This is actually a very important opinion by Judge Jordan, involving "toxic tort" allegations in an area of Palm Beach County known as "The Acreage."
You can tell he was more than a little distressed over Judge Ryskamp's issuance of a Lone Pine order before the sufficiency of the allegations of the complaint were determined:
It is one thing to demand that plaintiffs come forward with some evidence supporting certain basic elements of their claims as a way of organizing (and maybe bifurcating) the discovery process once a case is at issue, and dealing with discrete issues or claims by way of partial summary judgment motions. It is quite another to begin compiling, analyzing, and addressing evidence (pro and con) concerning the plaintiffs’ allegations without reciprocal discovery before those allegations have been determined to be legally sufficient under Rule 12(b)(6)....
Whatever the general propriety and/or utility of Lone Pine orders—matters we do not pass on today—they should not be used as (or become) the platforms for pseudo-summary judgment motions at a time when the case is not at issue and the parties have not engaged in reciprocal discovery. After all, “if [a district court] considers materials outside of the complaint, [it] must [generally] convert [a] motion to dismiss into a summary judgment motion.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). Critically, such a conversion requires notice to the parties and an opportunity for mutual discovery. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). And if these procedural safeguards are not enforced, then Lone Pine orders might become the practical equivalent of a heightened, court-imposed quasi-pleading standard, something the Supreme Court has frowned on.Yes, exactly!
Turning to the legal sufficiency of the complaint, Twombly Twombly Twombly:
P&W contests the accuracy of a number of the factual allegations that the plaintiffs have pled, but we must accept them as true at this stage of the case. See Mills, 511 F.3d at 1303. Taken together, the plaintiffs’ allegations set forth facts that amount to substantially “more than labels and conclusions” concerning the matter of contamination. Twombly, 550 U.S. at 554. See also Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (observing that, although “the line between ‘facts’ and ‘conclusions’ is often blurred,” facts are typically “susceptible to objective verification” while conclusions most often amount to “‘inferences from’ the underlying facts”), overruled on other grounds by Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004).It will be interesting to see how this case progresses when it returns to the district court.
Along similar lines, the district court erred in ruling that each individual property owner must plead that he or she tested for contaminants on his or her property to properly allege actual contamination. Proof of such individualized testing may well prove necessary for the “contamination” plaintiffs to meet their ultimate burden of persuasion, but they need not plead that such testing has occurred at the motion-to-dismiss stage. See Twombly, 550 U.S. at 555 (observing that “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations”). The plaintiffs alleged that they tested for and found contaminants on at least some of The Acreage properties, and the plaintiffs’ hydrologists and toxicologists verified the presence of these chemicals in The Acreage and the plaintiffs’ groundwater. These assertions, taken in tandem with the other allegations discussed above, are more than sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 570.