Mill Creek Lawsuit

Case 9:18-cv-00185-DWM Document 1 Filed 11/02/18 Page 1 of 10
Randy J. Cox
BOONE KARLBERG P.C.
201 West Main, Suite 300
P. O. Box 9199
Missoula, MT 59807-9199
Phone: (406) 543-6646
Fax: (406) 549-6804
rcox@boonekarlberg.com
Attorneys for Defendant Atlantic Richfield Company
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
WILLIAM E. CORCORAN, ) Case No. ____________

)
Plaintiff, )
)
v.
)
ATLANTIC RICHFIELD COMPANY )
(ARCO), ATLANTIC RICHFIELD ) DEFENDANT ATLANTIC
DELAWARE CORPORATION, THE ) RICHFIELD COMPANY’S
ANACONDA COMPANY, THE ) NOTICE OF REMOVAL
ANACONDA DELAWARE )
CORPORATION, and DOES 1-100, )
)
Defendants. )
Pursuant to 28 U.S.C. §§ 1332, 1441, 1442, and 1446, Defendant Atlantic
Richfield Company (“Atlantic Richfield”) removes to the United States District
Court for the District of Montana, Missoula Division, this case, pending as Case
No. DV-18-593 in the Fourth Judicial District Court of Montana, Missoula County
(the “State Court Action”). The grounds for removal are as follows.
INTRODUCTION
Plaintiff William Corcoran (“Plaintiff”) is a resident of Missoula, Montana,
asserting claims against Atlantic Richfield based on his alleged exposure to arsenic
and other contaminants between 1955 and 1974 in the area of Mill Creek, which is
adjacent to the Anaconda smelter site in Deer Lodge County.
Atlantic Richfield is a Delaware corporation with its principal place of
business in Houston, Texas. Atlantic Richfield is the successor to The Anaconda
Company, the Anaconda Delaware Corporation, and Atlantic Richfield Delaware
Corporation. Atlantic Richfield and its predecessor The Anaconda Company
operated mining, milling, and smelting facilities in Deer Lodge County until
ending such operations in 1980.
Removal is proper under 28 U.S.C. §§ 1332 and 1441 because the plaintiff
and Atlantic Richfield, the only named defendant that still exists, are of diverse
citizenship and the claims asserted exceed the $75,000 jurisdictional threshold.
I. FILING AND SERVICE OF STATE COURT ACTION.
1. On May 9, 2018, Plaintiff filed a Complaint and Jury Demand in the
State Court Action. All process, pleadings, and orders served upon Atlantic
Richfield are attached hereto as Exhibit 1. See 28 U.S.C. § 1446(a).
2. The Complaint alleges that Plaintiff developed arsenic-induced
neuropathy following exposure to arsenic and other contaminants emitted from the
2

Anaconda smelter operated by Atlantic Richfield and its predecessors in Deer
Lodge County. Plaintiff alleges that such exposure occurred when Plaintiff lived
in Mill Creek, from 1955 to 1974. Atlantic Richfield ceased operating the
Anaconda smelting facilities in 1980.
3. Atlantic Richfield was served with the Complaint on October 12,
2018. Atlantic Richfield was the first defendant served, and no other defendant has
been served. Thus, this Notice of Removal is timely filed pursuant to 28 U.S.C.
§ 1446(b).
4. A copy of this Notice of Removal is being filed concurrently with the
Clerk of the District Court of Missoula County, Montana, and is being served on
all counsel of record. See 28 U.S.C. § 1446(a) and (d).
II. REMOVAL BASED ON DIVERSITY OF CITIZENSHIP

JURISDICTION.
5. This Court has original jurisdiction of this action under 28 U.S.C.
§ 1332 because complete diversity of citizenship exists between Plaintiff and
Atlantic Richfield, the only named defendant that still exists, and the amount in
controversy, exclusive of interests and costs, exceeds $75,000.
A. There Is Complete Diversity Between Plaintiff and Atlantic

Richfield.
6. Plaintiff is, and was at the time the Complaint was filed, a citizen and
resident of Montana. (Compl. ¶ 1.) A corporation is deemed to be a citizen of any
3

state by which it has been incorporated and of the state where it has its principal
place of business. 28 U.S.C. § 1332(c)(1). Atlantic Richfield is a Delaware
corporation with its principal place of business in Texas, and thus is not a citizen of
the State of Montana. (See Compl. ¶¶ 2, 3; Declaration of Jean Martin ¶ 2,
attached hereto as Exhibit 2.)
7. Plaintiff also named as defendants The Anaconda Company, the
Anaconda Delaware Corporation, and Atlantic Richfield Delaware Corporation.
These defendants were predecessors to Atlantic Richfield and were merged into
Atlantic Richfield. (Declaration of Jean Martin ¶¶ 5–8.) Of these defendants, only
The Anaconda Company was registered as a domestic corporation in Montana.1
(Compl. ¶¶ 2, 3.)
8. The citizenship of entities that have merged into other entities and no
longer exist is irrelevant to diversity jurisdiction. Hoefferle Truck Sales, Inc. v.
1
In his Complaint, Plaintiff acknowledges that The Anaconda Company is now inactive,
but alleges that it still “maintains its registered agent in Missoula County.” (Compl. ¶ 6.) Even
if true, diversity jurisdiction, which is determined based on the state of incorporation and the
corporation’s principal place of business. 28 U.S.C. § 1332(c)(1). Thus, the existence of a
registered agent in a state has little bearing on whether diversity jurisdiction exists. See, e.g.,
Perez v. Auto Tech. Co., No. CV1306728MMMVBKX, 2014 WL 12601479, at *2 (C.D. Cal.
Feb. 3, 2014) (“[A]llegations regarding the location of a corporation's registered agent for service
of process are insufficient to establish citizenship for purposes of diversity jurisdiction.”);
Eckerle v. Deutsche Bank Nat. Trust, CIV. 10–00474 SOM, 2010 WL 3984687, *2 (D. Haw.
Sept. 17, 2010) (“Plaintiffs argue that complete diversity of citizenship is lacking because
AHMSI is a registered business in Hawaii and has a registered agent in Honolulu. However, just
because a corporation is registered to do business in a certain state does not make that state its
principal place of business” (citations and internal quotation marks omitted)).
4

Divco-Wayne Corp., 523 F.2d 543, 549 (7th Cir. 1975); Meadows v. Bicrodyne
Corp., 785 F.2d 670, 672 (9th Cir. 1986) (citing Hoefferle).
9. Under the laws of Montana, Delaware, and Texas, a company
ceases to exist when it is merged into another company. See Mont. Code Ann.
§ 35-2-612(1) (“[E]very other corporation party to the merger merges into the
surviving corporation and the separate existence of every corporation except the
surviving corporation ceases”); Del. Code tit. 8, § 259 (“When any merger or
consolidation shall have become effective under this chapter, . . . the separate
existence of all the constituent corporations . . . shall cease[.]”); Tex. Bus. Orgs.
Code § 10.008(a)(1) (“When a merger takes effect[,] . . . the separate existence of
each domestic entity that is a party to the merger, other than a surviving or new
domestic entity, ceases[.]”).
10. Consequently, naming The Anaconda Company, the Anaconda
Delaware Corporation, and Atlantic Richfield Delaware Corporation as defendants
has no effect on diversity jurisdiction.
11. The Complaint also names “Does 1-100” as defendants. For purposes
of removal, the citizenship of Doe defendants is disregarded. 28 U.S.C.
§ 1441(b)(1) (“[The citizenship of defendants sued under fictitious names shall be
disregarded.”).
5

B. The Amount in Controversy Exceeds $75,000.
12. Based on the alleged migration of smelter and ore processing wastes
onto property where Plaintiff previously resided, Plaintiff asserts claims for
negligence, trespass, strict liability for abnormally dangerous activity, and
wrongful occupation of property. Plaintiff’s Complaint is silent, however,
regarding the specific amount demanded from Defendants. “When the amount is
not ‘facially apparent’ from the complaint, ‘the court may consider facts in the
removal petition’” to determine the amount in controversy. Kroske v. US Bank
Corp., 432 F.3d 976, 980 (9th Cir. 2005).
13. Atlantic Richfield disputes that it has any liability to Plaintiff and
disputes that Plaintiff is entitled to any of the damages or measures of damages
claimed in his Complaint. However, because the amount in controversy is
determined by the amount of damages sought by Plaintiff and not those to which
Plaintiff is entitled, Atlantic Richfield asserts that the amount in controversy
sought by Plaintiff’s claims for damages likely exceeds $75,000.
14. Plaintiff seeks a wide variety of damages in his Complaint, including
disruption of established course of life, physical pain and mental suffering,
emotional distress, cost of medical care, and loss of income and permanent
impairment of earning capacity. According to Plaintiff, his physician, Dr. Dana
Headapohl, stated that Plaintiff “is not compatible with jobs requiring hand
6

dexterity, good balance, walking on uneven surfaces, or climbing ladders or stairs,
or requiring fine hand motor or sensory skills.” (Compl. ¶ 31.) Plaintiff alleges
Dr. Headapohl further stated that Plaintiff is at risk for arsenic-related kidney
disease and will require periodic monitoring. (Id.) In addition, Plaintiff seeks
punitive damages “in an amount sufficient so that an example will be made of
Defendants to promote truth and honesty and to provide an incentive for
Defendants and others so situated.” (Id. ¶ 49.)
15. Considering that Plaintiff claims multiple categories of potentially
substantial damages, including pain and suffering and punitive damages (Compl.
¶¶ 35, 47–49; Prayer for Relief ¶¶ 1–2), it is more likely than not that Plaintiff
seeks damages in excess of $75,000. Plaintiff’s claim for medical treatment alone
likely exceeds $75,000: for both past and future expenses, Plaintiff seeks the “cost
of medical care, treatment, medications and hospitalization and physical and
occupational therapy.” (Compl. ¶ 35(C).) Further, Plaintiff’s claim for damages
related to “permanent impairment of earning capacity” seeks at least $75,000 on its
own. (Id. ¶ 35(E).) Plaintiff alleges that one of his doctors has concluded that his
“neurologic damage is permanent,” and that he cannot perform “jobs requiring
hand dexterity, good balance, walking on uneven surfaces, or climbing ladders or
stairs, or requiring fine hand motor or sensory skills.” (Id. ¶ 31.) Given these
alleged limitations, Plaintiff will likely contend that most occupations are now
7

unavailable to him. Plaintiff is 63 years old. (Id. ¶ 27.) Because Plaintiff will
likely contend that multiple years of future employment were still possible,
Plaintiff seeks at least $75,000 for lost earning capacity by itself.
16. Courts in the Ninth Circuit have held that the amount in controversy
exceeded $75,000 where the plaintiff sought very similar categories of “significant,
long-term damages.” See, e.g., Kroske, 432 F.3d at 980 (affirming the district
court’s finding that the amount in controversy was met where the plaintiff did not
allege the amount of damages sought but requested lost wages, health and mental
insurance benefits, 401(k) contributions, value of life insurance policies, stock
options, and emotional distress damages); Grazia v. Safeco Ins. Co. of Am., 2017
WL 4803921, at *2 (W.D. Wash. Oct. 25, 2017) (finding amount in controversy
exceeded $75,000 where complaint claimed damages “for past and future medical
expenses, pain and suffering damages, and lost wages and earning capacity,” and
interrogatory answers claimed “continued symptoms of brain injury” and “prior
and continued medical treatment”); Garcia v. Owens-Brockway Glass Container
Inc., 2016 WL 9275451, at *3 (C.D. Cal. June 30, 2016) (collecting cases and
finding the amount in controversy “more likely than not” exceeded $75,000 where
the plaintiffs sought “compensatory damages for what are alleged to be severe
injuries that will require significant medical treatment” as well as pain and
suffering damages); Canonico v. Seals, No. 2:13-CV-00316-RCJ, 2013 WL
8

1787191, at *1 (D. Nev. Apr. 25, 2013) (finding the amount in controversy likely
exceeded $75,000 where the plaintiff sued the defendant for negligence and sought
to recover past and future medical costs, pain and suffering, loss of earning
capacity, loss of enjoyment of life, and attorneys’ fees).2
WHEREFORE, removal of the State Court Action to this United States
District Court is proper because diversity of citizenship exists and the amount in
controversy exceeds $75,000, exclusive of interests and costs.3
Dated: November 2, 2018
/s/ Randy J. Cox

Randy J. Cox
BOONE KARLBERG P.C.
Attorney for Defendant Atlantic
Richfield Company
2
Alternatively, to the extent Plaintiff disputes that he seeks less than the jurisdictional
amount, Atlantic Richfield requests leave to take jurisdictional discovery from the Plaintiff
regarding the value of his claims. See Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 691
(9th Cir. 2006) (“[I]t may be appropriate to allow discovery relevant to jurisdictional amount
prior to remanding.”).
3
Atlantic Richfield reserves its right to remove this case based on federal question
jurisdiction within 30 days of first receipt of a pleading or paper from which it may ascertain that
the case is removable on that basis as well.
9

CERTIFICATE OF SERVICE
This is to certify that on the 2nd day of November, 2108, the foregoing was
duly served on the following by the means indicates:
1 CM/ECF
_____ Hand Delivery
2 Mail
_____ Overnight Delivery
_____ Facsimile
_____ E-Mail
1. Clerk, U.S. District Court
2. William A. Rossbach
Rossbach Law, PC
401 N. Washington Street
P. O. Box 8988
Missoula, MT 59807
/s/ Randy J. Cox

Randy J. Cox
BOONE KARLBERG P.C.
Attorney for Defendant Atlantic
Richfield Company
_______________________________
10

Case 9:18-cv-00185-DWM Document 1-1 Filed 11/02/18 Page 1 of 22
EXHIBIT 1
A lb.
;_:_t CT Corporation Service of Process
Transmittal
10/12/2018
CT Log Number 534219168
TO: LaTrisha Charles
BP America Inc.
501 Westlake Park Blvd
Houston, TX 77079-2604
RE: Process Served in Montana
FOR: Atlantic Richfield Company (Domestic State: DE)
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
TITLE OF ACTION: WILLIAM E. CORCORAN, Pltf. vs. ATLANTIC RICHFIELD COMPANY (ARCO), et at., Dfts.
DOCUMENT(S) SERVED: Summons, Complaint

COURT/AGENCY: MISSOULA COUNTY - MONTANA FOURTH JUDICIAL DISTRICT Court, MT
Case # DV18593
NATURE OF ACTION: Environmental Litigation - Personal Injury - July 2, 2015
ON WHOM PROCESS WAS SERVED: C T Corporation System, Missoula, MT
DATE AND HOUR OF SERVICE: By Process Server on 10/12/2018 at 11:09
JURISDICTION SERVED: Montana
APPEARANCE OR ANSWER DUE: Within 21 days after service, exclusive of the day of service
ATTORNEY(S) / SENDER(S): William A. Rossbach
Rossbach Law P.C.
P.O. Box 8988
Missoula, MT 59807
(406) 543-5156
ACTION ITEMS: CT has retained the current log, Retain Date: 10/13/2018, Expected Purge Date:
10/18/2018
Image SOP
Email Notification, Malika Herring malika.herring@bp.com
Email Notification, Melanie Johnson melanie.johnson@bp.com
Email Notification, LaTrisha Charles LaTrisha.Charles@bp.com
SIGNED: C T Corporation System

ADDRESS: 3011 American Way
Missoula, MT 59808-1921
TELEPHONE: 314-863-5545
Page 1 of 1 / SM
Information displayed on this transmittal is for CT
Corporation's record keeping purposes only and is provided to
the recipient for quick reference. This information does not
constitute a legal opinion as to the nature of action, the
amount of damages, the answer date, or any information
contained in the documents themselves. Recipient is
responsible for interpreting said documents and for taking
appropriate action. Signatures on certified mail receipts
confirm receipt of package only, not contents.
William A. Rossbach
ROSSBACH LAW, PC.
P. 0. Box 8988
Missoula, MT 59807
Tel: (406) 543-5156
Fax: (406) 728-8878
bill®rossbachlaw.com
Attorneys for Plaintiff
MONTANA FOURTH JUDICIAL DISTRICT MISSOULA COUNTY
WILLIAM E. CORCORAN, Case No. DV-18-593

Dept. 4 — Honorable Karen S. Townsend
Plaintiff,
V.
-
ATLANTIC RICHFIELD COMPANY SUMMONS
(ARCO), ATLANTIC RICHFIELD
DELAWARE CORPORATION, THE _'
ANACONDA-COTVIF'ANY,-TBE -
ANACONDA DELAWARE
CORPORATION,
DOES 1-100, .
-
Defendants.
•
. THE STATE OF MONTANA SENDS GREETINGS TO THE de
FOLLOWING DEFENDANT:
ATLANTIC RICHFIELD COMPANY

C T Corporation System — Registered Agent
3011 American Way
Missoula, MT 59808
• YOU ARE HEREBY SUMMONED to answer the Complaint in this action,
which is filed in the office of the Clerk of this Court, a copy of which is herewith
served upon you, and to file your answer and serve a copy thereof upon the
Plaintiffs attorney within twenty one (21) days after the service of this Summons,
exclusive of the day of service; and in case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded in
the Complaint.
Witness my hand and the seal of said Court, the 10th day of October, 2018.
SHIRLEY FAUST, Clerk •
By.
2.
William A. Rossbach
ROSSBACH LAW, PC.
P.O. Box 8988
Missoula, MT 59807
Tel: (406) 543-5156 FILED MAY 0 9 2018
Fax: (406) 728-8878 SHIRLEY E. FAUST. CLERK
billerossbachlaw.com
MONTANA FOURTH JUDICIAL DISTRICT, MISSOULA COUNTY
WILLIAM E. CORCORAN, Case No. DV-18-593
Plaintiff, Dept. 4 Honorable Karen S. Townsend
V.
ATLANTIC RICHFIELD COMPANY

(ARCO), ATLANTIC RICHFIELD FIRST AMENDED COMPLAINT
DELAWARE CORPORATION, THE AND DEMAND FOR JURY TRIAL
ANACONDA COMPANY, THE
ANACONDA DELAWARE
CORPORATION, .
DOES 1-100,
Defendants.
Plaintiff William E. Corcoran, by and through his counsel, and for his First
Amended Complaint against Defendants, alleges as follows:

PARTIES
1. Plaintiff William E. Corcoran is a citizen of the State of Montana and
a resident of the City of Missoula, Missoula County, Montana.
2. Defendant The Anaconda Company is and/or was a Montana
domestic corporation for profit with its principal place of business in the State
of Montana and its registered agent is located at 3011 American Way,
Missoula, Montana.
3. Defendants Atlantic Richfield Company (ARCO), Atlantic
Richfield Delaware Corporation, and The Anaconda Delaware Corporation are
business corporations for profit organized and existing under the laws of states
other than the State of Montana with principal places of business in states
unknown to the Plaintiff. Defendants ARCO; Atlantic Richfield Delaware
Corporation; and Anaconda Delaware Corporation were involved in sales and
merger agreements, which ultimately resulted in the purchase and/or
acquisition of Defendant The Anaconda Company by ARCO. As a result ofthe
merger agreements in approximately 1977 and the acquisition of The Anaconda
Company, ARCO, Atlantic Richfield Delaware Corporation, and Anaconda
Delaware Corporation assumed liability forall claims that could have been brought
against The Anaconda Company. For purposes of this action, the allegations and
claims against The Anaconda Company are also allegations and claims against
First Amended Complaint and Demand for Jury Trial Page 2

ARCO, Atlantic Richfield Delaware Corporation, and Anaconda Delaware
Corporation, as successor corporations. (The Anaconda Company, ARCO,
Atlantic Richfield Delaware Corporation, and Anaconda Delaware Corporation
may be referredto from time to time herein as the "ARCO Defendants.")
4. The true names and capacities of Defendants named herein as Does I
through 100, inclusive, are unknown to Plaintiff at this time. These Doe
Defendants had operational, management, or environmental responsibilities for
Defendants in the operation of the Anaconda Smelter and bear responsibility for
actions that caused the contamination of the soils, waters, and homes of the
residents of Mill Creek, Montana. Plaintiff therefore brings this action against
Does I through 100, inclusive, by such fictitious names. Plaintiff will seek leave to
amend this Complaint to state the true names and capacities of Does 1 through
100 when the same have been ascertained, together with further appropriate
charging allegations. Plaintiff is informed, believes, and thereon alleges that each
Defendant, fictitiously named Does 1 through 100 is legally responsible for the
occurrences herein alleged and that Plaintiff's injuries and damages were
proximately caused by each fictitiously named Defendants' unlawful acts or
omissions. Defendants Does 1 through 100, inclusive, are natural persons,
corporations, partnerships, joint ventures, or other legal entities who wrongfully
and unlawfully caused or contributed to Plaintiff's damages.
First Amended Complaint and Demand for Jury Trial Page 3 •

JURISDICTION AND YENUE
5. The District Court has jurisdiction pursuant to § 3-5-302, MCA.
6. Venue is proper in the Montana Fourth Judicial District Court,
Missoula, Montana, pursuant to § 25-2-122, MCA, because this is a tort action
and the Plaintiff is a resident of Missoula County and all the named ARCO
Defendants, except The Anaconda Company, are foreign corporations and not
incorporated in the State of Montana. The Anaconda Company is now inactive as
a result of the mergers with the ARCO Defendants, but, still maintains its
registered agent in Missoula County. The Atlantic Richfield Company (ARCO) is
a foreign corporation but maintains its registered agent in Missoula County.
GENERAL ALLEGATIONS
7. Each act.of negligence, carelessness, recklessness, and
maliciousness, and each violation of law alleged herein was committed by
Defendants and/or employees or agents of Defendants, acting within the
course and scope of their employment or agency with Defendants, and in
furtherance of the business interests of Defendants and each unlawful act or
omission alleged herein is imputable to Defendants.
8. ARCO and its predecessors, acting in the course and scope of
their businesses, owned, occupied, operated, managed, used, and/or

maintained a Smelting operation located near the towns of Anaconda and Mill
Creek, Deer Lodge County, Montana.
9. In 1864, miners discovered placer gold in Silver Bow Creek. By 1875,
mining companies had developed large scale underground and open pit mines in
Butte.
10. In 1884, the Anaconda Copper Mining Company and its predecessors
commenced large copper concentrating and smelting operations at the area
presently known as the Old Works. Those facilities were located on the north side
of Warm Springs Creek adjacent to the town of Anaconda and operated until
about 1901. By 1902, ore processing and smelting operations had begun at the
Washoe Reduction Works located on Smelter Hill, south of the Old Works and
east of the town of Anaconda. That facility was also known as the Anaconda
Smelter.
11. In 1977, the Atlantic Richfield Company (ARCO) purchased and
merged with The Anaconda Company, making it inactive, and expressly assumed
its liabilities, as well as its assets. Operations at the Smelter ceased in 1980 and
the smelter facilities were dismantled soon thereafter. The only substantial feature
remaining from the Smelter facility is the 585-foot tall brick smelter stack.
12. The Anaconda Company and its successors (ARCO) began smelting
operations at the Anaconda Smelter for nearly a century beginning in the 1880s

and ceasing in 1980. The Anaconda Company merged with the Atlantic Richfield
Corporation (ARCO) in 1977. ARCO operated the smelter from 1977 to 1980. .
13. In 1983, the U.S. Environmental Protection Agency designated the
Anaconda Smelter a Superfund site on the National Priorities List (NPL) and
began conducting a detailed investigation of contamination at the site.
14. According to the 1987 EPA Record of Decision (ROD), a century of
ore processing at the smelter produced wastes spread over more than 6,000 acres,
containing elevated concentrations of arsenic, cadmium, copper, lead, and zinc.
According to the ROD, ARCO estimated that the wastes included about 185
million cu. yds. of tailings, 27 million cu. yds. of slag, and 0.25 million cu. yd. of
flue dust.
15. Mill Creek, Montana is located immediately adjacent to the Anaconda
Smelter site. The community covers an area of 160 acres. Residents began
moving into the Mill Creek area in 1902. By 1916-1917, a large part of the Mill
Creek area contained a variety of residences, including tents and log houses.
16. As described in the EPA ROD, because it is immediately adjacent to
the Anaconda smelter, the Community of Mill Creek has been contaminated for
over 100 years with smelter emissions, fugitive emissions of flue dust at the
smelter, and fugitive emissions from adjacent highly contaminated soils. Smelter
flue emissions in Mill Creek contained arsenic, cadmium, and lead.

17. During soil sampling of communities in the vicinity of the smelter, the
EPA discovered that Mill Creek had extremely high levels of arsenic and other
heavy metal contaminants compared to other communities in the area.
18. On the basis of the available data, EPA concluded that the soil in Mill
Creek was highly contaminated with arsenic and other toxic metals derived from
•
the Anaconda Smelter. The EPA concluded that environmental and biologic
testing showed that the community of Mill Creek, Montana was the most
contaminated inhabited area around the Anaconda Smelter NPL site. Mill Creek
residents were constantly exposed to air, water, soils, and dust contaminated by
arsenic and other toxic materials.
19. In March 1985, the Center for Disease Control (CDC) found that pre-
school children from Mill Creek had greater arsenic exposure than children of
another community in the Anaconda area. Later urine sampling in July of 1985
showed that the levels in the Mill Creek children remained higher than those of
children in any other community studied. These elevated urinary arsenic levels
persisted despite efforts to remove house dust from their Mill Creek homes. Only
after some children were relocated from Mill Creek did their urinary arsenic levels
from Mill Creek decrease.
20. In 1986, Clement and Associates prepared for the EPA a detailed,
quantitative Endangerment Assessment This assessment evaluated the actual and

potential exposures of the residents Mill Creek to hazardous substances through
soil, air, drinking water, and household dust pathways.
21. Based on the Endangerment Assessment, the ROD determined that for
Mill Creek children, direct ingestion of soil was the most likely route of exposure
to hazardous contaminants from the Anaconda Smelter site. For adults and
children, the most important potential exposure pathways were ingestion of
contaminated drinking water and inhalation and ingestion of airborne dirt and
household dust.
22. The ROD also determined that the total environmental exposure of
Mill Creek children to arsenic included combined ingestion and inhalation
exposure. Therefore, the actual risk was increased by the many routes of exposure
to soil, dust, and drinking water and the total arsenic exposure was additive.
23. EPA concluded that the elevated arsenic levels in the urine of the
children formerly living in Mill Creek demonstrated that they were exposed to
elevated levels of arsenic and other metals associated with the smelter.
24. EPA in the ROD identified significant public health risks for children
by exposure to arsenic and heavy metals in soil, drinking water, and household
dust in the community of Mill Creek.
25. Human health concerns in IVlill Creek became EPA's highest priority
for the Anaconda Smelter site. The EPA concluded that the contamination in the

Mill Creek area posed an imminent and substantial endangerment to the health of
individuals residing there, especially to children.
26. As described in the EPA ROD of October 1987, because of the extent
and complexity of the exposures, the EPA concluded that the preferred alternative
was to relocate all the residents, demolish all structures, and fence and provide a
vegetative cap to isolate all the contaminated soil. That took place through 1988.
27. Plaintiff William Corcoran was born on May 30, 1955 in Butte,
Montana. He lived with his family in Mill Creek from 1955 to 1974. During that
time he, like all children and adults residing in Mill Creek, was exposed to arsenic
and other toxic chemicals by the same exposure pathways determined and
evaluated by the EPA in its Remedial Investigation of the Mill Creek Superfund
site, including ingestion of dirt, dust, and contaminated water and inhalation of.
airborne dusts and-dirt
28. In 2015, after suffering increasing pain and disability in his hands and
feet, Plaintiff began seeing doctors to try to find a diagnosis for his symptoms.
29. On June 2, 2015, Dr. Erica Seas at St. Vincent's in Billings expressly
diagnosed for the first time that Plaintiff suffered from arsenic induced neuropadiy.
30. On July 2, 2015, Dr. Michael Ganz confirmed that diagnosis.
31. On March 28,2018, Dr. Dana Headapohl examined Plaintiff and
concluded that he: "has peripheral neuropathic symptoms consistent with arsenic

induced neuropathy. ... It is unlikely that his peripheral neuropathy will improve.
On a more probable than not basis, this neurologic damage is permanent.
... because of his evolving peripheral neuropathy, he is not compatible with jobs
requiring hand dexterity, good balance, walking on uneven surfaces, or climbing
ladders or stairs, or requiring fine hand motor or sensory skills." She also
concluded that he was at risk for arsenic related kidney disease and will require
periodic monitoring for that condition.
32. During the period of their ownership and occupancy of the
Anaconda smelting operation and its associated facilities, and at times since
closing the operation, Defendants negligently, fraudulently, maliciously, and
with reckless disregard of Plaintiffs rights, caused toxic and hazardous
smelter and ore processing materials - including, but not limited to, furnace
. —
slag, flue dust, and heavy metals such as arsenic and other toxic chemicals, to
enter the air, soil, surface waters, and groundwater in and around said facilities
and the adjacent community of Mill Creek.
33. These toxic contaminants and hazardous materials migrated, and
continue to migrate, by means of air, groundwater, and soil, onto Mill Creek
property where Plaintiff resided as a child and adolescent for nearly 20 years.
34. Defendants intentionally, negligently, maliciously, and/or with
reckless disregard of Plaintiffs rights, made affirmative misrepresentations

and/or failed to disclose material facts to Plaintiff and his family and other
residents of Mill Creek. Defendants were aware ofthe toxicity and migration
of these hazardous materials, knew the hazards associated with the migration
of these toxic materials into the community, and failed to warn Plaintiff, his
family, and other residents of Mill Creek that their health, welfare, and
property had been jeopardized.
35: As a direct and proximate consequence of the =lawful, improper,
malicious, and fraudulent conduct of Defendants that caused Plaintiff and
many others in the Mill Creek community to be heavily exposed to arsenic
and other toxic materials, Plaintiff has sustained severe and .permanent
physical and mental injuries as described above and has been damaged and is
entitled to compensation for at least the following:
A. Disruption of established course of life, with attendant loss of

lire's enjoyment;
B. P.hysical pain and mental suffering, anguish, and depression;
C. Emotional distress;
D. Cost of medical care, treatment, medications and hospitalization

and physical and occupational therapy in the past and for the
reasonably foreseeable future; •
E. Loss of income and permanent impairment of earning capacity;

and
First Amended Complaint and Demand for Jury Trial Page ii

F. Violation of his inalienable Montana constitutional right to a

clean and healthful environment
FIRST CAUSE OF ACTION
(Negligence)
Plaintiff realleges paragraphs 1 through 35 and incorporates them by
reference herein.
36. Defendants owed Plaintiff a duty to act with reasonable care so as
not to jeopardize his health and welfare.
37. Defendants breached their duty of care by negligently, carelessly,
and recklessly generating, releasing, depositing, disposing, and failing to
control and contain the hazardous and toxic materials generated, used, and
released at their Anaconda smelting operation and its associated facilities.
Defendants' negligence is more particularly described as follows:
A. Failure to control and contain arsenic and other toxic

substances generated and spread as a result of Defendants'
operations;
B. Failure to prevent arsenic and other toxic materials from

migrating to neighboring Mill Creek residential properties;
C. Failure to exercise reasonable care to contain the toxins once

the Defendants knew or reasonably should have known they
had polluted a large area in and about the Mill Creek
community, including the property where Plaintiff lived;

D. Failure to exercise reasonable care to prevent the escape of

Defendants' toxins that permeated the soil and contaminated
the groundwater in and about the area of Plaintiffs residence
thereby creating a substantial risk of harm and injury to
Plaintiff;
E. Failure to remove the toxic substances from the Plaintiff's

residence; and
F. Failure to warn Plaintiff of the scope of and dangers posed by

the contamination.
38. As a direct and proximate result ofthe Defendants' foregoing
negligent and unlawful conduct, Plaintiff has suffered, and continues to suffer,
damages and detriment as alxnealleged.
SECOND CAUSE OF ACTION
(Trespass)
Plaintiff realleges paragraphs I through 38 above and incorporates
them by reference herein.
39. At all times relevant to the causes of action alleged in this
Complaint, Plaintiff resided on property within the Mill Creek area
affected by the contamination.
40. The Defendants intentionally, recklessly, negligently, without
just cause and by conducting an abnormally dangerous activity, committed
the wrongful act of trespass by arsenic and other toxic contaminants and

hazardous substances to invade and to remain on the real property where
Plaintiff lived with his family for nearly twenty years. These toxic substances
Were transported onto Plaintiff's residence and home by air, soil, and
groundwater.
41. Defendants have failed to remove said toxic substances from the
property.
42. As a direct and proximate result of Defendants' trespass, Plaintiff
has suffered, and continues to suffer the physical and emotional injuries and
compensable damages above alleged.
THIRD CAUSE OF ACTION
(Strict Liability for Abnormally Dangerous Activity)
Plaintiff realleges paragraphs 1 through 42 and ncorporates them herein
by reference.
43. The smelting, use, disposal, and release of large quantities and,
concentrations of arsenic and other hazardous substances as herein alleged and
the operation of a large scale smelting operation immediately adjacent to the
residential community of Mill Creek is an abnormally dangerous and ultra-
hazardous activity in that:

A. There exists a high degree of risk of serious harm to the

environment, persons and land, including Plaintiff, which
cannot be eliminated by the exercise of reasonable care;
B. There is a strong likelihood that great harm will result from

the smelting, use, disposal, and release of such hazardous
materials and toxic substances;
C. The smelting, use, disposal, and release of such hazardous

materials and toxic substances in large quantities and
concentrations in close proximity to a residential conimunity
is not a matter of common usage such as would be carried on
by the great mass of mankind or many people in the
community;
D. The manner in which Defendants smelted, used, disposed,

and released such materials at their facilities is and was
inappropriate; and
E. The value to Defendants of the smelting, use, disposal, and

release of such large quantities and concentrations of
hazardous materials and toxic substances adjacent to a
residential community is outweighed by the likelihood of
harm resulting therefrom.
44. As a direct and proximate result of Defendants' unlawful actions
and abnormally dangerous and ultra-hazardous activities, Plaintiff has
suffered, and continues to suffer the injuries, damages and detriment as herein
alleged.
First Amended Complaint and Demand for Jury Trial Page IS

FOURTH CAUSE OF ACTION
" (Wrongful Occupation of Real Property)
Plaintiff realleges paragraphs 1 through 44 above and incorporates
them by reference herein.
45. Defendants have wrongfully occupied the private property where
Plaintiff and his family resided for nearly twenty years in violation of § 27-1-
318, MCA, and Montana common law.
46. As a result of Defendants' wrongful occupation of Plaintiff's
property, Plaintiff was exposed to arsenic and other toxic chemicals and has
suffered, and continues to suffer the injuries, damages, and detriment as above
alleged.
PUNITIVE DAMAGES
-
47. Although Defendants knew for many years that their unlawful
conduct alleged above would cause, and did cause, actual and extensive harm to
persons such as Plaintiff and adjacent residential communities such as Mill Creek
who were exposed to the contamination caused by Defendants, Defendants
deliberately proceeded to act in conscious and intentional disregard for and
indifference to the harm and the high probability of further injury and harm to
Plaintiff and others similarly situated.
First Amended Complaint and Demand for hi), Trial Page 16

48. Defendants made misrepresentations of fact with knowledge of
their falsity and have concealed material facts, depriving Plaintiff of his legal
rights and causing him injury, harm, and damages.
49. The above-described deceitful and fraudulent acts of Defendants
constituted actual malice and fraud in that the Defendants intentionally created a
high probability of injury to the Plaintiff and deliberately proceeded to act in
conscious or intentional disregard or indifference to the high probability of injury.
Pursuant to Montana law, therefore, Plaintiff is entitled to exemplary and punitive
damages in an amount sufficient so that an example will be made of Defendants to
promote Midi and honesty and to provide an incentive for Defendants and others so
situatei
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against the Defendants and for
an award of damages for the following:
1. Reasonable compensation to Plaintiff for all injuries, damages and
other harm he has suffered as a result of Defendants' unlawful conduct;
2. Punitive and exemplary damages in an amount sufficient to punish
and to deter Defendants and others similarly situated from engaging in similar
conduct;
3. For costs and disbursements incurred herein; and

4. Such other and further relief as the Court deems just and
. equitable.
DATED this 9th day of May, 2018.
ROSSBACH LAWI P C
By:
William A. Rossbach
Attorneys for Plaintiff'
DEMAND FOR .1111RY TRIAL
Plaintiff hereby demands a trial by jury of any and all issues in this action so
triable of right.
DATED this 9th day of May, 2018.
ROSSBACH L P C.
By:
William A. Rossbach

EXHIBIT 2
JS44 (Rev. 06/17)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided hy local rules ofcourt. This form,approved by the Judicial Conference ofthe United States in September 1974, is required for the use ofthe Clerk of Court for the
purpose ofinitiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXTPAGH OF THIS FORM.)
I. (a) PLAINTIFFS
APl5frfffl?^?IPlELD COMPANY (ARCO), ATLANTIC RICHFIELD
WILLIAM E. CORCORAN DELAWARE CORPORATION,THE ANACONDA COMPANY,THE
ANACONDA DELAWARE CORPORATION, DOES 1-100
(b) County of Residence of First Listed Plaintiff Mlssouia County of Residence of First Listed Defendant
(EXCEPTm U.S. PUINTIFF CASES) (INU.S. PUINTIFF CASES ONLY)
NOTE; IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys(Firm Name. Address, and Telephone Number) Attorneys (IfKnown)
William A. Rossbach, ROSSBACH LAW P.C.. 401 N. Washington, Randy J. Cox, BOONE KARLBERG P.C., 201 West Main, Suite 300,
P.O. Box 8988, Mlssouia, Ml 59807,(406) 543-5156 P.O. Box 9199, Mlssouia, MT 59807-9199,(406)543-6646
II. BASIS OF JURISDICTION(Ptacean ".Y"ill One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box far Plaintiff
(For Diversity Ca.scs Only) and One Box for Defendant)
□ 1 U.S. Government □ 3 Federal Question RTF DEF RTF DEF
Piaintifr (U.S. Government Not a Parly) Citizen of This State |2C 1 O t Incorporated or Principal Place O 4 □ 4
of Business In TItis State
O 2 U.S. Govemment a 4 Diversity Citizen of Another Stale □ 2 0 2 Incorporated an</Principal Place OS fit 5
Defendant (Indicate Citizenship of Parlies In Hem III) of Business In Another Stale
Citizen or Subject of a □ 3 0 3 Foreign Nation 0 6 0 6

Foreign Country
IV. NATURE OF SUIT (Place an "X" in One Box Only) Click here for: Nature.of^uit.C(^^
1 CONTRACT TORTS FORFEITDRR/PF.NAI.TV BANKRHPTCV OTHER STATUTES S&r i
□ 110 InsiLrance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure O 422 Appeal 28 use 158 0 375 False Claims Act
□ 120 Marine 0 310 Airplane □ 365 Personal injury • ofProperty21 USC881 0 423 Withdrawal 0 376QuiTam(3l USC
□ 130 Miller Act □ 315 Airplane Product Product Liability 0 690 Other 28 use 157 3729(a))
□ 140 Negotiable Instrument LiabiliQ' 0 367 Health Care/ □ 400 State Reapportionment
□ 150 Recovery ofOverpayment □ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS □ 410 Antitrust
& Enforcement of Judgment Slander Persona] Injury O 820 Copyrights □ 430 Banks and Banking
□ iSI Medicare Act □ 330 Federal Employers' Product Liability 0 830 Patent □ 450 Commerce
O 152 Recovery ofDcfaulted Liability □ 368 Asbestos Personal 0 835 Patent • Abbreviated O 460 Deportation
Student Loans □ 340 Marine Injury Product New Drug Application 0 470 Racketeer Influenced and
(Excludes Veterans) 0 345 Marine Product Liability O 840 Trademark Corrupt Organizations
0 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIALSErURITV □ 480 Consumer Credit
of Veteran's Benefits □ 350 Motor Vehicle O 370 Other Fraud O 710 Fair Labor Standards □ 861 HIA (13950) □ 490 Cable/Sat TV
D 160 Stockholders'Suits □ 355 Motor Vehicle O 371 Trulli in Lending Act □ 862 Black Lung (923) O 850 Securities/Commodities/
□ 190 Other Contract Product Liability O 380 Ollrer Personal □ 720 Labor/Management □ 863 DIWC/DIWW (405(g)) Exchange
O 195 Contract Product Liability K 360 Otljcr Personal Property Damage Relations □ 864 SSID Title XVI O 890 Oilier Statutory Actions
□ 196 Franchise Injury □ 385 Property Damage O 740 Railway Labor Act □ 865 RSI (405(g)) O 891 Agricultural Acts
□ 362 Personal Injury - Product Liability 0 751 Family and Medical 0 893 Environmental Matters
Medical Malpractice Leave Act 0 895 Freedom of Information
1 REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS □ 790 Other Labor Litigation FEDERAL TAX SUITS Act
□ 210 Land Condemnation O 440 Other Civil Rights Habeas Corpus: 0 791 Employee Retirement □ 870 Taxes (U.S. Plaintiff O 896 Arbitration
O 220 Foreclosure O 441 Voting □ 463 Alien Detainee Income Security Act or Defendant) O 899 Administrative Procedure
O 230 Rent Lease & Ejectment O 442 Employment O 5I0Motions to Vacate 0 871 IRS—Third Party Act/Review or Appeal of
0 240 Torts to Land □ 443 Housing/ Sentence 26 use 7609 Agency Decision
□ 245 Tort Product Liability Accommodations □ 530 General □ 950 Constitutionality of
□ 290 All Other Real Property O 445 Amer. wAJisabilities - O 535 Death Penalty IMMIGRATION State Statutes
Employment Other: □ 462 Naliiralizalion Application
□ 446 Amer. w/Disabilities - □ 540 Mandamus & Other □ 465 Otlier Immigration
Other 0 550 Civil Rights Actions
448 Education 0 555 Prison Condition
□ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an "X" in One Box Only)

O 1 Original Removed from □ 3 Remanded from O 4 Reinstated or OS Transferred from □ 6 Muitidistrict □ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation- Litigation-
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not citejtirisdiciUmulstatutes unless diversity):
28U.S.C1332
VI. CAUSE OF ACTION
Brief description of cause:
Personal Injury allegedly due to toxic exposure.
VII. REQUESTED IN O CHECK IF THIS IS A CLASS ACTION DEMANDS CHECK YES only ifdemanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: K Yes ONo
Vlll. RELATED CASE(S)
(See instruction.s):
IF ANY ji;BGg ^ DOCKET NUMBER
DATE SIGNA RNEY OF
Randy J. Cox
E
FOR OFFICE USE ONLY
RECEIPTS AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Mill Creek Lawsuit

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Case 9:18-cv-00185-DWM Document 1 Filed 11/02/18 Page 1 of 10

Attorneys for Defendant Atlantic Richfield Company

IN THE UNITED STATES DISTRICT COURT

WILLIAM E. CORCORAN, ) Case No. ____________

Pursuant to 28 U.S.C. §§ 1332, 1441, 1442, and 1446, Defendant Atlantic

Richfield Company (“Atlantic Richfield”) removes to the United States District

Plaintiff William Corcoran (“Plaintiff”) is a resident of Missoula, Montana,

adjacent to the Anaconda smelter site in Deer Lodge County.

Atlantic Richfield is a Delaware corporation with its principal place of

business in Houston, Texas. Atlantic Richfield is the successor to The Anaconda

Company, the Anaconda Delaware Corporation, and Atlantic Richfield Delaware

Corporation. Atlantic Richfield and its predecessor The Anaconda Company

ending such operations in 1980.

I. FILING AND SERVICE OF STATE COURT ACTION.

1. On May 9, 2018, Plaintiff filed a Complaint and Jury Demand in the

Richfield are attached hereto as Exhibit 1. See 28 U.S.C. § 1446(a).

2. The Complaint alleges that Plaintiff developed arsenic-induced

Anaconda smelter operated by Atlantic Richfield and its predecessors in Deer

Anaconda smelting facilities in 1980.

3. Atlantic Richfield was served with the Complaint on October 12,

4. A copy of this Notice of Removal is being filed concurrently with the

all counsel of record. See 28 U.S.C. § 1446(a) and (d).

II. REMOVAL BASED ON DIVERSITY OF CITIZENSHIP

5. This Court has original jurisdiction of this action under 28 U.S.C.

§ 1332 because complete diversity of citizenship exists between Plaintiff and

controversy, exclusive of interests and costs, exceeds $75,000.

A. There Is Complete Diversity Between Plaintiff and Atlantic

resident of Montana. (Compl. ¶ 1.) A corporation is deemed to be a citizen of any

place of business. 28 U.S.C. § 1332(c)(1). Atlantic Richfield is a Delaware

the State of Montana. (See Compl. ¶¶ 2, 3; Declaration of Jean Martin ¶ 2,

attached hereto as Exhibit 2.)

7. Plaintiff also named as defendants The Anaconda Company, the

Anaconda Delaware Corporation, and Atlantic Richfield Delaware Corporation.

Atlantic Richfield. (Declaration of Jean Martin ¶¶ 5–8.) Of these defendants, only

The Anaconda Company was registered as a domestic corporation in Montana.1

longer exist is irrelevant to diversity jurisdiction. Hoefferle Truck Sales, Inc. v.

9. Under the laws of Montana, Delaware, and Texas, a company

Code § 10.008(a)(1) (“When a merger takes effect[,] . . . the separate existence of

domestic entity, ceases[.]”).

10. Consequently, naming The Anaconda Company, the Anaconda

Delaware Corporation, and Atlantic Richfield Delaware Corporation as defendants

has no effect on diversity jurisdiction.

of removal, the citizenship of Doe defendants is disregarded. 28 U.S.C.

§ 1441(b)(1) (“[The citizenship of defendants sued under fictitious names shall be

B. The Amount in Controversy Exceeds $75,000.

negligence, trespass, strict liability for abnormally dangerous activity, and

wrongful occupation of property. Plaintiff’s Complaint is silent, however,

removal petition’” to determine the amount in controversy. Kroske v. US Bank

Corp., 432 F.3d 976, 980 (9th Cir. 2005).

disputes that Plaintiff is entitled to any of the damages or measures of damages

claimed in his Complaint. However, because the amount in controversy is

Plaintiff is entitled, Atlantic Richfield asserts that the amount in controversy

sought by Plaintiff’s claims for damages likely exceeds $75,000.

14. Plaintiff seeks a wide variety of damages in his Complaint, including

disruption of established course of life, physical pain and mental suffering,

impairment of earning capacity. According to Plaintiff, his physician, Dr. Dana

dexterity, good balance, walking on uneven surfaces, or climbing ladders or stairs,

punitive damages “in an amount sufficient so that an example will be made of

Defendants to promote truth and honesty and to provide an incentive for

Defendants and others so situated.” (Id. ¶ 49.)

15. Considering that Plaintiff claims multiple categories of potentially

of medical care, treatment, medications and hospitalization and physical and

occupational therapy.” (Compl. ¶ 35(C).) Further, Plaintiff’s claim for damages

related to “permanent impairment of earning capacity” seeks at least $75,000 on its