McKesson Moves to Dismiss Trespass Claim in Environmental Case

In a lawsuit brought primarily for violations of federal environmental law, defendant McKesson Corporation moved to dismiss the plaintiffs’ single pendant state law claim for common law trespass on Wednesday. The District of Colorado lawsuit began when plaintiffs, property owner 4455 Jason St, LLC and renter The Denver Beer Company, complained that they were incurring costs to investigate and clean up hazardous chemicals released by the property’s prior owner.

The Aug. 21 complaint averred that hazardous substances were present on the Denver, Colorado property due to the operations of the former occupant, a business that repackaged and distributed chemicals. According to the plaintiffs, McKesson is the legal successor to the companies that owned the facility, and thus, the party responsible for the harms the plaintiffs have suffered.

In its motion to dismiss, McKesson first highlights that the plaintiffs, the owner and lessor of the property since 2016, “bring a common law trespass claim against McKesson– the successor in interest to companies that last owned and operated on the Property almost 50 years ago.” The company argues that the plaintiffs do not meet to satisfy the two, conjunctive elements of a common law trespass claim.

First, McKesson argues the plaintiffs failed to put forth facts demonstrating “intrusion on the property ‘of another,’” because, the “[p]laintiffs are not owners of a neighboring property that was contaminated, but of the same Property.” Next, McKesson contends that the plaintiffs’ claim fails the second requirement, that the trespass be without valid permission, because “at the time of the alleged releases, McKesson itself owned the Property and was therefore ‘the person legally entitled to possession of that property,’ not Plaintiffs.”

It also asserts that the plaintiffs have failed to state a claim for which relief can be granted because they may not sue a prior landowner for common law trespass. Instead, such claims may only lie against neighboring, not successor, landowners, McKesson argues. The defendant concedes that “[w]hile there is no definitive Colorado state court decision, federal and state courts around the United States, including the U.S. Court of Appeals for the Tenth Circuit” have so held.  

The motion then analogizes federal trial and appellate court decisions rendered on purportedly similar factual scenarios. McKesson concludes, “Controlling authority, supplemented by abundant and consistent persuasive authority, provide that successor owners/tenants of property cannot bring common law trespass claims against preceding owners of the same property.”

In turn, McKesson asks the court to dismiss the common law trespass claim without leave to amend, “since there is no possible set of facts that Plaintiffs can allege on which such a claim can be stated.” The filing also notes that eliminating this claim will leave only the federal Comprehensive Environmental Response, Compensation, and Liability Act claims, thereby simplifying the matter to one resolvable by bench trial.

The plaintiffs are represented by Gablehouse Granberg. The defendant is represented by Wheeler Trigg O’Donnell LLP and Edgcomb Law Group, LLP.