United States District Court, W.D. Washington, Seattle
CITY OF SEATTLE, a municipal corporation located in the County of King, State of Washington, Plaintiff,
MONSANTO COMPANY, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST
S. LASNIK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendants' motion to
dismiss. Dkt. # 34. Plaintiff, the City of Seattle
(“Seattle”), alleges that defendant Monsanto
Company (“Monsanto”) contaminated city water with
toxic chemicals and argues that Monsanto - along with its
successor corporations, also named as defendants - should
bear the cost of cleaning up that contamination. Defendants
move to dismiss, contending that Seattle's claims are
procedurally and substantively deficient. Having reviewed the
materials submitted by the parties,  and having heard oral
argument on the motion, the Court finds as follows.
biphenyls (“PCBs”) are synthetic chemical
compounds that were used in the production of a wide variety
of industrial and commercial products - ranging from
capacitors to paint to potato chip fryers - until January
1979, when Congress banned their manufacture and use through
the Toxic Substances Control Act. Dkt. # 31, ¶¶ 1,
3, 4, 76-77. By that time, PCBs were known to be toxic to
humans and animals and known to contaminate the environment
by readily leaching into surrounding materials, as well as
air, soil, and water. Dkt. # 31, ¶¶ 3, 4, 41,
then, evidence of PCBs' toxicity has only increased: PCBs
appear to affect the immune system, the nervous system, the
reproductive system, and the endocrine system; most recently,
research has linked PCBs to human cancer. Dkt. # 31,
¶¶ 42-53. Humans are exposed to PCBs by eating,
breathing, or touching contaminated matter. Dkt. # 31, ¶
43. Children are particularly vulnerable to the toxic effects
of PCBs. Dkt. # 31, ¶ 52.
1935 to 1979, Monsanto was the sole manufacturer of PCBs in the
United States. Dkt. # 31, ¶¶ 3, 29, 38. Monsanto
trademarked its PCBs as “Aroclor, ” Dkt. # 31,
¶¶ 3, 38, and promoted them for use in a wide range
of industrial and household goods, including electrical
equipment, paint, sealants, food cookers, furnaces, floor
wax, insecticides, lubricants, moisture-proof coatings,
papers, asphalt, leather adhesive, and stucco. Dkt. # 31,
¶¶ 39, 76-78. Though Monsanto was aware of
PCBs' toxicity and propensity to leach, it denied or
misrepresented those facts to government investigators. Dkt.
# 31, ¶¶ 80-83. Monsanto continued to manufacture,
promote, and profit from its PCBs. Dkt. # 31, ¶¶
PCBs contaminate streets, drainage systems, and waterways
within Seattle. Dkt. # 31, ¶¶ 5-14. In particular,
PCBs have been detected in the drainage systems connected to
the East and Lower Duwamish Waterways; due to their
contamination, those waterways are listed on the U.S.
Environmental Protection Agency's (“EPA”)
National Priorities List as Superfund Sites. Dkt. # 31,
¶¶ 10-14. Since the late 1990s, the EPA, the
Washington Department of Ecology, King County, private
entities, and Seattle itself have conducted a number of
investigations to determine the extent of the contamination.
In December 2000, several of these entities voluntarily
entered into an Administrative Order on Consent requiring
investigation and development of remedial alternatives. Dkt.
# 35-2, Ex. 11 at 4. To date, Seattle has already dredged 10,
000 cubic yards of PCB-contaminated sediment from the Lower
Duwamish Waterway, and additional clean-up and remedial
construction is underway. Dkt. # 35-2, Ex. 11 at 5.
March 2013, pursuant to a consent decree with the EPA and the
Washington Department of Ecology, Seattle agreed to construct
an improved storm- and wastewater treatment facility to
reduce sewer overflows into its waterways. Dkt. # 31, ¶
9; Dkt. # 35-8, Ex. 21 at 4. This consent decree aims to
reduce contamination from a number of pollutants, including
PCBs. Dkt. # 35-8, Ex. 20, ¶ 49; Dkt. # 35-8, Ex. 21 at
November 2014, the EPA issued a Record of Decision selecting
a remedy for the Lower Duwamish Waterway Superfund Site; that
remedy will require Seattle to take further steps to reduce
contamination in the waterway. Dkt. # 31, ¶¶ 10-11;
Dkt. # 35-2, Ex. 11.
filed this lawsuit in January 2016. Dkt. # 1. The city claims
that Monsanto's production and promotion of a chemical
that it knew to be toxic and that now contaminates
Seattle's drainage systems and waterways renders Monsanto
liable under the tort theories of public nuisance, defective
design, failure to warn, negligence, and equitable indemnity.
Monsanto moves to dismiss all claims on the grounds that they
are preempted by Washington's Product Liability Act,
time-barred, and insufficiently pled. Dkt. # 34.
pleading rules require a complaint to include “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). This
requirement serves to “give the defendant fair notice
of what the claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 545 (2007) (internal marks and citation omitted).
Although the complaint's factual allegations need not be
detailed, they must sufficiently state a
“plausible” ground for relief. Id. at
544. “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, 556 U.S. 662, 678 (2009). The plausibility
standard is met when a complaint alleges “more than a
sheer possibility that a defendant has acted
unlawfully.” Id. “Dismissal is proper
only where there is no cognizable legal theory or an absence
of sufficient facts alleged to support a cognizable legal
theory.” Taylor v. Yee, 780 F.3d 928, 935 (9th
deciding a Rule 12(b)(6) motion to dismiss, the Court may not
consider any materials other than the pleadings, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice. Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). All well-pleaded allegations of material fact are
accepted as true and construed in the light most favorable to
the non-moving party. Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
argues that all of Seattle's claims are preempted by
Washington's Product Liability Act, RCW 7.72, et
seq. (“WPLA”). The WPLA “creates a
single cause of action for product-related harms that
supplants previously existing common law remedies.”
Wash. Water Power Co. v. Graybar Elec. Co., 112
Wn.2d 847, 860 (1989). The WPLA's statutory cause of
action preempts all product-related common-law claims based
on any substantive legal theory except fraud, intentionally
caused harm, or claims under Washington's Consumer
Protection Act. RCW 7.72.010(4). The WPLA does not, however,
preempt common-law claims that arose before the WPLA's
effective date of July 26, 1981. Macias v. Saberhagen
Holdings, Inc., 175 Wn.2d 402, 408 (2012) (citing RCW
4.22.920(1)). As explained below, none of Seattle's
claims are preempted.
claims for public nuisance and equitable indemnity are not
preempted because they are not common-law product liability
claims. Seattle's public nuisance claim is grounded on
statutory causes of action, see RCW 7.48.010, -.130,
not common law, so it is not preempted by the WPLA. See
Graybar, 112 Wn.2d at 853. Seattle's indemnity claim
is a common-law claim predicated on Monsanto's equitable
duty to Seattle, see Fortune View Condo. Ass'n v.
Fortune Star Dev. Co., 151 Wn.2d 534, 539 (2004);
Seattle grounds this duty in Monsanto's liability for
Seattle's other claims, see Dkt. # 31,
¶¶ 138-42. Though this piggybacking arguably
converts Seattle's equitable indemnity claim into a
“product-related” claim, it just as arguably
saves the indemnity claim from preemption by virtue of the
nuisance claim's statutory basis. Viewing the allegations
in the complaint in the light most favorable to Seattle, the
Court concludes that Seattle's equitable indemnity claim
is not preempted.
claims for product liability and negligence, however, are
common-law claims based on allegations of
“product-related harms” - here, harm to Seattle
caused by Monsanto's chemical products. See Dkt.
# 31, ¶¶ 113-17 (defective design), 121-28 (failure
to warn), 132-36 (negligence). Accordingly, those claims
appear to fall within the WPLA's definition of
“product liability claim[s], ” RCW 7.72.010(4),
which are preempted, Graybar, 112 Wn.2d at 860.
argues that its product liability claims are exempted from
the WPLA's preemptive scope because they are based on
allegations of intentional conduct. RCW 7.72.010(4) (carving
out exception for claims based on a substantive legal theory
of “intentionally caused harm”). It is true that
the WPLA does not preempt claims based on allegations of
intentional conduct. Bylsma v. Burger King Corp.,
176 Wn.2d 555, 560 (2013) (acknowledging that the WPLA
“does not preempt claims based on intentional
conduct”); see also Louisiana-Pacific Corp. v.
ASARCO Inc., 24 F.3d 1565, 1584 (9th Cir. 1994) (same).
Seattle's first amended complaint plausibly alleges that
Monsanto knew that its chemical products were toxic, yet
chose not to modify its toxic chemical products, or to warn
of their toxicity, in order to maximize its profits. Dkt. #
31, ¶¶ 54-83. Such a conscious decision constitutes
intentional wrongdoing. See Bradley v. Am. Smelting &
Refining Co., 104 Wn.2d 677, 682-83 (1985) (holding that
an “intentional” tort encompasses “an act
that the actor undertakes realizing that there is a high
probability of injury to others and yet the actor behaves
with disregard of those likely consequences”); cf.
Birklid v. Boeing Co., 127 Wn.2d 853, 865 (1995)
(holding that employer who knowingly exposed workers to toxic
chemical fumes had “deliberate intention” to harm
employees where employer had “actual knowledge that an
injury was certain to occur and willfully disregarded that
Seattle seeks relief for this conduct through product
liability causes of action for “defective design”
and “failure to warn, ” Dkt. # 31 at 23-25,
common-law claims which sound in either strict liability or
negligence, see Novak v. Piggly Wiggly Puget Sound
Co., 22 Wn.App. 407, 410-12 (1979). Both claims are now
clearly contemplated by the WPLA's “liability of
manufacturer” cause of action. RCW 7.72.030(1)
(“A product manufacturer is subject to liability . . .
if . . . the product was not reasonably safe as designed or
not reasonably safe because ...