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Third Time Is the Charm for Refinery in Getting Claims Dismissed With Prejudice

In a case that tested a federal judge’s patience for inadequate pleadings, a Michigan federal court shut down a group of business owners’ repeated attempts to craft viable tort claims against an oil refinery in a semi-residential Detroit neighborhood.  See Mourad v. Marathon Petroleum Co. LP, No. 14-CV-14217, 2015 WL 5439738 (E.D. Mich. Sept. 15, 2015).

Plaintiffs were current or former business owners in the Oakwood Heights neighborhood in Detroit.  Defendant operates an oil refinery that began processing tar sands in 2012 after an expansion project at the facility.  Defendant initiated a buyout program for local homeowners, but not for businesses, through which Defendant acquired 277 of 294 residential properties in the neighborhood.  With such a significant portion of the neighborhood’s residents gone, Plaintiffs’ businesses suffered.  

Plaintiffs brought suit in 2014.  The original and first amended complaints were both dismissed in earlier proceedings without prejudice.  The second amended complaint, which was at issue here, contained two counts: tortious interference with business relationships or expectancy and nuisance. 

In their tortious interference claim, Plaintiffs alleged that Defendant, through its residential buyout program, sought to reduce future liability for environmental contamination by seeking to intentionally drive out neighborhood businesses and reduce property values so Defendant could later acquire real estate at a discount.  The Court dismissed this claim, finding that Plaintiffs had failed to allege Defendant acted with an improper motive.

In their nuisance claim, Plaintiffs alleged the refinery expansion caused increased air emissions.  The Court found, however, that Plaintiffs’ “bare bones allegations” failed to allege any facts explaining how the emissions substantially interfered with the use and enjoyment of their properties or how the interference was unreasonable in light of the refinery’s utility.  Plaintiffs sought leave to amend their complaint, but the Court declined, noting “Plaintiffs have benefitted from the opportunity to amend their pleading twice previously,” and dismissed the complaint with prejudice.  Id. at *20.

© 2020 Beveridge & Diamond PC National Law Review, Volume V, Number 314


About this Author

Sarah A. Kettenmann Environmental Attorney Beveridge & Diamond New York, NY

Sarah uses her knowledge of environmental law and the physical sciences to help clients solve complex problems in a conservation-minded manner.

She maintains a diverse environmental practice, which includes litigation matters involving toxic torts and products liability and class action litigation concerning environmental and regulatory claims. Her regulatory practice includes advising clients on compliance with, and enforcement of, land use restrictions and remediation, and due diligence for waste facility permits under federal and state statutes. She also counsels clients on...

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its operations. The favorable result that Dan and his team achieved allowed the client to avoid losing millions of dollars’ worth of production.

In a toxic tort case involving an alleged international conspiracy, Dan led a successful briefing effort that resulted in early dismissal of all claims against his clients, saving them from protracted litigation and protecting their reputation.

While focusing his practice on litigation, Dan also provides practical and actionable advice designed to minimize environmental risk and potential liabilities. 

An active member of various bar associations, Dan is a past chair of the American Bar Association’s Environmental Litigation and Toxic Torts Committee, and currently co-chairs the New York State Bar Association Environment Section’s Toxic Torts Committee. Dan has also served as a member of the firm’s Management Committee.

Before joining Beveridge & Diamond, Dan clerked for The Honorable Carlos R. Moreno, U.S. District Judge for the Central District of California. Prior to attending law school, Dan served as editor-in-chief of the environmental news service Greenwire.

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Graham C. Zorn Environmental, Toxic Tort, Products Liability Litigation Attorney Beveridge & Diamond Washington, DC

Graham Zorn focuses his practice on environmental, toxic tort, and products liability litigation.

His representative experience includes extensive work on a series of complex products liability and toxic tort cases related to alleged groundwater, and litigation over lead in drinking water. He has represented individual businesses, trade associations, and municipalities in litigation, as well as in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal environmental statutes. He also counsels domestic and...