Young et al v. Sequoyah Fuels Corp. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ERNEST JAMES YOUNG, through
Surviving Souse MICHELLE YOUNG;
and Daughter and Heir, AMANDA FRIES,
Plaintiffs,
vs. 	Case No. 22-280-EFM
KERR-McGEE CORP.,
a Delaware Corporation, et al.,
Defendant.
MEMORANDUM AND ORDER
Plaintiffs 	Michelle 	Young 	and 	Amanda 	Fries 	allege 	that 	Ernest 	James 	Young
(respectively, their husband and father) died as the result of his exposure to toxins released from
the uranium processing plant in Gore, Oklahoma. Plaintiffs bring this claim for wrongful death
against seven corporations they tie, in one manner or another, to that processing plant.
Defendants Kerr-McGee, Anadarko Petroleum, and Occidental Petroleum have moved to dismiss
for a lack of personal jurisdiction. 	(Doc. 38). 	The remaining Defendants have filed separate
Motions to Dismiss (Doc. 40, 41, 42, 46) which raise a variety of issues. By the present Order,
the Court grants the Motions to Dismiss of Kerr-McGee, Anadarko, Occidental, General
Atomics and Sequoyah Holdings. The remaining Motions (Doc. 40, 42) are granted in part and
denied in part.
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I. 	Factual and Procedural Background1
Ernest Young died on April 9, 2020, as a result of Defendants’ acts and omissions.
Amanda Fries is the daughter and heir of decedent Ernest James Young. 	This action is
prosecuted by and through Young’s surviving spouse and daughter.
Mr. Young lived in Gore, Oklahoma for approximately the first 22 years of his life, and
during this timeframe he was exposed to uranium, uranium-containing contaminates, and other
toxic substances. In approximately August of 2018, Mr. Young was diagnosed with the
pancreatic cancer which caused his death in 2020.
All Defendants are Delaware Corporations except General Atomics, which is a California
Corporation
The present litigation arises from events at the Sequoyah Fuels Nuclear Plant near Gore,
Oklahoma, close to the Illinois River, the Arkansas River, and Interstate 40. 	This uranium
processing facility opened in 1970, and was owned by Kerr-McGee Nuclear Corporation until
1983.
Kerr-McGee Nuclear Corp. was then a subsidiary of what is known as “Old” Kerr-
McGee Corporation, an entity formed in 1929. 	Plaintiffs allege that Old Kerr-McGee Corp.
“was succeeded by” Kerr-McGee Operating Corporation, which later became Tronox Worldwide
LLC “[t]hrough a series of mergers and name changes” in 2005. Plaintiffs allege that “New”
Kerr-McGee Corporation came into existence in the early 2000s as a spinoff from Old Kerr-
McGee.
1 The facts are taken from Plaintiffs’ Complaint and are considered true for purposes of this Order.
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Plaintiffs allege that in 1983, Kerr-McGee Nuclear Corp. created a wholly owned
subsidiary, Sequoyah Fuels Corporation, which then took control of the Plant. 	That same year,
Kerr-McGee Nuclear Corporation changed its name to Quivira Mining Company.
In 1988 General Atomics bought Sequoyah Fuels, and at about the same time created
Sequoyah Holding Corporation, while Rio Algom Mining Corporation bought Quivira Mining.
Plaintiffs generally allege the Defendant corporate entities are mutually liable for what
occurred at the Plant:
28. 	The personalities and assets of Kerr-McGee Nuclear Corporation and
(Old) 	Kerr-McGee 	Corp., 	were 	so 	indistinct 	that 	adherence 	to 	the
corporate fictions will defeat public convenience, justify wrong, or protect
fraud. 	Thus, Kerr-McGee Nuclear Corp. was the mere instrumentality or
alter ego of its parent corporation, Old Kerr-McGee.
29. 	Upon information and belief, there is a lack of distinction between (Old)
Kerr-McGee and (New) Kerr-McGee, Anadarko Petroleum Corporation,
and Occidental Petroleum Corporation. 	Thus, these corporations are
ultimately the mere instrumentalities or alter egos of their predecessors.
30. 	Upon information and belief, the funds and assets of some or all of the
Defendants named in paragraph 29 are commingled.
31. 	The principals of equity require that (new) Kerr-McGee, Anadarko, and
Occidental be held jointly and severally liable to the debts and liabilities
stemming from one another.
The Plant worked to turn crushed uranium ore into the fine powder used for nuclear
reactors fuel rods, as well as making the uranium used for armor-piercing bullets and shells.
Plaintiffs allege that similar plants “have been known to produce dangerous concentrations of
toxic gases,” and that the named Defendants mishandled and released hazardous and toxic
contaminants at the Plant, which then migrated beyond the Plant through groundwater and the
air. In particular, Plaintiffs allege that a January 4, 1986 chemical leak and explosion killed one
Plant worker, and injured 130 others, as well as causing extreme groundwater and soil
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contamination across the 600-acre site. 	Plaintiffs allege Plant workers were poorly trained and
their equipment poorly maintained. The Plant was decommissioned in 1993.
The Amended Complaint further alleges that Mr. Young was born on July 17, 1962, and
by living in proximity to the Plant for two decades, he was for a long time exposed to its
contamination of the nearby water and soil. 	Plaintiffs allege that Mr. Young’s death from
pancreatic cancer on April 9, 2020, when he was 57 years of age, was caused by that exposure.
The Amended Complaint brings claims for both negligence (under “the common law as
well 	as 	relevant 	Federal 	and 	Oklahoma 	statutes, 	and 	relevant 	Federal 	and 	Oklahoma
environmental statutes and regulations — including the Price-Anderson Act”) and strict liability.
As to both claims, Plaintiffs allege that Defendants Sequoyah Fuels, Sequoyah Holding, General
Atomics, and Quivira Mining are directly liable, while Defendants Kerr-McGee, Anadarko, and
Occidental are liable as the mere instrumentality/alter-ego of Old Kerr-McGee.
II. 	Legal Standard
Under Rule 12(b)(2), a defendant may move for dismissal if the court lacks personal
jurisdiction over him.2 	However, “if a party fails to assert the defense of lack of personal
jurisdiction in his answer or pre-answer motion, he waives the defense.”3 “A personal defense
may not be raised by another on behalf of a party.”4 A defendant may explicitly consent to the
2 Fed. R. Civ. P. 12(b)(2).
3 ORI, Inc. v. Lanewala, 147 F. Supp. 2d 1069, 1074 (D. Kan. 2001) (citing Fed. Deposit Ins. Corp. v.
Oaklawn Apartments, 959 F.2d 170, 174-75 (10th Cir. 1992)); see also Fed. R. Civ. P. 12(h)(1)
4 Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir. 1986).
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court’s jurisdiction.5 Alternatively, a defendant may implicitly consent to the court's jurisdiction
by voluntarily appearing before the court and participating in the proceedings.6
Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the
plaintiff has failed to state a claim upon which relief can be granted.7 	Upon such motion, the
court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’ ”8 	A claim is facially plausible if the plaintiff pleads facts sufficient for
the court to reasonably infer that the defendant is liable for the alleged misconduct.9 	The
plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with
fair notice of the nature of claims as well the grounds on which each claim rests.10 Under Rule
12(b)(6), the court must accept as true all factual allegations in the complaint, but need not afford
such a presumption to legal conclusions.11 Viewing the complaint in this manner, the court must
decide whether the plaintiff's allegations give rise to more than speculative possibilities.12 If the
allegations in the complaint are “so general that they encompass a wide swath of conduct, much
5 Butler v. Daimler Trucks N. Am., LLC, 433 F. Supp. 3d 1216, 1235 (D. Kan. 2020) (citing Acorda
Therapeutics Inc. v. Mylan Pharms. Inc., 817 F.3d 755, 766 (Fed. Cir. 2016)).
6 Id.
7 Fed. R. Civ. P. 12(b)(6).
8 Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
9 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
10 See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citations omitted); see also Fed. R.
Civ. P. 8(a)(2).
11 Iqbal, 556 U.S. at 678-79.
12 See id. (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” (citation omitted)).
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of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable
to plausible.’ ”13
III. 	Analysis
A. 	The Court lacks personal jurisdiction over Anadarko, Occidental and Kerr-McGee.
For the Court to exercise personal jurisdiction over a nonresident Defendant in this
diversity action, Plaintiffs’ well-pled allegations must show that the Defendant has “minimum
contacts” with Oklahoma such that maintaining the suit here conforms with “traditional notions
of fair play and substantial justice.”14 	“Minimum contacts” may take either a “general” (suit-
unrelated) or “specific” (suit-related) form. 	The former requires Plaintiffs to show a Defendant
maintained “general business contacts” with Oklahoma so “continuous and systematic” as to
make it “essentially at home” in Oklahoma.15 The latter, specific personal jurisdiction, exists if
the alleged injury to Plaintiffs “arise[s] out of or relate[s] to” activities that a Defendant
“purposefully directed” at Oklahoma.16
Defendants Kerr-McGee, Anadarko, and Occidental argue that the Court lacks either
general jurisdiction or specific jurisdiction. They contend that the principle place of business of
each of the companies is Texas, and that they do no business in Oklahoma. Further, they argue
that they simply could not have engaged in conduct giving rise to the alleged injuries, as the new
Kerr-McGee only came into existence in the early 2000s following a complicated devolution of
13 Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).
14 Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir. 2010) (citing OMI Holdings,
Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998).
15 Old Rep. Ins. Co. v. Cont'l Motors, Inc., 877 F.3d 895, 903-04 (10th Cir. 2017) (quotations omitted).
16 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985).
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the related “old” Kerr-McGee entities, long after the events giving rise to the present cause of
action, and Occidental and Anadarko entered the picture even later.
In their Response, Plaintiffs make no attempt to show that these three Defendants have
engaged in business generally in Oklahoma so as to render them subject to the Court’s
jurisdiction here. Neither do Plaintiffs make any effort to show that these particular defendants
are subject to specific jurisdiction, by virtue of engaging in specific acts in Oklahoma giving rise
to the cause of action. Instead, Plaintiffs’ only argument is that these corporations are the “alter
egos” of other Defendants, who do have some history of activities in Oklahoma.
The problem, however, is that Plaintiffs’ allegations, set out earlier, are purely and utterly
conclusory. Plaintiffs make no attempt at all in the Amended Complaint to disentangle the exact
nature of the corporations in question, which came into existence in the bankruptcy and
dissolution of old Kerr-McGee in the early 2000s. 	Instead, Plaintiffs simply apply the
conclusory label that all Defendants acted other and acted as the alter egos of each other. 	The
Amended Complaint advances no specific facts which would render these claims plausible.
Under Oklahoma law, “[i]f one corporation is simply the instrumentality of another
corporation, the separation between the two may be disregarded and treated as one for the
purpose of tort law.”17 	The issue “hinges primarily on control,”18 and courts will consider
factors including:
whether 1) the parent corporation owns all or most of the subsidiary's stock, 2) the
corporations have common directors or officers, 3) the parent provides financing
to its subsidiary, 4) the dominant corporation subscribes to all the other's stock, 5)
the subordinate corporation is grossly undercapitalized, 6) the parent pays the
17 Oliver v. Farmers Ins. Group of Cos., 941 P.2d 985, 987 (Okla. 1997) (citations omitted).
18 Id.
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salaries, expenses or losses of the subsidiary, 7) almost all of the subsidiary's
business is with the parent or the assets of the former were conveyed from the
latter, 8) the parent refers to its subsidiary as a division or department, 9) the
subsidiary's officers or directors follow directions from the parent corporation and
10) legal formalities for keeping the entities separate and independent are
observed.19
The Amended Complaint provides no factual allegations as to any of these relevant factors.
Belatedly, in their Response to the Motion to Dismiss, Plaintiffs repeats some of the corporate
history of the Kerr-McGee dissolution and spinoffs in approximately 2005, as reported in two
bankruptcy decisions reported many years later.20
But the cited decisions did not attempt to resolve issues of alter ego liability under
Oklahoma law, and in any event reflect the assertions of Plaintiffs’ counsel in their response.
There remain no allegations in the Amended Complaint which would support a finding that the
new Kerr-McGee, Occidental or Anadarko controlled the remaining Defendants who do have
ties to Oklahoma. 	More particularly, to the extent the cited cases do discuss the complicated
history of the corporate spinoffs of the mid 2000s, there is absolutely nothing to indicate these
three Defendants were in fact the alter ego of the remaining Defendants at the two relevant time
periods: either during the operation of the Plant prior to 1984 (when Mr. Young last resided in
the area of the Plant) or at the present time. Specific allegations as to the relevant factors during
these time periods are entirely absent.
“Courts, including the Tenth Circuit, have recognized that the existence of alter ego
liability may permit a court to exercise personal jurisdiction over a nonresident individual
19 Frazier v. Bryan Mem. Hosp. Auth., 775 P.2d 281, 288 (Okla. 1989).
20 See In re Tronox, 503 B.R. 239 (S.D.N.Y. 2013); In re Tronox, 855 F.3d 84 (2d Cir. 2017).
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defendant.”21 However, “[c]onclusory allegations of ‘alter ego’ status are insufficient to state a
claim. 	Rather, a plaintiff must allege specifically both of the elements of alter ego liability, as
well as facts supporting each.”22 The Amended Complaint fails to allege facts plausibly showing
that Anadarko, Occidental, or new Kerr-McGee was the alter-ego of the other Defendants either
at the time that Mr. Young was exposed, or at the present time. Accordingly the Court will grant
the Motion to Dismiss by these Defendants.
B. The Court deems the present action to be a Price-Anderson public liability action.
The remaining Defendants present a variety of arguments, but all are united in contending
that Plaintiffs’ state law claims are preempted by the federal Price-Anderson Act.23 	Congress
may preempt state laws (1) by an express preemption provision, (2) by inference, through so
regulating an entire field that by “a framework of regulation so pervasive that Congress left no
room for the States to supplement it,”24 or (3) due to a conflict between state and federal laws,
“where it is impossible for a private party to comply with both state and federal requirements, or
where state law stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress.”25
21 Factory Direct, Inc., v. Anatomic Global, Inc., 2012 WL 13024063, at *4 (W.D. Okla. 2012) (citations
omitted).
22 Cox v. CoinMarketCap OpCo, LLC, 2023 WL 1929551, at *13 (D. Ariz. 2023) (quotation and citation
omitted). See also Quality Int’l Packaging, Ltd. v. Chamilia Inc., 2015 WL 4749156, at *9 n.8 (D.N.J. 2015).
(“Plaintiff bears the burden on a 12(b)(2) motion to establish personal jurisdiction through alter ego and agency with
competent evidence . . . . “) (emphasis omitted, citations omitted).
23 42 U.S.C. §. 2210, et seq.
24 Arizona v. United States, 567 U.S. 387, 399 (2012) (further citation, quotations, and ellipses omitted)..
25 English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (citations and quotations omitted).
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Congress adopted the Price-Anderson Act to encourage civil companies to help develop
nuclear energy in the United States.26 In 1988, Congress substantially amended the Act, “in an
effort to smooth and speed the recovery process for victims after witnessing the aftermath of the
Three Mile Island incident, which resulted in a fair amount of litigation chaos.”27
Under the Act, as amended, a “public liability action” is “any suit asserting public
liability.”28 	A “public liability” includes “any legal liability arising out of or resulting from a
nuclear incident.”29 And a “nuclear incident” is defined as:
any occurrence . . . within the United States causing . . . bodily injury, sickness,
disease, or death, or loss of or damage to property, or loss of use of property,
arising out of or resulting from the radioactive, toxic, explosive, or other
properties of source, special nuclear, or byproduct material . . . .30
Such public liability actions are deemed to arise under federal law,31 and may be filed in
or removed to federal court.32 	The Price-Anderson Act limits the amount of liability for
defendants, and provides that the government will underwrite some of the amount recovered.33
But while the federal public liability action provides the forum for relief, the Act stipulates that
“the substantive rules for decision in such action shall be derived from the law of the State in
26 Duke Power Co. v. Carolina Env’tl Study Grp., Inc., 438 U.S. 59, 64-65 (1975).
27 Cook v. Rockwell Intern. Corp. (Cook II), 790 F.3d 1088, 1096 (10th Cir. 2015).
28 42 U.S.C. § 2014(hh)
29 42 U.S.C. § 2014(w).
30 42 U.S.C. § 2014(q).
31 42 U.S.C. § 2014(hh).
32 42 U.S.C. § 2210(n)(2).
33 42 U.S.C. § 2210((c)-(e).
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which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of
such section.”34
The Supreme Court has observed that the Act “resembles what we have spoken of as
‘complete 	preemption 	doctrine,’ 	under 	which 	the 	‘pre-emptive 	force 	of 	a 	statute 	is 	so
‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a
federal claim . . . .’ ”35
But while the Act resembles complete preemption in some respects, it is clear that the Act
does not render state law automatically irrelevant. 	The Tenth Circuit has recognized that, in
contrast to complete preemption of state law, “the Act provides a federal forum for cases
asserting liability arising out of a nuclear incident,” but “also does much to preserve state rules of
decision.”36 	That is, if an action does allege the existence of a nuclear incident, “the state law
claims cannot stand as separate causes of action.”37 The injured party “can sue under the Price–
Anderson Act, as amended, or not at all,” and “[h]is federal claim will be derived from state law
. . . to the extent it is not inconsistent with federal law.”38
In Silkwood v. Kerr-McGee Corp.,39 the Supreme Court held that that in the Price-
Anderson Act, “Congress' decision to prohibit the states from regulating the safety aspects of
nuclear development” did nothing to undermine the “ample evidence that Congress had no
34 42 U.S.C. § 2014(hh).
35 El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 485, n. 6 (citations omitted).
36 Cook II, 790 F.3d at 1097 (10th Cir. 2015) (citing Neztsosie, 526 U.S. at 485 n. 6).
37 Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir. 1997).
38 Id.
39 464 U.S. 249 (1984).
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intention of forbidding the states from providing [traditional tort] remedies.”40 	Although
Silkwood was decided prior to the 1988 Amendments to the Act, the Tenth Circuit has
subsequently reiterated its finding that field preemption did not exist, observing that “ Congress
has authorized the federal government alone to promulgate before-the-fact nuclear safety
regulations but—at the same time—has done little to forbid states from indirectly regulating
nuclear safety through the operation of traditional after-the-fact tort law remedies.”41
The operative provision of the Price-Anderson Act, 42 U.S.C. § 2210, “itself contains no
federal safety standards that could provide the standard of care in a PAA action.”42 In the Tenth
Circuit, to be protected by conflict preemption, defendants in a Price-Anderson action must show
specific “federal statutes, regulations, or other binding safety standards that controlled their
conduct” regarding nuclear safety, and demonstrate how these are in conflict with “the particular
standards of care applicable to a state law trespass or nuisance claim.”43
The Court deems the Amended Complaint as bringing a public liability action under the
Price-Anderson Act.
C. Plaintiffs’ state law claims of strict liability are dismissed.
In responding to Defendant’s Motions to Dismiss, Plaintiffs contend that their claims for
negligence and strict liability under Oklahoma law are consistent with the Price-Anderson Act.
With respect to their strict liability claims, the court finds little to support the argument.
40 Id. at 250-51.
41 Cook II, 790 F.3d at 1098 (citing Cook v. Rockwell Intern. Corp. (Cook I), 618 F.3d 1127, 1143-44 & n.
17 (10th Cir. 2010)).
42 Cook I, 618 F.3d at 1143.
43 Id. at 1144.
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Plaintiffs cite the Supreme Court’s decision in Silkwood v. Kerr-McGee Corp.44 	But, as noted
earlier, Silkwood was decided before the 1988 Amendments to Price-Anderson Act, and the
Court conducted no analysis under 42 U.S.C. § 2014(hh) — a provision which did not yet exist
— as to whether strict liability in tort might be “inconsistent with the provisions of such section.”
Accordingly the decision not resolve the potential consistency between state strict liability law
and federal law under the 1988 Amendments.45
As to that precise issue, the overwhelming weight of authority is that state strict liability
actions are superseded by federal law.46 	Under Oklahoma law, liability may be imposed for
injury from hazardous activities without regard to fault or negligence.47 By its very nature, the
44 464 U.S. at 256.
45 See Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1503 (10th Cir. 1997) (“While not otherwise
superseding the decision in Silkwood, the 1988 Amendments can be read in part as a congressional response to the
result in Silkwood.”).
46 See City of Metropolis v. Honeywell Int'l, Inc., 2022 WL 17488478, at *4 (S.D. Ill. 2022) (“Here,
allowing a claim for ultrahazardous/strict liability would be inconsistent with the PAA and create the possibility that
Honeywell met the mandated federal standard of care, but still be held strictly liable under Illinois state law.”);
Lawson v. Gen. Elec. Co., 140 F. Supp. 3d 968, 974 (N.D. Cal. 2015) (“Plaintiff’s second and third causes of action
are preempted by Price-Anderson because they are based on the theory of strict liability.”); McClurg v. MI Holdings,
Inc., 933 F. Supp. 2d 1179, 1187 (E.D Mo. 2013) (dismissing state strict liability claim as “the maximum
permissible radiation dose levels set by federal safety standards establish the duty of care”); Wilcox v. Homestake
Mining Co., 401 F. Supp. 2d 1196, 1201-02 (D.N.M. 2005) (“Contrary to an action for negligence, an action for
absolute or strict liability acts in the opposite of a federal safety regulation. If an action for strict liability was
allowed to stand, there is a possibility that a defendant would meet the federal standard of care mandated, but still be
held strictly liable under a state cause of action.”); O’Connor v. Boeing N. Am., Inc., 2005 WL 6035255, at *43
(C.D. Cal. 2005) (“Thus, this Court determines that strict liability is inconsistent with the Price–Anderson Act and is
unavailable to Plaintiffs.”); Koller v. Pinnacle West Capital Corp., 2007 WL 446357, at *3 (D. Ariz. 2007) (granting
motion to dismiss strict liability count); McLandrich v. So. Cal. Edison Co., 942 F.Supp. 457, 465 n. 7 (S.D. Cal.
1996) (noting that “applying the ‘ultrahazardous activities’ doctrine here would be clearly inconsistent with the
Price-Anderson Act.”); Adkins v. Chevron Corp., 960 F. Supp. 2d 761, 768 (E.D. Tenn. 2012) (dismissing state strict
liability claim in class action alleging radioactive contamination).
47 See, e.g. Hayes v. Ne. Okla. Elec. Coop., 512 P.3d 1261, 1272-73 (Okla. Div. App. 2021)
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handling and processing of nuclear fuel is a hazardous activity,48 and adopting this standard
would entirely supplant federal regulations. Plaintiffs identify no recent case in which state strict
liability law has been deemed consistent with federal law governing the treatment of nuclear
materials for purposes of an action under the Price-Anderson Act.
There is no similar consensus against state negligence actions, however. To the contrary,
there is authority holding that “a claim of negligence should not be held inconsistent with the
Act, as long as the standard of care was to be provided by the federal regulations.”49 	Unlike
actions for strict liability, an action for negligence under Oklahoma law requires some deviation
from the duty of due care.50 At this stage, Defendants have failed to show how imposing a duty
of due care would be consistent with particular federal regulations, and the Court will not dismiss
the Amended Complaint’s assertion that Defendants are liable for violating this duty.
D. Plaintiffs’ negligence per se claim, if amended, is not subject to dismissal.
Defendants seek dismissal of the Amended Complaint’s allegations of negligence per se,
arguing that the nonspecific nature of he allegations fails to give them fair notice of the actual
claims made by Plaintiffs. 	In their response, Plaintiffs acknowledge that the Amended
Complaint “did not explicitly indicate a statute,” but contend that “reasonable inferences may be
made” that the claims “refer[] to portions of the Price-Anderson Act and Oklahoma state law
48 See Yankee Atomic Elec. Co. v. United States, 113 Fed. Cl. 323, 46 (2013) (“[N]uclear fuel storage is
inherently a sensitive issue, implicating concerns of severe potential health hazards and complex technical
problems.”) (internal quotation, alteration, and citation omitted).
49 Wilcox, 401 F. Supp. 2d at 1200 (citations omitted).
50 See Fargo v. Hays-Kuehn, 352 P.3d 1223, 1227 n. 11 (Okla. 2015) (quoting Union Transp. Co. v. Lamb,
190 Okla. 327, 123 P.2d 660, 662 (1942) (“Negligence comprehends a failure to exercise due care as required by the
circumstances of the case; a failure to do what a person of ordinary prudence would have done under the
circumstances or the doing of what such a person would not have done under the circumstances.”) (citations
omitted)).
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pertaining 	to 	radiation 	dose 	limits, 	ground/groundwater 	pollution, 	and 	air 	pollution.”
“Specifically,” they argue Defendants Sequoyah Fuels and Quivira Mining “violated 10 C.F.R. §
20.105 and 20.106.”
These provisions, which regulate off-site radiation exposure at nuclear facilities, were
superseded in 1991 by 10 C.F.R. § 20.1301.51 	Thus, Defendants respond by stressing that the
regulations are no longer in effect, but also that they reflect simply arguments of counsel and are
not a part of the Amended Complaint itself.
“Many federal courts have held that a plaintiff fails to satisfy the requirements of notice
pleading for a claim of negligence per se when he does not identify which statutes the individual
defendants allegedly breached.”52 	“[T]o satisfy Iqbal and Twombly by showing a plausible
entitlement to relief on a claim of negligence per se,” the complaint must “identify a specific
regulation and then allege facts plausibly suggesting a violation of that specific statute; otherwise
a right to relief on such a claim is merely possible, and not plausible.”53 	At the same time,
however, some courts have held that the failure to specify a particular statute is not fatal to a
claim for negligence per se, so long as it still “alleges particular conduct that clearly violates a
statute or regulation.”54 But these cases involve traffic accidents, where the complaint describes
particular conduct, and the relevant statute can be readily and easily determined.55
51 See McGlone v. Centrus Energy Corp., 2020 WL 4431482, at *3 (S.D. Ohio 2020).
52 Welch v. Loftus, 776 F. Supp. 2d 222, 225-26 (S.D. Miss. 2011) (citations, internal quotations, and
alterations omitted).
53 Walker v. Massey, 2023 WL 28435, at *5 (M.D. Tenn. 2023) (emphasis in original).
54 Welch, 776 F. Supp. 2d at 226.
55 See id. at 226-27 (complaint that alleged that defendant caused the accident “by failing to yield the right
of way” was sufficient, as the relevant state traffic statute was easily determined easily, and thus the complaint
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In contrast, the Amended Complaint in the present action only alleges at the most general
level that the Plant generated harmful chemical releases over a period of years. 	The alleged
safety violations are also utterly unspecific—the Amended Complaint merely gestures in the
direction of negligence per se in alleging that the Plant violated “relevant Federal and Oklahoma
statutes, and relevant Federal and Oklahoma environmental statutes and regulations — including
the Price-Anderson Act.” 	Such broad-brush allegations simply do not provide fair notice of the
claim.56
The fact that 10 C.F.R. § 20.105 and 20.106 have been superseded is not fatal to
Plaintiffs’ claim of negligence per se. Under Oklahoma law, negligence per se may exist where
a plaintiff demonstrates “(1) the violation of a statute must have caused the injury, (2) the harm
sustained must be of the type intended to be prevented by the statute[,] and (3) the injured party
must be one of the class intended to be protected by the statute.”57 Notably absent from this list
is any requirement that the relevant statute remain continuously in force and effect up to the time
of trial, and Defendants supply no authority for their argument that a subsequently-modified
safety regulation cannot for the basis for a negligence per se claim for the time that it was in
effect.
“could leave no reasonable reader at a loss to predict how [the plaintiff] would proceed with his case”); see also
Ordonez v. Ausby, 2023 WL 310442, at *9 (W.D. Tex. 2023) (refusing to dismiss complaint which alleged particular
unsafe driving conduct but without particular statutory references, where “[t]he Court was easily able to locate a
provision that arguably applies to this allegation”).
56 Holler v. Cinemark USA, Inc., 185 F. Supp. 2d 1242, 1244 (D. Kan. 2002) (“In this case, plaintiff's
generic complaint that defendant violated unspecified ‘local, state and federal statutes, guidelines and regulations’
does not provide fair notice of his claim.”).
57 Nye v. BNSF Ry. Co., 428 P.3d 863, 873 (Okla. 2018)
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What is potentially fatal, however, for the claim of negligence per se is the failure of the
Amended Complaint to give actual and fair notices of the regulations at issue. 	Not only are
Sections 20.105 and 20.106 unmentioned in the Amended Complaint itself, the Plaintiffs fail to
allege particular conduct which would allow a reasonable person to infer which regulations are at
issue. 	With a few exceptions, the Amended Complaint makes no reference to any particular
event, focusing more generally on the alleged continuing release of “toxic substances” over a 23
year period, that is, 1970 to 1993. In fact, the Amended Complaint does not mention the terms
“radiation” or “dosage.” The only specific events referenced in the Amended Complaint was the
January 4, 1986 “toxic chemical leak and explosion,” an event that would have occurred several
years after Mr. Young (who was born July 17, 1962 and who “lived in Gore for approximately
the first twenty two years of his life” and received his exposure “during this timeframe”) left his
hometown. The Amended Complaint also alleges that, some six years later and the year before
the Plant was closed, that “[a]n accident involving the release toxins [sic] occurred in 1992.”
Accordingly, the Court finds that the Amended Complaint, as presently stated, fails to
give fair notice of which particular health or safety regulations were violated by Defendants. At
the same time, Defendants fails to explain how amendment to make clear the allegation that they
violated Sections § 20.105 and 20.106 would be futile.
The Court will allow Plaintiffs to amend the Amended Complaint to specify that
Defendants were negligent per se by conduct which violated these two provisions, and these two
regulations only. Given the need for the matter to proceed to discovery, and because Defendants
have been put to the burden of filing multiple Motions to Dismiss in an attempt to clarify
Plaintiffs’ claims, with the result that Plaintiffs have identified only these two regulations, the
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Court will not grant leave for Plaintiffs to amend to add other statues or regulations in support of
their negligence per se claims.
E. General Atomics and Sequoyah Holdings are entitled to be dismissed from the action.
Defendants General Atomics and Sequoyah Holdings also argue that the Amended
Complaint fails to provide fair notice of any specific allegations against them and fails to specify
which statutes they allegedly violated to support the claim of negligence per se. 	Additionally,
they argue that they cannot be responsible merely because of any ownership interest in, or
corporate relationship to, Sequoyah Fuels, the entity which actually operated the Plant.
Plaintiffs respond by stating that the Amended Complaint was only intended to advance
claims of negligence per se against Sequoyah Fuels and Quivira Mining. 	As to Defendants
General Atomics and Sequoyah Holdings, they state that the Amended Complaint advances
claims for negligence only. They argue that these claims were sufficient to support an accusation
that these Defendants failed to warn of the contamination at the Plant.
But the Court must take account of what is actually pled in the Amended Complaint, not
the subsequent arguments of counsel. The Amended Complaint makes very little effort at all to
distinguish between the different Defendants. 	For example, the Amended Complaint generally
asserts:
Defendants Quivira Mining (formerly Kerr-McGee Nuclear Corp.), Sequoyah
Fuels, Sequoyah Holding Corporation, and General Atomics were engaged in the
business of turning crushed uranium ore into a fine powder to be used for the
manufacture of fuel rods for nuclear reactors.
And:
Quivira Mining’s (f/k/a Kerr-McGee Nuclear Corp.), Sequoyah Fuels’, Sequoyah
Holding 	Corporation’s, 	and 	General 	Atomics’ 	acts 	and 	omissions 	between
approximately 1970 and 1993 caused the release of hazardous, toxic, and
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radioactive substances into the environment in and around Gore, Oklahoma,
thereby contaminating the air, soil, surface water, and groundwater in the area.
The question posed by these two Defendants, however, is entirely reasonable — how can
they be responsible for Mr. Young’s exposure, which had ended four years before General
Atomics bought Sequoyah Fuels, the corporation which had been operating the Plant? 	Of
course, the Complaint does allege that General Atomics (and Sequoyah Holdings, the new
company it created in 1988) “owed a duty to exercise reasonable care to disclose [the release of
contaminants] once [they] became aware of [it.]”
But the Amended Complaint makes no allegation that the companies were in fact aware
of the release when the acquisition occurred in 1988, or indeed at any specific time thereafter.
More importantly, by the time of that acquisition, Mr. Young’s exposure would have ended some
four years previously.
Under Oklahoma law, “a defendant owes a duty of care to the plaintiff who is foreseeably
endangered by defendant’s conduct with respect to all risks that make the conduct unreasonably
dangerous.”58 	Plaintiffs cite no authority in Oklahoma law for imposing a duty to warn of a
danger created by a third party. 	Even if such a duty existed, the Amended Complaint does not
make any plausible allegation that Mr. Young was injured by any failure to warn by these two
Defendants. 	By the time General Atomics and Sequoyah Holdings came on the scene, the
damage to Mr. Young had already been inflicted, the danger was done.
As noted earlier, Plaintiffs supply no authority for imposing a duty under Oklahoma law,
or for inferring that any lack of warning caused an injury to the decedent, so there are no credible
58 Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 12, 160 P.3d 959, 964 (Okla. 2007)..
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grounds for believing that amendment would cure these fatal defects. Further, because the Court
finds these two Defendants should be dismissed from the action, it need not resolve Defendant
Sequoyah Holding’s additional argument that the claim against it is barred under the relevant
Oklahoma statute of limitations.59
In summary, the Court dismisses all defendants from the action except Sequoyah Fuels
and Quivira Mining, the entities which are plausibly alleged to have participated in the operation
of the Plant. Plaintiffs’ claims of strict liability under Oklahoma law are dismissed.
To the extent Plaintiffs intend to preserve a claim of negligence per se against Sequoyah
Fuels and Quivira Mining, the Court hereby authorizes Plaintiffs, within 30 days of this Order, to
a Second Amended Complaint presenting claims defendants violated 10 C.F.R. § 20.105 and
20.106.
IT IS THEREFORE ORDERED that the Motions to Dismiss of Anadarko, Occidental
and Kerr-McGee (Doc. 38), of General Atomics (Doc. 41), and of Sequoyah Holdings (Doc. 42)
are hereby GRANTED; the Motions to Dismiss of Defendants Sequoyah Fuels (Doc. 40) and
Quivira Mining (Doc. 56) are GRANTED IN PART and DENIED IN PART, as provided
herein.
IT IS SO ORDERED.
Dated this 1st day of March, 2023.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
59 O KLA. STAT . tit. 12, § 1053.
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