United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
City of Neodesha brings diversity suits against BP
Corporation North America Inc., BP Products North America,
Inc., and Atlantic Richfield Company (collectively,
“BP”), alleging that BP violated four subsections
of the City waste ordinance as to 825 parcels of land.
See Neodesha City Code Section 36-407. This matter
is before the Court on the City's Motion For Leave To
File Consolidated Second Amended Complaint (Doc. #31)
filed July 18, 2016. For reasons set forth below, the Court
finds that the motion should be overruled.
Federal Rule of Civil Procedure 15(a)(2), once a responsive
pleading has been filed, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Fed.R.Civ.P. 15(a)(2).
Courts should “freely give leave when justice so
requires.” Id. A court may refuse to grant
leave to amend, however, based upon a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously
allowed or futility of amendment. Duncan v. Manager,
Dep't of Safety, City & Cty. of Denver, 397
F.3d 1300, 1315 (10th Cir. 2005). With regard to futility, a
court must analyze the proposed amendment as though it were
before the court on a motion to dismiss under Fed.R.Civ.P.
12(b)(6). Ketchum v. Cruz, 961 F.2d 916, 920 (10th
Rule 12(b)(6), the Court assumes as true all well-pleaded
factual allegations and determines whether they plausibly
give rise to an entitlement of relief. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to
dismiss, a complaint must contain sufficient factual matter
to state a claim which is plausible - and not merely
conceivable - on its face. Id. at 679-80; Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining whether it states a plausible claim for relief,
the Court draws on its judicial experience and common sense.
Iqbal, 556 U.S. at 679.
Court need not accept as true those allegations which state
only legal conclusions. See id.; Hall v.
Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). Plaintiff
bears the burden of framing its claim with enough factual
matter to suggest that it is entitled to relief; it is not
enough to make threadbare recitals of a cause of action
accompanied by conclusory statements. Twombly, 550
U.S. at 556. Plaintiff makes a facially plausible claim when
it pleads factual content from which the Court can reasonably
infer that defendant plaintiff is liable for the misconduct
alleged. Iqbal, 556 U.S. at 678. Plaintiff must show
more than a sheer possibility that defendants have acted
unlawfully - it is not enough to plead facts that are
“merely consistent with” liability. Id.
(quoting Twombly, 550 U.S. at 557). A pleading which
offers labels and conclusions, a formulaic recitation of the
elements of a cause of action, or naked assertions devoid of
further factual enhancement will not stand. Iqbal,
556 U.S. at 678. Similarly, where the well-pleaded facts do
not permit the Court to infer more than the mere possibility
of misconduct, the complaint has alleged - but has not
“shown” - that the pleader is entitled to relief.
Id. at 1950. The degree of specificity necessary to
establish plausibility and fair notice depends on context,
because what constitutes fair notice under Rule 8(a)(2), Fed.
R. Civ. P., depends on the type of case. Robbins v.
Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citing
Phillips v. Cty. of Allegheny, 515 F.3d 224, 232-33
(3d Cir. 2008)).
December 19, 2014, the City filed 821complaints in Neodesha
Municipal Court, alleging that BP had violated newly revised
provisions of the Neodesha waste ordinance, Section 36-407 of
the Neodesha City Code. Each complaint alleged that as to a
specific tract of property in the City, from September 1,
2009 through December 19, 2014 and beyond, BP violated
Section 36-407(a), which makes it unlawful to allow hazardous
or industrial wastes to accumulate or run off by natural or
unnatural migration on or under the surface (Counts One and
Two); Section 36-407(b), which requires owners and occupants
to maintain their premises free of industrial and hazardous
wastes, (Count Three); Section 36-407(c), which makes it
unlawful to fail to dispose of refuse, including benzene and
other hydrocarbons, in a clean and sanitary manner (Count
Four); and Section 36-407(d) which makes it unlawful to
accumulate industrial waste or hazardous waste in a manner
not approved (Count Five). See, e.g., Doc.
#1-2 filed January 28, 2015 in Case No. 15-4025-KHV.
January 27 and 28, 2015, BP filed notices of removal in the
821 cases. See Case Nos. 15-4025-KHV through
15-4844-KHV, and Case No. 15-4847-KHV (Municipal Court Nos.
2014-1202, et seq.). The City filed a motion to remand
arguing that the Court lacked subject matter jurisdiction
because the cases were not “civil actions” that
could be removed under 28 U.S.C. §§ 1332 and 1441.
Specifically, the City argued that the complaints were
criminal or quasi-criminal actions which sought to impose a
punishment or penalty to enforce a public right. BP asserted
that the complaints were civil in nature. The Court undertook
a detailed analysis of the complaints, the language of the
Neodesha Municipal Code, the Kansas statutory definition of a
crime and federal and state case law. The Court ruled that
the alleged violations of revised Neodesha Code § 36-407
were “civil actions” for purposes of removal
under Section 1441, and thus overruled the motion to remand.
See Memorandum And Order (Doc. #69) filed March 31,
2016 in Case No. 15-4014 (incorporated herein by
April 19, 2016, the City filed amended complaints in each of
the 821 cases. On April 20, 2016, the Court consolidated the
cases under Case No. 15-4025. See Order Consolidating
Cases (Doc. #6) filed in Case No. 15-4014. On June 6, 2016,
BP filed a motion for judgment on the pleadings. See BP
Corporation North America Inc.'s Rule 12(c) Motion For
Judgment On The Pleadings On The City Of Neodesha's
Amended Complaints (Doc. #21). On July 18, 2016, the
City responded by filing a motion for leave to file a
consolidated second amended complaint. See City's
Motion For Leave To File Consolidated Second Amended
Complaint (Doc. #31).
proposed consolidated second amended complaint alleges the
City is a municipality in Wilson County in southeastern
Kansas. BP has admitted that petroleum waste products are in
the groundwater and subsurface soil of certain portions of
the City. BP has acknowledged responsibility to address the
presence of such waste products. The waste products include
(1) volatile organic compounds (“VOCs”) such as
benzene, toluene, ethyl benzene and xylenes; (2)
semi-volatile organic compounds such as polyaromatic
hydrocarbons; and (3) metals such as arsenic, chromium, lead
many years, BP has conducted semi-annual groundwater and
surface water monitoring events in the City. BP conducted
monitoring events in April and October of 2009; May and
October of 2010, 2011, 2012, 2013 and 2014; and May of 2015.
During each monitoring event BP took and analyzed a number of
groundwater samples for VOCs and screened them against Tier
II risk-based levels established by the Kansas Department of
Health and Environment (“KDHE”). Tier II levels
are “based upon current EPA toxicity values . . . [and]
represent the concentrations at which the contaminants pose
an acceptable human health risk to receptors, including