City and County of Butte-Silver Bow v. 3M Company

Background

The plaintiffs are cities, counties, municipalities, and one fire district. They allege that the defendants sold, manufactured, or distributed firefighter protective clothing containing PFAS. According to the Second Amended Complaint, the defendants knew about PFAS dangers, concealed those dangers, and failed to provide adequate warnings. The plaintiffs seek money to replace allegedly defective turnout gear and assert claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) and various state laws.

The defendants filed six motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. They also argued that the court lacked personal jurisdiction, that the plaintiffs lacked constitutional standing, and that the case should be transferred or stayed under the first-to-file rule.

First-to-file rule

The court declined to transfer, stay, or dismiss the case under the first-to-file rule. Although an earlier related class action was filed in Connecticut, the court determined that the Montana action involved different purchaser plaintiffs and different interests from the remaining Connecticut action, which involved individual firefighters and firefighter unions. The court also found insufficient similarity between the issues and noted that the Montana case had progressed further. It concluded that fairness, judicial efficiency, and the interests of justice favored keeping the case in the District of Montana.

Personal jurisdiction

The court declined to revisit its earlier conclusion that it lacked general jurisdiction over the defendants because none had its place of incorporation or principal place of business in Montana. It had previously found specific jurisdiction over several original defendants for the claims of Butte-Silver Bow.

The court found that the allegations were sufficient at the pleading stage to establish specific personal jurisdiction over newly added defendants Fire-Dex, Innotex, and Morning Pride. The complaint alleged Montana-directed sales, marketing, dealers, or deliveries involving their turnout gear. The court also found that exercising jurisdiction over those defendants appeared reasonable.

The court likewise found personal jurisdiction over EIDP based on allegations that it had the same relevant Montana contacts as Dupont. At the motion-to-dismiss stage, the court treated the plaintiffs’ factual allegations as true and resolved factual disputes in their favor.

The court declined to decide finally whether the claims of the newly added plaintiffs were barred by the Supreme Court’s decision in Bristol-Myers Squibb. It stated that there was no binding authority directly resolving the issue in this context and that a possible multidistrict proceeding could change the briefing and analysis.

RICO allegations

The court determined that the complaint sufficiently alleged, at this stage, that the defendants participated in a PFAS-related enterprise. It also found that the allegations plausibly connected the defendants to the alleged concealment effort and were sufficiently specific to provide notice of the alleged misconduct.

The court did not decide whether the rule barring certain indirect purchasers from recovering damages under Illinois Brick applies to civil RICO claims. It again denied the defendants’ request to dismiss on that ground without prejudice because the issue remained unsettled in the Ninth Circuit and related cases might be consolidated.

The court found that the alleged connection between the plaintiffs’ purchases of PFAS-containing turnout gear and the defendants’ alleged concealment of PFAS dangers was sufficient to plead proximate cause at this stage. Proximate cause requires a sufficiently direct connection between the alleged misconduct and the injury.

Article III standing

The court found that the plaintiffs plausibly alleged an injury in fact, including replacement costs and a substantial risk of harm from PFAS-containing turnout gear. It also found that the complaint plausibly connected the alleged injuries to the defendants through the alleged collective enterprise and supply chain.

The court declined to issue a final ruling on traceability for claims by plaintiffs who did not allege that they bought products from particular defendants. Traceability is the requirement that a plaintiff connect the alleged injury to the challenged conduct. The court stated that the issue could be reconsidered after the Judicial Panel on Multidistrict Litigation acted.

State-law claims and disposition

The court declined to issue a substantive ruling on the parties’ disputes concerning the state-law claims. It stated that it would address those issues later if necessary.

In City and County of Butte-Silver Bow v. 3M Company, Chief District Judge Brian Morris denied, without prejudice, all six defendants’ motions to dismiss. The court’s order did not finally resolve the parties’ numerous legal disputes, and it stated that the issues could be revisited after the Judicial Panel on Multidistrict Litigation’s decision.