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, 

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., KOPPERS HOLDINGS INC., 

and BEAZER LIMITED, 

 Defendants. 

 

MOTION TO DISMISS AMENDED CLASS ACTION COMPLAINT OR, IN THE 

ALTERNATIVE, TO STRIKE CLASS ALLEGATIONS AND PRAYERS FOR 

RELIEF AND MEMORANDUM IN SUPPORT

 

 Defendants Koppers Inc. (“Koppers”) and Beazer East, Inc. (“Beazer”), 

respectfully move this Court to dismiss plaintiffs’ amended complaint pursuant to Fed. R. 

Civ. P. 12(b)(6). Plaintiffs’ amended complaint is replete with sweeping and conclusory 

allegations, and plaintiffs fail to allege meaningful facts supporting each plaintiff’s 

purported cause of action against each defendant. Plaintiffs’ boilerplate approach to 

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pleading is the very type of practice that the U.S. Supreme Court rejected in Bell Atlantic 

Corp. v. Twombly, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). 

Further, plaintiffs’ purported negligence per se claim fails for the additional 

reason that plaintiffs allege, in conclusory fashion, violations of statutes that are designed 

to protect the general public instead of a particular class of people. Plaintiffs’ claim for 

medical monitoring, the establishment of a property remediation program and other 

injunctive relief should be dismissed because plaintiffs have failed to make a prima facie

case for any equitable relief, much less provided the Court with any legal justification for 

requiring defendants to create and fund medical monitoring and property remediation 

programs. Finally, plaintiffs’ claim for violation of Florida’s Water Quality Assurance 

Act should be dismissed because plaintiffs have not sufficiently alleged the requisite 

nexus between defendants’ alleged conduct and surface or groundwater pollution, and 

they failed to allege that any alleged discharge violated any standard set by the Florida 

Department of Environmental Protection (“FDEP”). 

 Alternatively, the Court should strike plaintiffs’ class action allegations pursuant 

to Fed. R. Civ. P. 12(f) for plaintiffs’ failure to file a motion for class certification within 

ninety days of filing this action, as required by Local Rule 23.1(B). The Court should 

likewise strike all references in the amended complaint to the Pollutant Discharge 

Prevention and Control Act. Defendants submit the following memorandum of law in 

support of this motion. 

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MEMORANDUM OF LAW

INTRODUCTION AND SUMMARY

In this putative class action, a disparate group of alleged current and former 

residents of Gainesville, Florida, including property owners, tenants and minors, purport 

to assert nuisance, trespass, negligence, negligence per se, medical monitoring, strict 

liability and statutory claims based on the alleged emission of chemicals and dust during 

and after commercial wood treatment and charcoal/wood oil production operations 

conducted at a Superfund site (“the Site”) that has been monitored and regulated by the 

U.S. Environmental Protection Agency for decades. Plaintiffs’ original complaint named 

three defendants – Koppers, Beazer and Cabot Corporation – each of whom owned and 

operated a portion of the Site at different times and conducted different operations. In 

their amended complaint (“Complaint”), plaintiffs have dropped Cabot Corporation and 

added as defendants Koppers Holdings Inc. and Beazer Limited.1

 Plaintiffs do not allege 

that they have suffered any personal injury. In fact, plaintiffs specifically disavow “relief 

or remedy for any present physical injury or disease . . . nor do they assert that they have, 

in their body, dangerous levels or dosages of” any toxic substance. (Doc. 22 at ¶ 52). 

Rather, plaintiffs seek millions of dollars in alleged damages for one or more of the 

following disparate injuries: Diminished property value, loss of use and enjoyment of 

property, annoyance and inconvenience, and stigma.2

 

 

1

 Neither Koppers Holdings Inc. nor Beazer Limited have been served with the amended complaint. They 

have not joined in this motion. 

2

 The proposed “class affected area” is a two mile radius around the Site (Doc. 22 at ¶ 6) – a diverse area 

which would include the County and Federal courthouses, the main library at the University of Florida, the 

western edge of Gainesville Regional Airport and part of Ironwood Golf Club. 

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The Complaint is fundamentally deficient on several grounds. As the factual 

predicate for each claim, plaintiffs generically reference “[p]oor waste handling 

practices” and allege, in conclusory fashion, that defendants “caused and/or allowed the 

toxic and dangerous substances, contaminants, and hazardous materials . . . to leave the 

Site and enter” the alleged class affected area. (Doc. 22 at ¶¶ 4, 45). Plaintiffs do not 

allege any facts explaining how each defendant’s conduct was wrongful, when that 

conduct occurred, or how it impacted each plaintiff or his property. Rather, the 

Complaint treats all defendants as the same. 

Plaintiffs also fail to allege whether and how they or their respective properties 

were impacted by operations at the Site (if at all) or, for those plaintiffs who do not even 

own property, what facts purportedly give rise to any claim for relief. The Complaint 

does not describe how each plaintiff was harmed, when that alleged harm occurred, or 

what caused the alleged harm. Although the Complaint refers to alleged testing of soil 

and indoor dust at properties located within the “class affected area,” plaintiffs fail to 

identify the location of the properties tested or the concentration of any alleged exposures 

compared to naturally occurring background levels in the environment. Plaintiffs’ 

allegations thus fail to satisfy the pleading standards set forth by the Supreme Court in 

Twombly and Iqbal. 

Further, plaintiffs’ purported negligence per se claim fails for the additional 

reason that plaintiffs allege, in conclusory fashion, violations of statutes that were 

designed to protect the general public instead of a particular class of people. Plaintiffs’ 

claim for medical monitoring and other injunctive relief also fails because plaintiffs have 

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failed to allege a prima facie case for any equitable relief, much less provided the Court 

with any legal justification for requiring defendants to create and fund medical 

monitoring and property remediation programs. Finally, plaintiffs’ claim for violation of 

Florida’s Water Quality Assurance Act should be dismissed, as plaintiffs have not 

sufficiently alleged the requisite nexus between defendants’ alleged conduct and surface 

or groundwater pollution or that any discharge violated any standard set by the FDEP. 

For all these reasons, the Court should dismiss the Complaint pursuant to Fed. R. Civ. P. 

12(b)(6). 

 Alternatively, the Court should strike two groups of allegations pursuant to Fed. 

R. Civ. P. 12(f). First, because plaintiffs failed to move for class certification within 

ninety days of filing this action, paragraphs 1-2, 5-7, and 59-65 of the Complaint, and 

paragraphs A and B of plaintiffs’ request for relief in Count I and paragraphs A through 

C of plaintiffs’ request for relief in Counts II-VII, should be stricken pursuant to Local 

Rule 23.1(B). As of the date of this motion, more than 200 days have passed since 

plaintiffs commenced this action, and plaintiffs have failed to move for class certification. 

Plaintiffs’ inattention to this Court’s rules demonstrates they are not adequate class 

representatives. This Court should follow the prior decisions of this and other courts and 

strike plaintiffs’ class allegations. 

Second, to the extent the Court determines that plaintiffs have stated a claim for 

violation of Florida’s Water Quality Assurance Act, the references to the Pollutant 

Discharge Prevention and Control Act found in paragraphs 115-117 and 121-123 of the 

complaint should be stricken. The Pollutant Discharge Prevention and Control Act is 

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separate and distinct from the Water Quality Assurance Act, and it applies only to 

pollution of State water or coastline property. Plaintiffs have not raised allegations of 

impact on State water or coastline property. References to that statute are immaterial and 

should be stricken. 

ARGUMENT 

A. PLAINTIFFS FAIL TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND 

THEIR COMPLAINT SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. P.

12(b)(6). 

1. Applicable pleading standard. 

 Prior to the Supreme Court’s decisions in Twombly and Iqbal, a complaint could 

not be dismissed for failure to state a claim “unless it appear[ed] beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to 

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Twombly “retired” Conley’s “no 

set of facts test” and emphasized that the plaintiff’s “[f]actual allegations must be enough 

to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555 (2007). In other words, the plaintiff must provide sufficient factual 

allegations to “state a claim to relief that is plausible on its face.” Id. at 570. 

 In Iqbal, the Court re-emphasized 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.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 

1949 (2009) (emphasis added). Complaints must have “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Id. The mere possibility that a defendant 

acted unlawfully, or the existence even of factual allegations that are consistent with the 

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defendant’s liability, are insufficient to survive a motion to dismiss. Id. And 

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. Only where “there are well-pleaded factual allegations, a 

court should assume their veracity and then determine whether they plausibly give rise to 

an entitlement to relief.” Id. This is a “context-specific task that requires the reviewing 

court to draw on its judicial experience and common sense.” Id.; see also Sinaltrainal v. 

Coca-Cola Co., 578 F.3d 1252, 1260-61 (11th Cir. 2009). 

 To state claims for strict liability, negligence, nuisance and trespass in the context 

of an action for environmental contamination, 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. The St. 

Joe Co. v. Leslie, 912 So. 2d 21, 24-25 (Fla. Dist. Ct. App. 2005). Consistent with this 

approach, while considering a claim for alleged property damage and personal injuries 

arising from radiation exposure, this Court recently confirmed that pleadings which 

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. See Calhoun v. U.S., No. 3:09-cv-268/MCR/MD, 2010 

WL 3277652, at *13-15 (N.D. Fla. June 30, 2010). 

2. Plaintiffs fail to allege any facts regarding the nature of each 

defendant’s alleged misconduct or the resultant harm suffered by 

plaintiffs. 

 Plaintiffs purport to seek relief against multiple defendants, each of whom owned 

a portion of the Site at different times and conducted different operations during its 

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period of ownership. Despite these important distinctions in each defendant’s 

involvement with the Site,3

 plaintiffs lump the defendants together and make no attempt 

to differentiate the nature of their alleged claims against each defendant. For example, 

plaintiffs generically allege that defendants “acquired, managed, and/or operated” wood 

treatment operations at the Site “and related and subsequent operations and activities at 

the Site.” (Doc. 22 at ¶¶ 20, 41). Plaintiffs further allege, without providing any details 

as to each defendant’s alleged misconduct, that defendants’ operations at the Site “caused 

and/or allowed the toxic and dangerous substances, contaminants, and hazardous 

materials . . . to leave the Site and enter” the alleged class affected area. (Doc. 22 at ¶ 

45). 

 Plaintiffs also fail to allege any facts suggesting that they personally have suffered 

property damage or any other injury – such as facts showing that their respective 

properties were physically impacted by chemical emissions from the Site or, for those 

plaintiffs who have never owned property, explaining what injury they allegedly suffered. 

Instead, plaintiffs merely allege that an unspecified “sample of residences in the Class 

Affected Area” was tested and that “Plaintiffs’ real property is contaminated.” (Doc. 22 

at ¶ 48). Plaintiffs further allege that samples of indoor household dust taken in January 

2010 contained elevated dioxin concentrations. (Doc. 22 at ¶ 49). There is no allegation 

as to which properties were tested, what chemicals to which plaintiffs and/or their 

properties purportedly were exposed or the concentration of those exposures compared to 

 

3

 As reflected in plaintiffs’ original complaint, there is a third entity (Cabot Corporation) that conducted 

even more disparate operations at the Site, and plaintiffs have tried to remedy their deficient allegations 

simply by dismissing Cabot from this action. However, to the extent that Cabot contributed to the alleged 

property contamination, as plaintiffs have contended it did, Cabot’s operations at the Site remain relevant. 

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naturally occurring background levels in the environment. Absent specific factual 

allegations that plaintiffs and their respective properties have been physically affected by 

a specific defendant during the time that plaintiffs owned or resided on those properties, 

plaintiffs cannot state claims for strict liability, negligence, negligence per se, nuisance or 

trespass. 

 Since Twombly and Iqbal, several federal courts have concluded that pleadings 

which collectively reference “defendants,” and do not allege facts to support a claim of 

injury, fail the Twombly and Iqbal standards. In this case, the Complaint does not set 

forth sufficient factual detail describing how and when each of the defendants allegedly 

caused harm to plaintiffs. Consequently, plaintiffs have failed to comply with Twombly

and Iqbal, and the complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 

See, e.g., Gomez v. Pfizer, Inc., 675 F. Supp. 2d 1159, 1162-63 (S.D. Fla. 2009) 

(dismissing negligence and strict products liability claims because plaintiffs made “no 

individualized allegations” against each defendant and, therefore, failed to allege how 

each defendant’s alleged conduct harmed them); Robbins v. Okla., 519 F.3d 1242, 1250 

(10th Cir. 2008) (noting that, “[g]iven the complaint’s use of either the collective term 

‘Defendants’ or a list of the defendants named individually but with no distinction as to 

what acts are attributable to whom, it is impossible for any of these individuals to 

ascertain what particular unconstitutional acts they are alleged to have committed”); Arar 

v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding plaintiff’s undifferentiated 

allegations concerning “defendants” did not comply with Twombly and Iqbal”); In re 

Travel Agent Comm’n Antitrust Lit., 583 F.3d 896, 905 (6th Cir. 2009) (holding 

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plaintiffs’ “vague allegations” about “defendants” or “defendants’ executives” did not 

comply with Twombly and failed to give adequate notice of each defendant’s alleged 

misconduct); Premier Assocs., Inc. v. EXL Polymers, Inc., No. 1:08-cv-3490-WSD, 2010 

WL 2838497, at *7 (N.D. Ga. July 19, 2010) (dismissing claim when claimant failed to 

identify damaged property with sufficient detail); Voggenthaler v. Md. Square, LLC, No. 

2:08-cv-1618-RCJ-GWF, 2010 WL 2998253, at *5-6 (D. Nev. July 22, 2010) (dismissing 

claim because plaintiff failed to allege sufficient facts showing harm from defendant’s 

conduct); Farash v. Cont’l Airlines, 337 Fed. Appx. 7, 9 (2d Cir. 2009) (holding plaintiff 

failed to state negligence claim because he did not specify “in what manner he was 

injured [and] how the [defendant] was negligent”). 

 Like in the cases cited above, plaintiffs here make no effort to delineate the nature 

of each defendant’s alleged harmful conduct and its alleged impact on them or their 

respective properties. Even construed in the most favorable light toward plaintiffs, the 

Complaint merely alleges that each of the defendants owned and operated a portion of the 

Site at some point in time, and chemicals allegedly migrated from the Site at some 

unspecified time onto properties located within a two mile radius of the Site. These 

allegations fall well short of the Twombly and Iqbal pleading standards. They fail to 

specify the nature of each defendant’s alleged misconduct or indicate when that alleged 

misconduct may have occurred or impacted each plaintiff. Accordingly, the Court should 

dismiss the Complaint. 

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3. Plaintiffs fail to state claims for negligence per se. 

 Plaintiffs’ negligence per se claim relies on unspecified violations of the Florida 

Water Quality Assurance Act (“WQAA”) and Air and Water Pollution Act (“AWPA”). 

(Doc. 22 at ¶¶ 99-104). Plaintiffs’ reliance on those statutes is dubious. The WQAA and 

AWPA are designed to protect the environment and general public in the State of Florida 

and not a particular class of people of which plaintiffs claim to be members. Florida law 

does not provide a cause of action for negligence per se when the statute that the 

defendant allegedly violated is not designed to protect a particular class of people. 

Therefore, plaintiffs fail to state a claim for negligence per se, and the Court should 

dismiss that claim. 

In Florida, a statutory violation constitutes negligence per se in only two limited 

circumstances: (1) if the statute is designed to protect a particular class of persons who 

are unable to protect themselves; or (2) if the statute establishes a duty to take precautions 

to protect a particular class of persons from a particular type of harm. Any other alleged 

statutory violation constitutes mere evidence of negligence. deJesus v. Seaboard Coast 

Line R.R. Co., 281 So. 2d 198, 201 (Fla. 1973). Accordingly, when a plaintiff alleges 

that the defendant violated a statute designed to protect the general public, rather than a 

particular class of people, he cannot maintain a claim for negligence per se based on that 

violation. See, e.g., Chevron USA, Inc. v. Forbes, 783 So. 2d 1215, 1219-20 (Fla. Dist. 

Ct. App. 2001). 

Despite plaintiffs’ unsupported allegations to the contrary (Doc. 22, ¶ 102), the 

WQAA and AWPA are not designed to protect a particular class of people. Instead, 

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those statutes are designed to protect the general public. The WQAA seeks to preserve 

surface and ground waters in the State of Florida. When it enacted the WQAA, the 

Florida legislature declared that “[s]pills, discharges, and escapes of pollutants . . . and 

hazardous substances . . . pose threats of great danger and damage to the environment of 

the state, to citizens of the state, and to other interests deriving livelihood from the state.” 

FLA. STAT. § 376.30(2)(b) (2010). When it enacted the AWPA, the legislature similarly 

declared that “pollution of the air and waters of this state constitutes a menace to public 

health and welfare” and specifically stated “the provisions of this act are enacted in the 

exercise of the police powers of this state for the purpose of protecting the health, peace, 

safety, and general welfare of the people of this state.” FLA. STAT. § 403.021(1),(5). 

Because the WQAA and AWPA are designed to protect the general public, 

plaintiffs cannot rely on alleged violations of those statutes to state a claim for negligence 

per se. The Court should dismiss plaintiffs’ negligence per se claim. 

4. Plaintiffs fail to state a claim for violation of Florida’s Water Quality 

Assurance Act. 

Plaintiffs’ claim for violation of the Florida Water Quality Assurance Act 

(“WQAA”) alleges that airborne emissions from the Site contaminated their property. 

(Doc. 22 at ¶¶ 46, 49 113, 118.) Plaintiffs claim that they are exposed to “toxic and 

hazardous substances at levels exceeding normal background levels,” but do not allege 

that any discharge from the Site violated any standard of the FDEP and caused a 

particular injury to them. Because Plaintiffs (a) have not sufficiently alleged any nexus 

between defendants’ alleged conduct and surface or groundwater pollution, and (b) failed 

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to allege that any discharge violated any FDEP standard, they have failed to state a claim 

for violation of the WQAA and the Court should dismiss that claim. 

a. The private cause of action created by the Water Quality 

Assurance Act does not apply absent a nexus between

defendants’ alleged conduct and pollution of surface or 

groundwater. 

Plaintiffs’ reliance on the WQAA to redress alleged “indoor household dust” 

contamination is misplaced. The Florida Legislature enacted the WQAA in 1983 to 

protect Florida’s surface and groundwater from pollution; the WQAA has no application 

to indoor dust. The Legislature specifically declared that: 

[T]he preservation of surface and groundwater is a matter 

of the highest urgency and priority, and that such use can 

only be served effectively by maintaining the quality of 

inland waters as close to a pristine condition as possible. 

FLA. STAT. §376.30(1) (1984 Supp.).4

 This expression of the Legislature’s original intent 

remains today. See FLA. STAT. ANN. §§ 376.30(1)(b)-(c), 376.30(4) (West 2010). 

The Florida Supreme Court has held that Section 376.313(3) creates a private 

cause of action that “allows private parties to sue for damages ‘resulting from a discharge 

or other condition of pollution covered by ss. 376.30-376.319.’” Aramark Uniform and 

Career Apparel, Inc. v. Easton, 894 So .2d 20, 22 (Fla. 2004). Consistent with the stated 

purpose of the WQAA, the private cause of action created by Section 376.313(3) is only 

available where there is some nexus between the defendant’s alleged conduct and 

pollution of “surface and ground waters.” See Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 

1216, 1220 n.1 (Fla. 2010) (noting that Section 376.313 “provides for individual causes 

 

4

 The WQAA, enacted in 1983 in Chapters 83-310, Laws of Florida, is currently codified in FLA. STAT.

ANN. §§376.30-376.318. 

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of action for pollution of surface and ground waters”). Indeed, the Florida Supreme 

Court has upheld Section 376.313(3) claims on only two occasions, each involving 

claims of surface or groundwater contamination. See Aramark, 894 So. 2d at 21 

(complaint alleged that chemical solvents on defendant’s property had seeped into the 

groundwater and then migrated onto plaintiff’s property, contaminating plaintiff’s soil 

and groundwater); Curd, 39 So. 3d at 1218 (complaint alleged that wastewater storage 

tank on defendant’s property overflowed, causing pollutants and hazardous chemicals to 

spill into Tampa Bay). 

Plaintiffs do not sufficiently allege the requisite nexus between defendants’ 

alleged conduct and surface or groundwater contamination. Instead, Plaintiffs allege that 

their properties and “indoor household dust” have been contaminated “through airborne 

transport from the Site.” (Doc. 22 at ¶¶ 46, 49.) Perhaps recognizing that these 

allegations are not sufficient to state a claim under the WQAA, Plaintiffs include in the 

complaint two vague, almost throw-away sentences regarding water. See Doc. 22 at ¶ 

47(e) (“upon information and belief, waterborne transport of toxic and hazardous 

materials through runoff from the Site has resulted in some off-site contamination of the 

Class Affected Area”); Doc. 22, ¶4 (“Poor waste handling practices by Koppers Inc. and 

its predecessors resulted in contaminated ground water and soil.”). These bare-boned 

allegations do not meet the Twombly and Iqbal pleading standards. Plaintiffs do not 

include allegations of any meaningful facts regarding how and when any alleged “runoff” 

from the Site occurred, what “toxic and hazardous materials” migrated from the Site 

through “waterborne transport,” or the location and levels of any alleged groundwater 

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contamination. In fact, plaintiffs do not allege that any water on their respective 

properties has ever been contaminated. Absent any sufficiently alleged nexus between 

defendants’ alleged conduct and surface or groundwater contamination, plaintiffs have 

failed to state a claim under the WQAA. 

b. Plaintiffs have not alleged any discharge in violation of any 

FDEP standards. 

Even if the WQAA applied to plaintiffs’ claims for alleged household dust 

contamination – which it does not – plaintiffs have still failed to state a claim for relief 

under that statute because they have not alleged that any emissions from the Site 

exceeded any standard set by the FDEP. The WQAA prohibits the “discharge [of] 

pollutants or hazardous substances into or upon the surface or ground waters of the state 

or lands, which discharge violates any departmental ‘standard.’”

5

 FLA. STAT. ANN. 

§376.302(1)(a) (West 2010) (emphasis added). Here, Plaintiffs merely allege that they 

have been exposed to “toxic and hazardous substances at levels exceeding normal 

background levels.” (Doc. 22, ¶ 52.) This is not sufficient to state a claim under the 

WQAA. 

In The St. Joe Company v. Leslie, 912 So. 2d 21 (Fla. Dist. Ct. App. 2005), for 

example, the plaintiffs brought a class action complaint, including a section 376.313 

claim, alleging that pollution from paper mill waste products caused soil and water 

contamination in the defined class area. In reversing the trial court’s certification of the 

 

5

 “Standard” is defined as “any rule of the Department of Environmental Protection relating to air and water 

quality, noise, solid-waste management, and electric and magnetic fields associated with electrical 

transmission and distribution lines and substation facilities.” It does not include “rules . . . which relate 

exclusively to the internal management of the department, the procedural processing of applications, the 

administration of rulemaking or adjudicatory proceedings, the publication of notices, the conduct of 

hearings, or other procedural matters.” FLA. STAT. ANN. § 403.803. 

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class, the appellate court noted that plaintiffs could not prevail on their section 376.313 

claim in the absence of “evidence that the waste, which the class representatives saw 

being dumped, exceeded DEP’s standards.” The St. Joe Co., 912 So. 2d at 25. Like the 

plaintiffs in St. Joe, plaintiffs here have failed to allege that any emission from the Site 

violated any FDEP standard. Thus, plaintiffs’ claim for violation of Florida’s Water 

Quality Assurance Act should be dismissed.

5. Plaintiffs fail to state a claim for medical monitoring and other 

“equitable and injunctive relief.” 

Plaintiffs seek money damages in this action. They claim that the amount in 

controversy exceeds five million dollars. (Doc. 22 at ¶ 36). Despite their request for 

millions of dollars in alleged damages, plaintiffs also request that the Court re-write 

Florida law by granting injunctive relief which would require defendants to create and 

fund comprehensive medical and environmental monitoring and property remediation 

programs. (Doc. 22 at ¶¶ 66-78, 84). Plaintiffs’ claim for medical monitoring and other 

“equitable and injunctive relief” should be dismissed. 

To state a claim for such injunctive relief, plaintiffs must, at a minimum, allege 

facts showing that they lack an adequate remedy at law and are at serious risk of 

continuing irreparable harm if the relief is not granted.6

 Sibley v. Lando, 437 F.3d 1067, 

1073 (11th Cir. 2005); Weaver v. Fla. Power & Light Co., 172 F.3d 771, 773 (11th Cir. 

1999). Plaintiffs simply allege that they “are without adequate remedy at law” and “will 

suffer irreparable harm if the Court does not render the injunctive relief and medical 

 

6

 It would be disingenuous for plaintiffs to contend that they are at serious risk of continuing irreparable 

harm as a result of wood treating operations at the Site, because those operations have been ceased for 

several months. 

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monitoring set forth herein,” but plaintiffs do not allege a single fact supporting either of 

these necessary elements. (Doc. 22, ¶¶ 67-68). Plaintiffs are not excused from alleging 

such facts merely because they assert their claims as part of a putative class action. See, 

e.g., Drayton v. Western Auto Supply Co., No. 01-10415, 2002 WL 32508918, at *4-5 

(11th Cir. Mar. 11, 2002) (holding putative class representatives not entitled to injunctive 

relief absent allegations of irreparable harm). Therefore, plaintiffs have failed to state a 

prima facie claim for any equitable relief, and Count I of the complaint should be 

dismissed in its entirety. See County of Monroe v. Priceline.com, Inc., No. 09-10004, 

2009 WL 4890664, at *6 (S.D. Fla. Dec. 17, 2009) (dismissing claim for injunctive 

relief). 

Putting aside plaintiffs’ failure to allege any facts warranting a request for 

injunctive relief, plaintiffs’ purported medical monitoring claim does nothing more than 

recite the elements of a medical monitoring cause of action, without pleading any facts to 

support the claim. To state a claim for medical monitoring, plaintiffs must plead facts 

showing: (1) exposure to a proven hazardous substance at greater than normal 

background levels; (2) the exposure was caused by the defendant’s negligence; (3) the 

plaintiff has a significantly increased risk of developing a serious latent disease as a 

proximate result of the exposure; (4) a monitoring procedure exists that makes the early 

detection of the disease possible; (5) the prescribed monitoring regime is different from 

that normally recommended in the absence of the exposure; and (6) the prescribed 

monitoring regime is reasonably necessary according to contemporary scientific 

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principles. Petito v. A.H. Robins Co., Inc., 750 So. 2d 103, 106-07 (Fla. Dist. Ct. App. 

2000), rev. denied, 780 So. 2d 912 (Fla. 2001). 

 The Complaint lacks any meaningful factual allegations regarding plaintiffs’ 

individual exposures and injuries. Plaintiffs do not allege any facts regarding their own 

purported exposures to “proven hazardous substances” or the concentrations of those 

exposures compared to normal background levels. Plaintiffs also do not allege any facts 

regarding the manner in which those purported exposures occurred or identify any 

negligent act of any defendant which allegedly caused their individual exposures. 

Finally, plaintiffs do not advocate a monitoring regime that would be any different from 

routine medical treatment or would be reasonably necessary for early detection of 

specific diseases. The allegations in plaintiffs’ medical monitoring claim constitute 

nothing more than legal conclusions which recite the elements for medical monitoring 

under Florida law. (See Doc. 22, ¶¶ 71-78). As specifically recognized by the Supreme 

Court in Twombly and Iqbal, such allegations are insufficient. See, e.g., Suarez v. Playtex 

Prods., Inc., No. 08 C 2703, 2009 WL 2212315, at *4 (N.D. Ill. July 24, 2009) (holding 

plaintiffs not entitled to medical monitoring absent allegations of actual exposure and 

showing that monitoring is necessary); see also Rink v. Cheminova, Inc., 203 F.R.D. 648, 

661-62 (M.D. Fla. 2001); Zehel-Miller v. Astrazenaca Pharm. LP, 223 F.R.D. 659, 664 

(M.D. Fla. 2004); Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262, 270-73 (S.D. Fla. 

2003).7

 

 

7

 In addition, Florida law is by no means settled that medical monitoring is a cognizable cause of action. 

The Florida Supreme Court has never spoken on the issue. Given this lack of guidance from the Florida 

Supreme Court, plaintiffs’ failure to plead meaningful facts in support of this claim for relief is even more 

problematic. Even if the Florida Supreme Court were to recognize this cause of action, defendants submit 

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Finally, plaintiffs’ request for a property remediation program is particularly 

inappropriate considering the logistical and practical nightmare inherent in establishing 

such a program. Plaintiffs offer no guidance regarding the scope and mechanics of their 

requested relief. For example, there are no allegations in the complaint regarding how 

the program would be funded, who would administer the program, who would be entitled 

to participate in the program, what standards would be used to determine eligibility for 

the program, what evidence would be necessary to prove eligibility for the program, who 

would be authorized to evaluate that evidence and determine whether potential 

participants qualify for participation, what standards would be used to determine when a 

qualified property has been remediated, or who would be authorized to make that 

determination. 

Considering this limited sample of the logistical questions and complications that 

would accompany establishing a property remediation program, it is not surprising that 

no Florida court has recognized ongoing property monitoring as permissible relief. In 

fact, the only state supreme court to address a claim for such relief has directly rejected it. 

See, e.g., Carter v. Monsanto Co., 575 S.E.2d 342, 345-46 (W. Va. 2002) (rejecting 

putative class representative’s request for injunction requiring chemical company and 

landfill owners to conduct testing to determine if the class members’ property had been 

damaged by exposure to dioxin, holding that “there is no common law cause of action in 

West Virginia for property monitoring”); State ex rel. E.I. Dupont De Nemours & Co. v. 

 

that Florida law at least would require more particularized pleading than what plaintiffs allege here. 

Because plaintiffs have not alleged sufficient facts which support their request for a medical monitoring 

program, the Court should dismiss that claim. 

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Hill, 591 S.E.2d 318, 326-27 (W. Va. Ct. App. 2003) (following Carter and rejecting 

plaintiffs’ request for an injunction requiring defendant to test class members for 

chemical compounds); see also Sanneman v. Chrysler Corp., 191 F.R.D. 441, 451-52 

(E.D. Pa. 2000) (rejecting request to make defendants pay for testing of class members’ 

vehicles). 

Plaintiffs, in short, have not made a prima facie case for any equitable relief, 

much less stated a claim for medical monitoring or provided the Court with any legal 

justification for requiring defendants to create and fund a property remediation program. 

Plaintiffs’ claim for medical monitoring and other injunctive relief should be dismissed. 

B. PLAINTIFFS’ CLASS ALLEGATIONS SHOULD BE STRICKEN FOR FAILURE TO 

COMPLY WITH LOCAL RULE 23.1(B).

 Plaintiffs filed this action on April 20, 2010. Pursuant to Local Rule 23.1(B), 

plaintiffs were required to move for class certification within ninety days after filing the 

complaint. See N.D. Fla. Loc. R. 23.1(B). As of the date of this motion, more than 200 

days since plaintiffs’ filed this action, plaintiffs have failed to move for class 

certification. On October 6, 2010, plaintiffs filed a nunc pro tunc motion for extension of 

time to file a motion for class certification. (See Doc. 23). That motion does not 

adequately explain any excusable neglect or good cause for plaintiffs’ failure to comply 

with Local Rule 23.1(B), and the Court should strike plaintiffs’ class allegations.8

 

8

 Contemporaneous with the filing of the instant motion, Defendants are filing a response in opposition to 

plaintiffs’ nunc pro tunc motion for extension of time to file a motion for class certification. Defendants 

incorporate their response herein by reference. 

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C. THE REFERENCES IN THE AMENDED COMPLAINT TO THE POLLUTANT 

DISCHARGE PREVENTION AND CONTROL ACT SHOULD BE STRICKEN PURSUANT 

TO FED. R. CIV. P. 12(f). 

Fed. R. Civ. P. 12(f) authorizes a court to “strike from a pleading an insufficient 

defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 

12(f). In the event the Court determines that Plaintiffs have stated a claim for relief under 

the WQAA, the references to the Pollutant Discharge Prevention and Control Act 

contained in Paragraphs 115-117, 119 and 121-123 of the Amended Complaint should be 

stricken. 

The Pollutant Discharge Prevention and Control Act (“PDPCA”), found in F.S.A. 

Sections 376.011-376.17 and 376.19-376.21, was enacted by the Florida Legislature in 

1970 to protect Florida’s coastline from oil spills. See FLA. STAT. ANN. § 376.021 (West 

2010) (stating “[l]egislative intent with respect to pollution of coastal waters and lands”); 

Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 328 (1973) (noting the PDPCA 

“imposes strict liability for any damage incurred by the State or private persons as a 

result of an oil spill in the State’s territorial waters”); Maloney, et al., FLORIDA WATER 

LAW at 418 (1980). The Legislature specifically declared that “the highest and best use 

of the seacoast of this state is as a source of private and public recreation” and that “such 

use can only be served effectively by maintaining the coastal waters, estuaries, tidal flats, 

beaches, and public lands adjoining the seacoast in as close to a pristine condition as 

possible.” FLA. STAT. ANN. §376.021(1) and (2) (West 2010). To that end, the PDPCA 

prohibits “[t]he discharge of pollutants into or upon any coastal waters, estuaries, tidal 

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flats, beaches, and lands adjoining the seacoast of the state.” FLA. STAT. ANN. 

§376.041(1) (West 2010). 

Plaintiffs cite to Section 205 of the PDPCA and reference several definitions from 

the PDPCA in the Amended Complaint. (See Doc. 22, at ¶¶115-117, 119, 121-123.) The 

cited provisions of the PDPCA have no bearing on this case, however, as plaintiffs are 

not claiming that any emissions from the Site polluted any State water or coastline.9

 

Thus, even if the Court determines that plaintiffs have stated a claim under the WQAA, 

their references to the PDPCA are immaterial and should be stricken pursuant to Fed. R. 

Civ. Pro. 12(f). 

CONCLUSION 

 For the foregoing reasons, the Court should dismiss the Complaint or, in the 

alternative, strike plaintiffs’ class allegations and all references to the Pollutant Discharge 

Prevention and Control Act. Defendants further request any further and alternative relief 

that the Court deems just and appropriate under the circumstances. 

CERTIFICATE OF CONFERENCE

 Pursuant to Local Rule 7.1, the undersigned hereby certifies that counsel for 

defendants, Koppers Inc. and Beazer East, Inc., has conferred with counsel for plaintiffs 

in a good faith attempt to resolve by agreement the issues raised in defendants’ Motion to 

Dismiss Amended Class Action Complaint or, in the alternative, to Strike Class 

Allegations and Prayers for Relief. During the course of said conference, counsel did not 

reach agreement regarding any of the issues raised in defendants’ motion. 

 

9

 It should not be lost on this Court that the proposed “class affected area” is as far inland as any point in 

Florida. 

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REQUEST FOR ORAL ARGUMENT 

 Koppers and Beazer hereby request oral argument on the issues raised in this 

motion. Defendants estimate that 45 minutes will be required for oral argument. 

Date: November 19, 2010 Respectfully submitted, 

s/ Paul K. Freeborn 

OF COUNSEL: 

Robert L. Shuftan (ILBN 3124475) 

Northern District Bar application to be 

submitted

shuftan@wildman.com 

David A. Kanter (ILBN 6187653) 

Admitted to Northern District Bar 9/30/10

kanter@wildman.com 

Brent R. Austin (ILBN 6220501) 

Admitted to Northern District Bar 9/29/10

austin@wildman.com 

Paul K. Freeborn (ILBN 6277489) 

Admitted to Northern District Bar 10/28/10

freeborn@wildman.com 

Megan C. Millirons (ILBN 6290249) 

Admitted to Northern District Bar 9/29/10

millirons@wildman.com 

Wildman, Harrold, Allen & Dixon LLP 

225 W. Wacker Drive, Suite 2800 

Chicago, IL 60606 

Phone: 312-201-2000 

Fax: 312-201-2555 

Benjamin H. Hill, III (FBN 094585) 

bhill@hwhlaw.com 

Dennis P. Waggoner (FBN 509426) 

dwaggoner@hwhlaw.com 

HILL, WARD & HENDERSON P.A. 

101 East Kennedy Blvd., Suite 3700 

P.O. Box 2231 

Tampa, FL 33602 

Phone: (813) 221-3900 

Fax: (813) 221-2900 

ATTORNEYS FOR DEFENDANTS 

KOPPERS INC. and BEAZER EAST, 

INC. 

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CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that on November 19, 2010 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 counsel of record in this action. 

s/ Paul K. Freeborn 

 

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