Opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

BRIDGETT WATSON ADAMS,

et al.,

Plaintiffs,

v. Case No. 4:24-cv-832-CLM

3M COMPANY,

Defendant.

MEMORANDUM OPINION

Plaintiffs are around 600 customers of the Water Works and Sewer

Board for the City of Gadsden who contend that Defendant 3M Company

contaminated their drinking water by supplying PFAS to carpet

manufacturers in Dalton, Georgia. (Doc. 1-1).1 3M moves for judgment on the

pleadings, arguing that Plaintiffs’ property-damage claims are untimely and

their personal injury claims aren’t viable. (Doc. 35). For the reasons stated

within, the court GRANTS 3M’s motion for judgment on the pleadings (doc.

35) and DISMISSES the complaint (doc. 1-1) WITHOUT PREJUDICE.

BACKGROUND

Because a motion for judgment on the pleadings is governed by the same

standard as a motion to dismiss under Rule 12(b)(6), Carbone v. Cable News

Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018), the court states the facts

as Plaintiffs plead them and assumes that all of their alleged facts are true,

Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).

1 On June 27, 2025, Plaintiffs filed a document titled “Amended Complaint” that sought to

correct the names of certain plaintiffs, remove certain plaintiffs, and add several new

plaintiffs. (Doc. 26). But the court never granted Plaintiffs leave to file an amended

complaint, and Plaintiffs’ proposed amended complaint includes no factual allegations (see

id.). Instead, “Plaintiffs reallege all allegations as set out in their previously filed Complaint.”

(See id., p. 1). The court thus deems Plaintiffs’ original state court complaint (doc. 1-1) as the

operative complaint.

A. PFAS

Per-and poly-fluoroalkyl substances (“PFAS”) are a group of synthetic

chemicals that are found in a wide array of consumer and industrial products.

(Doc. 1-1, ¶ 4). PFAS include perfluorooctanoic acid (“PFOA”) and

perfluorooctanesulfonic acid (“PFOS”). (Id., ¶ 5). 3M manufactured PFOA and

PFOS containing products in its Decatur, Alabama plant. (Id., ¶ 6).

In May 2016, the EPA warned that exposure to elevated levels of PFOA

and PFOS can lead to health problems, including cancer in adults and

developmental defects in fetuses and breastfed infants. (Id., ¶ 7). The EPA has

also concluded that there’s an association between PFAS exposure and high

cholesterol, increased liver enzymes, decreased vaccination response, thyroid

disorders, and pregnancy-induced hypertension and preeclampsia. (Id., ¶ 8).

According to the 2016 advisory, to provide protection from exposure to PFOA

and PFOS in drinking water, combined concentration of these chemicals

should be no greater than 0.07 ppb. (Id., ¶ 7). In 2022, the EPA issued an

interim health advisory that recommended that humans neither drink nor

cook with water that has PFOA levels of 0.0004 or more parts per trillion

(“ppt”) or PFOS levels of 0.02 or more ppt. (Id., ¶ 21).

B. Coosa River Contamination

3M supplied PFOA and PFOS containing products to carpet

manufacturers in Dalton, Georgia. (Id., ¶ 14). So the industrial wastewater

discharged from these facilities has high levels of PFOA and PFOS. (See id.).

Dalton Utilities processes the industrial wastewater from these carpet

manufacturers at its wastewater treatment plant. (Id.). Dalton Utilities then

sprays the processed wastewater over a 9,800 acre Land Application System

(“LAS”). (Id.). The LAS is near the Conasauga River, so wastewater runoff from

the LAS sometimes migrates into the river. See Ex parte DuPont De Nemours,

Inc., 2025 WL 1009062, at *7 (Ala. Apr. 4, 2025). Because the PFOA and PFOS

chemicals resist degradation during the processing at Dalton Utilities, when

the wastewater enters the Conasauga River the wastewater includes traces of

PFOA and PFOS. (See Doc. 1-1, ¶ 14).

The Conasauga River is one of the five major tributaries of the Coosa

River, which Gadsden Water uses to provide drinking water to its customers.

(Id., ¶ 16). Gadsden Water began regularly testing for PFOA and PFOS in its

water supply following the issuance of the EPA’s May 2016 health advisory,

and it has consistently found PFOA and PFOS levels that combine to meet or

exceed the PFOA levels of 0.0004 ppt and PFOS levels of 0.02 ppt. (Id., ¶ 23).

For example, in 2022, Alabama Department of Environmental Management

(“ADEM”) sampling test results showed Gadsden Water’s treatment plants

had PFOS levels of 27.0 ppt and PFOA levels of 25.0 ppt. (Id., ¶ 18). Gadsden

Water’s current water filtration system cannot remove or reduce these high

levels of PFAS in Plaintiffs’ water supply. (Id., ¶ 24).

C. This Lawsuit

Plaintiffs bring six claims against 3M under Alabama law: (1)

negligence, (2) nuisance, (3) trespass, (4) battery, (5) strict liability for

abnormally dangerous activity, and (6) wantonness. At bottom, Plaintiffs

contend that 3M knew about the dangerous effects of PFOS and PFOA but sold

PFOS and PFOA containing products to the carpet manufacturers and failed

to warn the carpet manufacturers that use of these products could cause

Plaintiffs’ water source to become contaminated with PFAS. (Id., ¶¶ 9–11). Nor

did 3M, who had superior knowledge, warn Plaintiffs of the presence of these

chemicals in their water source. (Id., ¶¶ 19–20, 22).

Plaintiffs seek “monetary damages against Defendant 3M . . . for

contaminating the water source that provides drinking water directly to the

Plaintiffs.” (Id., ¶ 25). These monetary damages include “damages for mental

anguish and emotional distress due to Plaintiffs’ exposure to such harmful

chemicals.” (Id.). They also include compensation for “damages to real

property, loss of use of property, out-of-pocket expenses and reasonably

ascertainable future expenses.” (Id.). Finally, Plaintiffs seek punitive damages

and an injunction that would require 3M to stop PFAS from continuing to come

onto Plaintiffs’ properties. (Id.).

STANDARD OF REVIEW

Rule 12(c) provides: “After the pleadings are closed—but early enough

not to delay trial—a party may move for judgment on the pleadings.”

“Judgment on the pleadings is appropriate when no issues of material

fact are raised in the pleadings and the movant is entitled to judgment as a

matter of law.” Jones v. NordicTrack, Inc., 236 F.3d 658, 660 (11th Cir. 2000).

“A motion for judgment on the pleadings is governed by the same standard as

a motion to dismiss under Rule 12(b)(6).” Carbone, 910 F.3d at 1350. Thus, to

survive a motion for judgment on the pleadings, the complaint must contain

enough facts to state a claim for relief that is plausible on its face. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

DISCUSSION

3M argues that the court should grant it judgment under Rule 12(c) for

three reasons. First, the Alabama Supreme Court’s recent decision in Ex parte

DuPont De Nemours, Inc., 2025 WL 1009062 (Ala. Apr. 4, 2025), establishes

that Plaintiffs’ property-damage claims are untimely. Second, Plaintiffs cannot

recover personal injury damages because they have not alleged that they have

developed any medical conditions linked to PFAS. Finally, Plaintiffs’ trespass

claims fail because Plaintiffs haven’t alleged actual physical damage to their

properties. The court addresses each argument in the order 3M made them.

A. Property-damage claims

Under Alabama law, a two-year statute of limitations applies to

Plaintiffs’ claims for negligence, nuisance, strict liability, and wantonness. See

Ala. Code § 6-2-38(l). Plaintiffs’ trespass and battery claims are subject to a

six-year statute of limitations. See Ala. Code § 6-2-34(1) and (2). Based on the

Alabama Supreme Court’s holding in Ex parte DuPont, 3M contends that the

statute of limitations for Plaintiffs’ property-damage claims began to run in

2016. Thus, 3M says Plaintiffs’ June 17, 2024, complaint was untimely.

The court tackles this argument in three parts. First, the court explains

general principles on how to calculate the statute of limitations for toxic torts.

Second, the court will review the Alabama Supreme Court’s decision in Ex

parte DuPont. Third, the court applies the key takeaways from these general

principles and Ex parte DuPont to Plaintiffs’ claims.

1. General principles

In Alabama, “[t]he statute of limitations begins to run when the cause of

action accrues,” which “is the date the first legal injury occurs.” Ex parte Abbott

Lab’ys, 342 So. 3d 186, 194 (Ala. 2021). A legal injury occurs “as soon as the

claimant is entitled to maintain an action, regardless of whether the full

amount of the damage is apparent at the time of the first legal injury.” See Ex

parte Mobile Infirmary Assoc., 349 So. 3d 842, 847–48 (Ala. 2021) (emphasis

omitted). Thus, under Alabama law, “[t]he plaintiff’s ignorance of a tort or

injury does not postpone the running of the statute of limitations until that

tort is discovered.” Ex parte Abbott Lab’ys, 342 So. 3d at 199.

That said, under the continuing torts doctrine, “a defendant’s repeated

tortious conduct which has repeatedly and continuously injured a plaintiff” can

extend the statute of limitations if some of the tortious conduct occurred within

the limitations period. See Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220–21

(Ala. 1983). Plus, while Alabama’s statutes of limitations generally apply to

toxic tort claims brought under Alabama law, Congress has determined that a

federally required commencement date should apply to state-law actions for

damages caused by any hazardous substance released into the environment

from a facility if the state’s applicable limitations period would begin to run

before the federally required commencement date. See 42 U.S.C. § 9658(a)(1)

and (2). Under the Comprehensive Environmental Response, Compensation,

and Liability Act (“CERCLA”), “the federally required commencement date” is

“the date the plaintiff knew (or reasonably should have known) that [his]

personal injury or property damages . . . were caused or contributed to by the

hazardous substance . . . .” See 42 U.S.C. § 9658(b)(4)(A). So in certain

circumstances, federal law preempts Alabama’s rejection of a discovery rule for

claims for “personal injury or property damage arising from the release of a

hazardous substance . . . into the environment.” See CTS Corp. v. Waldburger,

573 U.S. 1, 3–4 (2014).

2. Ex parte Dupont

With these general principles in mind, the court turns to the Alabama

Supreme Court’s recent ruling in Ex parte DuPont, which held that Gadsden

Water’s claims related to PFAS in the Coosa River accrued in 2016.

a. Background: In 2023, Gadsden Water sued DuPont De Nemours, Inc.

and Daikin America, Inc. for manufacturing PFAS-containing products that

Gadsden Water said contaminated the Coosa River. See Ex parte DuPont, 2025

WL 1009062, at *2–7.

Gadsden Water’s claims against DuPont and Daikin were nearly

identical to the claims Plaintiffs plead here:

In summary, Gadsden Water alleges that DuPont and Daikin

are manufacturers and sellers of PFAS products . . . . Gadsden

Water further alleges that those defendants’ PFAS products

were sold at some point in time to carpet manufacturers in

Dalton, Georgia, and that the carpet manufacturers in Dalton

then discharged PFAS-contaminated wastewater into a

wastewater-treatment facility operated by Dalton Utilities.

According to Gadsden Water, Dalton Utilities failed to

adequately treat the wastewater, and then it sprayed the

wastewater onto a 9,800-acre area called the Land Application

System (“LAS”). Gadsden Water alleges that runoff from the

LAS migrated into the Oostanaula River, which then ran into

the Conasauga River, which is one of the five major tributaries

of the Coosa River. It is undisputed that the Coosa River is

Gadsden Water’s raw-water-intake source.

See id. at *7.

So you may ask why Gadsden Water didn’t sue 3M in its 2023 complaint

too? That’s simple: Gadsden Water sued 3M for PFAS contamination back in

2016, and the parties settled. See id. at *1 & n.3. So 3M was off the table when

Gadsden Water turned to DuPoint and Daiken in 2023. But the 2016 complaint

against 3M left Gadsden Water with a problem: In its 2016 complaint, Gadsden

Water alleged that it “began regular testing of PFOA and PFOS in its water

supply following the issuance of the May 2016 EPA health advisory.” See id. at

*14. Stuck was this fact, Gadsden Water included no “allegation of when

Gadsden Water first learned about the presence of harmful levels of PFAS in

its water supply” in its 2023 complaint. Id.

DuPont and Daikin moved to dismiss the 2023 complaint, asserting that

Gadsden Water’s allegations in its 2016 complaint against 3M made clear that

Gadsden Water’s PFAS-related claims were untimely. Id. at *8. The Etowah

County Circuit Court denied the motions, so DuPont and Daikin sought a writ

of mandamus with the Alabama Supreme Court. Id. at *9.

b. Holding: The Alabama Supreme Court granted DuPont and Daikin’s

petition for writ of mandamus. See id. at *26. Taking judicial notice of Gadsden

Water’s 2016 complaint against 3M, the supreme court determined that the

harm to Gadsden Water’s “water source initially occurred in 2016.” Id. at *14.

The court then stated that “[t]he fact that in 2022 the EPA lowered its

acceptable threshold of PFAS in drinking water did not create a new injury to

Gadsden Water that restarted the applicable limitations period.” Id. (emphasis

omitted). And the court rejected Gadsden Water’s argument that its claims

were timely because the PFAS attributable to 3M are distinct from the PFAS

attributable to DuPont and Daikin. Id. at *15.

Finally, the state supreme court determined that the continuing torts

doctrine did not save Gadsden Water’s claims. See id. at *15–19. Fatal to

Gadsden Water’s continuous tort argument was the complaint’s failure to

allege that DuPont and Daikin sold or supplied PFAS products to Dalton carpet

mills within the applicable statutes of limitation. See id. at *18. The court

recognized that Gadsden Water alleged “that DuPont and Daikin generally

continue to manufacture and sell PFAS products.” Id. But the court determined

that “without a connection between that general conduct and the conduct that

allegedly contaminates Gadsden Water’s raw-water intake—the Dalton carpet

mills’ wastewater applied by Dalton Utilities to the LAS—Gadsden Water has

not asserted a continuous tort against DuPont and Daikin within the

applicable limitations periods.” Id.

c. Takeaways: A few things stand out about the state supreme court’s

decision. First, the court found that this allegation in Gadsden Water’s 2016

complaint against 3M established that Gadsden Water’s first legal injury

occurred in 2016: “Gadsden Water began regularly testing for PFOA and PFOS

in its water supply following the issuance of the May 2016 EPA health

advisory, and has consistently found PFOA and PFOS levels that combine to

meet or exceed the 0.07 ppb limit.” Id. at *14.

Second, the state court found that Gadsden Water failed to adequately

allege a continuous tort because its complaint “expressly avoid[ed] stating that

DuPont and Daikin continue to sell PFAS products to Dalton carpet mills.” Id.

at *18. It did not matter that Gadsden Water’s complaint did not specifically

state that DuPont and Daikin’s wrongful conduct had ceased. Id. Nor did

Gadsden Water’s argument that PFAS are an abatable nuisance save its

claims from being barred by the applicable statutes of limitation. See id. at *19.

3. Application to Plaintiffs’ claims

Applying Ex parte DuPont, the court finds that the statutes of limitations

on Plaintiffs’ property-damage claims began to run in 2016. Plaintiffs allege

that “Gadsden Water began regularly testing for PFOA and PFOS in its water

supply following the issuance of the May 2016 EPA health advisory, and it has

consistently found PFOA and PFOS levels that combine to meet or exceed the

PFOA levels of 0.0004 ppt and PFOS 0.02 ppt.” (Doc. 1-1, ¶ 23). As explained,

the Alabama Supreme Court found that similar allegations in Gadsden Water’s

2016 complaint against 3M established that “harm to the water source initially

occurred in 2016.” Ex parte DuPont, 2025 WL 1009062, at *14 (analyzing

allegation that “Gadsden Water began regularly testing for PFOA and PFOS

in its water supply following the issuance of the May 2016 EPA health

advisory, and has consistently found PFOA and PFOS levels that combine to

meet or exceed the 0.07 ppb limit”). And while the EPA’s 2022 health advisory

“lowered the acceptable threshold of PFAS in drinking water,” the updated

health advisory “did not create a new manifest injury.” See id.

Nor do Plaintiffs’ allegations show that the continuing torts doctrine

saves Plaintiffs’ claims from being untimely. Key to the continuing torts

doctrine is evidence of “ongoing wrongful conduct” rather than “a single act

followed by multiple consequences.” See Payton v. Monsanto Co., 801 So. 2d

829, 835–836 (Ala. 2001). Plaintiffs allege that “PFOA and PFOS have and

continue to accumulate in the water, sediment, fish and other biota in the

Coosa River upstream from Gadsden Water’s intake at levels that are

dangerous to humans.” (Doc. 1-1, ¶ 17). Plaintiffs also assert that they “have

been and continue to be exposed” to PFAS when they consume or use the

contaminated water. (Id., ¶¶ 19, 21). But missing from Plaintiffs’ complaint is

any allegation of “ongoing tortious conduct” by 3M “that is connected to the

continuing contamination of the Coosa River.” See Ex parte DuPont, 2025 WL

1009062, at *18. So Plaintiffs have “not asserted a continuous tort against [3M]

within the applicable limitations periods.” Id.; see also id. at *19 (“[T]he general

allegation of a continuous public nuisance does not save the plaintiff’s claims

against the defendant from the statute-of-limitations bar.” (cleaned up)).

—

In sum, under Alabama law, the statutes of limitations for Plaintiffs’

property-damage claims began to run in 2016. And Plaintiffs do not plausibly

allege that the continuing torts doctrine applies to their claims against 3M. So

under state law, Plaintiffs’ 2024 property-damage claims are untimely. See

Ala. Code § 6-2-38(l) (Two-year statute of limitations applies to negligence,

nuisance, strict liability, and wantonness claims); Ala. Code § 6-2-34(1) and (2)

(Six-year statute of limitations applies to trespass and battery claims).

That said, the court recognizes that CERCLA’s discovery rule sometimes

preempts state statutes of limitations for property damage caused by toxic

torts. See CTS Corp., 573 U.S. at 3–4. And the EPA has recently designated

PFOA and PFOS as “hazardous substances.” See 40 C.F.R. § 302.4. So there’s

an argument to be made that CERCLA tolls the statutes of limitations for

PFOA and PFOS property-damage claims until “the date the plaintiff knew (or

reasonably should have known) that the . . . property damages . . . were caused

or contributed to by” PFOA or PFOS contamination. See 42 U.S.C. § 9658(a)(1)

and (b)(4)(A). But Plaintiffs do not make this argument. And it is Plaintiffs’

burden to show that CERCLA preemption applies. See Barnes ex rel. Barnes v.

Koppers, Inc., 534 F.3d 357, 362–63 (5th Cir. 2008). Plus, the complaint is

silent about when Plaintiffs discovered or reasonably should have discovered

that PFOA or PFOS contamination was causing their alleged property damage.

Thus, Plaintiffs have failed to explain why they wouldn’t have discovered that

PFOA or PFOS were causing their alleged property damage when Gadsden

Water found PFAS contamination in the Coosa River in 2016.

As pleaded, Plaintiffs’ complaint establishes that their property-damage

claims are time-barred. So the court will GRANT 3M’s motion for judgment on

the pleadings on Plaintiffs’ property-damage claims.

B. Personal injury damages

Unlike property-damage claims, claims for personal injury damages do

not accrue until the plaintiff suffers “a medically identifiable legal injury.” See

Ex parte Spalding, 2025 WL 2487687, at *4–5 (Ala. Aug. 29, 2025); see also

Southern Bakeries, Inc. v. Knipp, 852 So. 2d 712, 716 (Ala. 2002) (requiring “a

manifest, present injury before a plaintiff may recover in tort”). And the

complaint doesn’t allege that Plaintiffs currently have any diseases or illnesses

from their exposure to PFAS. So 3M says Plaintiffs’ claims for personal injury

damages suffer from the opposite problem of their property-damage claims—

the personal injury claims were filed too early.

The court agrees. Alabama “law provides no redress for a plaintiff who

has no present injury or illness.” Hinton ex rel. Hinton v. Monsanto Co., 813

So. 2d 827, 831–32 (Ala. 2001). So the Alabama Supreme Court has

consistently held that fear of future illness from exposure to a hazardous

substance isn’t a legally compensable injury. See, e.g., Hinton, 813 So. 2d at

828–32 (Class members exposure to PCBs “without a present injury

attributable to that exposure” did not give rise “to a cognizable claim for

medical monitoring.”); Southern Bakeries, Inc., 852 So. 2d at 717–18 (Fear that

asbestos exposure would lead to asbestos-related disease failed to establish

“any legally cognizable present injury.”); see also Pfizer, Inc. v. Farsian, 682 So.

2d 405, 407 (Ala. 1996) (“Under Alabama law, Farsian’s fear that his

[defectively designed heart] valve could fail in the future is not, without more,

a legal injury sufficient to support his claim.”). And in applying these cases,

this court has found that alleging mere exposure to PFAS, without any

accompanying claims of “disease or symptoms,” is not enough to support a

cause of action for personal injury damages. See W. Morgan-E. Lawrence Water

& Sewer Auth. v. 3M Co., 208 F. Supp. 3d 1227, 1233 (N.D. Ala. 2016) (Kallon,

J.). Thus, Plaintiffs’ claims for personal injury damages are premature.

Because Plaintiffs have failed to show that their alleged personal injury

damages have yet to accrue, the court will GRANT 3M’s motion for judgment

on the pleadings on Plaintiffs’ claims for “damages for mental anguish and

emotional distress due to Plaintiffs’ exposure” to PFAS. (See Doc. 1-1, ¶ 25).

C. Trespass

That leaves 3M’s argument that Plaintiffs have failed to state a claim for

trespass. Trespass can be either direct or indirect. See Borland v. Sanders Lead

Co., Inc., 369 So. 2d 523, 527, 529 (Ala. 1979). A direct trespass occurs when

“the intruding agent” can “be seen by the naked eye.” See id. “[A]n indirect

trespass occurs where the trespasser releases a ‘foreign polluting matter’

beyond the boundaries of his property knowing to a ‘substantial certainty’ that

it will invade the property” of another. Russell Corp. v. Sullivan, 790 So. 2d

940, 946–47 (Ala. 2001). Because PFAS are foreign polluting matters that

cannot be seen by the naked eye, Plaintiffs’ trespass claim is for indirect

trespass. To prove indirect trespass a plaintiff must show, “1) an invasion

affecting an interest in the exclusive possession of his property; 2) an

intentional doing of the act which results in the invasion; 3) reasonable

foreseeability that the act done could result in an invasion of plaintiff’s

possessory interest; and 4) substantial damage[ ] to the res.” Id. at 947.

Plaintiffs have failed to adequately allege the fourth element of an

indirect trespass claim. Plaintiffs allege that the PFAS contamination “has

affected and is affecting the Plaintiffs’ interest in the exclusive possession of

their property.” (Doc. 1-1, ¶ 41). Plaintiffs also say that they seek monetary

damages to compensate them for “damages to [their] real property” and “loss

of use of property.” (Id., ¶ 25). But nowhere in the complaint do Plaintiffs

explain how the PFAS contamination has damaged their properties. For

example, Plaintiffs “do not allege that the PFOA and PFOS in their domestic

water supply have caused their pipes to erode, or that the presence of those

chemicals in their lawn irrigation systems has damaged their grass.” See W.

Morgan-E. Lawrence, 208 F. Supp. 3d at 1236. And the contaminated water is

the alleged trespassing agent, so “damage to the water itself cannot constitute

substantial damages to the res.” Util. Bd. of Tuskegee v. 3M Co., Inc., 2023 WL

1870912, at *16 (M.D. Ala. Feb. 9, 2023) (Watkins, J.). As a result, Plaintiffs

“have failed to plead the ‘substantial damages to the res’ required for an

indirect trespass claim.” See W. Morgan-E. Lawrence, 208 F. Supp. 3d at 1236.

The court will thus GRANT 3M’s motion for judgment on the pleadings on

Plaintiffs’ trespass claim.

D. Leave to Amend

3M asks the court to dismiss Plaintiffs’ complaint with prejudice. But

Plaintiffs contend that if the court finds their allegations deficient, the court

should grant them leave to amend. Under Rule 15(a)(2), this court “should

freely give leave” to amend the complaint “when justice so requires.” See Fed.

R. Civ. P. 15(a)(2). Thus, this court generally grants requests for leave to

amend unless the court finds “undue delay, bad faith or dilatory motive on the

part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc.” McKinley v. Kaplan,

177 F.3d 1253, 1258 (11th Cir. 1999).

Having considered these factors, the court finds it appropriate to give

Plaintiffs one opportunity to correct the pleading deficiencies that the court

has identified. Given that Gadsden Water first discovered PFAS in its water

source in 2016, the court is skeptical that Plaintiffs will be able to show that

their property-damage claims were timely filed. But the court agrees with

Plaintiffs that it would be inappropriate at this stage for the court to accept as

true 3M’s contention that it stopped manufacturing or selling PFOA and PFOS

containing products in 2002. The court judicially notices that in 2003 the EPA

reported that 3M had discontinued its manufacture of PFOA and PFOS and

“indicated that it would not resume the manufacture of PFOA for commercial

sale.” See EPA, Perfluorooctanoic Acid (PFOA), Fluorinated Telomers; Request

for Comment, Solicitation of Interested Parties for Enforceable Consent

Agreement Development, and Notice of Public Meeting, 68 Fed. Reg. 18,626,

18,628, 18,631 (Apr. 16, 2003).2 The court, however, finds that these

statements by the EPA in 2003 fail to establish that there is no “reasonable

dispute” that 3M never resumed the manufacture or sell of PFOA or PFOS

containing products. See Fed. R. Evid. 201(b). So whether Plaintiffs can plead

a continuing tort for their property-damage claims in compliance with Rule

11(b)’s requirements, remains to be seen.

2 “The contents of the Federal Register shall be judicially noticed . . . .” 44 U.S.C. § 1507.

It is also possible that Plaintiffs can show that (a) they are suffering from

PFAS-related illnesses, and (b) their properties have been damaged by the

PFAS contaminated water. So 3M has failed to establish that Plaintiffs cannot

fix the pleading deficiencies with their claims for personal injury damages or

trespass. Thus, the court’s dismissal of Plaintiffs’ complaint will be WITHOUT

PREJUDICE. The court will set Plaintiffs’ deadline to file an amended

complaint at a later date.

CONCLUSION

For these reasons, the court GRANTS 3M’s motion for judgment on the

pleadings (doc. 35) and DISMISSES the complaint (doc. 1-1) WITHOUT

PREJUDICE. The court will enter a separate order that carries out this

ruling.

Done and Ordered on April 20, 2026.

COREY MAZE :

UNITED STATES DISTRICT JUDGE

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