                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                                                                  [DO NOT PUBLISH]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. § 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.




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