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Trimble v. Asarco, Inc.

ELR Citation: 31 ELR 20290
Nos. 99-2894, 232 F.3d 946/51 ERC 1609/(8th Cir., 11/28/2000)

The court upholds a district court's dismissal of landowners' Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims for response costs from a lead smelter for property contamination in Omaha, Nebraska. The district court dismissed the landowners' class action suit against the lead smelter under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, finding that the landowners had not incurred any necessary response costs and, therefore, did not meet all the essential elements of a CERCLA claim. The court first holds, however, that the district court should have analyzed the lead smelter's motion to dismiss under Fed. R. Civ. P. 12(b)(6). The landowners' CERCLA claim does not clearly appear to be immaterial and made solely for the purpose of obtaining jurisdiction, nor is it wholly insubstantial and frivolous. Additionally, because matters outside the pleadings related to response costs were presented to, and not excluded by, the district court, the lead smelter's motion to dismiss should have been converted to a summary judgment matter under Fed. R. Civ. P. 56. The court next upholds the dismissal of the landowners' CERCLA claim because it finds that the landowners failed as a matter of law to assert a legally viable private cost recovery claim under CERCLA. The landowners' attorneys, and not the landowners themselves, paid the response costs at issue, and the landowners will be obligated to reimburse their attorneys for such expenditures only if the landowners ultimately prevail in this litigation. The landowners have no existing obligation to reimburse their attorneys for the response costs allegedly incurred, and no such obligation will arise unless and until the landowners obtain a final judgment against the lead smelter, and then only to the extent of that judgment. The mere possibility, even the certainty, that an obligation to pay will arise in the future does not establish that a cost has been incurred, but rather establishes that a cost may be incurred.

The court next holds that the district court properly dismissed the landowners' state-law claims for lack of diversity jurisdiction because no member of the class could satisfy the $75,000 amount-in-controversy requirement.

Counsel for Plaintiff
Richard A. DeWitt
Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger
Commercial Federal Tower
2120 S. 72d St., Ste. 1250, Omaha NE 68124
(402) 391-6777

Counsel for Defendant
Stephen M. Bruckner
Fraser, Stryker, Meusey, Olson, Boyer & Bloch
500 Energy Plaza
409 S. 17th St., Omaha NE 68102
(402) 341-6000