintiff must allege that its harm was caused by the defendant’s misuse of real property. See Shea v. City of Portsmouth, 94 A.2d 902, 906 (N.H. 1953) (“A nuisance arises from the use of property, either actively or passively, in an unreasonable manner.”); In re MTBE Prods. Liab. Litig., 379 F. Supp. 2d 348, 417 (S.D.N.Y. 2005) (discussing liability of “landowner” for nuisance); Town of Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp. 126, 133 (D.N.H. 1984) (“The creator of a nuisance is responsible in his capacity as a property owner if the nuisance arises from the use of property in an unreasonable manner.”). There are no allegations of ExxonMobil’s or CITGO’s misuse of real property in this case. To the contrary, the only specific location from which plaintiffs allege a release of gasoline containing MTBE is the Gas Station. See, e.g., Compl. ¶¶ 3, 28(f), 31, 70, 73, 83-86. Plaintiffs do not allege that ExxonMobil or CITGO in any way owned or controlled the Gas Station at any relevant time, or otherwise used it in a manner that harmed plaintiffs. See Compl. ¶ 28(f-j) (for a list of alleged past and present owners/operators). While plaintiffs allege 13 As previously noted, both trespass claims, Counts VI and VIII, fail for the reasons set forth herein. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 25 of 33 19 that the release at the site was discovered on or about May 31, 1990, see Compl. ¶ 83, defendant Shri Ganesh did not purchase the Gas Station until 2008, see Compl. ¶ 28(g). A nuisance claim also requires that a defendant must control the offending instrumentality at the time the harm occurs. See City of Manchester v. Nat’l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986) (applying New Hampshire law). But even if the “instrumentality” could be viewed as the MTBE gasoline itself, as opposed to the Gas Station, the Complaint still fails to state a claim for nuisance against ExxonMobil or CITGO. No New Hampshire precedent suggests that sellers of gasoline, much less bulk suppliers of gasoline or MTBE, can or should be held liable in nuisance for furnishing the product that is released through someone else’s misuse of gasoline. The New Hampshire Superior Court, and the court presiding over multidistrict litigation regarding MTBE, have both rejected the argument that manufacturers or suppliers of gasoline with MTBE could be held liable for nuisance as plaintiffs allege here. See Hess Motion to Dismiss Order at 12-13 (“To seek to hold defendants liable on a public nuisance claim absent sufficient control of the product at issue would be to extend nuisance law beyond its limits as recognized in this jurisdiction); In re MTBE Prods. Liab. Litig., 379 F. Supp. 2d at 417 (dismissing nuisance claims by cities of Dover and Portsmouth on this ground). In addition, this Court, applying New Hampshire law, rejected a similar theory advanced by a plaintiff attempting to recover against a manufacturer of asbestos products. See Hooksett Sch. Dist., 617 F. Supp. at 133 (granting motion to dismiss nuisance claim against asbestos manufacturer that did not control the asbestos at the time it allegedly caused harm to plaintiff and, thus, did not have the “ability to abate or relieve the complaint of nuisance”). Accordingly, plaintiffs’ nuisance claim in Count III fails as to ExxonMobil, CITGO, and Shri Ganesh. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 26 of 33 20 B. Plaintiffs’ Trespass Claims Fail to Allege an Intentional Invasion of Land Against All Defendants. Plaintiffs’ trespass claims against all defendants, in both Counts V and VIII, also fail because plaintiffs have not, and cannot, allege that any defendant intentionally invaded plaintiffs’ property. “New Hampshire courts do not consider involuntary or accidental entries upon another’s land as trespass, nor do they recognize constructive intent.” In re MTBE Prods. Liab. Litig., 379 F. Supp. 2d at 418 (citations and quotations omitted); see also Moulton, 289 A.2d at 72 (rejecting the notion of “constructive intent” and dismissing trespass claim where defendant negligently released water from a dam, injuring downstream property). The foreseeability of some harm to someone does not amount to the “substantial certainty” of an invasion to a particular person’s interest that New Hampshire law requires. See Thompson v. Forest, 614 A.2d 1064, 1067-68 (N.H. 1992) (“The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.”) (internal quotations omitted). The refining, marketing, and distribution of gasoline containing MTBE cannot constitute an intentional invasion of land. See Part II.B supra; Hess Summ. J. Order at 6.14 For the same reasons, the sale of gasoline containing MTBE is not an intentional invasion of land, and therefore, not an intentional wrong. The allegations against all defendants in Counts V and VIII must be dismissed. Federal courts applying New Hampshire law, including this Court, consistently have rejected trespass claims against manufacturers of products that, due to another’s actions, result in an alleged trespass. Because a manufacturer’s control over a product ends at the time of 14 While the trespass claim in Hess was dismissed on summary judgment, the court suggested it may have been correcting its own error in not having granted the defendants’ motion to dismiss the claim. See Hess Summ. J. Order at 8. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 27 of 33 21 manufacture and sale, the manufacturer cannot have the requisite intent that its product subsequently invade another’s land due to the actions of the purchaser or some other third party. See, e.g., City of Manchester, 637 F. Supp. at 656 (plaintiff cannot establish trespass claim where “the defendants’ ownership and control over the asbestos products ceased after the time of manufacture and sale”); Hooksett Sch. Dist., 617 F. Supp. at 133 (dismissing trespass claim where defendant manufacturer’s control over product ended at the time of sale and plaintiff brought the product onto its own property). As such, plaintiffs’ trespass claim in Count V also should be dismissed as to ExxonMobil and CITGO on this basis. IV. PLAINTIFFS CANNOT PURSUE THEIR STATUTORY CLAIMS AGAINST ANY DEFENDANT. Plaintiffs’ statutory claims also fail because they lack standing to pursue a strict liability claim under RSA 146-A. In addition, their injuries do not arise out of “trade or commerce” and, thus, do not support a claim under New Hampshire’s Consumer Protection Act. A. Plaintiffs Have No Standing To Pursue Strict Liability Under RSA 146-A. Private litigants do not have standing to pursue strict liability claims under RSA 146-A.15 See Mesiti v. Microdot, Inc., 739 F. Supp. 57, 63 (D.N.H. 1990) (dismissing RSA 146-A claim brought by private litigant). Rather, such claims belong exclusively to the State. See id. (“Subsection I of [RSA 146-A:3-a] permits the state to hold those who discharge oil into surface or ground waters strictly liable for relevant costs.”). Accordingly, plaintiffs, who are all private citizens, cannot assert a strict liability claim under RSA 146-A against any of the defendants. Moreover, as to CITGO and ExxonMobil, such a claim may only be brought by the State against those who “cause[] or suffer[] the discharge of oil,” not those who refine, market, or 15 Count IV also purports to assert a strict liability claim under RSA 146-G. That statute, however, was repealed effective July 1, 2015, rendering that portion of plaintiffs’ claim moot. See HB 664, 2015 Leg. Sess. (N.H. 2015). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 28 of 33 22 supply the oil that is discharged. See N.H. Rev. Stat. Ann. 146-A:3-a.I. Plaintiffs’ RSA 146-A claim is based on the release of gasoline from the Gas Station. See Compl. ¶ 123. But plaintiffs fail to allege that ExxonMobil or CITGO ever owned, controlled, or otherwise contributed in any way to a release of gasoline from that station. Thus, Count IV should be dismissed as to ExxonMobil and CITGO for the additional reason that it fails to allege that either defendant, as a refiner, marketer, or supplier of gasoline containing MTBE, in any way caused or suffered a discharge of gasoline from the Gas Station. B. Plaintiffs Fail To State A Consumer Protection Act Claim Because Their Alleged Injuries Do Not Arise Out Of Trade or Commerce. New Hampshire’s Consumer Protection Act (“CPA”) makes it “unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.” N.H. Rev. Stat. Ann. § 358-A:2. “Although the Consumer Protection Act ‘is a comprehensive statute whose language indicates that it should be given broad sweep . . . it is not unlimited in scope.’” Hughes v. DiSalvo, 729 A.2d 422, 424 (N.H. 1999) (quoting Roberts v. Gen. Motors Corp., 643 A.2d 956, 960 (N.H. 1994)). As its name implies, the CPA is intended to protect people in their capacity as consumers. See, e.g., T- Peg, Inc. v. Isbitski, No. Civ. 03-462-SM, 2005 WL 300061, at *11 (D.N.H. Feb. 9, 2005) (dismissing New Hampshire CPA claim where plaintiff failed to identify any way in which it was an aggrieved consumer), rev’d on other grounds by T-Peg, Inc. v. Vermont Timber Works, Inc., 59 F.3d 97 (1st Cir. 2006). Plaintiffs, however, do not allege any injuries that they sustained in their capacity as consumers. Their alleged injuries do not arise from their purchase of gasoline containing MTBE. Accordingly, their CPA claim should be dismissed as to all defendants. See L.B. Corp. v. Schweitzer-Mauduit-Intern., Inc., 121 F. Supp. 2d 147, 151-52, 155 (D. Mass. 2000) (dismissing Massachusetts consumer protection act claims based on Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 29 of 33 23 contamination of abutting neighbor’s water supply in the absence of a business relationship between the parties).16 Further, even if plaintiffs had stated a CPA claim in Count VII, at a minimum, their claim for civil penalties under RSA 358-A:4 must be dismissed as to all defendants. RSA 358-A:4 applies only to CPA actions brought by the attorney general, not private actions. See N.H. Rev. Stat. Ann. § 358-A:4(I) (“The provisions of this chapter shall be administered and enforced by the consumer protection and antitrust bureau, department of justice established by RSA 21- M:8.”); N.H. Rev. Stat. Ann. § 358-A:4(III)(b) (authorizing civil penalties of up to $10,000 per violation payable to the state). CONCLUSION For the foregoing reasons, defendants CITGO Petroleum Corporation, ExxonMobil Corporation, ExxonMobil Oil Corporation, Joseph Hart, Peterborough Oil Co., Inc., and Shri Ganesh Corp. respectfully request that the Court dismiss plaintiffs’ complaint. Dated: October 24, 2016 Respectfully submitted, By: /s/ Peter W. Mosseau Peter W. Mosseau, Bar No. 1815 DEVINE MILLIMET 111 Amherst Street Manchester, NH 03101 (603) 669-1000 (603) 669-8547 (fax) pmosseau@devinemillimet.com 16 New Hampshire courts frequently look to the similar Massachusetts consumer protection act when interpreting the CPA. See Forrester Envt’l Servs., Inc. v. Wheelabrator Tech., Inc., No. 10-cv-154-JL, 2012 WL 3420487, at *8 n.10 (D.N.H. Aug. 15, 2012), rev’d on other grounds, 715 F.3d 1329 (Fed. Cir. 2013) (citing Chase v. Dorais, 122 N.H. 600, 602 (1982)). The Massachusetts act, like the CPA, “does not authorize purely vicarious suits by self- constituted private attorneys-general.” Roberts v. Enterprise Rent-A-Car Co. of Boston, Inc., 840 N.E.2d 541, 543- 44 (Mass. 2006) (dismissing a claim concerning a product plaintiff did not purchase) (citations and internal quotations omitted). Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 30 of 33 24 Nathan P. Eimer (pro hac vice pending) Pamela R. Hanebutt (pro hac vice pending) Lisa S. Meyer (pro hac vice pending) EIMER STAHL LLP 224 S. Michigan Ave., Suite 1100 Chicago, IL 60604 (312) 660-7600 (312) 692-1718 (fax) neimer@eimerstahl.com phanebutt@eimerstahl.com lmeyer@eimerstahl.com Attorneys for CITGO Petroleum Corporation /s/ Deborah E. Barnard Deborah E. Barnard (No. 266583) HOLLAND & KNIGHT LLP 10 St. James Avenue Boston, MA 02116 (617) 854-2700 (617) 854-6850 (fax) deborah.barnard@hklaw.com Attorney for Defendant Exxon Mobil Corporation and ExxonMobil Oil Corp. /s/ Steve J. Bonnette Steve J. Bonnette (No. 8127) BONNETTE LAW OFFICES PC 20 Central Sq., Ste 2A Keene, NH 03431 (603) 355-2900 sbonnette@bonnettelaw.com Attorney for Defendant Shri Ganesh Corp. /s/ Stephen H. Roberts Stephen H. Roberts (No. 2170) HOEFLE, PHOENIX, GORMLEY & ROBERTS, P.A. 127 Parritt Avenue Portsmouth, NH 03801 (603) 436-0666 (603) 431-0879 (fax) sroberts@ehpgrlaw.com Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 31 of 33 25 Attorney for Defendants Joseph Hart and Peterborough Oil Company, Inc. Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 32 of 33 26 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on October 24, 2016, the foregoing was electronically filed with the Clerk of Court, via the ECF system. Service of that filing was made by operation of the United States District Court for the District of New Hampshire’s electronic filing system to ECF-registered counsel for plaintiffs and defendants. /s/ Peter W. Mosseau Case 1:16-cv-00204-JL Document 20-1 Filed 10/24/16 Page 33 of 33