UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

________________________________________________________________________

MARIA PARSONS and MICHAEL PARSONS,

MARY ANN JONES and JAMES ARTHUR JONES, SR.,

SHANTELL SHAMEA JONES, Individually,

and as the Parent and Natural Guardian of

CARLOS UDAE STEPHENSON, AARON JONES STEPHENSON,

and OZIAH CARSON JONES, Minor Children,

SANDRA WATTS KENNEDY and KEVIN KENNEDY,

Individually, and as the Parents and Natural Guardians

of MURIELLE KEELY KENNEDY, a Minor Child; and

FARINDA OSTEEN, all individually and

on Behalf of a Class of Persons who are Similarly Situated,

 Plaintiffs,

v. CASE NO.: 1:10-cv-00071-MP-GRJ

KOPPERS INC. f/k/a

KOPPERS INDUSTRIES, INC., 

BEAZER EAST, INC., f/k/a KOPPERS

COMPANY, INC.,

 Defendants.

_______________________________________________________________________

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION 

TO DISMISS AMENDED CLASS ACTION COMPLAINT AND CLASS 

ALLEGATIONS AND PRAYERS FOR RELIEF [D.E. 50]

_______________________________________________________________

Plaintiffs respectfully submit this memorandum in opposition to the motion filed 

by two of the Defendants (Koppers, Inc. and Beazer East, Inc.) to dismiss the Amended 

Complaint and to strike the class allegations and references to certain Florida statutes. 

According to Defendants, the Amended Complaint fails to meet the applicable pleading 

standard because its factual allegations are too sweeping, fail to differentiate among the 

defendants, and rely upon statutes whose applicability is “dubious.”

Additionally, Defendants attack the allegations relating to the class action claims, 

not because these allegations are faulty in any respect, but because the Plaintiffs allegedly 

failed to file a timely motion seeking certification of the class, which – according to the 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 2

Defendants – violates Local Rule 23.1(B). And Defendants seek to strike portions of the

Amended Complaint referencing violations of the Pollution Discharge Prevention and 

Control Act as somehow “immaterial.” 

Defendants‟ arguments are entirely specious. No case law supports the pleading 

standard they invoke. Rather, the allegations asserted in the Amended Complaint far 

exceed the judicially recognized and applied pleading standard in accordance with the 

United States Supreme Court‟s recent decisions in this respect. Contrary to Defendants‟ 

assertions, no case holds that a complaint must “delineate” among defendants under the 

circumstances in this proceeding. Nor does any case support dismissal of a complaint 

because, in the view of a defendant, applicability of a statute to its conduct and liability is 

“dubious.” Further, the attack on the timeliness of class certification proceedings is 

already subject to motion practice to address (and if necessary to cure) any failure to 

comply with Local Rule 23.1(B).1 And the Rule 12(f) attack on certain portions of the 

Amended Complaint finds no support either under that Rule or any case law applying that 

rule.

 

1 Oral argument was held on Plaintiffs‟ Nunc Pro Tunc Motion for Extension of Time to 

File a Motion for Class Certification & Incorporated Memorandum of Law (D.E. 23), on 

November 30, 2010, Plaintiffs incorporate their motion and oral argument in this 

Memorandum in Opposition by reference. 

Plaintiffs also filed an unopposed Motion for Extension of Time to Respond to 

Defendants‟ Motion to Dismiss [D.E. 54] that the Court has not ruled upon, as such, in an 

abundance of caution and to comply with the Local Rules, Plaintiffs have filed the instant 

Memorandum in Opposition. To the extent that the Court‟s ruling on Plaintiffs‟ Nunc 

Pro Tunc Motion for Extension to File a Motion for Class Certification impacts 

Defendants‟ Motion to Dismiss, Plaintiffs may seek leave of this Court to amend this 

Memorandum in Opposition. 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 3

For all these reason, and others explained below, Defendants‟ motion to dismiss 

should be denied.

I. INTRODUCTION

In this proceeding, Plaintiffs (a group of residents of the area surrounding a highly 

contaminated site in Gainesville, Florida) seek to present claims on their own behalf and 

to represent a class of their neighbors in pursuing claims against the former 

owner/operator of that site, Beazer East, and the companies who are its successors in 

interest, indemnitors or current owners in connection with its liability at this site. The 

Site was contaminated through the Defendants‟ operation of a wood treatment business, 

through which cancer causing chemicals used in wood treatment were discharged, 

spilled, leaked, seeped, poured, emitted or dumped. See, Amended Complaint at ¶ 114.

Beazer East and its successors in interest are far from strangers to claims that their 

wood treatment operations caused severe contamination. To the contrary, Beazer East 

has been the subject of numerous investigations by state and federal environmental 

officials, and has been held liable in a variety of lawsuit for costs of remediating 

discharges of chemicals and waste in connection with its wood treatment operations. 

See, e.g., Dent v. Beazer Materials and Services, Inc., and Beazer East, Inc., 133 F.3d 

914, 1998 WL 24977 (4th Cir. 1998); Chicago Bridge & Iron Co., v. Certain 

Underwriters at Lloyd’s, London, 59 Mass. App. Ct. 646, 797 N.E.2d 434 (Mass. App. 

Ct., 2003) (summarizing investigations and litigation relating to sites for which Beazer or 

its successors in interest were required to remediate, in whole or in part, in 

Massachusetts, California, Louisiana, Missouri, and Florida). In connection with the 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 4

Dent litigation, the trial court expressly found that “Beazer knew its waste handling 

practices were unsound,” but “consciously” refused to upgrade its waste handling system. 

Id. at 4.

Nor are the Defendants unaware that their activities at the Gainesville, Florida site 

caused contamination to the Site, and in particular contamination to groundwater. To the 

contrary, their wood treatment operations at the Site have been the target of federal and 

state investigations and remediation orders since 1983. Indeed, the Site is the subject of 

yet another Remediation Order Decision issued in July, 2010.

Nonetheless, according to Defendants, the Plaintiffs‟ Amended Complaint fails to 

give them fair notice of the grounds upon which Plaintiffs seek recovery for 

contamination caused to their properties and for potential bodily injury through exposure 

to cancer causing chemicals released by the Defendants at their Site. On this basis, 

Defendants have moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to 

dismiss the Amended Complaint, on grounds set out in a rambling and disorganized 

memorandum filed in support thereof (hereinafter, “Def. Mem.”). As demonstrated in 

Part II, below, Defendants‟ arguments in support of their motion to dismiss are baseless 

and insupportable, and should be denied as such. In addition, as demonstrated in Part III, 

Defendants alternative arguments to strike the class action allegations and any references 

to the Pollution Discharge Prevention and Control Act should be denied as well. 

II. DEFENDANTS FAIL TO ASSERT ANY BASIS TO

DISMISS THE AMENDED COMPLAINT

A. The Applicable Pleading Standard

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 5

At the core of Defendants‟ arguments in support of their motion to dismiss is an 

incomplete and improper paraphrase of the judicially recognized standard arising from 

the Supreme Court‟s recent decisions Bell Atlantic Corp. v. Twombly, 550 U.S 544, 555 

(2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). As presented by Defendants, 

the elements of the Twombly/Iqbal standard that should guide this Court‟s deliberations 

are that “factual allegations must be enough to raise a right of relief above a speculative 

level,” and that “a claim has facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” See, Def. Mem., at 6. There is, however, much more guidance to 

be drawn from Twombly and Iqbal, and their progeny. Defendants‟ motion ignores this 

guidance because it undermines their arguments entirely.

While it is true that, “In Twombly, the Supreme Court distinguished “plausible” 

claims from allegations that were merely “conceivable,”2it is equally true that the 

Supreme Court made clear that its decision in Twombly “[did] not require heightened fact 

pleading of specifics, but only enough facts to state a claim to relief that is plausible on 

its face.” Id.. Indeed, as the Supreme Court held in Erickson v. Pardus, 551 U.S. 89 

(2007) (per curiam) (which was issued just two weeks after Iqbal), in applying the 

Twombly formulation of the Rule 12(b)(6) standard, a court must also take into account 

the standard under Rule 8(a)(2), which makes clear that “Specific facts are not necessary; 

the statement need only „give the defendant fair notice of what the claim is and the 

 

2 This plausibility standard “„does not impose a probability requirement at the pleading 

stage; it simply calls for enough fact to raise a reasonable expectation that discovery will 

reveal evidence‟ to prove [the] claim.” Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir.2009)

(quoting Twombly, 550 U.S. at 556).

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 6

grounds upon which it rests.” Id., at 93.

As the Eleventh Circuit noted in overruling a dismissal under Rule 12(b)(6) in 

Speaker v. U.S. Dept. of Health and Human Services Centers for Disease Control and 

Prevention, --- F.3d ----, 2010 WL 4136634 (11

th Cir. 2010), in Twombly,

The Supreme Court explained that a complaint “does not need detailed 

factual allegations,” but the allegations “must be enough to raise a right to 

relief above the speculative level.” Furthermore, “a well-pleaded 

complaint may proceed even if it strikes a savvy judge that actual proof of 

those facts is improbable, and that a recovery is very remote and unlikely.”

Subsequently, in Iqbal the Supreme Court clarified that “[a] claim has 

facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. at 1949; see also Watts v. Fla. Int'l Univ., 495 

F.3d 1289, 1295-96 (11th Cir. 2007) (“The Court has instructed us that the 

rule „does not impose a probability requirement at the pleading stage,‟ but 

instead „simply calls for enough fact to raise a reasonable expectation that 

discovery will reveal evidence of‟ the necessary element.”) (quoting 

Twombly, 550 U.S. at 556, 127 S.Ct. at 1965).

Therefore, as the Eleventh Circuit emphasized in Speaker, a complaint will survive a 

motion to dismiss as long as the Plaintiff “has pleaded enough factual content to „nudge 

his claims across the line from conceivable to plausible.‟” (citing Twombly, 550 U.S. at 

570).

The Eleventh Circuit also addressed the Twombly standard in Young Apartments, 

Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008):

All of the factual allegations in the complaint must be accepted and 

construed in the light most favorable to the plaintiff. Beck v. Deloitte & 

Touche, 144 F.3d 732, 735 (11th Cir. 1998). A motion to dismiss does not 

test the merits of a case, but only requires that “the plaintiff's factual 

allegations, when assumed to be true, „must be enough to raise a right to 

relief above the speculative level.‟ ” Mills v. Foremost Ins. Co., 511 F.3d 

1300, 1303 (11th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)).

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 7

Most recently, the United States Middle District of Florida observed, in SteinerOut v. Lone Palm Golf Club, LLC, 2010 WL 4366299 (M.D. Fla. 2010) that,

 “In deciding a motion to dismiss, the district court is required to view the 

complaint in the light most favorable to the plaintiff.” (citing Murphy v. Federal 

Deposit Ins. Corp., 208 F.3d 959, 962 (11th Cir.2000) and Kirby v. Siegelman,

195 F.3d 1285, 1289 (11th Cir.1999));

 “the Federal Rules of Civil Procedure do not require a claimant to set out in 

detail the facts upon which he bases his claim. Instead, Rule 8(a)(2) requires a 

short and plain statement of the claim showing that the pleader is entitled to relief 

in order to give the defendant fair notice of what the claim is and the grounds 

upon which it rests.” (citing Twombly);

 “the Court must assume that all of the allegations in the complaint are true,” and 

 “The standard on a 12(b)(6) motion is not whether the plaintiff will ultimately 

prevail in his or her theories, but whether the allegations are sufficient to allow 

the plaintiff to conduct discovery in an attempt to prove the allegations.”

Lastly, Courts have uniformly observed that, “In considering the merits of a motion 

to dismiss, the Court is authorized to look beyond the facts alleged in the pleadings, to 

include „documents attached as exhibits or incorporated by reference in the complaint and 

matters of which judicial notice can be taken‟.” In re Celexa and Lexapro Marketing and 

Sales Practices Litig., __ F.Supp.2d__, 2010 WL 4644429 (D. Mass. 2010)(citing Nollet 

v. Justices of the Trial Court of Mass., 83 F.Supp.2d 204, 208 (D. Mass. 2000) aff'd, 248 

F.3d 1127 (1st Cir.2000)).

In sum, under Twombly, Iqbal and Erickson, this Court has been directed by the 

Supreme Court to reject any demands by the Defendants for “specific facts” as 

inconsistent with Rule 8, and to deny Defendants‟ motion to dismiss under Rule 12(b)6) 

if, considering all appropriate sources, accepting as true all allegations of fact presented 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 8

by the Plaintiffs and reading all such allegations in the light most favorable to the 

Plaintiffs, and drawing all reasonable inferences therefrom, the Plaintiffs‟ claims are 

“nudged” across the line from “conceivable to plausible” and that it gives fair notice to 

Defendant of what the claim is and the grounds upon which it rests. Plaintiffs

submit that the Amended Complaint amply meets – indeed far exceeds – this standard by 

a wide margin. 

B. Defendants’ Omnibus Attacks on the Amended Complaint Provide No 

Basis to Dismiss Any Counts

Based on their incomplete explication of the Twombly/Iqbal/Erickson standard, 

Defendants present three broad based attacks, apparently directed at all counts in the 

Amended Complaint, announcing that the Amended Complaint as a whole must be 

dismissed for failure to “specify” certain categories of facts. Each of these attacks is 

baseless.

1. Plaintiffs Are Not Required to Plead “Specific Facts” as to Type or 

Nature of Harm

Defendants announce, at p. 7 of their Memorandum, that “a plaintiff must allege 

specific facts showing that the defendant caused physical harm to his/her property. A 

plaintiff cannot state such claims merely by alleging that his/her property has decreased 

in value.” This statement is directly inconsistent with the Supreme Court‟s clear and 

explicit holding in Erickson, supra, which Defendants fail to even acknowledge, let alone 

address.

Instead, in support of their sweeping demand for more “specific facts,”

Defendants rely entirely upon a single decision of a Florida state district court of appeals 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 9

in The St. Joe Co. v. Leslie, 912 So 2d 21 (Fla. Dist Ct. App., 2005). That decision 

provides utterly no support for Defendants‟ claim. In St. Joe, the state appellate court 

was not addressing pleading standards, and clearly was not applying pleading standards 

under the Federal Rules of Civil Procedure. Rather, the appellate court was reviewing the 

evidentiary record presented during class certification proceedings (in which “no proof 

was adduced that any of the class representatives‟ land was contaminated”) and 

determining whether this would be sufficient for class certification under Florida state 

procedural rules. In other words, the decision in St. Joe arises under totally 

distinguishable circumstances under procedures that are irrelevant to this motion, 

rendering that decision totally inapposite here.3

In any event, the Plaintiffs‟ pleading more than meets the challenge asserted by 

Defendants. Here, Plaintiffs have plead, in substantial detail, exactly where their real 

property is located, see Amended Complaint ¶9, 11, 13, 15, and 17; that their “real 

property is contaminated,” ¶48; that the nature of that contamination is dioxin and dioxinlike compounds, ¶¶ 43, 49; that the source of this contamination is the properties at which 

the Defendants released dioxin-related chemicals, ¶¶43-45; and that the hazardous waste 

at Defendants‟ facility “leaked, seeped, or was carried onto and into Plaintiffs and Class 

Members homes and real property in the Class Affected area, seriously contaminating it,” 

¶ 82. Thus, contrary to Defendants‟ pronouncements, Plaintiffs have not merely claimed 

 

3

The limited scope of the ruling in St. Joe has been noted by other courts. See, e.g., 

Doyle v. Fluor Corp., 199 S.W.3d 784, 790 n.1 (Mo. App., 2006); The Ryland Group, 

Inc. v. Addelman, 2006 WL 4749575 (Fla. Cir. Ct.) (November 27, 2006)

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 10

that their property has decreased in value without reference to some physical injury. 

Rather, Plaintiffs allege that their property has been physically injured by the presence of 

contamination sourced from Beazer East‟s activities (for which the other Defendants are 

legally liable as Beazer East‟s successor in interest or indemnitor), in terms that are quite 

specific. This clearly meets the Twombly standard by giving “fair notice of what the 

claim is and the grounds upon which it rests.” The Defendants have no basis to demand 

anything more than this from the Plaintiffs at this point in the proceeding. See, Erickson.

Similarly, Defendants announce, Def. Mem. at 7, that “this Court recently 

confirmed that pleadings that generically allege exposure, without any specific facts 

regarding the level of the plaintiff‟s exposure or manner in which the defendant‟s conduct 

caused the exposure, fail the Twombly and Iqbal standards,” citing Calhoun v. U.S., 2010 

WL 3277652 (N.D. Fla. June 30, 2010). Yet again, Defendants announce some 

sweeping standard for which they present a single case which, on any reading, is utterly 

inapposite to this case. In Calhoun, a magistrate issued a report recommending that the 

complaint filed by a pro se plaintiff against the United States under the Federal Torts 

Claims Act be dismissed, for numerous reasons, including failure to exhaust 

administrative remedies and the lapse of the period applicable under the statute of 

limitations.4 Of course, neither of these issues is present in this proceeding.

The magistrate continued in Calhoun to reach the government‟s alternative 

grounds for dismissal for failure to meet the Twombly standard. Although the magistrate 

recommended dismissal, this was not based on the “failure to specify the exact level of 

 

4 The magistrate‟s report was subsequently adopted by Court order, without further 

substantive discussion of the issues addressed therein.

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 11

contamination” grounds now asserted by the Defendants here. Rather, the magistrate 

concluded that “the plaintiff‟s contention that the Air Force is committing the alleged 

misconduct is based on unwarranted deductions of fact and unreasonable inferences.” 

The magistrate did not propose any rule requiring that a plaintiff must “specify the level” 

of exposure or “the manner in which the defendant‟s conduct caused the exposure.” 

Indeed, he did not even reach the issue whether the pleadings regarding the level of 

exposure met the Twombly standard (although the United States asserted that it did not). 

And, to the extent the magistrate proposed any broad rule of any nature, it would be 

applicable only in the specialized legal context arising under the Federal Torts Claims 

Act, which is of no relevance in this proceeding.

Ultimately, the extent to which the Amended Complaint meets the Supreme 

Court‟s Twombly/Iqbal/Erickson standard is most clearly resolved by reference to 

motions to dismiss in comparable proceedings, including Sher v. Raytheon Co., 2008 WL 

2788724 (M.D. Fla. July 15, 2008). There, the United States District Court for the 

Middle District of Florida addressed, and rejected, a motion to dismiss a contamination 

case asserting the same types of claims as present in this proceeding. The defendants in 

Sher invoked Twombly and St. Joe, just as the Defendants do here. The Middle District 

of Florida held that the same quality, nature and extent of allegations as presented here in 

the Amended Complaint “meet the requirements set forth in” Twombly; that “the physical 

aspect of the claim for private nuisance has been satisfied by allegations of the Complaint 

that Plaintiffs‟ property has been invaded by the contaminants from the site”; that “the 

count for strict liability for conducting abnormally hazardous activities is sufficiently 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 12

pled in view of the activities alleged in the form of disposing of hazardous chemicals on 

the Plaintiff‟s property”; and that “the count for negligence based on failure to warn is 

legally sufficient to withstand dismissal, and the Complaint adequately alleges injury to 

the Plaintiffs‟ property.”

Just as in Sher, Plaintiffs here assert that their property has been invaded by 

contaminants, see Amended Complaint at, e.g., ¶¶ 42-46, 83, 86, 97, 104; that Defendants 

conducted abnormally hazardous activities which resulted in disposal of hazardous 

chemicals in their homes or properties, see, id.; ¶ 83; and that the Defendants have been 

negligent in failing to warn the Plaintiffs regarding their hazardous conduct, see id., ¶¶ 

94-96. Just as in Sher, all of these allegations meet, and exceed, the requisite standard, 

and therefore in the words of the Sher Court, “withstand dismissal.”

2. Defendants Fail to Demonstrate Any Basis to Dismiss for Failure to 

Differentiate the Conduct of Each Defendant

 

Defendants continue their attack on the entirety of the Amended Complaint by 

asserting that all of the counts therein fail to plead allegations which differentiate (or 

delineate) among the various defendants. According to Defendants (but without 

submission of any supporting evidence,

each of [the Defendants] owned a portion of the Site at different times and 

conducted different operations during its period of operation. Despite 

these important distinctions in each Defendants‟ involvement with the 

Site, plaintiffs lump the defendants together and make no attempt to 

differentiate the nature of their alleged claims against each defendant.

Def. Mem. at 7-8. Further, according to Defendants, “Since Twombly and Iqbal, several 

federal courts have concluded that pleadings which collectively reference „defendants,‟ . . 

. fail the Twombly and Iqbal standards.” Def. Mem. at 9.

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 13

These assertions do not withstand scrutiny. On the one hand, the Amended 

Complaint clearly sets forth the specific, differentiated nature of each respective 

Defendant‟s liability. Thus, the Amended Complaint alleges, at ¶20, that “At all times 

relevant hereto, Defendant KOPPERS INC. . . . acquired, managed, and/or operated the 

aforesaid wood treatment operations at the Site and related and subsequent operations and 

activities at the Site,” while at ¶ 24, it asserts that “Defendant BEAZER EAST obtained 

ownership of the Site on or about March 30, 2010,” and at ¶ 26 that Defendant Beazer 

East had assumed the liability for clean up for the contamination on the Site, including 

contamination in the Class Affected Area. In light of the resulting overlapping liability 

among the Defendants, the Amended Complaint explained, at ¶ 41, that “[a]t all times 

relevant hereto Defendant BEAZER EAST – and/or its predecessor(s) or other entities for 

whose conduct and circumstances BEAZER EAST is legally liable and responsible –

owned, acquired, managed, and/or operated the aforesaid wood treatment and related and 

subsequent operations and activities at the Site.” As to all other Defendants, the

Amended Complaint asserts, at ¶ 42, that the remaining Defendants each “assumed a 

financial, legal, managerial, and or operational responsibility and liability for 

environmental . . . consequences associated with the Site.” Under Twombly and Iqbal, 

this Court is directed to treat these allegations as true and correct for purposes of this 

motion under Rule 12(b)(6). Thus, this Court must reject Defendants unsupported 

assertions that each defendant owned, respectively, only a portion of the site or can be 

liable only for conduct occurring at only certain times.

Further, the foregoing explication of the detailed allegations in the Amended 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 14

Complaint demonstrates that Defendants have utterly mischaracterized the detailed nature 

of those allegations. Contrary to Defendants assertions, the Amended Complaint does in 

fact differentiate among the four particular defendants and identifies, explicitly and 

precisely, the acts for which they are responsible and the grounds on which they are liable 

for the injuries arising from those acts. Since the very premise of this attack rests on a 

demonstrably false characterization of the Amended Complaint, it should be rejected out 

of hand. And it is entirely appropriate, where applicable, to plead claims against multiple 

defendants as a group. See, e.g., Anwar v. Fairfield Greenwich Ltd., __ F.Supp.2d __, 

2010 WL 3341636 at 36 (S.D.N.Y., August 18, 2010)(denying motion to dismiss because 

claims “lumped” all defendants into a single grouping and asserted claims against them 

as a group).

Nor do the four cases cited by Defendants lead to any different conclusion. 

Indeed, none of these even addresses remotely comparable circumstances. Thus, for 

example, Gomez v. Pfizer, Inc., 675 F.Supp.2d 1159 (S.D. Fla. 2009), the Court granted a 

motion to dismiss a complaint in which the manufacturers of two separate products were 

sued by a consumer who could not differentiate which product caused her injury. The 

Court found that the Complaint was defective because “it does not state some definitive 

relationship between” the two manufacturers who had been named as defendants. Id., at 

1162. Of course, here, Plaintiffs have alleged, in substantial detail, the relationship 

between the Defendants, as well as the relationship between each defendant and the 

contaminating operations at the Site.

Similarly, the decision of the United States Court of Appeals for the Tenth Circuit 

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Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 15

in Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008) provides no support for 

Defendants‟ attack, but rather undermines it. In that case, the Court evaluated the 

sufficiency of pleading in a claim arising under the federal Civil Rights Act, 42 U.S.C. 

§1983. As the Court there noted, “the degree of specificity necessary to establish 

plausibility and fair notice, and therefore the need to include sufficient factual 

allegations” as instructed under Twombly/Iqbal/Erickson, “depends on context: „Context 

matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of 

case.” Id., at 1248 (citing Phillips v. County of Allegheny, 515 F.2d 224, 231-32 (3d Cir. 

2008)) (emphasis added). On the one hand, in a Section 1983 case, the context requires a 

heightened level of pleading which would not apply in the context of a run-of-the-mill 

case. On the other hand, where – as in the present case – the claim rested on a simple 

claim of negligence, Twombly/Iqba/Erickson “may require little more than the allegation 

that the defendant negligently” injured the plaintiff by conduct occurring at a specified 

time and place. Id. The allegations set forth in the Amended Complaint, and in 

particular in support of Count IV, far exceed this standard.5

3. Defendants Fail to Demonstrate Any Basis to Dismiss for Failure to 

Delineate the Impact of A Specific Defendant’s Conduct on Plaintiffs or 

their Property

Defendants also attack the entirety of the Amended Complaint by asserting that it 

 

5 Defendants‟ citation of, and reliance on, Arar v. Ashcioft, 585 F.3d 559 (2d Cir. 2009) 

and In re Travel Agent Commission Antitrust Litigation, 583 F.3d 896 (6th Cir. 2009), 

suffer from the same flawed comprehension of the context in which those cases arose. 

Both arise in contexts in which the Courts have long applied heightened standards of 

pleading and proof (i.e., claims involving deprivations of rights under the Fifth 

Amendment of the Constitution and antitrust conspiracies proven through parallel 

conduct, respectively). And both address pleadings which present allegations that are far 

less detailed than the allegations in the Amended Complaint. 

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Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 16

fails to provide “specific factual allegations that plaintiffs and their respective properties 

have been physically affected by a specific defendant during the time plaintiffs owned or 

resided on their properties.” Def. Mem. at 9. Defendants fail to cite to any authority 

recognizing, even implicitly, that any such pleading standard applies under the Federal 

Rules of Civil Procedure. Indeed, any such standard would contravene the directive of 

Rule 8(a) that a pleading “must contain a short and plain statement of the claim . . . .” 

See, Erickson, supra.

Certainly, no such authority is presented through Defendants‟ citation of Premier 

Assocs., Inc. v. EXL Polymers, Inc., 2010 WL 2838487 (N.D. Ga. July 19, 2010); 

Voggenthaler v. Md. Square, LLC., 2010 WL 2998253 (D. Nev. July 22, 2010); or 

Farash v. Continental Airlines, 337 Fed. Appx. 7 (2d Cir. 2009). In Premier, the Court 

dismissed a counterclaim not because it failed to “identify damaged property with 

sufficient detail” (as the Defendants state, Def. Mem. at 10), but because the 

counterclaimant had actually denied ownership of any personal property which could 

possibly be covered by the counterclaim under the particular statute on which the 

counterclaim sought to proceed. In Voggenthaler, the Court did not dismiss the thirdparty claim because the defendant-third party plaintiff failed to allege sufficient facts 

showing harm from defendant‟s conduct (as the Defendants state, id.), but because the 

plaintiff‟s assertions were entirely speculative (i.e., “all that can be derived is that . . . 

Sears and other collective third party defendants „may‟ have used and or spilled solvents 

and other chemicals at another location.”). And in Farash, the Court did not hold that, 

under Federal pleading standards, a plaintiff must “specify in what manner he was injured 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 17

and how the defendant was negligent (as Defendants assert, id.) (emphasis added). 

Indeed, the word “specify” does not appear anywhere in the quotation which Defendants 

now take out of context and paraphrase, which in any event is drawn from New York 

state law and does not relate to pleading standards imposed under Rule 12(b)(6) of the 

Federal Rules of Civil Procedure. Nor could the Farash Court have properly adopted any 

such standard in light of the Supreme Court‟s standard in Erickson.

For all these reasons, the Defendants have failed to demonstrate any validity for 

their omnibus attacks on the Amended Complaint‟s level of pleading facts that identified 

the Defendants, the nature of the Defendants‟ wrongful activities, or the nature of the 

injury suffered by the Plaintiffs by reason of those wrongful activities. These attacks 

should be rejected out of hand, and the motion to dismiss on this specious attack should 

be denied.

C. Defendants’ Attacks on Particular Counts in the Complaint Are Baseless 

 

In addition to their baseless attacks on the sufficiency of facts pled across the 

various counts in the Amended Complaint, Defendants also move to dismiss Count I 

(which presents a claim for medical monitoring and equitable relief), Count II (which 

presents a claim for strict liability for ultrahazardous activity), and Count V (which 

presents a claim for negligence per se for breach of various Florida state contamination 

statutes), in each case based on arguments which, apparently, only apply to those 

particular causes of action.6 As demonstrated below, these attacks are also baseless. 

1. Count I Sufficiently Alleges all Requisite Elements for Medical 

 

6 Defendants fail to identify any particularized basis to dismiss Counts III (Nuisance), IV 

(Negligence), or VI (Trespass).

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Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 18

Monitoring 

According to Defendants, Count I is subject to attack on two grounds: (a) that 

“the Plaintiffs simply” reiterate the elements of the cause of action for medical 

monitoring, as recognized by Florida law, Def. Mem. at 16, 18, and (b) that “it would be 

disingenuous of plaintiffs to contend that they are at serious risk of continuing irreparable 

harm because the operations at wood treating operations at the Site have ceased for 

several months.” Id. at n. 6.

As to the second point, the proposition is ludicrous. The mere fact that the 

Defendants recently ceased the operations that caused contamination on the Site does not 

mean, in any respect, that the contaminants released into the ground and ground water at 

that Site will not continue to leach out and cause further irreparable injury to the 

Plaintiffs and to their property. Even if Defendants could sustain this illogical and 

nonsensical assertion based on some evidence they may adduce through discovery or at 

trial, it has no significance to a motion to dismiss under the Twombly/Iqbal/Erickson 

standard.

And, as to the first point, Defendants simply ignore the entire body of the 

Amended Complaint, in which Plaintiffs properly and sufficiently allege that the 

Defendants are responsible for the release of dioxins and other cancer causing chemicals 

into the environment in which they live (at ¶43); that the Plaintiffs have each personally 

been exposed to heightened levels of these specific, cancer-causing chemicals (at ¶¶ 10, 

12, 14, 16, 18, and 43); that those chemicals are continuing to be transmitted from 

Defendants‟ Site through air, soil and water contamination, (at ¶47); and that this 

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Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 19

exposure to these chemicals threatens present and continued bodily harm to the Plaintiffs 

and their children, although such bodily harm has yet to manifest itself (and therefore 

does provide any adequate legal remedy under Florida law), (at ¶¶ 51-52). Defendants‟ 

characterization of the allegations presented in Count I simply ignores all of these 

paragraphs of the Amended Complaint, and should be rejected for this reason alone. 

Moreover, these allegations are more than sufficient to meet the Twombly/Iqbal

standard.7 Compare, Sher, supra (claim for medical monitoring under Florida law 

survives motion to dismiss by merely asserting exposure to contaminants through 

negligence of Defendant and that those exposures have increased risk of contracting 

serious latent diseases for which means of early detection are available); Swartout v. 

Raytheon Co., 2008 WL 284953 (M.D. Fl. July 16, 2008) (denying motion to dismiss 

medical monitoring claim under Florida on the very same analysis as described in Sher); 

Stella v. LVMH Perfumes and Cosmetics USA, Inc., 564 F.Supp.2d 833 (N.D. Ill. 2008) 

 

7 Defendants‟ citation to Suarez v. Playtex Prods. Inc., 2009 WL 2212315 (N.D. Ill. July 

24, 2009), see Def. Mem. at 18, as supporting their argument before this Court to dismiss 

the Amended Complaint totally misses the mark. In Suarez, the federal court in Illinois 

merely observed that, in the special context of that case, there was no allegation that any 

of the plaintiff‟s children had even been exposed to defendant‟s product, and plaintiff had 

otherwise disclaimed all other personal injuries. The Court did make reference to, inter 

alia, Carey v. Kerr-McGee Chem. Corp., 999 F.Supp. 1109, 1119 (N.D. Ill. 1998), where 

the Court concluded that, under Illinois law, “a claim for medical monitoring” would be 

upheld in the face of a motion to dismiss “without requiring plaintiffs to plead and prove 

either a present physical injury or a reasonable certainty of contracting a disease in the 

future.” Here, Plaintiffs‟ Amended Complaint easily meets this test. And the decisions 

in Rink v. Cheminova, Inc., 203 F.R.D. 648 (M.D. Fla. 2001); Zehel-Miller v. 

Astrazeneca Pharm. LP, 223 F.R.D. 659 (M.D. Fla. 2004); and Perez v. Metabolife Int’l 

Inc.,218 F.R.D. 262 (S.D. Fla. 2003) provide no support for Defendants‟ effort to dismiss 

Count I. None of these cases even involved a motion to dismiss (or application of the 

Twombly/Iqbal standard) since they each merely address motions to certify the 

proceeding as class actions. 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 20

(denying motion to dismiss medical monitoring claims under Illinois law); In re FEMA 

Trailer Formaldehyde Prods. Liab. Lit., 2008 WL 5217594 at 19-20 (E.D. La. December 

12, 2008) (refusing to dismiss medical monitoring claims under Alabama, Mississippi, 

Texas, and Louisiana law); Fiorentino v. Cabot Oil & Gas Corp., __ F.Supp.2d __, 2010 

WL 4595524, at 6 (M.D. Pa. Nov. 15, 2010) (denying motion to dismiss medical 

monitoring claim under Pennsylvania law).8

2. Defendants Present No Cognizable Basis to Dismiss Count II

Although Defendants seek dismissal of Count II (which seeks relief based on 

strict liability for ultrahazardous activity), they do not challenge that such a cause of 

action is recognized under Florida law or that their conduct amounts to ultrahazardous 

activity as defined under Florida law. Rather, they merely assert that “the plaintiffs‟ 

request for a property remediation program” as pursued through this Count “is 

particularly inappropriate considering the logistical and practical nightmare inherent in 

establishing such a program.” Def. Mem. at 19. This is not a judicially recognized basis 

to dismiss any part of this Amended Complaint (and Defendants cite to no case which 

would suggest otherwise).

 

8

In Fiorentino, the United States District Court for the Middle District of Pennsylvania 

rejected the defendants‟ arguments against medical monitoring because defendants had 

“overlooked” the allegations of the complaint, viewed “as a whole.” Id. In this motion, 

Defendants have adopted the same tactic, which should be rejected here as well. And, as 

the Fiorentino court observed, “although a much greater showing is required to actually 

prove this claim, including expert testimony, we find that, at this stage in the litigation, 

Plaintiffs have sufficiently alleged plausible facts necessary to support a claim for 

medical monitoring.” Id. The allegations in the Amended Complaint in this case meet –

indeed exceed – those presented by the plaintiff in Fiorentino.

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 21

Nor do the Defendants assert that any court has ever dismissed a complaint based 

on this assertion, or that any court (from Florida or elsewhere) has ever held that a cause 

of action seeking such a remedy could not be pursued under Florida law. All they assert 

is that the Supreme Court of West Virginia has “directly rejected it.” Def. Mem. at 19 

(citing Carter v. Monsanto Co., 575 S.E.2d 342, 345-46 (W.Va. 2002). Based on our 

review of computerized databases, no court outside West Virginia has ever cited Carter

in any reported case, and no court – whether within or without West Virginia – has ever 

dismissed a complaint based on this ruling in Carter. 

In sum, Defendants have failed to demonstrate that, in order to proceed on this 

claim for property remediation, Plaintiffs are required to “provide[ ] the Court with a 

legal justification”, in order to withstand dismissal at this stage of the proceedings, as 

Defendants assert, Def. Mem. at 20. This attack, too, is simply baseless and should be 

rejected. 

3. Defendants Fail to Demonstrate Any Basis to Dismiss Count V

Count V asserts a cause of action, under a negligence per se theory, based on 

violations of “the Florida Air and Water Pollution Act, Fl. Stat. §403.11 et seq., and/or 

Florida‟s Water Quality Assurance Act, Fl. Stat. §376.30.” According to Defendants, this 

Count should be dismissed because “Plaintiffs‟ reliance on these statutes is dubious” 

because, in Defendants‟ view, these statutes are not intended to protect a particular class 

of people, but only the general public at large. Def. Mem. at 11. Defendants cite no 

authority for this proposition, because no case has ever so held. And the statutory 

language invoked by the Defendants, Def. Mem. at 12, simply provides no support for 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 22

this proposition since these passages merely indicate the reasons why the Legislature was 

enacting these statutes, not the actual scope, nature or effect of the other provisions 

enacted by the Legislature through these Acts. 

Moreover, Plaintiffs have properly pleaded that they “are members of the class of 

people that [these statutes] were designed to protect, and the harm suffered is of the type 

that the Acts were designed to prevent,” Amended Complaint, at ¶ 102. Recognizing that 

these allegations undermine their motion to dismiss this Count, Defendants demand that 

these allegations be ignored because they are “unsupported.” Def. Mem. at 11. This is 

not the applicable standard. Plaintiffs are not required to provide support for their 

allegations. Rather, this Court is directed to accept Plaintiffs‟ allegations – whether 

supported or unsupported – as true and correct. See, Steiner-Out, supra (“the Court must 

assume that all of the allegations in the complaint are true”). Hence, Defendants‟ attack 

on the applicability of the Florida statutes invoked in Count IV is simply baseless.

Defendants also charge that Count V fails to state a cause of action to the extent it 

relies on Florida‟s Water Quality Assurance Act both because Plaintiffs “(a) have not 

sufficiently alleged any nexus between defendants‟ alleged conduct and surface or 

ground water pollution, and (b) failed to allege that any discharge violated any [Florida 

Department of Environmental Protection] standard.” Def. Mem. at 12-13. These attacks 

are easily answered – Plaintiffs are not required, under Rule 8(a) to allege any such nexus 

or to identify any particular standard which Defendants violated. Defendants cite no case 

law which would impose such a requirement. To the contrary, the case law is replete 

with cases in which the type and nature of the allegations in the Amended Complaint 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 23

have been held sufficient to meet the test under Rule 8(a). See, e.g., Powell v. Tosh, 2010 

WL 3395685 (W.D.Ky. Aug. 25, 2010) (refusing to dismiss negligence per se count 

which merely identified a statute by name and asserted, generally, that “Defendants are in 

violation of certain Acts, statutes and regulations to prevent air pollution. . . and such 

failure constitutes „negligence per se‟). Indeed, the federal courts have long held that a 

plaintiff need not even allege which laws or regulations the Defendant is being charged 

with violating, or how the violations occurred. See, e.g., Great Western Casualty Co. v. 

Volvo Truck North America, Inc., 2010 WL 4222924 at 2 (N.D. Ill., Oct. 20, 2010). This 

conclusion is derived from the long-settled principle that “plaintiffs in federal courts are 

not required to plead legal theories. . . . Even citing the wrong stature needn‟t be a fatal 

mistake. . . .” Id., citing Hatmaker v. Mem'l Med. Ctr., __ F.3d __, 2010 WL 3385191, at 

*1 (7th Cir. Aug. 30, 2010); Aaron v. Mahl, 550 F.3d 659, 665-66 (7th Cir., 2008); 

O'Grady v. Vill. of Libertyville, 304 F.3d 719, 723 (7th Cir. 2002); and Ryan v. Ill. Dep't 

of Children & Family Servs., 185 F.3d 751, 764 (7th Cir. 1999)).

In any event, and as Defendants concede, Plaintiffs expressly alleged that 

“waterborne transport of toxic and hazardous materials through runoff from the Site has 

resulted in some off-site contamination” which is the subject of this lawsuit, Amended 

Complaint at ¶ 47(e), and that “poor waste handling practices by Koppers Inc. and its 

predecessors resulted in contaminated ground water and soil.” Id. at ¶ 4. According to 

Defendants, these allegations are merely “bare-boned” and therefore “do not meet the 

Twombly and Iqbal standard.” Def. Mem. at 14. In this assertion, Defendants are simply 

wrong.

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 24

Rather, it is clear that the Amended Complaint includes sufficient allegations –

whether bare-boned, unsupported, or dubious – to provide Defendants “fair notice of 

what the claim is and the grounds upon which it rests.” Nothing more than this is 

required under the Twombly/Iqbal/Erickson standard, and Defendants have shown no 

reason why, in this case, a heightened standard of pleading should be imposed. 

III. DEFENDANTS FAIL TO ASSERT ANY BASIS TO

STRIKE ANY PART OF THE AMENDED COMPLAINT

In addition to their baseless and specious motion to dismiss, addressed above, 

Defendants also move to strike certain portions of the Amended Complaint under Rule 

12(f) of the Federal Rules of Civil Procedure.

A. The Motion to Strike Class Action Allegations Should be Denied or 

Postponed, Pending Resolution of Plaintiffs’ Motion to Extend Time 

Under Local Rule 23.1(B)

Defendants assert that the class action allegations should be stricken for failure to 

comply with Local Rule 23.1(B), because the Plaintiffs failed to move for class 

certification within the time frame set forth in that proceeding. Def. Mem. at 20. 

Defendants fail to cite any case law holding that the failure to comply with this local rule 

warrants action under Rule 12(f), especially where, as here, Plaintiffs have already 

addressed this matter by seeking an extension of the time frame for filing that motion. As 

Defendants do no more than incorporate their opposition to Plaintiffs motion for 

extension, see Def. Mem. at 20 note 8, this issue should be resolved in the context of the 

motion to extend, and warrants no further argument here at this time. Until resolution of 

the motion for an extension is resolved, the motion should be denied or postponed, since 

the only grounds upon which this motion rests would be rendered moot upon grant of 

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 25

Plaintiffs‟ motion for an extension of time. 

Plaintiffs further advise the Court that they have withdrawn Count VII of their 

Amended Complaint by previous Notice filed with the Court.

CONCLUSION

For all of the reasons set forth herein, Defendants have failed to demonstrate any 

basis upon which any Count should be dismissed or any aspect of the Amended 

Complaint should be stricken. To the contrary, when compared against the proper 

standards applicable under Rules 8(a), 12(b)(6) and 12(f), this Amended Complaint is 

fully compliant with all pleading requirements and no portion of the Amended Complaint 

is immaterial. Defendants‟ motion to dismiss or strike should be denied.

Respectfully submitted,

By: /s/ Ervin A. Gonzalez

Ervin A. Gonzalez 

Florida Bar Number 500720

Patrick S. Montoya

Florida Bar Number 0524441

COLSON HICKS EIDSON

255 Alhambra Circle, Penthouse

Coral Gables, Florida 33134

Telephone: (305) 476-7400

Facsimile: (305) 476-7444

Email: Ervin@colson.com

Email: Patrick@colson.com

Jordan L. Chaikin

Florida Bar Number 0878421

PARKER WAICHMAN ALONSO LLP

3301 Bonita Beach Road, Suite 101

Bonita Springs, Florida 34134

Telephone: (239) 390-1000

Facsimile: (239) 390-0055

Email: jchaikin@yourlawyer.com

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Parsons, et. al. v. Koppers, Inc., et. al.

Case No.: 1:10-cv-00071-MP-GRJ

Plaintiffs’ Memorandum in Opposition to Defendants’ 

Motion to Dismiss Amended Class Action Complaint and 

Class Allegations and Prayers for Relief [D.E.50]

Colson Hicks Eidson Colson Matthews Martínez Gonzalez Kalbac & Kane

255 Alhambra Circle, Penthouse, Coral Gables, Florida 33134 Telephone: (305) 476-7400 Fax: (305) 476-7444 26

Matthew McCauley 

Peter J. Cambs 

PARKER WAICHMAN ALONSO LLP

6 Harbor Park Drive

Port Washington, New York 11050-4647

Telephone: (516) 466-6500

Facsimile: (516) 466-6665

Email: mmccauley@yourlawyer.com

Email: pcambs@yourlawyer.com

Stuart Calwell

Thomas Rodd

THE CALWELL PRACTICE, PLLC

Law & Arts Center West

500 Randolph Street

Charleston, WV 25302

Tel: (Toll Free): (800) 876-5529

Tel: (Local): (304) 343-4323

Fax: (304) 344-3684

Email: scalwell@calwelllaw.com

Email: trodd@calwelllaw.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

electronically filed with the Clerk of Court this 2

st day of December 2010, by using the 

CM/ECF system which will send notice of electronic filing to all parties of record.

Case 1:10-cv-00071-MP -GRJ Document 61 Filed 12/02/10 Page 26 of 26