United States District Court, N.D. Alabama, Southern Division
[Copyrighted Material Omitted]
A Martino, Taylor — Martino PC, Mobile, AL, David M.
McMullan, John W Barrett, Barrett Law Group, P.A., Lexington,
MS, Gerald M. Abdalla, Abdalla Law, PLLC, Ridgeland, MS,
Richard R. Barrett, Law Offices of Richard R. Barrett, PLLC,
Oxford, MS, for Plaintiff.
Mathis, Butler Snow LLP, Birmingham, AL, Meaghan Goodwin
Boyd, Phil Sandick, W. Clay Massey, Alston & Bird, LLP,
Atlanta, GA, for Defendant.
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.
anyone who has tried to make guacamole with an unripe avocado
can tell you, sometimes doing something too early is just as
bad as doing something too late. An avocado that has not yet
ripened will leave even the best cooks with a guacamole that
is unappealing in both texture and taste. However, savvy
chefs can avoid this culinary catastrophe with the addition
of one extra ingredient: patience. In this case, the
plaintiff did not exercise patience. As a result, this case
is just like an avocado that will ruin an otherwise perfect
matter comes before the court on Defendant Colonial Pipeline
Company's motion to dismiss Plaintiff Valley Creek Land
& Timber, LLC's complaint under Federal Rule of Civil
Procedure 12(b)(6). (Doc. 15). In its complaint, Valley Creek
alleges that a gasoline spill from one of Defendant Colonial
Pipeline Company's gasoline pipelines contaminated Valley
Creek's property and diminished the property's value.
(Doc. 1). Colonial raises multiple arguments for dismissing
the complaint, including an argument that the case should be
dismissed as unripe because of ongoing contractual mitigation
efforts. (Doc. 15). For the reasons stated below, the court
will GRANT Colonial's motion to dismiss without prejudice
because Valley Creek's case has not yet become ripe for
Standard of Review
moves to dismiss Valley Creek's complaint under Rule
failure to state a claim for which relief can be granted.
See Fed.R.Civ.P. 12(b)(6). However, a dismissal on
ripeness grounds more properly falls under the umbrella of a
Rule 12(b)(1) dismissal for lack of subject matter
jurisdiction. See Fed.R.Civ.P. 12(b)(1); Reahard
v. Lee Cty., 30 F.3d 1412, 1415 (11th Cir. 1994)
(stating that the issue of ripeness goes to whether a
district court has subject matter jurisdiction). But, the
choice of which rule to apply makes little practical
difference because the court applies a standard of review
akin to that of Rule 12(b)(6) when a defendant facially
attacks subject matter jurisdiction under Rule 12(b)(1).
Carmichael v. Kellogg, Brown & Root Services,
Inc., 572 F.3d 1271, 1279 (11th Cir. 2009).
Supreme Court has explained that "[t]o survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to `state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint
states a facially plausible claim for relief "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citation
reflected in this Memorandum Opinion, documents attached to
the pleadings influence the considerations in this case. In
considering a Rule 12(b) motion, the Federal Rules of Civil
Procedure generally limit the court to assessing the face of
the complaint and its attachments. Fed.R.Civ.P. 12(b);
Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir.
2005). However, the court may also consider, without
converting the motion to dismiss to a motion for summary
judgment, documents attached to a motion to dismiss that are
central to the complaint and undisputed in their
authenticity. Thaeter v. Palm Beach Cty. Sheriff's
Office, 449 F.3d 1342, 1352 (11th Cir. 2006);
Day, 400 F.3d at 1276. The documents in this case
are all either attached to the complaint or central to the
complaint, and neither party disputes their authenticity.
Therefore, the court can consider the documents without
converting Colonial's motion to dismiss to a motion for
Creek, a land and timber investment company, states in its
complaint that it owns more than 5,000 acres of property in
Shelby County, Alabama, which it bought as an investment
ultimately intended for residential and commercial
development. (Doc. 1). Colonial has a gasoline pipeline that
runs near Valley Creek's property. On September 9, 2016,
a mining inspector discovered that Colonial's pipeline
had sprung a leak. The leak released approximately 300,000
gallons of gasoline onto Valley Creek's property.
the leak, multiple federal, state, and local agencies engaged
in a response effort. The Pipeline and Hazardous Materials
Safety Administration ("PHMSA")—a federal
agency overseeing pipelines—issued a corrective action
order to Colonial. The corrective action order enumerated the
details of the leak and required Colonial to, among other
things, take immediate action to address the leak, complete
an extensive failure analysis, and submit quarterly reports
to the agency. (Doc. 1-1). ...