United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANTS' RENEWED MOTION TO
DISMISS AND DENYING PLAINTIFFS' MOTION FOR ATTORNEY FEES
F. Cox United States District Judge
matter is currently before the Court on: 1) Defendants'
Renewed Motion to Dismiss; and 2) Plaintiff's Corrected
Motion for an Award of Attorney Fees and Costs in Connection
with Defendants' Renewed Motion to Dismiss. The Court
finds that the issues have been adequately presented in the
parties' briefs and that oral argument would not aid the
decisional process. See Local Rule 7.1(f)(2), U.S.
District Court, Eastern District of Michigan. The Court
therefore orders that the motions will be decided upon the
briefs. For the reasons below, the Court shall DENY both
to represent a class of similarly situated neighbors, on
February 22, 2016, Plaintiff Gregory Cole filed this action
against Defendants Marathon Oil Corporation and Marathon
Amended Complaint was filed on March 8, 2016, adding Annie
Shields as an additional Plaintiff and adding Marathon
Petroleum Company LP as a Defendant. That Amended Complaint
is the operative complaint in this case. Plaintiffs'
Amended Complaint included three counts: “Private
Nuisance” (Count I); “Strict Liability”
(Count II); and “Negligence” (Count III).
April 18, 2016, Defendants filed a Motion to Dismiss, filed
pursuant to Fed.R.Civ.P. 12(b)(6), asserting that Plaintiffs
failed to allege sufficient facts to support their nuisance
and negligence claims, that Michigan's three-year statute
of limitations foreclosed recovery, and that there is no
stand-alone claim for strict liability.
Opinion & Order issued on October 25, 2016, this Court:
1) dismissed Count II of Plaintiff's Amended Complaint,
concluding that a stand-alone strict liability claim is not
viable under Michigan law; and 2) dismissed Plaintiff's
nuisance and negligence claims as time-barred under the
applicable statute of limitations. This Court did not address
Defendants' sufficiency-of-the-pleadings arguments.
filed a direct appeal, challenging the Court's dismissal
of the negligence and nuisance claims. Plaintiffs did not
challenge the Court's dismissal of Count II, the
stand-alone strict liability claim.
unpublished opinion issued on October 26, 2017, the United
States Court of Appeals for the Sixth Circuit reversed and
remanded, ruling that:
Any claims for alleged discharges occurring prior to February
22, 2013, which was three years prior to Plaintiffs'
complaint, are time-barred. See Mich. Comp. Laws §
600.5805(10); Garg, 696 N.W.2d at 660. Any claims
for discharges occurring after February 22, 2013, are timely.
See Gomez, 896 N.W.2d at 53 (“[T]hat some of a
plaintiff's claims accrued outside the applicable
limitations period does not time-bar all the plaintiff's
claims.”). The district court therefore erred in
dismissing the complaint as time-barred.
” Cole v. Marathon Oil Corp., 2017 WL 4857544
at *2 Fed.Appx. (6th Cir. October 26, 2017).
Mandate issued on November 20, 2017. On December 4, 2017,
Defendants filed a Renewed Motion to Dismiss (D.E. No. 42),
wherein Defendants continue to argue that Plaintiffs'
Amended Complaint “contains barely more than the basic
legal elements for nuisance and negligence claims” and
does not provide sufficient “factual allegations to
push their claims from possible to plausible under
Twombly and Iqbal.” (Id. at
filed a brief in opposition to the Renewed Motion to Dismiss,
along with a motion asking the Court to award them attorney
fees and costs, under 28 U.S.C. § 1927 and Fed.R.Civ.P.
11(b), for having to respond to the motion. (D.E. Nos. 46
& 47). In it, Plaintiffs argue:
The Sixth Circuit has all but ruled on Defendants'
Renewed Motion to Dismiss (Doc. No. 42). Judge Kethledge,
with the tacit agreement of His Honor's Sixth Circuit
Panel, not only declared that Plaintiffs' Amended
Complaint meets the pleading requirements of Fed.R.Civ.P. 8,
but rejected the very cases and arguments that Marathon now,
for a second time, impresses on Your Honor, including
Mourad v. Marathon Petroleum Company, LP, 2016 WL
3597618 (6th Cir. 2016) and, by extension, Acosta
Orellana v. Croplife Int'l, 2010 WL 1931689 (D.D.C.
2010), which Marathon relied upon in Mourad:
This is my second case with this plant. In the first one it
was really conclusory. * * * They just recite the elements.
This one, I mean, apparently, they learned from the last one.
Because this one, he's talking about release of odors.
Mr. German pointed out. It's not just a
recitation of the elements. ...