Stratford Holding, LLC v. Fog Cap Retail Investors LLC, et al, No. 1214926 (11th Cir. 2013)
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Case: 12-14926 Date Filed: 04/16/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-14926 ________________________ D.C. Docket No. 1:11-cv-03463-SCJ STRATFORD HOLDING, LLC, Plaintiff-Appellant, versus FOG CAP RETAIL INVESTORS LLC, FOOT LOCKER RETAIL, INC., Defendants-Appellees. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (April 16, 2013) Before WILSON and COX, Circuit Judges, and BOWEN,* District Judge. PER CURIAM: * Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District of Georgia, sitting by designation. Case: 12-14926 Date Filed: 04/16/2013 Page: 2 of 3 In this appeal, Appellant Stratford Holding, LLC, challenges the district court s dismissal of its complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellant had filed the suit seeking cost recovery under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. ยง 9601 et seq. The district court granted Appellees motion to dismiss upon a finding that a No-Listing Letter from the Georgia Environmental Protection Division1 conclusively established that Appellant could not state a claim for cost recovery because it had not incurred necessary costs of response under CERCLA. A dismissal for failure to state a claim is reviewed de novo. Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008). After carefully considering the parties briefs and having the benefit of oral argument, we conclude that the district court impermissibly drew a factual inference from the No-Listing Letter. The No-Listing Letter is but one item of evidence the district court may consider in a merits-based decision at trial or in summary judgment proceedings, but the letter alone should not have been used to conclusively resolve Appellant s 1 The No-Listing Letter informed Appellant that the Georgia Environmental Protection Division had determined that the subject property would not be listed on the State s Hazardous Site Inventory ( HSI ) at that time. The letter was issued after the Appellant had filed its complaint. There is no dispute that the No-Listing Letter is a public record of which the district court could take judicial notice. 2 Case: 12-14926 Date Filed: 04/16/2013 Page: 3 of 3 CERCLA claim on a Rule 12(b)(6) motion. Accordingly, the district court s judgment dismissing the case is REVERSED, and the action is REMANDED for further proceedings. 3
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