                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0590n.06

                                        Case No. 16-2660

                          UNITED STATES COURT OF APPEALS
                                                                                        FILED
                               FOR THE SIXTH CIRCUIT                               Oct 26, 2017
                                                                              DEBORAH S. HUNT, Clerk

GREGORY COLE; ANNIE SHIELDS,                          )
                                                      )
       Plaintiffs-Appellants,                         )
                                                      )     ON APPEAL FROM THE UNITED
v.                                                    )     STATES DISTRICT COURT FOR
                                                      )     THE EASTERN DISTRICT OF
MARATHON OIL CORPORATION;                             )     MICHIGAN
MARATHON PETROLEUM                                    )
CORPORATION; MARATHON                                 )
PETROLEUM COMPANY LP,                                 )
                                                      )
       Defendants-Appellees.                          )


       BEFORE: COOK, KETHLEDGE, and DONALD, Circuit Judges.

       PER CURIAM. This case arises from Marathon Petroleum Company’s operation of an

oil refinery in Detroit, Michigan. Plaintiffs, residents living near the refinery, sued Marathon,

alleging that the refinery’s discharge of noxious pollutants contaminated their property and

constituted a private nuisance.     The district court dismissed Plaintiffs’ case on statute-of-

limitations grounds. We reverse and remand.

                                                 I.

       Marathon has continuously operated an oil refinery in southwest Detroit since the 1930s.

The refinery’s “operations include crude distillation, catalytic cracking, hydrotreating, reforming,

alkylation, sulfur recovery and coking to produce gasoline, distillates, asphalt, fuel-grade coke,
Case No. 16-2660
Cole, et al. v. Marathon Oil Corporation, et al.


chemical-grade propylene, propane, slurry and sulfur.”           According to Plaintiffs, these

manufacturing processes “result in the generation, creation, release, emission and discharge of

Refinery Contaminants, hazardous substances, noise, odors, vapors, soot, dirt and fumes.”

       Seeking to represent a class of similarly situated neighbors, Plaintiffs sued Marathon on

February 22, 2016, asserting claims sounding in nuisance and negligence (they filed an amended

complaint on March 8, 2016).1 In particular, Plaintiffs allege that their “properties have been

contaminated with toxic and hazardous substances released from Defendants’ Detroit Refinery,”

that the “Refinery Contaminants have been linked to asthma, cancer, lung disease, nervous

system harm, blindness and other serious illness,” and that noxious odors and loud noises

emanating from the refinery interfere with their property use.

       Marathon moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), asserting that Plaintiffs

failed to allege sufficient facts to support their nuisance and negligence claims, and that

Michigan’s three-year statute of limitations foreclosed recovery.       According to Marathon,

Plaintiffs’ alleged injuries first occurred more than three years before Plaintiffs filed suit:

“Plaintiffs do not plead any facts from which the Court can infer that their alleged injuries first

occurred less than three years ago.” Plaintiffs countered that “Marathon’s ‘present,’ ‘continuing’

and ‘ongoing acts’ give rise to [their] claims.”

       The district court declined to address the parties’ sufficiency-of-the-pleadings arguments,

instead dismissing the nuisance and negligence claims as time-barred. Plaintiffs appealed.




       1
         The complaint also included a strict-liability claim, which the district court dismissed
because “it is not a viable claim under Michigan law.” Plaintiffs decline to challenge that ruling
on appeal.
                                                   -2-
Case No. 16-2660
Cole, et al. v. Marathon Oil Corporation, et al.


                                                   II.

       Michigan’s statute of limitations for private nuisance and negligence claims requires

filing within three years “after the claim first accrued to the plaintiff.” Mich. Comp. Laws

§§ 600.5805(1), (10). The claim accrues “when both the last [wrongful] conduct and first,

subsequent corresponding injury occured.” Marilyn Froling Revocable Living Tr. v. Bloomfield

Hills Country Club, 769 N.W.2d 234, 250 (Mich. Ct. App. 2009).                 Seeking dismissal of

Plaintiffs’ claims, Marathon argued that Michigan’s statute of limitations barred Plaintiffs’

nuisance and negligence claims, and the district court agreed. We review de novo a district

court’s determination that a plaintiff filed a complaint outside of the applicable limitations

period. Tolbert v. Ohio Dep’t of Transp., 172 F.3d 934, 938 (6th Cir. 1999).

       In granting Defendants’ motion to dismiss, the court emphasized that “Plaintiffs fail to

identify when their nuisance claim first accrued” or “a single date in which the act (i.e.

Defendants’ operation of its refinery) and Plaintiffs’ incidental injuries first occurred.” As the

court put it, “Plaintiffs do not allege any facts from which the [c]ourt can infer that the alleged

injuries first occurred less than three years ago. Instead, the [c]ourt is left to speculate as to when

the period of limitations began to run.” And although the complaint alleged that Marathon

continued to pollute within the limitations period, the court reasoned that the complaint “wholly

lacks facts showing that the alleged nuisance (i.e. Defendants’ operation of its refinery) is any

different than it was outside of the limitations period.”

       The district court erred when it concluded that all of Plaintiffs’ claims accrued at the first

incident of Marathon’s allegedly wrongful conduct, even though the conduct and resultant harm

continue to the present day. Under Michigan’s statute-of-limitations law, “each alleged violation

. . . [is] a separate claim with a separate time of accrual.” Dep’t of Envtl. Quality v. Gomez, 896

                                                 -3-
Case No. 16-2660
Cole, et al. v. Marathon Oil Corporation, et al.


N.W.2d 39, 53 (Mich. Ct. App. 2016). Marathon’s alleged wrongful conduct is the “generation,

creation, release, emission and discharge of Refinery Contaminants.” Thus, each discharge is a

violation giving rise to a separate claim. Id.; Garg v. Macomb Cty. Cmty. Mental Health Servs.,

696 N.W.2d 646, 658 (Mich. 2005). Plaintiffs’ complaint includes allegations of both past and

present wrongful conduct. Any claims for alleged discharges occurring prior to February 22,

2013, which was three years prior to Plaintiffs’ complaint, are time-barred. See Mich. Comp.

Laws § 600.5805(10); Garg, 696 N.W.2d at 660. Any claims for discharges occurring after

February 22, 2013, are timely. See Gomez, 896 N.W.2d at 53 (“[T]hat some of a plaintiff’s

claims accrued outside the applicable limitations period does not time-bar all the plaintiff’s

claims.”). The district court therefore erred in dismissing the complaint as time-barred.

                                               III.

       For these reasons, we reverse and remand for further proceedings consistent with this

opinion.




                                               -4-
