Residential property owner of North Birmingham, Alabama, filed a putative class action against the owner of a steel mill and coke oven alleging negligence, wantonness, nuisance, and trespass. Property owner also asserted a claim for injunctive relief in the form of remediation and to halt additional contamination.
Defendant filed a motion to dismiss on the grounds of the 20-year Alabama rule of repose. The court issued an order denying the motion to dismiss for all claims except injunctive relief. The injunctive relief claim was dismissed. Plaintiff filed an amended complaint in October of 2012 – alleging the same exact claims as before, and again, having a claim for injunctive relief. Plaintiff’s amended complaint defined the residential property class as, “those within two miles from the Coke factory in Jefferson County, Alabama, who have damages resulting from the operating of the Coke factory from March 2, 1995, to the present.”
Defendant, again, filed a motion to dismiss. Plaintiff, again, filed a motion for leave to amend. Defendant claimed that Plaintiff failed to plead an ascertainable class and failed to meet the requirements of both Fed. R. Civ. P. 23(a) and 23(b). The court; however, disagreed, claiming the class definition was ‘precise, objective, and presently ascertainable…’ and further noting that the most significant improvement within the amended complaint was that of the defined boundary of residential properties – which went from long-term transient movement of wind and water to a two-mile limit makeable on a map. The Court granted Plaintiff’s motion for leave to replead a claim for injunctive relief.
The case is styled Moore v. Walter Coke, Inc., Case No. 2:11-cv-1391-SLB, 2013 WL 5519508 (N.D. Ala. 2013).