City of Fort Myers - Motion To Dismiss

Case 2:18-cv-00195-SPC-CM Document 12 Filed 04/26/18 Page 1 of 22 PageID 105
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DERETHA MILLER, LUETRICIA FREEMAN

BECKER, RALPH HENRY, and NOEMY
RODRIGUEZ, individually, and on behalf of a
class of persons similarly situated,
Plaintiffs,
v. Case No. 2:18-cv-195-FTM-38CM
THE CITY OF FORT MYERS, a Municipality,

MAYOR RANDALL P. HENDERSON, JR., in
his official capacity as City of Fort Myers Mayor,
and SAEED KAZEMI, in his official capacity
as City of Fort Myers Manager,
Defendants.
_______________________________________/
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
The City of Fort Myers (the “City”), Mayor Randall P. Henderson, Jr. (“Mayor
Henderson”), and Saeed Kazemi (“City Manager Kazemi,” and collectively, the
“Defendants”) move pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, to dismiss
Counts 1 and 3-7 of the putative class action complaint [Doc. 1] filed by plaintiffs Deretha
Miller, Luetricia Freeman Becker, Ralph Henry, and Noemy Rodriguez (“Plaintiffs”).
I. Background
Before describing the relevant allegations from Plaintiffs’ complaint, Defendants
provide the Court with a brief summary of the events leading to the filing of this case.
Although unnecessary to the relief Defendants seek, this summary provides some context for
the claims levied against Defendants.

A. History of the South Street Property Leading to Plaintiffs’ Complaint
This lawsuit arises from the City’s plan in 1962 to deposit lime-based water treatment
residual on a parcel of undeveloped agricultural property acquired for that purpose (the
“Property”). 1 The Property, located at that time in Lee County, now borders South Street.
The lime-based water treatment residual (the “lime residual”) is the normal residual, or by-
product, of the lime softening process for drinking water. Lime residual is also used for
agricultural purposes, including to neutralize soil acidity.
The City’s disposal of the lime residual on the Property has been known publicly for
nearly sixty years, as reflected in the May 7, 1962, meeting minutes of the Fort Myers City
Council announcing the City’s acquisition of the Property for “sludge disposal.” The City’s
disposal of lime residual ended by 1972, and Plaintiffs make no allegation that the City
concealed any aspect of these operations. 2 By 1993, the City completed construction of a
new water treatment plant that no longer produces lime residual.
In 1994, the City offered to sell the Property to Habitat for Humanity but the soil on
the still-undeveloped land was too soft for home construction. The City annexed the
surrounding Dunbar area of Lee County, including the Property, in 2003. In 2007, the City
1
A comprehensive timeline of the Property’s development and the City’s ongoing
remediation efforts is available at the City’s South Street Environmental Assessment
webpage. See “Environmental Assessment of South Street Presentation to City Council –
January 16, 2018,” link available online at http://www.3348southstreet.com/ (last accessed
April 25, 2018).
2
At that time, the federal Environmental Protection Agency (the “EPA”) had not yet
promulgated any standards for arsenic concentrations in drinking water. The EPA did not
implement such standards until 1975, when it set the maximum acceptable level at 50 parts
per billion (“ppb”)—several times higher than any test result ever obtained from groundwater
on the Property. This standard remained until 2001, when the EPA reduced the standard to
10 ppm.
2
sampled the lime residual on the Property and later approved Resolution 2007-17, which
established funding for infill housing alternatives in the annexed Dunbar area. That
Resolution also provided that the City would work with Florida’s Department of
Environmental Protection (“FDEP”) to mitigate any potential effects of lime residual in the
area.
Accordingly, in April of 2008, the City installed six groundwater monitoring wells on
the Property. These monitoring wells stand approximately three feet tall and measure
approximately four inches by four inches wide and across. At that time, only two monitoring
wells returned slightly elevated arsenic results based upon the EPA’s current drinking water
standards. In July of 2008, FDEP reviewed these results and requested that the City submit a
remedial action plan (a “RAP”) for the Property. 3
In June of 2010, the City and FDEP representatives met to discuss the City’s RAP.
At that time, the FDEP noted that “the impacted soils do not appear to be leaching, the
groundwater exceedences are insignificant considering the volume of impacted soil, and
impacted groundwater was not migrating off-property.” In July, 2010, the City submitted its
RAP to FDEP. The City proposed to conduct twice yearly testing of the six monitoring wells
on the Property. FDEP approved the RAP by letter dated July 13, 2010. In April of 2012,
FDEP reduced testing frequency to once a year. In January of 2017, FDEP further reduced
testing frequency to once every other year. From February, 2013, until November, 2017,
3
All materials involving FDEP are publicly available from FDEP’s website. The materials
may be retrieved by searching http://prodenv.dep.state.fl.us/DepNexus/public/searchPortal
using “Homerama” as the Facility Name and then selecting “D” from “Data Links.”
3
none of the monitoring wells returned test results exceeding the EPA’s drinking water
standards.
The City’s actions under FDEP’s oversight moved into the spotlight in May of 2017,
when a local media outlet submitted a public records request and began to report on the
presence of the lime residual on the Property. The press reports provided little accurate
information about the FDEP-monitored test results but were successful in fomenting
considerable anxiety about unsubstantiated health risks to local residents. Slightly elevated
test results from November, 2017, were obtained following significant rainfall and flooding
in the area caused by Hurricane Irma. Local lawyers then began to solicit potential plaintiffs
through web-site postings and press conferences.
The City has since conducted diligent monitoring of the Property and is currently
exploring options for removal and disposal of the lime residual. The City continues to
cooperate and coordinate with FDEP during this process.
B. Relevant Allegations from the Complaint
Based upon the deposit of lime residual on the Property that ended nearly fifty years
ago, Plaintiffs, in their individual capacities, now sue Defendants for violations of the federal
Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(A) and 42 U.S.C. §
6972(a)(1)(B) (the “RCRA”). [Doc. 1, pp. 1-2, ¶¶ 1, 2]. In connection with the RCRA
claims (Counts 1 and 2), Plaintiffs seek an order or mandatory injunction from the Court
variously requiring the City i) to bring the Property into compliance with RCRA
requirements, ii) to remove the “arsenic contaminated sludge, soil, and groundwater,” iii) to
compel a comprehensive investigation and cleanup of the Property, or iv) to remediate the
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Property and arsenic contaminated soil and groundwater. [Id., p. 1 ¶ 1; p. 2 ¶ 2; p. 17 ¶ 73; p.
18 ¶ 80]. Plaintiffs also seek the imposition of civil penalties of up to $37,500 per day
pursuant to RCRA Sections 3008(g) and 7002(a), 42 U.S.C. §§ 6928(g) and 6972(a), and an
award of attorneys’ fees pursuant to RCRA Section 7002(e), 42 U.S.C. § 6972(e). [Id., p. 17
¶ 74; p. 35 ¶ (e); p. 36 ¶ (h)].
Plaintiffs also assert, in their individual capacities and on behalf of a purported class
of similarly situated persons, state-law claims for negligence, strict liability under Section
376.313, Florida Statutes, private nuisance, negligent failure to warn, and medical
monitoring. [Id., p. 2 ¶ 3]. In connection with the state-law claims, Plaintiffs seek property
damages for diminution of their property values and loss of use and enjoyment of their
property. [Id.]. Plaintiffs also seek unspecified damages for “annoyance, discomfort, and
inconvenience.” [Id.]. Finally, Plaintiffs seek the equitable remedy of establishing a medical
monitoring program to test members of the purported class for unidentified medical
conditions resulting from unspecified avenues of exposure to the lime residual. [Id.].
Plaintiffs do not allege any personal injuries and do not seek an award of personal injury
damages.
II. Motion to Dismiss
Based upon the legal authority set forth in Defendants’ accompanying memorandum
of law, the Court should dismiss Plaintiffs’ Counts 1 and 3-7 for the following reasons.
A. Count 1 – Conduct Predates RCRA and Civil Penalties Inapplicable
The Court should dismiss Count 1 of the Complaint for violation of RCRA’s
prohibition against “open dumps” for lack of subject matter jurisdiction or for failure to state
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a claim upon which relief may be granted. Count 1 is premised on 42 U.S.C §
6972(a)(1)(A). That provision was enacted in 1976 and has been afforded no retroactive
application. Plaintiffs allege that the City deposited lime residual on the Property for
“several years” beginning in 1962. [Doc. 1, p. 7 ¶¶ 23, 25]. Because Plaintiffs’ allegations
establish that the City’s deposit of the lime residual predated the enactment of the RCRA,
and because the statute cannot be applied retroactively, the Court lacks subject matter
jurisdiction over Count 1. For the same reason, Count 1 fails to state a claim upon which
relief may be granted. The Court should dismiss Count 1 with prejudice.
The Court should also dismiss Plaintiffs’ demand for an award of civil penalties in
connection with their “open dumping” claim. Civil penalties are available under 42 U.S.C. §
6928(g) only for violations of subchapter III of Title 42 and are payable to the United States.
Plaintiffs’ RCRA “open dumping” claim in Count 1 is based upon 42 U.S.C. § 6945(a)
located in subchapter IV of Title 42, not subchapter III. Accordingly, civil penalties are not
available in connection with a claim for open dumping. The Court should dismiss Plaintiffs’
demand for civil penalties with prejudice.
B. Counts 3, 4, 5, 6, 7 – Statute of Limitations
Next, the Court should dismiss Plaintiffs’ state-law causes of action because they are
barred by the applicable four-year statute of limitations. Plaintiffs allege that the City openly
began depositing lime residual on the Property in 1962 and ceased that practice several years
later. [Doc. 1, p. 7 ¶¶ 23, 25]. Plaintiffs further allege they suffered damages as a result of
the deposit of the lime residual. [Id., p. 15 ¶ 60; p. 19 ¶ 86; p. 21 ¶ 96; p. 22 ¶ 101; p. 25 ¶¶
126-27]. Plaintiffs, however, failed to file their state law claims until 2018 – approximately
6
fifty years later. Accordingly, Plaintiffs’ state law claims are barred by the applicable statute
of limitations.
C. Counts 3 and 5 – Sovereign Immunity (Planning Decision)
Plaintiffs’ claims for negligence and nuisance arise from the City’s decision to
dispose of lime residual on the Property. These decisions, arising from the City’s provision
of drinking water to its citizens, involve planning-level decision-making for which
Defendants are absolutely immune from suit.
D. Count 4 – No Waiver of Sovereign Immunity for Strict Liability
Plaintiffs’ strict liability claim under Section 376.313, Florida Statutes, must be
dismissed with prejudice because there has been no waiver of sovereign immunity for strict
liability claims.
E. Count 7 – Failure to Identify Condition to Be Monitored
The Court should dismiss Plaintiffs’ claim for medical monitoring because Plaintiffs
fail to identify any serious latent disease for which they seek medical testing. Plaintiffs have
failed to allege any single condition, or even any reasonably specific group of related
conditions, for which they are at elevated risk and thus demand medical monitoring.
II. Memorandum of Law
The Plaintiffs’ allegations “must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Jean v. LP Port Charlotte, LLC, No. 2:16-
cv-674-FtM-38CM, 2017 WL 3731989, at *1 (M.D. Fla. Aug. 30, 2017) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim is facially plausible where the facts alleged
permit the court to reasonably infer that defendant's alleged misconduct was unlawful.” Id.
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A complaint must do more than “tender [naked assertion[s]’ devoid of ‘further factual
enhancement.” Demeter v. Little Gasparilla Island Fire & Rescue, Inc., No. 2:16-cv-264-
FTM-38CM, 2017 WL 662006, at *1 (M.D. Fla. Feb. 17, 2017) (quoting Iqbal, 556 U.S. at
678).
A. The Court Should Dismiss Count 1 for Lack of Subject Matter

Jurisdiction and for Failure to State a Claim, and Further Dismiss
Plaintiffs’ Claim for Civil Penalties
The Court should dismiss Count 1 of the Complaint with prejudice. The Court lacks
subject matter jurisdiction over Count 1, which also fails to state a claim upon which relief
may be granted under 42 U.S.C. § 6972(a)(1)(A), because all of the “open dumping” about
which Plaintiffs complain occurred before the RCRA’s enactment. The Court should also
dismiss Plaintiffs’ demand for RCRA civil penalties because such penalties are not available
in connection with Plaintiffs’ open dumping claim.
Plaintiffs’ Count 1 seeks relief under 42 U.S.C. § 6972(a)(1)(A), which provides a
remedy for violation of a permit, standard, regulation, condition, requirement, prohibition, or
order issued pursuant to RCRA. Plaintiffs allege that Defendants have violated and are
violating 42 U.S.C. § 6945(a), which prohibits the act of open dumping and is enforceable
under 42 U.S.C. § 6972 “against persons engaged in the act of open dumping.” The United
States Supreme Court has concluded that 42 U.S.C. § 6972(a)(1)(A) authorizes prospective
relief only. See Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49,
56-57 (1987). RCRA was not enacted until 1976. Accordingly, the Court lacks subject
matter jurisdiction over any RCRA claim for open dumping that occurred prior to the
enactment of RCRA in 1976. See Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149,
8
1158-59 (9th Cir. 1989); Mervis Industries, Inc. v. PPG Industries, Inc., No. 1:09-cv-0633-
SEB-JMS, 2010 WL 1381671, at *3 (S.D. Ind. Mar. 30, 2010); Sullins v. Exxon/Mobil Corp.,
No. 08-04927 CW, 2010 WL 1980218, at *2-3 (N.D. Cal. May 17, 2010); OSI, Inc. v. United
States, 510 F. Supp. 2d 531, 540 (M.D. Ala 2007) (granting summary judgment on claims for
landfill activities that occurred prior to RCRA’s effective date).
The decision of the United States Court of Appeals for the Ninth Circuit in Ascon
Properties is particularly instructive. In that case, the plaintiff, like the Plaintiffs here,
brought a claim for relief under 42 U.S.C. § 6972(a)(1)(A) based on the defendant’s dumping
of hazardous waste on real property from 1938 until 1972. Although the defendant was no
longer engaged in active dumping, the hazardous waste remained on the property at the time
of the lawsuit. The defendant filed a motion to dismiss for failure to state a claim. The
district court dismissed the RCRA claim and the Ninth Circuit affirmed because the dumping
of the hazardous waste all occurred prior to the 1976 enactment of RCRA. The Ninth Circuit
explained that the defendant could not possibly have violated a permit, standard, or
regulation that did not yet exist at the time of the dumping. 866 F.2d at 1159. The appellate
court concluded that the district court lacked subject matter jurisdiction over the RCRA
claim. 4 Id.; see also Sullins, 2010 WL 1980218, at *2-3 (dismissing for lack of subject
matter jurisdiction RCRA claim based on disposal activities that ended in 1972).
Plaintiffs allege in their Complaint that the City’s dumping commenced in 1962 and
occurred for several years thereafter. [Doc. 1, p. 7 ¶¶ 23, 25]. The allegations of the
4
The Ninth Circuit noted that it was unclear whether the district court dismissed the RCRA
claim for failure to state a cause of action or for lack of subject matter jurisdiction. The
appellate court ultimately concluded that the district court lacked subject matter jurisdiction
over the RCRA claim because the dumping predated the enactment of the RCRA statute.
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Complaint confirm that the acts of open dumping about which the Plaintiffs complain all
occurred before the effective date of RCRA. As a result, the Court should dismiss Count 1
for lack of subject matter jurisdiction or for failure to state a claim for relief under 42 U.S.C.
§ 6972(a)(1)(A).
Plaintiffs’ allegation that Defendants have failed to bring the Property into
compliance with RCRA or to remove the lime residual does nothing to salvage their claim.
The courts in Ascon Properties and Sullins rejected similar efforts to establish a continuing
RCRA violation based on past dumping. The plaintiff in Sullins unsuccessfully advanced
virtually identical allegations that, even though the contamination occurred before the
enactment of RCRA, the defendant’s failure to remove the contamination from the property
resulted in a continuing violation of RCRA. See 2010 WL 1980218, at *2 (rejecting as
unavailing argument that pre-enactment contamination continued to affect property in
violation of RCRA, noting that Ascon Properties involved virtually identical allegations).
Similarly, the United States Court of Appeals for the Second Circuit in South Road
Associates v. International Business Machines Corp., 216 F.3d 251, 255-56 (2d Cir. 2000),
concluded that a plaintiff may maintain an action based on the open dumping provision of
RCRA only if the defendant was engaged in the prohibited act of open dumping at the time
the lawsuit was filed. 216 F.3d at 256. According to the court, factual allegations that
contaminants previously dumped were still present on the property and were causing
drinking water contamination were insufficient to plead a prohibited act of open dumping
under RCRA. Id. The Second Circuit affirmed the dismissal of plaintiff’s RCRA claim for
failure to state a claim upon which relief may be granted. Id. at 257-58; see also Mervis
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Industries, 2010 WL 1381671, at *3 (“mere presence of pollutants is not sufficient to allege
an ongoing violation of the open dumping prohibition”).
In this case, Plaintiffs allege that the City ceased dumping lime residual on the
Property nearly 50 years ago – and well before the enactment of RCRA. Moreover,
Plaintiffs’ allegations that the lime residual remains unremediated on the Property and is the
source of groundwater contamination (even in the unlikely event this is proven to be true) are
insufficient as a matter of law to state a claim for open dumping in violation of RCRA. See
South Road, 216 F.3d at 256; Mervis Industries, 2010 WL 1381671, at *3. As a result, the
Court should dismiss Count 1 of the Complaint with prejudice.
In addition, the Court should dismiss Plaintiffs’ demand for an award of civil
penalties in connection with their open dumping claim. Civil penalties are available under 42
U.S.C. § 6928(g) only for violations of subchapter III of Title 42. See Hernandez v. Esso
Standard Oil Co. (Puerto Rico), 599 F. Supp. 2d 175, 176-78 (D. P. R. 2009); College Park
Holdings, LLC v. Racetrac Petroleum, Inc., 239 F. Supp. 2d 1334, 1348-49 (N. D. Ga. 2002).
Plaintiffs’ RCRA open dumping claim in Count 1 is based upon 42 U.S.C. § 6945(a). That
provision is located in subchapter IV of Title 42, not subchapter III. See 42 U.S.C. §
6945(a). Accordingly, civil penalties are not available in connection with a claim for open
dumping. The Court should dismiss the demand for civil penalties with prejudice. 5
5
Plaintiffs do not seek the imposition of civil penalties in connection with their Count 2
claim under 42 U.S.C. § 6972(a)(1)(B) because civil penalties are likewise not available in
connection with claims under that subsection. See City of Evanston v. N. Illinois Gas Co.,
229 F. Supp. 3d 714, 724-25 (N.D. Ill. 2017).
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B. Plaintiffs’ State-Law Claims, Counts 3–7, Are Barred by the Statute of

Limitations
Next, the Court should dismiss all of Plaintiffs’ state-law causes of action (Counts 3-
7) because they are barred by the applicable statute of limitations. A plaintiff’s cause of
action accrues for limitations purposes when the last element constituting the cause of action
occurs. See Fla. Stat. § 95.031(1); Krawchenko v. Raymond James Financial Services, Inc.,
No. 2:11-cv-409-FtM-29DNF, 2013 WL 489088, *2 (M.D. Fla. Feb. 8, 2013); New Lenox
Indus., Inc. v. Fenton, 510 F. Supp. 2d 893, 906 (M.D. Fla. 2007). Plaintiffs’ state-law
claims for negligence, negligent failure to warn, strict liability, private nuisance, and medical
monitoring are all subject to a four-year statute of limitations. See Fla. Stat. § 95.11(3)(a),
(f), (k), and (p). These claims accrued decades before Plaintiffs filed this lawsuit. Because
the facts establishing the limitations bar are apparent from the face of the Plaintiffs’
Complaint, the Court should dismiss these claims. See Krawchenko, 2013 WL 489088, at
*2.
The statute of limitations began to run on all of Plaintiffs’ state-law claims in 1962, or
at most “several years” later, because Plaintiffs’ allegations establish that all elements of their
state-law claims accrued at that time. Specifically, Plaintiffs allege that the City breached
duties to Plaintiffs by depositing the lime residual and failing to warn of the deposit of the
lime residual. Plaintiffs allege that they suffered damages at that time caused by the deposit
and failure to warn of the deposit of the lime residual. Plaintiffs also allege that the City’s
deposit of the lime residual in the early 1960s created a private nuisance that interfered with
their property rights. Similarly, Plaintiffs allege that the City violated Section 376.313,
Florida Statutes, by “dumping, emptying, or pouring” the lime residual onto the Property.
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Finally, Plaintiffs seek an equitable remedy in the form medical monitoring based upon the
alleged exposure to toxic chemicals resulting from the City’s deposit of lime residual in the
early 1960s. In short, the allegations of the Complaint reflect that all elements of Plaintiffs’
claims for negligence, negligent failure to warn, private nuisance, strict liability, and medical
monitoring claims occurred no later than “several years” after 1962. The Plaintiffs, however,
failed to bring their claims for fifty years. As a result, Plaintiffs’ claims are barred by the
statute of limitations.6
Furthermore, the City’s deposit of the lime residual does not constitute a continuing
tort under Florida law. As the Florida Second District Court of Appeal has explained, “a
continuing tort is ‘established by continual tortious acts, not by continual harmful effects
from an original, completed act.’” Suarez v. City of Tampa, 987 So. 2d 681, 686 (Fla. 2d
DCA 2008) (quoting Horvath v. Delida, 540 N.W. 2d 760, 763 (Mich. App. 1995))
(emphasis in original) (holding that city’s dumping of garbage was not a continuing tort after
dumping ceased; affirming trial court’s conclusion that strict liability claim under Section
376.313, Florida Statutes, for clean-up costs was barred by applicable statute of limitations).
The fact that Plaintiffs claim to have experienced continuing damages, even progressively
worsening damages, after the City’s conduct ceased does not create successive causes of
action. See id. The statute of limitations runs from the tortious act, not subsequent
continuing damages. Similarly, the delayed discovery doctrine does not apply to Plaintiffs’
state-law causes of action. In Florida, the delayed discovery doctrine applies only to claims
6
At the latest, all of the elements of Plaintiffs’ claims had occurred by 2010, when the City
installed plainly visible monitoring wells on the Property and FDEP publicly approved the
City’s RAP. Plaintiffs make no allegation that any of these actions were concealed.
13
for fraud, products liability, professional and medical malpractice, and intentional torts based
on abuse. See Davis v. Monahan, 832 So. 2d 708, 710 (Fla. 2002); Krawchenko, 2013 WL
489088, at *3.
C. Plaintiffs’ Count 4 for Strict Liability Is Barred by Sovereign Immunity

and Predates Section 376.313’s Enactment
It is a textbook proposition that the limited governmental waiver of sovereign
immunity does not extend to strict liability claims. In Dalehite v. United States, 346 U.S. 15,
73 S. Ct. 956 (1972), the United States Supreme Court held that the Federal Tort Claims Act
does not permit the imposition of strict liability on the federal government. The Florida Tort
Claims Act is predicated on the federal act, and Florida courts have likewise concluded that
Section 768.28 does not waive sovereign immunity for strict liability claims. See Schick v.
Florida Department of Agriculture, 504 So. 2d 1318, 1319 (Fla. 1st DCA 1987).
In Schick, Florida’s First District Court of Appeal held that the government’s absolute
sovereign immunity applies to strict liability claims and requires that such claims be
dismissed with prejudice. Id.; see also Grande v. Hillsborough County, 623 So. 2d 1254
(Fla. 2d DCA 1993) (affirming dismissal of strict liability count based upon Schick); Duncan
v. City of Winter Haven, No. 53-2004-CA-004616-000-LK, 2005 WL 5281103 (Fla. 10th
Jud. Cir. Jan. 6, 2005) (“The motion to dismiss is granted on the ground that the City of
Winter Haven cannot be liable under a theory of strict liability.”). As the United States
Supreme Court explained in Dalehite, the limited waiver of sovereign immunity for torts is
predicated upon proof of wrongful conduct by the government. This requirement cannot be
reconciled with the absence of fault attendant to a strict liability claim. See Dalehite, 346
U.S. at 45. Accordingly, the courts have uniformly held that sovereign immunity precludes
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strict liability claims against governmental entities. The Court should therefore dismiss
Count 4 with prejudice based upon the City’s absolute immunity.
In addition, Count 4 should be dismissed because Plaintiffs have failed to allege any
violation of the statute by the City that occurred after the 1983 effective date of the statute.
Section 376.313 does not apply retroactively. See Cunningham v. Anchor Hocking Corp.,
558 So. 2d 93, 99 (Fla. 1st DCA 1990). The same allegations barring Plaintiffs’ claims under
the applicable statutes of limitations establish that the City’s practice ceased in the early
1960s. Plaintiffs have therefore failed to state a claim on which relief may be granted. See
id. (to recover under statute, plaintiffs must prove violation after 1983 effective date).
D. Plaintiffs’ Counts 3 and 5 for Negligence and Private Nuisance Implicate

Planning-Level Decisions to Which Absolute Sovereign Immunity Applies
The Court should dismiss Plaintiffs’ Count 3 for negligence and Count 5 for nuisance
because both are founded on the City’s planning decisions to dispose of lime residual, which
was the by-product of the City’s provision of drinking water to its citizens. Such activities
are subject to absolute immunity under Florida law.
Section 768.28, Florida Statutes, waives the City’s sovereign immunity with respect
to Plaintiffs’ tort claims only to the extent that (1) a common law duty of care exists and (2)
the allegations relate to operational activities, as opposed to planning or discretionary
decisions. See Lee v. Dep’t of Health & Rehab. Services, 698 So. 2d 1194, 1198 (Fla. 1997);
see also Cauley v. City of Jacksonville, 403 So. 2d 379, 387 (Fla. 1981); Ashworth v. Glades
County Bd. of County Commissioners, No. 2:17-cv-577, 2017 WL 6344209, at *1 (M.D. Fla.
Dec. 12, 2017) (“Counties and municipalities are afforded sovereign immunity to the same
extent as the State.”). Assuming for present purposes only that the City owes a common law
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duty in connection with Plaintiffs’ state-law claims for negligence and nuisance, nonetheless,
“the waiver of sovereign immunity does not apply if the challenged acts of the state agency
are ‘discretionary’ governmental acts rather than ‘operational’ acts.” Quiles v. City of
Tampa, No. 8:12-cv-550-T-35AEP, 2014 WL 12656633, at *6 (M.D. Fla. May 29, 2014);
see Mitchell v. City of Daytona Beach, No. 6:06-cv-1089-ORL-31JGG, 2007 WL 28324, at
*2 (M.D. Fla. Jan. 3, 2007) (“Under Florida law, a municipality cannot be held liable for
negligent, planning-level decisions.”).
Planning or discretionary decisions involve “fundamental questions of policy and
planning” that include “development and planning of governmental goals and policies.”
Ermini v. Scott, 249 F. Supp. 3d 1253, 1280–81 (M.D. Fla. 2017) (quoting Henderson v.
Bowden, 737 So.2d 532, 538 (Fla. 1999)); see, e.g., Hazleton v. City of Orlando, No. 6:10-
cv-342-Orl-35DAB, 2011 WL 13175527, at *15 (M.D. Fla. Oct. 19, 2011) (“The City cannot
be held liable in a negligence action concerning the content of its hiring policies, no matter
how ineffective the policies are alleged to be.”), aff’d sub nom. Hazleton v. Trinidad, 488 F.
App’x. 349 (11th Cir. 2012). Operational decisions, in contrast, are those decisions
implementing governmental plans. Id. (quoting Lewis v. City of St. Petersburg, 260 F.3d
1260, 1266 (11th Cir. 2001)). In assessing whether a particular activity occurs at the
operational or planning level, courts should consider the following factors:
(1) Does the challenged act, omission, or decision necessarily involve a basic
governmental policy, program, or objective? (2) Is the questioned act,
omission, or decision essential to the realization or accomplishment of that
policy, program, or objective as opposed to one which would not change the
course or direction of the policy, program, or objective? (3) Does the act,
omission, or decision require the exercise of basic policy evaluation,
judgment, and expertise on the part of the governmental agency involved? (4)
Does the governmental agency involved possess the requisite constitutional,
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statutory, or lawful authority and duty to do or make the challenged act,

omission, or decision?
Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1019 (Fla. 1979)
(quoting Evangelical United Brethren Church of Adna v. State, 407 P.2d 440, 445 (Wash.
1965)).
In a factually analogous setting, Florida’s Second District Court of Appeal found
absolute sovereign immunity to preclude a plaintiff’s nuisance claims arising from the
expansion of a landfill or garbage dump. Rumbough v. City of Tampa, 403 So. 2d 1139,
1140 (Fla. 2d DCA 1981). The court there noted that despite Section 768.28’s waiver of
immunity, discretionary or planning activities are subject to absolute immunity. Id. at 1141.
Applying the four factors described above, the court concluded that although “it is the
operation of the landfill which inflicts the damages, such operation is nothing more than an
implementation of the decision which was made at the planning level.” Id. at 1142. Because
the plaintiffs’ claims rested solely on the premise that a landfill existed near their home,
absolute immunity applied. 7 Id.
Plaintiffs’ Complaint alleges that the “City dumped at least 25,000 cubic yards of
sludge on the Dunbar Site over the course of several years” pursuant to the City’s decision to
purchase land “for use as a dump for the ‘lime sludge’ from lime treatment of drinking
water.” [Doc. 1 p. 7 ¶¶ 23, 25]. Although Plaintiffs allege that the City did not satisfy the
7
As an independent basis for affirmance, the Second District further observed that the
statutory damages cap under Section 768.28(5) applied. Because the city had settled claims
up to that cap, no further recovery could be collected from the city. The court noted that the
“continuing” nature of the claim did not permit multiple recoveries under the statute because
“we cannot see how such torts could be divided into time segments so as to permit multiple
recoveries simply because nuisances are usually continuing in nature.” 403 So. 2d at 1143.
17
RCRA’s standards for a solid waste landfill [id., pp. 7-8 ¶ 27], Plaintiffs do not contend that
any aspect of the dumping or maintenance of the lime residual was negligent or otherwise
tortious. At most, Plaintiffs allege that the City was negligent in failing to warn nearby
individuals about potential contamination. [See id, p. 10 ¶ 41].
Plaintiffs’ state-law claims for negligence [Count 3] and nuisance [Count 5] arise
from planning-level activities that are absolutely immune under Florida law. Plaintiffs
acknowledge that the lime residual resulted from City’s water treatment activities. [Doc. 1,
p. 7 ¶ 22]. The production and disposal of lime sludge in connection with that process
satisfies each of the Commercial Carrier factors described above. First, the “disposal” of
lime residual produced during the municipal water treatment process involves a basic
governmental policy, program, or objective. See Brush v. Comm’r of Internal Revenue, 300
U.S. 352, 370 (1937) (“We conclude that the acquisition and distribution of a supply of water
for the needs of the modern city involve the exercise of essential governmental functions, and
this conclusion is fortified by a consideration of the public uses to which the water is put.”),
overruled in part on other grounds by Graves v. People of State of New York ex rel. O’Keefe,
306 U.S. 466 (1939); City of Columbus v. Mercantile Tr. & Deposit Co. of Baltimore, 218
U.S. 645, 658 (1910) (“No higher police duty rests upon municipal authority than that of
furnishing an ample supply of pure and wholesome water for public and domestic uses.”);
McCallum v. City of Athens, Ga., 976 F.2d 649, 653 n.7 (11th Cir. 1992).
Next, Plaintiffs’ allegations establish that the lime residual at issue was produced and
disposed of in connection with the realization or accomplishment of the objective to provide
drinking water. [Doc. 1, pp. 6-7 ¶¶ 21-22]. Third, the decision of where to locate the area
18
for “disposal” of the lime residual requires the exercise of judgment and application of
policy. See Rumbough, 403 So. 2d at 1142. Finally, the City possesses the requisite lawful
authority to perform this function.
Plaintiffs’ claims arising from the City’s water treatment activities and disposal of
lime residual, an ordinary by-product of those activities, implicate planning-level decisions
that are subject to absolute immunity. Plaintiffs’ claims for negligence and nuisance arising
from the disposal of lime residual should be dismissed with prejudice.
E. The Court Should Dismiss Plaintiffs’ Count 7 for Medical Monitoring

Because It Fails To Allege Any Serious Latent Disease To Be Monitored
Count 7 of Plaintiffs’ Complaint alleges a claim for “medical monitoring” that fails to
state a claim because Plaintiffs fail to identify any serious latent medical condition arising
from the alleged arsenic exposure. To state a claim for medical monitoring, Plaintiffs must
allege, among other elements, that “as a proximate result of the exposure, [they have] a
significantly increased risk of contracting a serious latent disease” and that “a monitoring
procedure exists that makes early detection of the disease possible.” See Petito v. A.H.
Robins Co., Inc., 750 So. 2d 103, 106 (Fla. 3d DCA 1999). Plaintiffs have failed to allege
both of these elements.
In particular, Plaintiffs allege that arsenic can cause “a wide range of personal injuries
and medical maladies.” [Doc. 1, p. 27 ¶ 34]. Plaintiffs, however, do not limit their medical
monitoring claim to diseases caused by arsenic. In fact, Plaintiffs allege that they have been
exposed to greater than normal levels of “various toxic chemicals including, but not limited
to, arsenic.” [Id., p. 27 ¶ 133]. At another point, Plaintiffs allege that they have been
exposed to unidentified “hazardous and toxic chemicals and substances” and seek monitoring
19
for unspecified conditions caused by those unidentified substances. [Id., p. 29 ¶ 144]. These
allegations are woefully insufficient to state a claim for medical monitoring.
In Gibson v. Lapolla Industries, Inc., No. 6:13-cv-646-Orl-36KRS, 2014 WL
12617007, at *3 (M.D. Fla. Jan. 31, 2014), the Middle District dismissed a medical
monitoring claim that included far more detailed allegations than Plaintiffs allege here. In
Gibson, the plaintiffs alleged an increased risk of contracting “headaches and other
neurological issues and eye, nose, and throat irritations as well as respiratory issues.” 2014
WL 12617007, at *3. The Court rejected those allegations as insufficient, concluding that
plaintiffs “do not specify any single serious condition or even a reasonably specific group of
serious conditions.” Id. Likewise, Plaintiffs here do not identify even one medical condition
for which they seek medical monitoring – or even specify the particular group of toxic
substances to which they claim to have been exposed.
In their general allegations, Plaintiffs recite a litany of disparate and unrelated adverse
health effects purportedly associated with arsenic including respiratory symptoms; numbness
of the toes, feet, and legs; upset stomach; gastroenteritis; diarrhea; vomiting; birth defects;
skin rash; hyper- and hypopigmentation of the skin; hyperkeratosis of the skin; low IQ
scores; swollen liver; chemically induced hepatitis; portal hypertension of the liver; several
unidentified types of cancer; urinary cancer; lung cancer; increased mortality in children;
cardiovascular disease; diabetes mellitus; and sudden death. [See Doc. 1, pp. 11-12 ¶¶ 45-
50]. Some of these conditions are not serious and many are not latent. Plaintiffs do not
identify any of these conditions as serious latent diseases for which they demand monitoring.
Plaintiffs’ overly inclusive list of unrelated and dissimilar conditions proves the City’s point.
20
Plaintiffs have not identified, and cannot identify, a serious latent disease for which they are
at risk and for which testing is available. As in Gibson, the Court should dismiss the medical
monitoring claim here for Plaintiffs’ failure to specify the serious latent medical condition or
conditions for which they seek medical monitoring.
III. Conclusion
For the foregoing reasons, Defendants respectfully request that the Court dismiss the
Complaint to the extent requested in this motion.
Respectfully submitted,
/s/ Grant W. Alley /s/ Joseph H. Varner, III

Grant W. Alley, Esq. Joseph H. Varner, III, Esq.
Florida Bar No. 967386 Florida Bar No. 394904
Terry B. Cramer, Esq. Stacy D. Blank, Esq.
Florida Bar No. 099360 Florida Bar No. 772781
CITY OF FORT MYERS Patrick M. Chidnese, Esq.
Post Office Box 2217 Florida Bar No. 089783
Fort Myers, FL 33902 HOLLAND & KNIGHT LLP
Telephone: (239) 321-7050 100 N. Tampa St., Suite 4100
Facsimile: (239) 344-5916 Tampa, FL 33602-3644
galley@cityftmyers.com Telephone: (813) 227-8500
tcramer@cityftmyers.com Facsimile: (813) 229-0134
joe.varner@hklaw.com
Trial Counsel for the City of Fort Myers stacy.blank@hklaw.com
patrick.chidnese@hklaw.com
Trial Counsel for the City of Fort Myers
21
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 26, 2018, I electronically filed the foregoing with
the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic
filing to all parties of record, including:
Ralph Brookes, Esq. Gary A. Davis, Esq.

Ralf Brookes Attorney Davis & Whitlock, P.C.
1217 E. Cape Coral Parkway #107 21 Battery Park Ave., Suite 206
Cape Coral, FL 33904 Asheville, NC 28801
Ralf@RalfBrookesAttorney.com gadavis@enviroattorney.com
RalfBrookes@gmail.com
/s/ Patrick M. Chidnese

Attorney
22

City of Fort Myers - Motion To Dismiss

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Case 2:18-cv-00195-SPC-CM Document 12 Filed 04/26/18 Page 1 of 22 PageID 105

IN THE UNITED STATES DISTRICT COURT

DERETHA MILLER, LUETRICIA FREEMAN

v. Case No. 2:18-cv-195-FTM-38CM

THE CITY OF FORT MYERS, a Municipality,

DEFENDANTS’ MOTION TO DISMISS COMPLAINT

Before describing the relevant allegations from Plaintiffs’ complaint, Defendants

the claims levied against Defendants.

A. History of the South Street Property Leading to Plaintiffs’ Complaint

agricultural purposes, including to neutralize soil acidity.

new water treatment plant that no longer produces lime residual.

remedial action plan (a “RAP”) for the Property. 3

through web-site postings and press conferences.

cooperate and coordinate with FDEP during this process.

B. Relevant Allegations from the Complaint

Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(A) and 42 U.S.C. §

Property and arsenic contaminated soil and groundwater. [Id., p. 1 ¶ 1; p. 2 ¶ 2; p. 17 ¶ 73; p.

¶ 74; p. 35 ¶ (e); p. 36 ¶ (h)].

II. Motion to Dismiss

A. Count 1 – Conduct Predates RCRA and Civil Penalties Inapplicable

a claim upon which relief may be granted. Count 1 is premised on 42 U.S.C §

demand for civil penalties with prejudice.

B. Counts 3, 4, 5, 6, 7 – Statute of Limitations

C. Counts 3 and 5 – Sovereign Immunity (Planning Decision)

of drinking water to its citizens, involve planning-level decision-making for which

Defendants are absolutely immune from suit.

D. Count 4 – No Waiver of Sovereign Immunity for Strict Liability

E. Count 7 – Failure to Identify Condition to Be Monitored

II. Memorandum of Law

A. The Court Should Dismiss Count 1 for Lack of Subject Matter

in connection with Plaintiffs’ open dumping claim.

Plaintiffs’ Count 1 seeks relief under 42 U.S.C. § 6972(a)(1)(A), which provides a

remedy for violation of a permit, standard, regulation, condition, requirement, prohibition, or

landfill activities that occurred prior to RCRA’s effective date).

resulted in a continuing violation of RCRA. See 2010 WL 1980218, at *2 (rejecting as

unavailing argument that pre-enactment contamination continued to affect property in

Industries, 2010 WL 1381671, at *3 (“mere presence of pollutants is not sufficient to allege

an ongoing violation of the open dumping prohibition”).

Court should dismiss Count 1 of the Complaint with prejudice.

B. Plaintiffs’ State-Law Claims, Counts 3–7, Are Barred by the Statute of

C. Plaintiffs’ Count 4 for Strict Liability Is Barred by Sovereign Immunity

It is a textbook proposition that the limited governmental waiver of sovereign

v. City of Winter Haven, No. 53-2004-CA-004616-000-LK, 2005 WL 5281103 (Fla. 10th

Count 4 with prejudice based upon the City’s absolute immunity.

D. Plaintiffs’ Counts 3 and 5 for Negligence and Private Nuisance Implicate

are subject to absolute immunity under Florida law.

the allegations relate to operational activities, as opposed to planning or discretionary

see Mitchell v. City of Daytona Beach, No. 6:06-cv-1089-ORL-31JGG, 2007 WL 28324, at

negligent, planning-level decisions.”).

Planning or discretionary decisions involve “fundamental questions of policy and

operational or planning level, courts should consider the following factors:

statutory, or lawful authority and duty to do or make the challenged act,

In a factually analogous setting, Florida’s Second District Court of Appeal found

absolute immunity applied. 7 Id.

individuals about potential contamination. [See id, p. 10 ¶ 41].

disposed of in connection with the realization or accomplishment of the objective to provide

authority to perform this function.

lime residual, an ordinary by-product of those activities, implicate planning-level decisions

from the disposal of lime residual should be dismissed with prejudice.

E. The Court Should Dismiss Plaintiffs’ Count 7 for Medical Monitoring

both of these elements.

allegations are woefully insufficient to state a claim for medical monitoring.

In Gibson v. Lapolla Industries, Inc., No. 6:13-cv-646-Orl-36KRS, 2014 WL