Brown v. Corteva, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:23-CV-1409-D

BEVERLY BROWN, et al., )

. Plaintiffs,

v. ORDER

CORTEVA, INC., et al., □

Defendants.

On October 6, 2023, Beverly Brown (“Brown”), Kenneth Engel (“Engel”), Shirley McNatt

(“McNatt”), and Robert Richards (“Richards”) (collectively, “plaintiffs”) filed a complaint against

Corteva, Inc. (“Corteva”), DuPont de Nemours, Inc. (“DuPont”), EIDP, Inc. (“EIDP”), the

Chemours Company (“Chemours”), and the Chemours Company FC, LLC (“Chemours FC”)

(collectively, “defendants”) [D.E. 1]. On December 5, 2023, defendants moved to dismiss

plaintiffs’ complaint for failure to state a claim [D.E. 19] and filed a memorandum in support [D.E.

20]. See Fed. R. Civ. P. 12(b)(6). On December 13, 2023, plaintiffs amended their complaint

[D.E. 21]. Plaintiffs allege: (1) negligence, (2) gross negligence, (3) negligence per se, (4) public

nuisance, (5) private nuisance, (6) trespass to real property, (7) trespass to chattel, and (8) unfair

and deceptive trade practices (“UDTPA”). See [D.E. 21] ff 83-120. On December 27, 2023,

defendants moved to dismiss plaintiffs’ amended complaint for failure to state a claim [D.E. 22]

and filed a memorandum in support [D.E. 23]. See Fed. R. Civ. P. 12(b)(6). On August 2, 2024,

plaintiffs responded in opposition [D.E. 36]. On August 16, 2023, defendants replied [D.E. 37].

As explained below, the court grants defendants’ motion to dismiss in part and denies it in part.

Plaintiffs’ negligence, gross negligence, private nuisance, and trespass to real property claims

survive.

. I.

In 1985, McNatt became a resident of Cumberland County. See Am. Compl. [D.E. □□□

77. McNatt has a residence connected to a private well. See id. In 1992, Brown became a resident

of New Hanover County. See id. at { 71. Brown has a residence connected to the public water

system. See id. In 2002, Engel became a resident of New Hanover County. See id. at 74. Engel

has a residence connected to the public water system. See id. In 2005, Richards became a resident

of Pender County. See id. at { 80. Richards has a residence connected to a private well. See id.

Plaintiffs allege as a result of defendants’ actions: (1) McNatt developed breast cancer and thyroid

disease, (2) Brown developed colon cancer and Graves’ disease, (3) and Engel and Richards

developed prostate cancer. See id. at 73, 76, 79, 82.

The Fayetteville Works Plant is located in Bladen County, North Carolina. See id. at q 28.

The Fayetteville Works Plant manufactures films, fibers, and specialty chemicals in five discrete

manufacturing areas including fluromonomers/nafion, polymer processing aid (“PPA”), butacite,

SentryGlas, and polyvinvyl fluoride (“PVF”). See id. at 30. Since the 1980s, defendants have

used PFAS at the Fayetteville Works Plant. See id. at J 33-34.

A drainage channel used at the outfall area exists from the Fayetteville Works Plant to the

Cape Fear River. See id. This segment of the Cape Fear River constitutes surface water, “making

it a source of water supply for drinking, culinary, or food processing purposes[,] as well as for

aquatic life propagation and maintenance of biological integrity (including fishing and fish),

wildlife, secondary recreation, and agriculture.” Id. at ]29. The wastewater from the Fayetteville

Works Plant flows from the outfall area through wastewater treatment plants. See id. at | 30. The

wastewater treatment plant dilutes the water with hundreds of thousands of gallons of Cape Fear

River water and then discharges the diluted chemicals into the Cape Fear River. See id. While the

dilution makes it harder to detect the chemicals, it does not reduce the contaminants flowing into

the river. See id. Additionally, the Fayetteville Works Plant has one stack that releases airborne

emissions of perfluoroalkyl, which results in additional water contamination of the Cape Fear

River. See id. at { 31.

Scientists have linked exposure to polyfluoroalky! substances (“PFAS”) to kidney cancer,

testicular cancer, prostate cancer, ovarian cancer, non-Hodgkin’s lymphoma, liver disease,

ulcerative colitis, thyroid disease, hypercholesterolemia, and pregnancy-induced hypertension.

See id. at PFAS remain in the environment, particularly in water, for years. See id. at { 39.

Defendants use Nacion byproducts 1 and 2 in their manufacturing process. See id. at { 33.

Additionally, in the early 2000s, following pressure from government regulators, defendants

replaced perfluorooctanoic acid (“PFOA”) with hexafluoropropylene oxide dimer acid (“GenX”)

in its manufacturing process for safety reasons. See id. at | 33. Defendants used GenX, despite

animal studies dating back to 1963 that demonstrated an association between GenX and various

negative health impacts on laboratory animals. See id. at ] 35. These animal studies indicate that

GenX may be as toxic or more toxic than PFOA and could result in adverse effects in humans

inciuding reproductive effects, developmental effects, liver effects, immune system disruption,

stomach, ocular, and tongue toxicity, and cancer. See id. at 1 36. Even with this knowledge,

defendants continued to discharge GenX into the Cape Fear River. See id. at] 37. GenX remains

in humans’ bloodstream longer than other PFAS, requiring testing other biomarkers to determine

GenX exposure over time. See id. at { 39.

.

In November 2016, North Carolina State University researchers published a study

identifying GenX and other PFAS in the Cape Fear River’s water at King’s Bluff from June 14,

2013, to December 2, 2013. See id. at 40-42. GenX levels reached 4,500 parts per trillion and

averaged at 631 parts on trillion, exceeding the state’s safety standard of 140 parts per trillion.

See id. at J 40.

On June 19, 2017, environmental regulators found GenX in quantities exceeding the state’s

safety standard at four wastewater treatment plants at Bladen Bluffs, NW Brunswick, Pender

County, and CFPU Sweeney. See id. at § 43. On June 20, 2017, Chemours announced it would

capture, remove, and safely dispose of the contaminated wastewater. See id. Nonetheless, “[v]Jery

recent testing” shows that plants and vegetables near the Fayetteville Works Plant remain

contaminated, meaning that residents potentially consumed PFAS discharged from the Fayetteville

Works Plant. Id. at J 44. .

In November 2018, North Carolina State University researchers tested Fayetteville Works

Plant neighboring residents’ blood and discovered that 99% of participants tested positive for

Nafion byproduct 2, reflecting more PFAS in their blood than individuals in other locations. See

id. at] 45. On February 25, 2019, Chemours and North Carolina entered a consent order requiring

Chemours to remediate its discharge of PFAS. See id. at J] 46-48. Nonetheless, it is “exceedingly

difficult . . . if not impossible” to remove PFAS from pipes, fittings, and fixtures. Id. at 7 50-53.

Additionally, defendants have attempted to shield assets from creditors and victims. See id. at 7

54-69.

On June 15, 2022, the EPA released new advisory drinking water levels capping GenX at

10 parts per trillion. See id. at J 49. “These new health advisories are ‘non-enforceable and non-

regulatory’ and ‘provide technical information to states agencies and other public health officials

on health effects, analytical methods, and treatment technologies associated with drinking water

contamination.’” Id.

tL -

A motion to dismiss under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency.

See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

554-63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S.

30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)

motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Igbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550

US. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the

facts and reasonable inferences “in the light most favorable to [the nonmoving party].” Massey v.

Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of ©

Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of

Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint’s legal conclusions,

“unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302

(quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff’s factual allegations must -

“nudge[] [his or her] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility”

into “plausibility.” Iqbal, 556 U.S. at 678-79.

“Determining whether a complaint states a plausible claim for relief. . . [is] a context

specific task that requires the reviewing court to draw on judicial experience and common sense.”

Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct,” the complaint does not suffice. Id.

When evaluating a motion to dismiss, a court considers the pleadings and any materials

“attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus.,

Inc., 637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs.

Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005).

A court also may consider a document submitted by a moving party if it is “integral to the

complaint and there is no dispute about the document’s authenticity” without converting the

-. motion into one for summary judgment. Goines, 822 F.3d at 166. “[I]n the event of conflict

between the bare allegations of the complaint and any exhibit attached . . . , the exhibit prevails.”

Id. (quotation omitted); see Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.

1991). Additionally, a court may take judicial notice of public records. See, e.g., Fed. R. Evid.

201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty.

Mem’! Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

In evaluating plaintiffs’ state-law claims, this court must predict how the Supreme Court

of North Carolina would rule on any disputed state-law issues. See Twin City Fire Ins. Co. v. Ben

Amold-Sunbelt Beverage Co., 433 F.3d 365, 369 (4th Cir. 2005). First, the court looks to opinions

of the Supreme Court of North Carolina. See Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir.

2016). If there are no governing opinions from that court, this court may consider the opinions of

the North Carolina Court of Appeals, treatises, and “the practices of other states.” Twin City Fire

Ins. Co., 433 F.3d at 369 (quotation and citation omitted). In predicting how the highest court of

a state would address an issue, this court must “follow the decision of an intermediate state

appellate court unless there is persuasive data that the highest court would decide differently.”

_ Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (quotation omitted); see Hicks

ex, rel, Feiock v. Feiock, 485 U.S. 624, 630 & n.3 (1988). Moreover, in predicting how the highest

court of a state would address an issue, this court “should not create or expand a [s]tate’s public

policy.” Time Warner Ent.-Advance/Newhouse P’ship v. Carteret-Craven Elec. Membership

Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted); see Day &

Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam); Wade v. Danek Med.., Inc., 182

F.3d 281, 286 (4th Cir. 1999).

A.

In count one, plaintiffs allege that defendants negligently discharged GenX from the

Fayetteville Works Plant. See Am. Compl. ff 83-90. Plaintiffs allege defendants breached their

duty of reasonable care by allowing contaminants to be released into the Cape Fear River, failed

to remediate the release of PFAS, and failed to warn plaintiffs. See id. Defendants respond that

plaintiffs have failed to allege a cognizable injury and that mere contamination alone is not

sufficient to state a claim. See [D.E. 23] 8-11.

Under North Carolina law, “[nJegligence is the failure to exercise proper care in the

performance of a legal duty which the defendant owed the plaintiff under the circumstances

surrounding them.” Dunning v. Forsyth Warehouse Co., 272 N.C. 723, 725, 158 S.E.2d 893, 895

(1968); see Moore v. Moore, 268 N.C. 110, 112, 150 S.E.2d 75, 77 (1966); Coulter v. Catawba

Cnty. Bd. of Educ., 189 N.C. App. 183, 185, 657 S.E.2d 428, 430 (2008). To state an actionable

claim, a plaintiff must plausibly allege that “(1) defendant failed to exercise due care in the

performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligent

breach of such duty was the proximate cause of the injury.” Whisnant v, Carolina Farm Credit,

204 Nc. App. 84, 93-94, 693 S.E.2d 149, 156 (2010) (quoting Guthrie v. Conroy, 152N.C.App.

15, 25, 567 S.E.2d 403, 410-11 (2002)); see Ward v. Carmona, 368 N.C. 35, 37, 770 S.E. 2d 70,

72 (2015); Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013); Fussell v. N.C.

Farm Bureau Mut, Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010).

As for duty, defendants owed to plaintiffs a duty to exercise ordinary care. See Fussell,

364 N.C. at 226, 695 S.E.2d at 440. “The duty of ordinary care is no more than a duty to act

reasonably.” Id., 695 S.E.2d at 440. Plaintiffs have plausibly alleged that defendants failed to act

reasonably in operating the Fayetteville Works Plant (e.g., by discharging chemicals including

GenX into the Cape Fear River even after learning of potential adverse health consequences

associated with the chemicals). See Am. Compl. ff] 33-42. As for proximate causation, defendants

may be held liable only for injuries “that were reasonably foreseeable and avoidable through the

exercise of due care.” Fussell, 364 N.C. at 226, 695 S.E.2d at 440. Plaintiffs have plausibly alleged □

that defendants could reasonably foresee that plaintiffs’ health would be harmed by discharging

chemicals from the Fayetteville Works Plant. See Am. Compl. f] 40—45, 89-90. Additionally,

plaintiffs have plausibly alleged that they suffered personal injury as a result of exposure to PFAS

and GenX that defendants discharged. See id. at ff 73, 76, 79, 82, 90. Accordingly, the court

denies defendants’ motion to dismiss count one. See, ¢.g., Nix v. Chemours Co. FC, LLC, 456 F.

Supp. 3d 748, 759-60 (E.D.N.C. 2019).

B.

In count two, plaintiffs allege that defendants’ alleged discharge of chemicals from the □

Fayetteville Works Plant constitutes gross negligence. See Am. Compl. ff 91-94. Defendants

argue that plaintiffs have not alleged actual damages. See [D.E. 23] 10-11.

“(T]he difference between ordinary negligence and gross negligence is substantial.”

Yancey v. Lea, 354 N.C. 48, 53, 550 S.E.2d 155, 158 (2001). “An act or conduct rises to the level

of gross negligence when the act is done purposely and with knowledge that such act is a breach

of duty to others, i.e., a conscious disregard of the safety of others.” Id., 550 S.E.2d at 158

(emphasis omitted); see Ray v. N.C. Dep’t of Transp., 366 N.C. 1, 13, 727 S.E.2d 675, 684 (2012);

Green ex rel. Crudup v. Kearney, 217 N.C. App. 65, 70-71, 719 S.E.2d 137, 141 (2011). “Gross

negligence is determined based on the facts and circumstances of each case... .” Ray, 366 N.C.

at 13, 727 S.E.2d at 684. Two factors are especially relevant: purposeful conduct and disregard

for the safety of others. See id., 727 S.E.2d at 684; Yancey, 354 N.C. at 53, 550 S.E.2d at 158.

Plaintiffs have eked across the line and plausibly alleged that defendants purposefully

discharged chemicals in disregard for the safety of others. See Am. Compl. fj 40-45, 92-93.

. Plaintiffs also have plausibly alleged that defendants’ conduct caused plaintiffs’ personal bodily

injuries. See id. at J] 73, 76, 79, 82, 94. Accordingly, the court denies defendants’ motion to

dismiss count two. See, e.g., Nix, 456 F. Supp. 3d at 760.

Cc

In count three, plaintiffs contend that defendants’ conduct is negligent per se. See Am.

Compl. 7 95-98. Plaintiffs contend that defendants’ conduct violates various federal and state

public safety statutes and regulations, including the Clean Water Act (“CWA”), the Resource

Conservation Recovery Act (“RCRA”), the Safe Drinking Water Act (“SDWA”), and the Solid

Waste Disposal Act (“SWDA”). See id. { 97. Defendants argue that plaintiffs made only _

conclusory allegations that do not satisfy plaintiffs” pleading burden. See [D.E. 23] 10-11.

“Negligence is the failure to exercise proper care in the performance of a legal duty which

the defendant owed the plaintiff under the circumstances surrounding them.” Dunning, 272 NC.

at‘725, 158 S.E.2d at 895. To establish actionable negligence, a plaintiff must show “(1) defendant

failed to exercise due care in the performance of some legal duty owed to plaintiff under the

circumstances; and (2) the negligent breach of such duty was the proximate cause of the injury.”

Whisnant, N.C. App. at 93-94, 693 S.E.2d at 156; see Ward, 368 N.C. at 37, 770 S.E.2d at 72;

Bridges, 366 N.C. at 541, 742 S.E.2d at 796.

9°

A statute or regulation may provide the required standard of care such that violation of the

statute or regulation is negligent per se (i.e., conclusively establishes both duty and breach of duty

in a plaintiff’s prima facie case). See, e.g., Hart v. Ivey, 332 N.C. 299, 303, 420 S.E.2d 174, 177

(1992); Estate of Coppick ex rel. Coppick v. Hobbs Marina Props., LLC, 240 N.C. App. 324, 328,

772 S.E.2d 1, 5-6 (2015). To prevail on a claim of negligence per se, a plaintiff must show:

(1) a duty created by a statute or ordinance; (2) that the statute or ordinance was

enacted to protect a class of persons which includes the plaintiff; (3) a breach of the

statutory duty; (4) that the injury sustained was suffered by an interest which the

statute protected; (5) that the injury was of the nature contemplated in the statute;

and (6) that the violation of the statute proximately caused the injury.

Rudd v. Electrolux Corp., 982 F. Supp. 355, 365 (M.D.N.C. 1997); see Nix, 456 F. Supp. 3d at

761; Baldwin v. GTE S.., Inc., 335 N.C. 544, 546-47, 439 S.E.2d 108, 109-10 (1994); Hardin —

York Mem’l Park, 221 N.C. App. 317, 326, 730 S.E.2d 768, 776 (2012).

Plaintiffs merely conclude that defendants’ conduct violates the CWA without further

explanation. Cf. Twombly, 550 U.S. at 555. Plaintiffs’ claims based on alleged violations of the □

RCRA, the SDWA, and the SWDA are similarly conclusory. Cf. Am. Compl. { 97. Accordingly,

the court grants defendants’ motion to dismiss count three. See, e.g., Nix, 456 F. Supp. 3d at 760—

61.

D.

In count four, plaintiffs allege that defendants’ discharge of chemicals from the Fayetteville

Works Plant constitutes a public nuisance. See Am. Compl. {J 99-104. Defendants argue that

plaintiffs fail to plausibly allege any unusual and special damage supporting a public nuisance

claim. See [D.E. 23] 13-14.

“A public nuisance exists wherever acts or conditions are subversive of public order,

decency, or morals, or constitute an obstruction of public rights.” State v. Everhardt, 203 N.C.

10

610, 617, 166 S.E. 738, 741-42 (1932) (quotation omitted); Twitty v. State, 85 N.C. App. 42, 49,

354 S.E.2d 296, 301 (1987). “A public nuisance affects the local community generally and its

maintenance constitutes an offense against the State.” Twitty, 85 N.C. App. at 49, 354 S.E.2d at

301. “Whatever tends to endanger life, or generate disease, and affect the health of the

community ... is penerally, at common law, a public nuisance... .” Everhardt, 203 N.C. at 618,

166 S.E. at 742.

Under North Carolina law, a private plaintiff must have standing to bring acclaim for public _

nuisance. See Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 113-14, 574

_ . §.E.2d 48, 51-52 (2002), abrogated on other grounds by Comm. to Elect Dan Forest v. Emps. Pol.

Action Comm., 376 N.C. 558, 853 S.E.2d 698 (2021). Unlike standing under Article Ill, standing

under North Carolina law refers “generally to a party’s right to have a court decide the merits ofa -

dispute.” Id. (collecting cases); see, ¢.g., Stanley v. Dep’t of Conservation & Dev., 284 N.C. 15,

28, 199 S.E.2d 641, 650 (1973). A private party has standing to bring a public nuisance claim “as

long as the party has suffered an injury that cannot be considered merged in the general public

right.” Neuse River Found., Inc., 155 N.C. App. at 115, 574 S.E.2d at 52 (cleaned up); see Barrier

v. Troutman, 231 N.C. 47, 49, 55 S.E.2d 923, 925 (1949) (“[N]o action lies in favor of an individual

in the absence of a showing of unusual and special damage, differing from that suffered by the

general public.”); Hampton v. N.C. Pulp Co., 223 N.C. 535, 543-44, 27 S.E.2d 538, 543-44

(1943); cf. Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 97 (4th Cir. 2011) (applying

West Virginia law and holding that there is no West Virginia statutory or common law authority

‘suggesting a class action exception to the special-injury rule).

To state a public nuisance claim as private parties, plaintiffs must allege “(1) injury to a

protected interest that cannot be considered merged in the general public right; (2) causation; and

11

(3) proper, or individualized, forms of relief.” Neuse River Found., Inc., 155 N.C. App. at 116,

574 S.E.2d at 53. Plaintiffs have not plausibly alleged that they suffered “unusual and special

damage” caused by defendants’ alleged interference with plaintiffs’ health. See Barrier, 231.N.C. □

at 49-50, 55 S.E.2d at 905 (collecting cases); Hampton, 223 N.C. at 54448, 27 S.E.2d at 544-47

(discussing injury to fishing business); Neuse River Found., Inc., 155 N.C. App. at 116, 574 S.E.2d

at 53. Accordingly, the court dismisses the public nuisance claim in count four. See, e.g., Nix,

456 F. Supp. 3d at 761-62. .

E.

In count five, plaintiffs also allege that defendants’ discharge of chemicals from the

Fayetteville Works Plant constitutes a private nuisance. See Am Compl. Ff] 99-104. Defendants

argue that plaintiffs fail to allege a private harm. See [D.E. 23] 12-13.

Under North Carolina law, plaintiffs seeking to recover for a private nuisance must show a

substantial and unreasonable interference with the use and enjoyment of their property. See Kent

v. Humphries, 303 N.C. 675, 677, 281 S.E.2d 43, 45 (1981); Morgan v. High Penn Oil Co., 238

N.C. 185, 193-94, 77 S.E.2d 682, 689 (1953); Barrier, 231 N.C. at 49-50, 55 S.E.2d at 925; BSK

Enters., Inc. v. Beroth Oil Co., 246 N.C. App. 1, 24-25, 783 S.E.2d 236, 252 (2016); The Shadow

Grp., LLC v. Heather Hills Home Owners Ass’n, 156 N.C. App. 197, 200, 579 S:E.2d 285, 287

(2003); Jordan v. Foust Oil Co., 116 N.C. App. 155, 167, 447 S.E.2d 491, 498 (1994); Grant v. E.I.

du Pont de Nemours & Co., No. 4:91-CV-55, 1995 WL 18239435, at *5 (E.D.N.C. July 14, 1995)

(unpublished). An interference is substantial when it results in significant annoyance, some

material physical discomfort, or injury to plaintiffs’ health or property. See Watts v. Pama Mfg.

Co., 256 N.C. 611, 617, 124 S.E.2d 809, 813-14 (1962); Pake v. Morris, 230 N.C. 424, 426, 53

S.E.2d 300, 301 (1949); Duffy v. E.H. & J.A. Meadows Co., 131 N.C. 31, 34, 42 S.E. 460, 461

12

(1902); The Shadow Grp., LLC, 156 N.C. App. at 200, 579 S.E.2d at 287. Reasonableness is

judged by an objective standard and balances the relative benefit to defendants and harm to

plaintiffs. See Pendergrast v. Aiken, 293 N.C. 201, 217, 236 S.E.2d 787, 797 (1977) (listing

_ factors); Watts, 256 N.C. at 618, 124 S.E.2d at 814 (same); Rainey v. St. Lawrence Homes, Inc.,

174.N.C. App. 611, 613-14, 621 S.E.2d 217, 220 (2005) (same).

Plaintiffs have plausibly alleged that defendants have interfered with plaintiffs’ use and

enjoyment of their property by allegedly discharging PFAS and GenX from the Fayetteville Works

Plant. See Am. Compl. ff] 100-01. Plaintiffs have plausibly alleged that the interference was both

substantial and objectively unreasonable. See id. at fj 100, 102; Nix, 456 F. Supp. 3d at 762-63.

But cf. New Mexico v. Gen. Elec. Co., 335 F. Supp. 2d 1185, 1212 (D.N.M. 2004) (“Under New

Mexico law, water need not be pristine to be drinkable, and use for drinking water purposes _

depends upon whether applicable water quality standards are met, not whether the water yet

remains in its primordial state, untouched by any of the enemies remnants of the modem age.”).

Accordingly, the court denies defendants’ motion to dismiss the private nuisance claim in count

five. See, e.g., Nix, 456 F. Supp. 3d at 762-63. □

F.

In count six, plaintiffs allege that defendants’ alleged discharge of chemicals from the

Fayetteville Works Plant constitutes a trespass to real property. See Am. Compl. FJ 105-11.

Defendants argue that plaintiffs fail to plausibly allege the elements of a trespass to real property

claim. See [D.E. 23] 14-15.

Under North Carolina law, trespass is “a wrongful invasion of the possession of another.”

Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 627, 588 S.E.2d 871, 874 (2003);

see State ex rel. Bruton v. Flying ‘W’ Enters., Inc., 273 N.C. 399, 415, 160 S.E.2d 482, 493 (1968);

13

Elec. World, Inc. v. Barefoot, 153 N.C. App. 387, 393, 570 S.E.2d 225, 230 (2002); cf. Matthews

v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952) (“The essence of a trespass to [real

property] is the disturbance of possession.”). A claim of trespass to real property requires “(1)

possession of the property by plaintiff when the alleged trespass was committed; (2) an

unauthorized entry by defendant; and (3) damage to plaintiff.” Singleton, 357 N.C. at 627, 588

S.E.2d at 874; Fordham v. Eason, 351 N.C. 151, 153, 521 S.E.2d 701, 703 (1999) (quotation

omitted); see, e.g., Elec. World, Inc., 153 N.C. App. at 393, 570 S.E.2d at 230; Jordan, 116 N.C.

App. at 166, 447 S.B.2d at 498. Because “every unauthorized entry on land in the peaceable

possession of another constitutes a trespass, without regard to the degree of force used and

irrespective of whether actual damage is done,” a complaint “states a cause of action for the

recovery of nominal famaeee for a properly pleaded trespass to [real property] even if it contains

no allegations setting forth the character and amount of damages.” Matthews, 235 N.C. at 283, 69

. §,E.2d at 555; see Keziah v. Seaboard Air Line RR, 272 N.C. 299, 311, 158 S.E.2d 539, 548

(1968); Hutton & Bourbonnais v. Cook, 173 N.C. 496, 499, 92 S.E. 355, 356 (1917); Hawkins v.

Hawkins, 101 N.C. App. 529, 533, 400 S.E.2d 472, 475 (1991) (noting that trespass to real property

among the torts that “do not include actual damage as an essential element”), aff'd, 331 N.C.

743, 417 S.E.2d 447 (1992).

Plaintiffs have plausibly alleged a claim of trespass to real property. First, plaintiffs have

plausibly alleged that they were in possession of real property. See Am. Compl. ff 71, 74, 77, 80,

106-07. Second, plaintiffs have plausibly alleged that defendants, by knowingly or purposefully

discharging chemicals including Genx, have intentionally and unauthorizedly entered their

property. See id. at FJ 108-09; BSK Enters., Inc., 246 N.C. App. at 24-26, 783 S.E.2d at 252-53;

Jordan, 116 N.C. App. at 166-67, 447 S.E.2d at 498; Rudd, 982 F. Supp. at 370. Plaintiffs also

14

have plausibly alleged nominal damages. See Am. Compl. § 111. Accordingly, the court denies

defendants’ motion to dismiss count six. See, e.g., Nix, 456 F. Supp. 3d at 763-64.

G.

In count seven, plaintiffs allege that defendants’ alleged discharge of chemicals from the

Fayetteville Works Plant constitutes a trespass to chattel. See Am. Compl. f] 105-11. Under

North Carolina law, a claim of trespass to chattels requires that the plaintiff show (1) actual or |

constructive possession of the personal property or chattel at the time of the trespass and (2) an

unlawful, unauthorized interference or dispossession of the property by the defendant. See

Fordham, 351 N.C. at 155, 157, 521 S.E.2d at 704-05; Steele v. Bowden, 238 N.C. App. 566, 575,

768 S.E.2d 47, 55-56 (2014); Kirschbaum v. McLaurin Parking Co., 188 N.C. App. 782, 786-87,

656 S.E.2d 683, 686 (2008). A fixture is property that, “though originally a movable chattel,” is

“regarded as a part of the land” Little ex rel. Davis v. Nat’] Servs. Indus., Inc., 79 N.C. App. 688,

692, 340 S.E.2d 510, 513 (1986) (quotation omitted). “As a general rule, whatever is attached to

the land is understood to be a part of the realty .. . .” Lee-Moore Oil Co. v. Cleary, 295 N.C. 417,

419, 245 S.E.2d 720, 722 (1978) (quotation omitted); see Wilson v. McLeod Oil Co., 327 N.C.

491, 515-16, 398 S.E.2d 586, 598-99 (1990). “The test for determining whether a chattel which

has been annexed to land has become real property or remains personal property is the intention

with which the annexation was made.” Hughes v. Young, 115 N.C. App. 325, 328, 444 S.E.2d

248, 250 (1994); see Brown v. N.C. Joint Stock Land Bank of Durham, 213 N.C. 594, 598, 197

S.E. 140, 142 (1938).

Plaintiffs have identified as chattels water and their real property. See Am. Compl. ff] 106,

109. The court cannot expand North Carolina public policy to encompass such a claim. Cf. Time

Warner, 506 F.3d at 313-14. Therefore, plaintiffs have not plausibly alleged that defendants have

15

interfered with any chattels in plaintiffs’ possession. See, e.g., Cape Fear Pub. Util. Auth. v.

Chemours Co. FC, LLC, No. 7:17-CV-195, 2019 WL 13300188, at *7 (E.D.N.C. Apr. 19, 2019)

(unpublished). Accordingly, the court grants defendants’ motion to dismiss count seven.

In count eight, plaintiffs allege that defendants’ alleged discharge of chemicals from the

Fayetteville Works Plant constitutes an unfair and deceptive trade practice. See Am. Compl. {J

112-20. Defendants argue that plaintiffs fail to plausibly allege a business relationship between

plaintiffs and defendants. See IDE. 23] 16-17.

To state a UDTPA claim, defendants must plausibly allege: (1) an unfair or deceptive act

or practice, (2) in or affecting commerce, and (3) which proximately caused injury to the

defendants. See Barbour v. Fid. Life Ass’n, 361 F. Supp. 3d 565, 573 (EDN.C. 2019); Kelly v.

Georgia-Pac. LLC, 671 F. Supp. 2d 785, 798 (DNC. 2009); SciGrip, Inc. v. Osae, 373 N.C.

426, 838 S.E.2d 334, 347 (2020); Walker v. Fleetwood Homes of N.C.., Inc., 362 N.C. 63, 71—

72, 653 S.E.2d 393, 399 (2007). “[W]Jhether an act or practice is an unfair or deceptive

practice . . . is a question of law for the court.” Gray v. N.C. Ins. Underwriting Ass’n, 352 N.C.

61, 68, 529 S.E.2d 676, 681 (2000); see ABT Bldg. Prods. Corp. v. Nat’! Union Fire Ins. Co. of

Pittsburgh, 472 F.3d 99, 123 (4th Cir. 2006). The Act provides that “[flor purposes of this section,

‘commerce’ includes all business activities, however denominated, but does not: include

professional services rendered by a member of a learned profession.” HAJMM Co. v. House of

Raeford Farms, Inc. 328 N.C. 578, 592-93, 403 S.E.2d 483, 492 (1991) (quoting N.C.G.S. § 75-

1.10). “[A] practice is deceptive if it has the tendency to deceive . . . . [A] practice is unfair when

it offends established public policy as well as when the practice is immoral, unethical, oppressive,

16

unscrupulous, or substantially injurious to consumers.” Gray, 352 N.C. at 68, 529 S.E.2d at 681

(quotation omitted); see Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981).

To plausibly allege a UDTPA claim, the plaintiff must be in a “business relationship” with □

or be a “customer[] of’ the defendant. Town of Belhaven v. Pantego Creek, LLC, 250 N.C. App.

459, 473, 793 S.E.2d 711, 720 (2016); see Washington v. Trinity Indus., Inc., No. 1:15CV517,

2016 WL 4544048, at *4-6 (M.D.N.C. Aug. 31, 2016) (unpublished) (holding that only plaintiffs

who “participate in an exchange of value” with a defendant have standing to- bring a claim and

collecting cases for the same); see, e.g., Walker, 362 N.C. at 68, 653 S.E.2d at 397 (allowing a

plaintiff “who selected the interior details for the home, who planned to live in the home, and who

was going to make the monthly installment payments” to assert a UDTPA claim against a mobile

home supplier).

Plaintiffs fail to plausibly allege a business relationship or a relationship in or affecting

commerce between plaintiffs and defendants. Accordingly, the court grants defendants’ motion to

dismiss count eight. See, e.g., Aqua N.C., Inc. v. Corteva, Inc., No. 7:23-CV-16, 2024 WL

3367514, at *8 (E.D.N.C. July 9, 2024) (unpublished). .

Il.

In sum, the court GRANTS IN PART and DENIES IN PART defendants’ motion to dismiss

plaintiffs’ amended complaint [D.E. 22]. The court DISMISSES AS MOOT defendants’ motion

to dismiss plaintiffs’ complaint [D.E. 19]. The only claims that remain are plaintiffs’ negligence,

gross negligence, private nuisance, and trespass to real property claims against defendants.

17

SO ORDERED. This {8 day of September, 2024.

A = K aV/eA

Od S C. DEVER II

United States District Judge

18