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Chevron U.S.A. Inc. v. Apex Oil Co., Inc.

United States District Court, D. Maryland

October 20, 2015

CHEVRON U.S.A. INC.,
v.
APEX OIL COMPANY, INC., et al

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For Chevron U.S.A. Inc., Plaintiff: Ronald J Tenpas, LEAD ATTORNEY, Morgan, Lewis & Bockius, LLP, Washington, DC; Evynn M Overton, Beveridge & Diamond, P.C., Baltimore, MD; Steven Andrew Luxton, Morgan Lewis and Bockius LLP, Washington, DC.

For Apex Oil Company, Inc., Petroleum Fuel & Terminal Company, Defendants: Matthew M Bryant, Timothy Francis Maloney, LEAD ATTORNEYS, Joseph Greenwald and Laake PA, Greenbelt, MD; Amir H Ali, PRO HAC VICE, Jenner and Block LLP, Washington, DC; Gabrielle Sigel, PRO HAC VICE, Jenner and Block LLP, Chicago, IL.

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MEMORANDUM

J. Frederick Motz, United States District Judge.

Plaintiff Chevron U.S.A. Inc. (" Chevron" ) brings this lawsuit against Apex Oil Company, Inc. (" Apex" ) and Petroleum Fuel & Terminal Company (" PF& T" ) (collectively " defendants" ), seeking to recover damages that Chevron incurred as a result of contamination from an underground pipeline allegedly owned and operated by defendants in southeast Baltimore. Chevron brings claims under the Oil Pollution Act (" OPA" ), 33 U.S.C. § 2701 et seq. ; the Pipeline Safety Act (" PSA" ), 49 U.S.C. § 60121 et seq. ; the Maryland Environmental Article, Md. Code Ann., Envir. § 4-401 et seq. ; and Maryland common law. (ECF No. 1). Pending is defendants' motion to dismiss all claims against them. (ECF No. 16). The motion is fully briefed, and no oral argument is necessary. See Local Rule 105.6. For the reasons set

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forth below, the motion to dismiss is granted in part and denied in part.

BACKGROUND

This dispute involves alleged ongoing releases of petroleum products from an underground pipeline (the " Pipeline" ) in southeast Baltimore, adjacent to Baltimore's Harbor (the " Harbor" ). (ECF No. 1 ¶ 1). The Pipeline is 3.1 miles long, running east from a terminal on South Clinton Street to another terminal on Erdman Avenue. ( Id. ) Chevron's complaint concerns the portion of the Pipeline that runs between South Clinton and South Haven Streets and parallel to the northern boundary of property at 1801 South Clinton Street (the " Site" ), which is owned by a third party. ( Id. ) Gulf Oil Corporation (" Gulf" ) originally owned the Pipeline, but Chevron acquired it when the two companies merged in 1985. ( Id. ¶ ¶ 25-27). As a result of the merger, Chevron also took responsibility for Gulf's 1979 diesel release from the Pipeline, and entered into the Maryland Department of the Environment's (" MDE's" ) Oil Control Program to remediate the contamination. ( Id. ¶ 8).

Chevron alleges that defendants have owned and operated the Pipeline since September 1994, when they purchased it from Chevron. ( Id. ¶ ¶ 1, 9). In a Purchase and Sale of Assets Agreement (the " Agreement" ), the parties also agreed to the following: contamination occurring before the closing date of the Agreement, called " Covered Contamination," would remain Chevron's responsibility, whereas contamination occurring after that date, called " New Contamination," would be the responsibility of the buyer. ( Id. ¶ 9). The parties also agreed that if the impact of any New Contamination exceeded a certain threshold, the buyer would bear responsibility for both Covered and New Contamination. Id. Under the Agreement, the buyer was also required to promptly notify Chevron of any New Contamination, promptly act to minimize such contamination, and provide records, upon Chevron's request, concerning its compliance with laws and regulations related to its operation of the Pipeline. ( Id. ¶ 37).

Chevron alleges that defendants have violated federal and state laws governing the discharge of petroleum, have caused petroleum discharges from the Pipeline, and bear responsibility for costs associated with remediating the contamination. ( See id. ¶ 77). According to Chevron, it has incurred costs in excess of $30 million and continues to incur substantial costs to remediate the Site. ( Id. ¶ 3, 16).

Chevron filed a complaint in this court on February 6, 2015. The complaint asserts twelve counts, each against both defendants: breach of contract (Count I), contractual indemnification (Count II), cost recovery and contribution under the OPA (Counts III and IV); injunctive relief under the PSA (Count V); common law tort claims (Counts VI, VII, and VIII); cost recovery under Section 4-419 of the Maryland Environmental Article (Count IX); quasi-contractual relief (Counts X and XI); and declaratory relief (Count XII). Defendants filed a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, seeking dismissal of all twelve counts. (ECF No. 16).

STANDARD

Pursuant to Rule 12(b)(1), defendants contend that this Court lacks subject matter jurisdiction over several of Chevron's claims. A plaintiff carries the burden of proving that subject matter jurisdiction exists. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). When a defendant brings a Rule 12(b)(1) facial challenge, as the defendants do here, the district court " must apply a standard pattered on Rule 12(b)(6)

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and assume the truthfulness of the facts alleged." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009). The court should grant the Rule 12(b)(1) motion " only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotations and citation omitted).

Defendants also move to dismiss several of Chevron's claims under Rule 12(b)(6). To survive a motion to dismiss under this rule, a complaint must contain sufficient facts " to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations and citation omitted). When ruling on a 12(b)(6) motion, the court must " accept the well-pled allegations of the complaint as true," and " construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Accordingly, although the plaintiff need not provide " detailed factual allegations," it must " provide the grounds of [its] entitlement to relief" with " more than labels and conclusions," or " a formulaic recitation of the elements of a cause of action." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations and citation omitted).

ANALYSIS

Defendants move to dismiss each of the twelve counts in Chevron's complaint. This section is organized by type of claim rather than by count to more efficiently address the merits of the motion to dismiss.

I. Apex as a defendant

As a preliminary matter, defendants contend that Apex should be dismissed because it is not a proper defendant. At the outset of the complaint, Chevron defines Apex and PF& T " collectively as either 'Apex' or 'defendants.' " (ECF No. 1 ¶ 1). Thereafter, throughout the complaint, Chevron makes each of its allegations against the moniker " Apex" or " defendants." ( Id. ¶ ¶ 1-188). In their motion to dismiss, defendants argue that this " lumping" of the two entities is impermissible because Chevron failed to allege facts sufficient to pierce the corporate veil and hold Apex liable for its subsidiary PF& T, and because Chevron failed to specify the basis of each claim against each entity. (ECF No. 16, pp. 9-11).

As to defendant's argument that Chevron failed to allege facts sufficient to justify piercing the corporate veil, defendants are, of course, correct that absent extraordinary circumstances, a parent corporation is not liable for the acts of its subsidiary. See Antonio v. Sec. Serv. Of Am., LLC, 701 F.Supp.2d 749, 759 (D. Md. 2010). And Chevron does not contest that the complaint is devoid of any facts suggesting piercing the veil may be appropriate, let alone facts to overcome the " strong presumption of [the parent's] limited liability." Betof v. Suburban Hosp., Inc., No. 11-1452, 2012 WL 2564781, at *5 (D. Md. June 29, 2012) (internal quotations and citation omitted). But Chevron does not seek to hold Apex liable on the theory that it is PF& T's parent. Rather, it proceeds on the theory that both entities, because they own and operate the Pipeline, are liable for costs resulting from the leaking petroleum product.

To that end, Chevron alleges that both Apex and PF& T have " owned and operated" the Pipeline since " Apex purchased [it] from Chevron in 1994" (ECF

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No. 1 ¶ ¶ 1, 9); Chevron then proceeds to bring each of its claims against the defendants collectively.[1] Critically, however, the allegation that both Apex and PF& T own the Pipeline conflicts with other allegations in its complaint, and with Chevron's own attached exhibit. For Chevron also alleges that " Apex" (which it had defined as both Apex and PF& T) " has been the sole owner of the Pipeline since September 1, 1994." (ECF No. 1 ¶ 30) (emphasis added). And the Agreement (which Chevron attached to its complaint) is signed by Chevron and PF& T alone. Apex is not a party to the contract, and the contract contains no references to Apex. Although Chevron now argues that Apex and PF& T publicly represent themselves in ways that support its allegations, and attaches various exhibits in support of this argument, the Court cannot consider these documents. See Moore v. Hanger Prosthetics & Orthotics, Inc., No. 11-02448, 2011 WL 5873070, at *5 (D. Md. Nov. 21, 2011) (declining to consider allegations and exhibits ...


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