Subscribe for updates
Recent Posts
- New Jersey Federal Court Dismisses PFAS Consumer Suit Against Band-Aid on Standing Grounds
- Massachusetts Federal Court Concludes that Biopellets Containing PFAS are “Useful Products,” Providing Defense to Superfund Liability
- District Court Certifies 23(b)(3) Class Action Alleging Injury from Misrepresentations That Pet Food Was “Healthy” Despite Presence of PFAS
- Fifth Circuit Upholds TCEQ’s Third Construction Extension for Texas LNG Project
- Sixth Circuit Holds Clean Air Act Requires Compliance with RACT even where Attainment Application is Pending
Topics
- State Implementation Plans
- Venue
- NJDEP
- Connecticut
- Pollutants
- Federal Land Policy and Management Act
- Loper Bright
- Council on Environmental Quality
- Agency Action
- New Jersey Civil Rights Act
- Public Trust Doctrine
- Environmental Justice
- Disparate Impact
- Title VI
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Federal Insecticide, Fungicide, and Rodenticide Act
- Georgia
- FIFRA
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Solvents
- National Priorities List
- Vapor Intrusion
- Price-Anderson Act
- Solid Waste Management Act
- Successor Liability
- Personal Jurisdiction
- Operator Liability
- Potentially Responsible Parties
- Federal Circuit
- Environmental Covenants
- Apportionment
- National Contingency Plan
- Divisibility
- Water Pollution Control Act
- Strict Liability
- Utilities
- Historic Resources
- Public Utilities Commission
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Alternative Dispute Resolution
- Arbitration
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Gold King Mine
- Tribal Lands
- Federal Tort Claims Act
- New Mexico
- Utah
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- National Forest Management Act
- FERC
- United States Supreme Court
- Endangered Species Act
- Chevron Deference
- HSCA
- Corporate Veil
- Alter Ego
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Building Materials
- First Circuit
- Property Damage
- Groundwater
- Natural Resource Damages
- Brownfield
- Brownfields
- Innocent Party
- Environmental Rights Amendment
- PHMSA
- Pipeline Hazardous Materials Safety Administration
- FOIA
- Effluents
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Coal Ash
- Injunction
- Spoliation
- TMDL
- Stormwater
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Clean Streams Law
- Hearing Board
- Civil Penalties
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Tax assessment
- Property Value
- Damages
- Stigma
- Fair Market Value
- Storage Tank
- Electric
- Indemnification
- Energy
- Fifth Circuit
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Administrative Appeals
- Taxes
- Preemption
- CAFA
- Natural Gas
- Procedure
- Contamination
- Freshwater Wetlands Protect Act
- Residential
- Inspection
- New York
- Federal Energy Regulatory Commission
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- HAPs
- Mercury
- D.C. Circuit
- Hazardous Air Pollutants
- Condemnation
- Takings
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Causation
- Spill Act
- NEPA
- Mineral Leasing Act
- Tenth Circuit
- Interior
- California
- Zoning
- Act 13
- Duty to Defend
- Insurance Coverage
- Landfill
- Eminent Domain
- Private Right of Action
- Sixth Circuit
- Water
- Illinois
- Subject Matter Jurisdiction
- Citizen Suit
- Diligent Prosecution
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Riverbed
- Navigability
- Montana
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Bona Fide Prospective Purchaser
- Green House Counsel
- Equity
- Laches
- CISWI
- Rulemaking
- Consent Decree
- Boiler MACT
- EPA
- Enforcement
- Delay Notice
- Declaratory Relief
- Contribution
- Second Circuit
- NPDES
- Standing
- Dimock
- Medical Monitoring
- Legislation
- Case Update
- Certification
- Dukes
- Louisiana
- CLE
- Privilege
- Decisions of Note
- Expert Witness
- Work Product
- Discovery
- Cases to Watch
- Insurance
- Defense Costs
- Remediation
- Response Action Contractors
- Consultant Liability
- Negligence
- Rapanos
- Army Corps
- Donovan
- Hog Barn
- Trespass
- Odors
- Class Actions
- Farming
- Kentucky
- Nuisance
- Informal Agency Action
- ISRA
- Administrative Hearing
- New Jersey
- Railroad
- RCRA
- Cancer
- Air
- Combustion
- Emissions
- Waste
- CERCLA
- Speaking Engagements
- Federal Procedure
- Third Circuit
- Removal
- Toxic Torts
- Permits
- Title V
- Clean Air Act
- Statute of Limitations
- Cost Recovery
- Superfund
- Cleanup
- Supreme Court
- Multi-District Litigation
- Camp Lejeune
- Tolling
- Statute of Repose
- Due Process
- Mineral Rights
- Clean Water Act
- Wetlands
- Administrative Procedures Act
- Enforcement Action
- Marcellus Shale
- Deeds
- Real Estate
- Exploration
- Drilling
- Leases
- Oil and Gas
- Royalties
Blog editor
Blog Contributors
In the recent decision of Cole v. Marathon Oil Corporation, Case No. 16-10642 (E.D. Mich. Oct. 25, 2016), a district court in the Eastern District of Michigan dismissed, in its entirety, a putative class action lawsuit against a refinery operated by the Marathon Oil Corporation (“Marathon”). The court dismissed two of the complaint’s three common law claims as time-barred under Michigan law because the complaint failed to plead a “plausible” basis for the court to infer that the claims accrued within the limitations period, and the third cause of action, strict liability, was dismissed on the ground that it is not an independently-recognized cause of action in Michigan. The decision suggests that, at least under Michigan law, plaintiffs in tort cases must allege more than mere ongoing harm when the allegations on the face of the complaint do not anticipate and provide a plausible basis to avoid an obvious, although unstated, statute of limitations problem.
The case concerned allegedly harmful emissions from an oil refinery. The members of the putative class were nearby residents who brought common law claims against Marathon for nuisance, negligence, and strict liability for what they characterized as the “destruction of their community as a result of the refinery’s operations.” They complained that ongoing emissions from the refinery exposed them to hazardous contaminants, harming their property and threatening them with serious illnesses. Marathon moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the court granted the motion, dismissing the complaint with prejudice.
The brunt of the court’s analysis was directed at the question of whether the plaintiffs’ nuisance and negligence claims were time-barred under the applicable Michigan statute of limitations. Its analysis was informed by the familiar Twombly pleading standard, which imposes an obligation on the plaintiff to “offer sufficient factual allegations that make the asserted claim plausible on its face.” In reviewing the complaint, the court found it implausible that the plaintiffs’ claims fell within the applicable limitations period. In the court’s view, it was left only to “speculate as to when the period of limitations began to run” because the plaintiffs “failed to identify when their [claims] first accrued.” (emphasis in original). In light of this ambiguity, the court concluded that it had no option but to dismiss the claims as time-barred.
The court also rejected the plaintiffs’ attempt to resurrect their time-barred claims with the oft-vexing “continuing wrongs doctrine.” This doctrine, in its traditional iteration, permits a plaintiff to pursue an otherwise time-barred claim when the harmful conduct is continuing in nature, such as persistent sexual harassment or, as here, the emission of pollutants. Although a minority of jurisdictions recognize the doctrine as a narrow exception to certain statutes of limitations, Michigan’s highest court has flat out rejected it, explaining that the doctrine found no support in the operative language of Michigan’s statute of limitations. The court adopted this reasoning in holding that it was irrelevant to the court’s analysis that Marathon’s purportedly wrongful acts were continuing in nature.
Finally, the court also dismissed the plaintiff’s strict liability claim. The court explained that Michigan had yet to recognize an independent claim for strict liability, and the court was disinclined to fashion such a claim in the absence of any applicable precedent.
While the district court’s decision is likely to be appealed, it nevertheless serves as a powerful demonstration of the statute of limitations defense at an early stage in litigation.
