McClurg v. MI Holdings, Inc.

933 F. Supp. 2d 1179, 2013 WL 1274737
CourtDistrict Court, E.D. Missouri
DecidedMarch 27, 2013
DocketNos. 4:12CV00361 AGF, 4:12CV00641 AGF
StatusPublished
Cited by6 cases

This text of 933 F. Supp. 2d 1179 (McClurg v. MI Holdings, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClurg v. MI Holdings, Inc., 933 F. Supp. 2d 1179, 2013 WL 1274737 (E.D. Mo. 2013).

Opinion

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District . Judge.

Plaintiffs in these two actions seek damages under the Price Anderson Act as amended in 1988, 42 U.S.C. §. 2210, et seq. (“PAA”), and various state law tort theories, for personal injuries and emotional distress they sustained as a result of multiple decades of exposure to hazardous, toxic, and radioactive substances handled by Defendants from 1943 to 1973 in the environs of North St. Louis County, Missouri. One action currently involves 13 Plaintiffs and eight Defendants; the other action currently involves 16 Plaintiffs and the same eight Defendants.

Now before the Court in each case are three motions to dismiss the complaint for failure to state a claim, and One motion to dismiss for failure to state a claim and for lack of personal jurisdiction. The motions to dismiss for failure to state a claim were filed by Defendants DJR Holdings, Inc., and Jarboe Realty and Investment Company, Inc. (jointly “the Jarboe Defendants”) (Doc. No. 39 in McClurg; Doc. No. 51 in ADAMS); Defendants Covidien, Inc., MI Holdings, Inc., and Mallinckrodt, Inc., (Doc. No. 63 in McClurg; Doc. No. 34 in ADAMS); and Defendant Cotter Corp. (“Cotter”) (Doc. No. 72 in McClurg; Doc. No. 42 in ADAMS). The motions to dismiss for failure to state a claim and for lack of personal jurisdiction were filed by Defendants Associates First Capital Corp. (“AFC”) and Citigroup, Inc. (Doc. No. 98 in McClurg; Doc. No. 68 in ADAMS).

Also before the Court are Defendants’ requests that the Court enter a Case Management . Order patterned after Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J.Super. Nov. 18, 1986), that would require Plaintiffs to define their injuries with precision and to produce some evidence of causation prior to any discovery taking place. For the reasons set forth below, AFC and Citigroup’s motion to dismiss for lack of personal jurisdiction shall be granted. The remaining motions to dismiss shall all be granted with respect to Plaintiffs’ state law claims, while Plaintiffs’ request for the right to file amended complaints will be granted with respect to their claims under the PAA. These motion to dismiss will be denied at this point with respect to Plaintiffs’ claims under the PAA, without prejudice to filing new motions to dismiss addressed to any amended complaints filed by Plaintiffs. Should Plaintiffs fail to file amended complaints within the time allowed, these actions will be dismissed- Defendants’ request for a Lone Pine Order shall be denied as moot at this point, also without prejudice to reasserting such a request after any amended complaints are filed.

BACKGROUND

The two complaints are virtually identical with respect to the alleged relevant conduct of Defendants or their predecessors in interest, and the theories of liabili[1182]*1182ty. Plaintiffs allege that from 1942 to 1957, under contract with the United States Army in connection with the Manhattan Project, and later under contract with the Atomic Energy Commission, Mallinckrodt Chemical Works processed natural uranium into various uranium compounds at a facility in downtown St. Louis, Missouri, designated as the St. Louis Downtown Site (the “SLDS”). When the SLDS ran out of space to store the radioactive residues from the production process, a 21.7-acre tract of land, designated as the St. Louis Airport Site (the “SLAPS”) in north St. Louis County, Missouri, was procured to store the residues. By 1960, there were approximately 50,000 empty drums and approximately 3,500 tons of miscellaneous contaminated steel and alloy scrap stored onsite at the SLAPS. The SLAPS and adjacent properties became contaminated with radioactive substances as a result.

During the 1960’s, private companies purchased the radioactive residues being stored at the SLAPS and began hauling them to a site bn Latty Avenue in Berkeley, Missouri, in north St. Louis County.' Part of this site later became the Hazel-wood Ifrterinr Storage Site (“HISS”). From there, the residues were sold for their commercial value and shipped to various other destinations. Transport and migration of the radioactive residues to and from the SLDS, the SLAPS, and the HISS also spread radioactive substances along haul routes to nearby Vicinity Properties (‘VPs”).

The SLAPS VPs consist of approximately 78 recreational and residential properties, including properties along Coldwater Creek. The federal government added the SLDS, the SLAPS, the HISS, and the VPs to the Formerly Utilized Sites Remedial Action Program (“FUSRAP”), an environmental remediation program that addresses radiological contamination generated by development of atomic weapons in the 1940s and 1950s.

The complaints further allege that from 1962 through 1966, Contemporary Metals Corporation (“CMC”) removed approximately 125,000 tons of radioactive residues from the St. Louis facilities to its Hazel-wood, Missouri, facility. Continental Mining & Milling Co. (“CMMC”) removed uranium-bearing residues from the SLDS and transported the residues to the HISS to extract by-products for resale. In 1966, CMMC was authorized to possess 125,000 tons of uranium and thorium, a portion of which was moved to the processing site at Latty Avenue. Between 1966 and 1969, Commercial Discount Corporation (“CDC”), CMMC’s successor, stored and dried uranium and thorium material before shipping it to Cotter in Colorado. In December 1969, Cotter purchased the remaining residues at Latty Avenue and dried and shipped them to Colorado at a rate of approximately 400 tons per day.

Paragraph 55 of each complaint alleges as follows: “Upon information and belief, the SLAPS and the Latty Avenue VPs, including impacted areas along Coldwater Creek, were contaminated with radium, thorium and uranium. Investigations have determined that contamination levels at the North St. Louis County Sites exceed federal dose limits.”

The complaints assert that MI Holdings, Inc., and Mallinckrodt, Inc., are the successors in interest to Mallinckrodt Chemical Works. AFC is sued individually and as successor-in-interest to CMC, CMMC, and CDC. The complaints allege that AFC acquired CDC in 1975 and that the “merger between AFC and CDC resulted in formation of The Associates Corporation.” Citigroup, Inc., is sued individually and as successor-in-interest to The Associates Corporation, that it allegedly acquired in 2000. The complaints allege that the two [1183]*1183remaining Defendants, that is, the Jarboe Defendants, purchased the Latty Avenue site in June 1977, and are the current owners of the HISS, the Future Coatings Site (used for manufacturing plastic coatings), and several Latty Avenue YPs, all of which have elevated levels of residual uranium and thorium. Plaintiffs maintain that as the current property owners, the Jarboe Defendants are responsible for the nuclear contamination that allegedly continues to spread throughout nearby communities.

The complaints assert in general terms that “Defendants in this action have, at times material to this action, conducted various activities involving nuclear materials,” “are therefore engaged in the development, use and control of atomic energy within the meaning of the Atomic Energy Act, 42 U.S.C. § 2011

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Cite This Page — Counsel Stack

Bluebook (online)
933 F. Supp. 2d 1179, 2013 WL 1274737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclurg-v-mi-holdings-inc-moed-2013.