## Facts

- Tammie Priselac lived in Wilmington, North Carolina from 2009 to 2019.
- Her drinking water was supplied by the Cape Fear Public Utility Authority, which drew water from the Cape Fear River.
- Priselac sued Chemours Company and related entities and individuals involved in management of the Fayetteville Works Site near Fayetteville, North Carolina.
- She alleged defendants released perfluorinated chemicals (PFAS), including GenX and related compounds, from the Fayetteville Works Site into the Cape Fear River and into surrounding air, soil, and groundwater.
- Priselac alleged those releases contaminated the public drinking-water supply serving Wilmington and contaminated her property and household water.
- She alleged harms that included increased risk of illness and disease, a need for diagnostic testing/medical monitoring, emotional distress and worry about contamination, and the expense and inconvenience of installing home water-filtration systems.
- Priselac filed a putative class action asserting North Carolina law claims including trespass, private nuisance, negligence, negligent failure to warn, unjust enrichment, battery, civil conspiracy, and unfair and deceptive trade practices under N.C. Gen. Stat. § 75-1.1.
- Defendants removed the case to federal court under the Class Action Fairness Act; after the court denied remand, defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).
- One individual defendant, Brian D. Long, was alleged to have had management responsibility at the Fayetteville Works Site during relevant time periods.

## Issues

1. Whether Priselac plausibly alleged a private nuisance under North Carolina law based on PFAS contamination and alleged harms such as risk of future disease, emotional distress, and filtration burdens.
2. Whether Priselac stated negligence and negligent-failure-to-warn claims by pleading duty, breach, causation, and legally recognized damages on these allegations.
3. Whether Priselac plausibly alleged unjust enrichment where she alleged defendants benefited by avoiding proper disposal and contamination-control costs.
4. Whether alleged indirect exposure to PFAS through contaminated drinking water plausibly stated a battery claim requiring intentional harmful or offensive contact.
5. Whether alleged PFAS contamination of Priselac’s property plausibly stated a trespass claim based on an unauthorized physical invasion by contaminants.
6. Whether Priselac plausibly alleged civil conspiracy, including an agreement and overt acts, and whether at least one underlying wrongful act survived dismissal.
7. Whether Priselac plausibly alleged an unfair and deceptive trade practices claim “in or affecting commerce” under N.C. Gen. Stat. § 75-1.1 based on alleged discharges and related statements/omissions.
8. Whether the complaint pleaded enough specific facts to state any claim against Brian D. Long individually.

## Decision

- The court granted the motion to dismiss in part and denied it in part.
- The court dismissed Priselac’s claims for private nuisance, negligence, negligent failure to warn, unjust enrichment, and battery.
- The court denied the motion to dismiss as to trespass, civil conspiracy, and the North Carolina unfair and deceptive trade practices claim.
- The court dismissed all claims against Brian D. Long and dismissed him as a defendant.

## Legal Principles

- Under Rule 12(b)(6), a complaint must plead enough factual matter to state a plausible claim for relief; conclusory allegations and element recitations do not suffice.
- A North Carolina private nuisance claim requires a substantial and unreasonable interference with the use and enjoyment of land; allegations framed mainly as risk of future illness, anxiety, and filtration inconvenience were not enough on these pleadings.
- North Carolina negligence and negligent-failure-to-warn claims require duty, breach, proximate causation, and damages recognized in tort; allegations centered on increased risk of disease and monitoring/testing needs, without a presently pleaded compensable injury, were insufficient at the pleading stage.
- North Carolina unjust enrichment generally requires that the plaintiff conferred a benefit on the defendant that the defendant consciously accepted and retained under circumstances making retention unjust; alleging only that defendants saved costs by polluting did not plausibly plead the required benefit conferred by the plaintiff.
- North Carolina battery requires intentional harmful or offensive contact with the plaintiff’s person; allegations of environmental releases leading to ingestion/exposure did not plausibly plead the required intent and contact for battery.
- North Carolina trespass may be based on an unauthorized physical invasion or deposit of substances on another’s land; allegations that PFAS entered and remained on the plaintiff’s property were sufficient to plead trespass.
- North Carolina civil conspiracy is not an independent tort and requires an underlying wrongful act plus an agreement and acts in furtherance; the claim could proceed because an underlying claim (trespass) survived and the complaint alleged coordinated conduct.
- A claim under N.C. Gen. Stat. § 75-1.1 requires conduct in or affecting commerce that is unfair or deceptive and causes injury; allegations of PFAS releases combined with alleged misleading statements or omissions to the public and consumers were sufficient to proceed at this stage.
- Individual liability requires factual allegations tying the individual to actionable conduct; generalized allegations of managerial authority, without more, were insufficient to keep Long in the case.

## Conclusion

In *Priselac v. Chemours Company*, 2022 WL 909406 (2022), the federal district court addressed a Rule 12(b)(6) motion in a PFAS contamination putative class action brought by a Wilmington resident whose water came from the Cape Fear River. Accepting the allegations as true, the court held that the complaint did not plausibly state North Carolina claims for private nuisance, negligence (including negligent failure to warn), unjust enrichment, or battery based largely on the types of harms pleaded and the elements those theories require, but it did plausibly allege trespass from the alleged physical invasion of PFAS onto property, and it allowed related civil conspiracy and unfair and deceptive trade practices claims to proceed. The court also dismissed all claims against individual defendant Brian D. Long for lack of specific factual allegations connecting him to actionable misconduct.


Priselac v. Chemours Company, 2022 WL 909406 (2022)