Stratford Holding, LLC v. Fog Cap Retail Investors LLC, et al

[DO NOT PUBLISH]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: 1 of 3

-- 1 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 Division conclusively established that Appellant could not state a1
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 (11 Cir. 2008). After carefully considering theth
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
The No-Listing Letter informed Appellant that the Georgia Environmental Protection1
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: 2 of 3

-- 2 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.
3
Case: 12-14926 Date Filed: 04/16/2013 Page: 3 of 3

-- 3 of 3 --