Case: 3:20-cv-00273-DRC Doc #: 5 Filed: 07/07/20 Page: 1 of 20 PAGEID #: 134
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`VILLAGE OF CAMDEN, OHIO,
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`Plaintiff,
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`v.
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`CARGILL, INCORPORATED, et al.,
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`Case No. 3:20-cv-273-DRC
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`JUDGE DOUGLAS R. COLE
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`MAGISTRATE JUDGE
`SHARON L. OVINGTON
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`Defendants.
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`MOTION TO DISMISS OF DEFENDANTS CARGILL,
`INCORPORATED AND CENTRAL SALT L.L.C.
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`Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants Cargill, Incorporated (“Cargill”) and
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`Central Salt L.L.C. (“Central Salt”) (collectively “Defendants” or “Salt Companies”) move this
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`Court to dismiss the Complaint of Plaintiff Village of Camden, Ohio (“Camden” or “Village”)
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`for failure to state a claim for which relief can be granted. Camden waited to file its claims for
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`trespass and public nuisance under Ohio common law for almost 10 years after the claims arose
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`– almost six years after the expiration of the applicable four-year statutes of limitation in R.C.
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`2305.09(A) and (D).
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`In the event this case is not dismissed on the foregoing grounds, Defendants move under
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`the authority of Colorado River Water Conservation Dist. v. United States for a stay and
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`eventual dismissal of Camden’s request for a remediation injunction. 424 U.S. 800, 817 (1976).
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`This request for relief is an attempt to re-litigate a central issue already pending in a lawsuit filed
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`by the State of Ohio in the Court of Common Pleas for Preble County, Ohio (hereinafter, the
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`“State Court”).
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`MEMORANDUM IN SUPPORT
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`I.
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`STANDARD OF REVIEW
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`To survive a motion to dismiss, a complaint must contain “factual content that allows the
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`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint offering “labels and conclusions” or “a
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`formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678,
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`quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the
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`elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
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`556 U.S. at 678. Nor will a complaint survive dismissal if it tenders “naked assertion[s]” devoid
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`of “further factual enhancement.” Id., quoting Twombly.
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`A complaint must allege facts that, if accepted as true, are sufficient to raise a right to
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`relief above the speculative level and state a claim to relief that is plausible on its face. Hensley
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`Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009), citing Twombly, 550 U.S. at 555 &
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`570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
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`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Hensley Mfg., 579 F.3d at 609, quoting Iqbal, 556 U.S. at 678. Determining whether a complaint
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`states a plausible claim for relief is a context-specific task that requires the reviewing court to
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`draw on its judicial experience and common sense. Id., at 679. Where the well-pleaded facts do
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`not permit the court to infer more than the mere possibility of misconduct, the complaint fails to
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`allege “a short and plain statement of the claim showing that the pleader is entitled to relief” as
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`required by Fed. R. Civ. P. 8(a)(2). Id.
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`Ordinarily, a court cannot consider facts outside of the pleadings in ruling on a 12(b)(6)
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`motion to dismiss. Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997), citing Hammond v.
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`2
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`Baldwin, 866 F.2d 172, 175 (6th Cir.1989). However, a document attached as an exhibit to the
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`complaint is part of the complaint under Fed. R. Civ. P. 10. Weiner, 108 F.3d at 89. In addition,
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`a defendant may attach and a court may consider documents to a motion to dismiss that are not
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`formally incorporated by reference in a complaint, if the complaint refers to the documents and
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`the documents are central to the claims. Id.; Briggs v. Nat'l Union Fire Ins. Co. of Pittsburgh,
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`774 F. App’x 942, 948 (6th Cir. 2019). Otherwise, a plaintiff with a legally deficient claim could
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`survive a motion to dismiss simply by failing to attach a dispositive document upon which it
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`relied. Weiner, 108 F.3d at 89.
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`Notice pleading under Civil Rule 8 does not “unlock the doors of discovery for a plaintiff
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`armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. A plaintiff whose
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`complaint fails to allege facts supporting its conclusions is not entitled to discovery to search for
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`those facts. New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir.
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`2011). Otherwise, a plaintiff with “a largely groundless claim” would be able to leverage a
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`settlement through the in terrorem effect of expensive prospective discovery. Twombly, 550
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`U.S. at 557-58.
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`All factual allegations in a complaint that are well-pleaded in accordance with the above-
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`described criteria must be accepted as true. Twombly, 550 U.S. at 555. However, a court need
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`not accept legal conclusions as true, and legal conclusions couched as factual allegations are
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`insufficient to survive a motion to dismiss. Iqbal, 556 U.S. at 678.
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`A complaint showing on its face that relief is barred by an affirmative defense, such as a
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`statute of limitations, is subject to dismissal under Rule 12(b)(6). Rauch v. Day & Night Mfg.
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`Corp., 576 F.2d 697, 702 (6th Cir. 1978). Also see Peck, 894 F.2d at 846, 849 (time-barred
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`3
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`claims fail to state a claim for which relief can be granted and must be dismissed pursuant to
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`Rule 12(b)(6)). Because Camden’s Complaint is untimely, this case must be dismissed.
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`II.
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`THE COMPLAINT’S ALLEGATIONS PERTINENT TO THE
`STATUTES OF LIMITATIONS
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`Camden has filed an eight-page Complaint in this case that incorporates by reference a
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`19-page decision on summary judgment by the State Court in State of Ohio v. Rodney Good, et
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`al., Case No. 13 CV 029926. Doc. # 2, Complaint (“Compl.”), ¶ 7 (PageID # 74). The
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`Complaint refers to this state case as the “Related Action” and to the summary judgment
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`decision as the “July 29, 2019, Judgment Entry” (hereinafter, “Entry”). Id. Thus, under Fed. R.
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`Civ. P. 10 and the Sixth Circuit precedent described above, the Entry is part of the Complaint
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`and the Entry’s statements can be considered in this Motion to Dismiss. Camden did not attach a
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`copy of the Entry to its Complaint, so a copy is attached hereto as Exhibit A (Doc. # 4-1).
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`Additional pertinent information is contained in the contracts between the Salt
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`Companies and the companies owned and operated by Rodney and Tami Good (the “Good
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`Companies”), which are central to Camden’s claims as demonstrated by the reference to the
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`contracts in Paragraph 31 of the Complaint (PageID # 77) and by 17 references to them in the
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`Entry incorporated into the Complaint. Entry, pp. 3, 5, 6, 9, 10, 11, 12, 13, 16, 17 (PageID ##
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`89, 91, 92, 95-99, 102, 103). Thus, the Court may consider the contents of these contracts under
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`Sixth Circuit precedent as explained in Section I above, and these contracts are attached hereto as
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`Exhibits B (Doc. # 4-2) and C (Doc. # 4-3).
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`The Related Case is a lawsuit by the Ohio Attorney General’s Office on behalf of the
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`Ohio Environmental Protection Agency (“Ohio EPA”) pursuant to R.C. 6111.04(A) to address
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`the alleged contamination of the groundwater and Camden’s wellfield with chlorides from salt
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`stored at a site “less than a mile” from the wellfield. Entry, pp. 1, 3, 4 (PageID ## 87, 89, 90).
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`According to the Entry, the Good Companies constructed and operated a salt transloading
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`terminal (the “Goods’ Terminal”) for storing the Salt Companies’ road deicing salt. Id., pp. 2-3
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`(PageID ## 88, 89). The Good Companies included R. Good Rentals, LLC (“Good Rentals”), R.
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`Good Rail & Transfer, Inc. (“Good Rail”), and R. Good Enterprises, LLC (“Good Enterprises”).
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`Id. The Goods’ Terminal was located on land owned by Good Rentals, a company owned by
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`Tami Good. Id. Good Rentals leased that land to Good Rail, which is owned and operated by
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`Rodney Good. Id.
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`The Salt Companies’ contracts with the Good Companies required the Good Companies
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`to keep the salt on an impermeable storage pad, to operate the Good Terminal in compliance
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`with all laws, and to obtain all necessary permits. Id., p. 5 (PageID # 91). The Salt Companies’
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`expert witness on groundwater and environmental engineering found that compliance with these
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`contracts would have prevented groundwater pollution. Id., pp. 5-6 (PageID ## 91-92).
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`Notwithstanding the contracts’ requirements, the Good Companies allowed salt to spill
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`off the storage pad, dug dry wells to facilitate the seepage of salt-contaminated storm water into
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`the aquifer, and installed a drainage pipe conveying salt-contaminated storm water from the
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`Good Terminal to “right on top of Camden’s drinking water supply,” all of which were done
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`without the required environmental permits. Id., pp. 4, 11 (PageID ## 90, 97). Nevertheless, the
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`State Court decided that the Salt Companies were strictly liable under R.C. 6111.04(A),
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`contending that they chose a salt storage location over an aquifer, did not keep the salt piles
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`covered for some of the time (although the Salt Companies’ expert found that the Good
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`Companies’ compliance with the contracts would have prevented the pollution whether or not
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`the piles were covered), and did not train and supervise the Good Companies in their operations.
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`Id., pp. 8, 10, 13 (PageID ## 94, 96, 99). However, that court also observed:
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`There seems little question that Mr. Good made most of the bad decisions that
`led to the ruination of the Village of Camden’s water supply. Indeed, the
`State’s complaint was initially filed only against the various Good Defendants.
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`Id., p. 8 (PageID # 94).
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`In August 2010, Ohio EPA received a complaint that Camden’s water supply tasted salty.
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`Id., p. 4 (PageID # 90). At that time, Ohio EPA concluded that the salt piles on the Goods’
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`Terminal were the source of the contamination of Camden’s wellfield. Id. Consistent with this
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`conclusion, Camden admits that it discovered the wellfield contamination “late in 2010.”
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`Compl., ¶¶ 11, 22 (PageID ## 74, 76). The wellfield was shut down. Id., ¶ 47 (PageID ## 80-
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`81).
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`The Complaint alleges that the remaining chlorides in the soil and groundwater at the
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`Goods’ Terminal continue to migrate onto Camden’s property and into its old wellfield, thus
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`creating an ongoing trespass and public nuisance. Compl., ¶¶ 36, 39, 47, 50 (PageID ## 79, 80,
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`81). The Complaint concludes that “[t]he Defendants each, both individually as well as
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`collectively, retain control, individually and collectively, to stop the ongoing trespass onto the
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`Village’s property, but have knowingly and deliberately failed to exercise that control.” Compl.,
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`¶ 48 (PageID # 81).
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`However, neither the Complaint nor its incorporated Entry contain facts to support this
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`conclusory statement. In fact, documents referenced within the Complaint disprove this
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`conclusion. As stated in the Entry, the Salt Companies ended their salt storage at Goods’
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`Terminal by March 2011 at the latest. Entry, p. 3 (PageID # 89). Cargill’s “Storage and
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`Handling Agreement” with Good Rail expired on June 30, 2014, and Central Salt’s “Salt Depot
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`Agreement” with Good Enterprises expired on October 1, 2012. Doc. # 4-2, Exh. B, p. 1
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`(PageID # 107); Doc. # 4-3, Exh. C, pp. 1, 5 (at ¶ 11.1) (PageID ## 114, 118).
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`Camden asserts that the existence of chlorides on the Goods’ Terminal is an ongoing
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`public nuisance and trespass, contending that the salt continues to enter the aquifer upgradient
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`from its shutdown wellfield. Compl., ¶¶ 36, 47 (PageID ## 78-79, 80). Camden requests
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`damages for the capital costs and increased operating expenses resulting from its replacement of
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`the contaminated wellfield with a new wellfield. Id., ¶¶ 10, 11, 38 (PageID ## 74-75, 79) and
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`Prayer for Relief, ¶ 3 (PageID ## 81-82). Camden also requests an injunction requiring the Salt
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`Companies to remediate the Goods’ Terminal. Compl., Prayer for Relief, ¶ 4 (PageID # 82).
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`III. CAMDEN’S CLAIMS ARE TIME-BARRED UNDER R.C. 2305.09.
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`A.
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`R.C. 2305.09(A) and (D) Required Camden To File Its Claims Within Four
`Years After Discovering The Contamination Of Its Wellfield In August 2010.
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`It has long been the policy of Ohio law to require that actions involving allegations of
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`tortious conduct be asserted promptly. Lawyers Coop. Publ’g Co. v. Muething, 65 Ohio St.3d
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`273, 280 (1992). Consistent with that policy, Ohio law governs the timing of actions for trespass
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`and nuisance with two four-year statutes of limitations. R.C. 2305.09(A) specifically requires a
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`claim for trespass on real property to be filed within four years after the claim accrues.
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`Likewise, tort actions for damage to real property -- including trespass and nuisance claims -- are
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`subject to the four-year statute of limitations in R.C. 2305.09(D). A long line of Ohio case law
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`supports this conclusion. See Sexton v. City of Mason, 117 Ohio St.3d 275, 277, 2008-Ohio-858,
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`¶¶ 17-20; Harris v. Liston, 86 Ohio St.3d 203, 207 (1999); Stewart v. Allen, 2008-Ohio-1645, ¶
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`12 (9th Dist.); Weir v. E. Ohio Gas Co., 2003-Ohio-1229, ¶ 17 (7th Dist.); Brown v. Scioto Cty.
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`Bd. of Commrs., 87 Ohio App.3d 704, 717 (4th Dist. 1993).
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`Ohio follows the “discovery rule” for claim accrual. Harris, 86 Ohio St.3d at 205-206.
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`Under this rule, a claim accrues, and the statute of limitations begins to run, when the alleged
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`damage to property is discovered or reasonably should have been discovered. Id. at 207-208;
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`accord, Sexton, 117 Ohio St.3d at 284, 2008-Ohio-858, ¶53. If the initial discovery of the
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`problem occurred more than four years before the claim is asserted, it is barred by the statute of
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`limitations. Harris, 86 Ohio St.3d at 207-208.
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`Camden’s Complaint admits that the Village discovered the alleged damage to its
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`wellfield “late in 2010.” Compl., ¶¶ 11, 22 (PageID ## 74, 76). The Entry further pinpoints the
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`time of discovery to be August 2010. Entry, p. 4 (PageID # 90). Thus, Camden’s claims
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`accrued in August 2010, and the Village had to file its claims by August 2014.
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`B.
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`The Statutes Of The Limitations Are Not Tolled, Because The Salt Companies’
`Conduct Is Not “Continuing.”
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`Recognizing the lateness of its claims, Camden alleges that the Salt Companies are
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`engaged in continuing torts. A continuing tort would toll the statute of limitations under Ohio
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`case law. Sexton, 117 Ohio St.3d at 275, 2008-Ohio-858, ¶ 2.
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`However, the Ohio Supreme Court has determined that a tort against property is
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`continuing under Ohio law only if the tortious acts continue, as opposed to continuing damage
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`from past conduct. Id., 117 Ohio St.3d at 283, 2008-Ohio-858, ¶ 50-52. A tort is permanent
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`rather than continuous if the defendant is no longer engaged in the tortious activity, even though
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`the condition resulting from that past, completed conduct continues to damage the plaintiff’s
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`property. 117 Ohio St.3d at 281, 2008-Ohio-858, ¶ 41 (referring to the reasoning of the court of
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`appeals below that the Ohio Supreme Court affirmed). In so deciding, that court observed that
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`the Ohio law on continuing torts had been correctly summarized by the dissent in Nieman v.
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`NLO, Inc., 108 F.3d 1546, 1564 (6th Cir. 1997) (stating that “a proper continuing trespass count
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`requires allegation of ongoing wrongful conduct, rather than mere ongoing injury resulting from
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`a past, completed misdeed” (emphasis in original)). See also, Ashtabula River Corp. Grp. II v.
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`Conrail, Inc., 549 F. Supp.2d 981, 984 (N.D. Ohio 2008) (R.C. 2305.09(D) bars public nuisance
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`claims under Ohio law where wrongful acts have ceased, even though the injury persists);
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`Stewart, 2008-Ohio-1645, ¶¶ 12-16 (holding that no continuing trespass or nuisance was
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`occurring where the plaintiffs’ neighbors had stopped placing fill on their land, even though the
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`fill remained there and the resulting damage to plaintiffs’ septic system had not been remedied);
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`Frisch v. Monfort Supply Co., No. C-960522, 1997 WL 722796, at *3 (1st Dist. Nov. 21, 1997)
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`(defendants’ tortious act was completed and there was no ongoing conduct by the defendants, so
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`trespass and nuisance were permanent rather than continuing even though damage to the
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`plaintiff’s property continued). In contrast, a permanent trespass occurs when the defendant’s
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`allegedly tortious act has been fully accomplished. Sexton, 117 Ohio St.3d 275, 282, 2008-Ohio-
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`858, ¶ 45.
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`In Sexton, the Ohio Supreme Court found that a person who fails to terminate a defective
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`condition on property that continues to inflict fresh injuries on another landowner is engaged in a
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`continuing tort, but only if that person controls the offending property. The court distinguished
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`prior decisions in which defendants still owned the land that was causing the problem:
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`The defendant’s ongoing conduct or retention of control is the key to
`distinguishing a continuing trespass from a permanent trespass. We hold that a
`continuing trespass in this context occurs when there is some continuing or
`ongoing allegedly tortious activity attributable to the defendant. A permanent
`trespass occurs when the defendant's allegedly tortious act has been fully
`accomplished.
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`****
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`In comparing the situation in this case to the situations in Valley Ry. Co. and
`State v. Swartz, the dissent does not recognize the significance of the defining
`factor that distinguishes this case from those cases. The dissent states that
`“[t]he only factual difference” between this case and Valley Ry. Co. “is that the
`trespasser in Valley Ry. Co. continued to own the land from which water had
`been diverted, whereas in this case the trespasser sold the land from which
`water had been diverted.” The dissent additionally states that “the only
`apparent reason for the disparate outcomes” in this case and in Swartz “is that
`Swartz retained control over his property, whereas in this case the tortfeasor
`sold the property.” These supposedly minor distinguishing features
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`downplayed by the dissent go to the precise reason that a continuing trespass is
`fundamentally different from a permanent trespass. When a defendant retains
`control over a particular situation (as in Valley Ry. Co. and in Swartz ), the
`defendant has the ability to rectify the situation, the trespass is therefore a
`continuing one, and the running of the statute of limitations is tolled. However,
`when a defendant no longer exerts control over a particular situation (as in this
`case, in Harris, and in the appellate cases cited in this opinion), the defendant
`no longer has the ability to rectify the situation. In the latter circumstance, the
`trespass is permanent, so that it is entirely appropriate for the statute of
`limitations to run, and, thus, the plaintiff must bring suit within four years of
`the fully completed tortious act.
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`Sexton, 117 Ohio St.3d at 282-83, 2008-Ohio-858, ¶ 45, 49, n. 2 (emphasis added). Applying
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`this principle, the court found that the defendant developers in that case had constructed a storm
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`water system in a subdivision that continued to flood the plaintiffs’ land after the developers
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`finished and left the subdivision. Id., 117 Ohio St.3d at 275-76, 2008-Ohio-858, ¶¶ 4-5.
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`Nevertheless, the plaintiffs’ trespass claim accrued as soon as the developers finished the
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`subdivision and left the premises, because they had ceased their activities on and were no longer
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`in control of the subdivision. 117 Ohio St.3d at 285, 2008-Ohio-858, ¶ 55.
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`In defining a continuing tort, the Ohio Supreme Court cited with approval a number of
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`Ohio appellant decisions with the same reasoning. See, e.g., Weir, 2003-Ohio-1229, at ¶ 28
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`(because defendant had no control over the contaminated property, the trespass and nuisance
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`were not continuous); Abraham v. BP Exploration & Oil, Inc., 149 Ohio App.3d 471, 478,
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`2002-Ohio-4392, ¶ 28 (10th Dist.) (because defendant’s tortious activity, if any, stopped when it
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`vacated the premises and gave up possession and control of the property, trespass was not
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`continuous even though damages from the original violation persisted). Also see Town &
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`Country Co-Op, Inc. v. Akron Prod. Co., No. 1:11 CV 2578, 2012 WL 1668154, at *1, *2, & *9
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`(N.D. Ohio May 11, 2012) (trespass accrued under Ohio law as soon as the former owner sold
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`the property that its chemical spills had contaminated, even though chemical pollutants from
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`10
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`those spills continued to flow through the groundwater migrating onto the plaintiff’s property;
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`the trespass was not continuing, because the former owner no longer controlled the polluting
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`property).
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`In the Related Case, the State Court issued a judgment entry ruling on Camden’s motion
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`to intervene. See Doc. # 4-4, Judgment Entry, Feb. 27, 2020, attached as Exh. D.1 The State
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`Court denied Camden’s request to interpose its damages claims against the Salt Companies in the
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`Related Case, because intervention almost 10 years after discovering the contamination would be
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`untimely under the timeliness criteria of Ohio Rule of Civil Procedure 24. Citing Ashtabula
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`River Corp., the State Court found that a public nuisance or trespass from salt contamination of a
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`wellfield is permanent, not continuing, since the Village discovered the wellfield contamination
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`in 2010 and the salt was removed in 2011. Id., at 2-3 (PageID ## 123-124).
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`Accordingly, the trespass and nuisance alleged by Camden are not continuing torts for
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`two reasons. First, any allegedly tortious activity by the Salt Companies has ceased, because
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`they stopped storing salt at the Goods’ Terminal no later than 2011. Entry, p 3 (PageID # 124).
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`Second, the Salt Companies have no control over the terminal, which is owned by Good Rentals
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`and leased by Good Rail. Id., pp. 2-3 (PageID ## 123-124). Any limited rights the Salt
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`Companies had at the terminal ended, at the latest, when Cargill’s contract with Good Rail
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`expired on June 30, 2014 and Central Salt’s contract with Good Enterprises expired on October
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`1, 2012. Doc. # 4-2, Exh. B, p. 1 (PageID # 107); Doc. # 4-3, Exh. C, pp. 1, 5 (at ¶ 11.1)
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`(PageID ## 114, 118).
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`1 For the purpose of this Motion to Dismiss based on the statutes of limitations, Defendants are using this entry only
`for the Court’s consideration of the legal discussion therein. Defendants are not providing it to establish any facts
`for consideration in ruling on the Motion to Dismiss pursuant to the statutes of limitations.
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`Camden attempts to undercut these facts by alleging in the Complaint that “[t]he
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`Defendants each, both individually as well as collectively, retain control, individually and
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`collectively, to stop the ongoing trespass onto the Village’s property, but have knowingly and
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`deliberately failed to exercise that control.” Compl., ¶ 48 (PageID # 81). However, the
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`Complaint does not identify any source of Salt Company control over the Goods’ Terminal.
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`Camden’s reference to “retain control” merely parrots the legal standard in Ohio case law for
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`demonstrating a continuing tort. See the above-quoted passage from Sexton, which uses “retain
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`control” or variations thereof four times to describe the legal standard for determining when a
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`tort is continuing. 117 Ohio St.3d at 282-83, 2008-Ohio-858, ¶ 45, 49, n. 2. This statement in
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`Paragraph 48 is not a fact; it is merely a conclusory statement asserted without supporting facts.
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`This statement does not survive Iqbal’s admonitions that “mere conclusory statements” and
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`“naked assertion[s]” devoid of “further factual enhancement” will not survive dismissal. 556
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`U.S. at 678. This statement lacks facial plausibility, because it contains no “factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” See Hensley Mfg., 579 F.3d at 609, quoting Iqbal, 556 U.S. at 678.
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`Since the Salt Companies do not control the Goods’ Terminal, Camden’s claim is not
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`rescued by the Complaint’s allegation that chlorides in the soil and groundwater at the Goods’
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`Terminal continue to migrate onto Camden’s property and into its former wellfield. Compl., ¶¶
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`36, 39, 47, 50 (PageID ## 79, 80, 81). This situation is analogous to that in Weir, where the
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`plaintiffs sought damages for the defendant’s leakage of pollutants onto the plaintiff’s land and
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`for the defendant’s failure to remove them. The plaintiffs contended that the continued presence
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`of the contaminants on their property constituted a continuing nuisance and trespass. 2003-Ohio-
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`1229, at ¶¶ 16, 29. The court found that, even though contaminants remained on the plaintiffs’
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`Case: 3:20-cv-00273-DRC Doc #: 5 Filed: 07/07/20 Page: 13 of 20 PAGEID #: 146
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`property, the gas company’s lack of control over the plaintiff’s land meant that the torts were not
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`continuing. Id. at ¶¶ 27-28. Similarly, the Salt Companies do not own or control the Goods’
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`Terminal, so the Defendants are not liable for a continuing tort and the statutes of limitations are
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`not tolled.
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`Camden’s claim also is similar to the plaintiff’s trespass claim in Town & Country. Like
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`Camden, the plaintiff in Town & Country argued that the ongoing flow of contaminants in
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`groundwater from another property was a continuing trespass causing ongoing damage. 2012
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`WL 1668154, at *1, *2, & *9. Like the Salt Companies, the defendant in Town & Country had
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`no control over the polluting property at the time of the lawsuit. Id. Therefore, the federal court,
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`applying Sexton, found that the ongoing flow of pollutants from the offending property to the
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`plaintiff’s property was not a continuous tort. Id.2 The holding in Town & Country conforms
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`with Sexton, where continued flooding of the plaintiff’s land was not a continuing tort, because
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`the defendant no longer controlled the subdivision.
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`Like the defendants in Weir and Town & Country, the Salt Companies are accused by
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`Camden of causing contamination that still exists but which allegedly resulted from activities
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`ending long ago. In Weir and Town & Country, the continued existence and releases of
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`contaminants from the land (i.e., the continuing injuries) did not change the courts’ conclusions
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`that the alleged torts were permanent and not continuing. Similarly, the continued existence of
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`salt contamination at and from the Goods’ Terminal does not establish a continuing tort. Just
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`like the plaintiffs in Weir and Town & Country, the Village waited too long to file its claims and
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`now they are barred by the four-year statutes of limitations.
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`2 Unlike Camden, the plaintiff in Town & Country timely filed within four years after discovering the contamination.
`Id., *9. Consequently, even though no continuing tort was occurring, the plaintiff could still pursue its claim. Id.
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`Case: 3:20-cv-00273-DRC Doc #: 5 Filed: 07/07/20 Page: 14 of 20 PAGEID #: 147
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`IV.
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`THE COURT SHOULD ABSTAIN FROM HEARING CAMDEN’S
`REMEDIATION CLAIM, WHICH IS AN ATTEMPT TO RELITIGATE AN
`ISSUE THAT THE STATE COURT, WITH THE VILLAGE’S PARTICIPATION,
`IS ALREADY ADJUDICATING.
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`Camden filed a motion to intervene in the Related Case to, inter alia, “have some voice
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`in the manner in which remediation of the damage to the Village’s water system might occur.”
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`See Doc. # 4-5, Judgment Entry of Jan. 23, 2020, 2nd page (PageID # 129), attached as Exh. E.3
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`The Salt Companies asked the State Court to allow Camden to intervene for the purpose of
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`litigating the State’s request for remediation of the chloride pollution at the Goods’ Terminal.
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`Id., 2nd and 3rd pages (PageID ## 129, 130). The State Court agreed, and granted Camden
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`permission to intervene for that purpose. Id., 3rd page (PageID # 130).
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`Now Camden has filed this lawsuit with a request for the same injunctive relief “to
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`remediate the contaminated soils and groundwater,” even though the State Court already has
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`jurisdiction over the same request for injunctive relief that the State of Ohio has requested on
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`behalf of Ohio EPA in the Related Case. Compl., Prayer for Relief, ¶ 4 (PageID # 82).
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`Allowing Camden to litigate its request for remediation for a second time not only would expend
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`the Court’s and parties’ time on an issue already litigated in State Court, but the Court’s decision
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`could conflict with or interfere with the State Court’s decision on remediation.
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`3 For the purpose of considering abstention only, Defendants ask the Court to take judicial notice of the facts in
`Exhibits D, E, and F hereto about the proceedings in the Related Case. The Court may take judicial notice of
`decisions and other public records of proceedings in other courts. Lyons v. Stovall, 188 F.3d 327, 333, n.3 (6th Cir.
`1999) (“federal courts may take judicial notice of proceedings in other courts of record,” including appellate briefs
`from a Michigan court of appeals). Taking judicial notice of matters of public record in the records of other courts
`does not convert a motion to dismiss into a motion for summary judgment. Nichols v. Muskingum College, 318 F.3d
`674, 677 (6th Cir. 2003); Ennenga v. Starns, 677 F.3d 766, 773–74 (7th Cir. 2012); Gen. Elec. Capital Corp. v.
`Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir.1997); Castanias v. Lipton, No. CIV.A. 11-296-HJW, 2012
`WL 1391921, at *1 (S.D. Ohio Apr. 20, 2012), report and recommendation adopted, No. C-1-11-296, 2012 WL
`4006420 (S.D. Ohio Sept. 12, 2012) (considering the record and decisions in an Ohio state court proceeding, which
`the courts may do without converting a motion to dismiss into a motion for summary judgment).
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`Case: 3:20-cv-00273-DRC Doc #: 5 Filed: 07/07/20 Page: 15 of 20 PAGEID #: 148
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`The U.S. Supreme Court has ruled that claims filed in federal court can be dismissed if
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`they are concurrently being litigated in state courts, for the purpose of “wise judicial
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`administration, giving regard to conservation of judicial resources and comprehensive
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`disposition of litigation.” Colorado River, 424 U.S. at 817; PaineWebber, Inc. v. Cohen, 276
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`F.3d 197, 206 (6th Cir. 2001). The courts sometimes refer to this doctrine as “Colorado River
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`abstention.” Bates v. Van Buren Twp., 122 F. App’x 803, 804 (6th Cir. 2004).
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`The threshold question in Colorado River abstention is whether there are parallel
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`proceedings in state court. Bates, 122 F. App’x at 806; Crawley v. Hamilton County Comm'rs,
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`744 F.2d 28, 31 (6th Cir.1984). “Exact parallelism” is not required: the state court proceedings
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`need not be identical, but merely “substantially similar.” Bates, 122 F. App’x at 806; Romine v.
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`Compuserve Corp., 160 F.3d 337, 340 (6th Cir.1998). Thus, it does not matter that the state case
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`is adjudicating additional issues not before the federal court. Id. There is also no requirement
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`that the parties in the state court proceedings be identical to those in the federal