THOMAS RYAN v. THE NEWARK GROUP INC (2026)

ORDER ON CASELLA'S MOTION TO DISMISS NEFCO'S THIRD-PARTY COMPLAINT [ECF NO. 537]

I. INTRODUCTION

In the primary pleadings in this matter, Plaintiffs (“Ryan Plaintiffs”), residents of Westminster, MA, bring a putative class action lawsuit to recover damages for the alleged contamination of their groundwater, which was allegedly caused by the decades-long improper disposal of wastes containing per-and polyfluoroalkyl substances and their constituents (collectively referred to as “PFAS”) at the MassNatural recycling and composting facility in Westminster, Massachusetts. [Ryan I Second Am. Compl. (“SAC”), ECF No. 77 in 4:22-cv-40089-MRG; Ryan II Am. Compl., ECF No. 16 in 4: 25-cv-40026-MRG]. New England Fertilizer Company, NEFCO GP I, & NEFCO GP II (collectively, “NEFCO”) are Defendants in the primary case and have brought the instant Third-Party Complaint, [Third-Party Compl., ECF No. 527], against New England Waste Services of Maine, Inc. (d/b/a Casella Organics, hereinafter “Casella Organics”), Casella Major Account Services, LLC (d/b/a Casella Resource Solutions, hereinafter “CMA”), and Casella Waste Systems, Inc. (hereinafter “CWS”), (collectively “Casella”). NEFCO denies any liability to the Ryan Plaintiffs or any other party in this matter; however, the Court denied NEFCO's motion to dismiss, in part, in a prior order. [Ryan II NEFCO MTD Order, ECF No. 516 ¹ ]. The Ryan Plaintiffs sued Casella directly as well; however, the Court found the Plaintiffs’ allegations insufficient to state a claim against Casella. [Ryan II Casella MTD Order, ECF No. 515]. With NEFCO remaining in the case, it asserts in its Third-Party Complaint that, to the extent NEFCO is held liable to Plaintiffs in this litigation, Casella is liable to NEFCO through contribution, indemnification, or negligent breach of contractual obligations. [ECF No. 527].

Before the Court is Casella's motion to dismiss NEFCO's Third-Party Complaint. [ECF No. 527]. The Court issued a preliminary ruling granting in part and denying in part Casella's Third-Party Motion to Dismiss. [ECF No. 548]. This Memorandum and Order provides the Court's reasoning for those decisions. For the reasons stated below:

(1) The motion to dismiss for lack of personal jurisdiction is GRANTED as to CWS on all counts;

(2) The motion to dismiss for lack of personal jurisdiction is DENIED as to CMA on all counts;

(3) The motion to dismiss for failure to state a claim is DENIED on Counts I, II, and IV of the Third-Party Complaint as to Casella Organics and CMA.

(4) The motion to dismiss for failure to state a claim is GRANTED on Count III as to Casella Organics and CMA.2

II. BACKGROUND

This case stems from PFAS contamination that originated from the MassNatural composting facility in Westminster, MA, where MassNatural allegedly operated its compost piles and curing pads in a negligent manner that allowed PFAS to leach into the surrounding soil and groundwater. [Third-Party Compl. ¶ 70]. NEFCO manufacturers biosolids fertilizer pellets, which it describes as a “Product.” [Third-Party Compl., Ex. A (“NEFCO-Casella 2016 Contract”), ECF No. 527-1 at 2]. Beginning in 2016, NEFCO contracted with Casella Organics to “develop and build a market” for NEFCO's biopellets where Casella Organics was responsible for marketing, permitting, collecting, transporting, and otherwise managing the distribution of the Product to “Beneficial Use Markets,” as defined in the contract. [Third-Party Compl. ¶¶ 35–37]. NEFCO alleges that Casella Organics and CMA delivered the Product to MassNatural from May 2018 to February 2022 through a separate arrangement or contract between the Casella subsidiaries and MassNatural. [Id. ¶ 49]. NEFCO never authorized any of the Casella entities to distribute or dispose of the Product at MassNatural. [Id. ¶ 58]. NEFCO's biopellets contain PFAS. [See id. ¶ 31]. Taking all the allegations in this litigation as a whole, the Ryan Plaintiffs allege that PFAS leeched from composting materials at the MassNatural site, including from the NEFCO biopellets, ultimately contaminating Plaintiffs’ groundwater and properties. [See Ryan II Am. Compl.]. In other words, according to the allegations of the Ryan Plaintiffs in the underlying action, Casella's decision to deliver the Product to MassNatural allegedly caused tortious physical harm to persons and real properties, and NEFCO asserts that Casella is liable to it in the event that NEFCO is liable to the Ryan Plaintiffs. [Third-Party Compl. ¶ 106].

i. Jurisdictional Facts and Relationship Between the Parties

As the Casella Third-Party Defendants challenge the sufficiency of this Court's jurisdiction over them, the Court will turn to the facts relevant to jurisdiction. Casella Waste Systems, Inc. (“CWS”) is a solid waste, recycling, organics, and resource-management company with its principal place of business in Vermont. [Third-Party Compl. ¶¶ 7, 13]. New England Waste Services of Maine, Inc. (“Casella Organics”) is a Maine corporation with a principal place of business in Portland, Maine. [Id. ¶ 5]. Casella Major Account Services, LLC (“CMA”) is a Vermont corporation. [Id. ¶ 6]. Both Casella Organics and CMA are subsidiaries of CWS, [id. ¶ 13], and the three entities are collectively referred to in this Order as “Casella.” Third-Party Plaintiffs New England Fertilizer Co., NEFCO GP I, and NEFCO GP II (collectively, “NEFCO”) are a general partnership with its principal place of business in Massachusetts. [Id. ¶¶ 1–4]. NEFCO contends that Casella Organics and CMA have purposefully availed themselves of the forum state by conducting regular business with NEFCO, MassNatural, and other Massachusetts-based participants within the waste management industry. [Id. ¶ 10]. Here, Casella contests personal jurisdiction for CWS and CMA. [ECF No. 538 at 8].

The Third-Party Complaint does not allege that CWS directly entered into contracts in Massachusetts, transported materials to Massachusetts, or otherwise conducted business in the forum. Instead, NEFCO's theory of jurisdiction arises primarily from CWS's alleged ownership and oversight of the subsidiaries Casella Organics and CMA, entities which NEFCO characterizes as acting as CWS's agents. [Third-Party Compl. ¶¶ 11, 16]. NEFCO alleges that CWS's representatives directly control CMA and Casella Organics’ major business decisions, as representatives from the two subsidiaries have told NEFCO employees that they could not execute contracts and perform other business functions without “first running the idea up the chain.” [Id. ¶¶ 14, 20]. The only two members of CMA are the executive chairman and the President/CEO of CWS. [Id. ¶ 17]. NEFCO further contends that Casella employees use a common “casella.com” email address domain, such that NEFCO could not readily distinguish which corporate entity employed particular individuals. [Id. ¶ 18].

As stated, beginning in March 2016, NEFCO contracted with Casella Organics to “develop and build a market” for NEFCO's biosolids fertilizer pellets (the “Product”). [Id. ¶ 35]. Under this agreement, Casella Organics was responsible for permitting, collecting, transporting, distributing, and otherwise managing the Product to “Beneficial Use Markets,” defined to include “[a]ny direct land application usage of bulk Product, including farmland application, land reclamation ․ and any use where the Product is used to improve soil growth characteristics.” [Id. ¶ 37; NEFCO-Casella 2016 Contract § 1.1.1]. Within New England, Casella Organics served as NEFCO's exclusive distributor of the Product. [Third-Party Compl. ¶ 38]. The 2016 contract identifies Casella Organics as the contracting party and does not reference CWS. [NEFCO-Casella 2016 Contract at 18]. In exchange for services described within the 2016 Contract, NEFCO paid a fee for all Product removed and distributed by New England Waste Systems of Maine. [Third-Party Compl. ¶ 45]. In addition, NEFCO and New England Waste Systems of Maine shared profits on ultimate sales of the Product, as described in Section 2.7 of the 2016 Contract. [Id.]

In February 2021, NEFCO entered into a separate marketing contract with CMA. [Id. ¶ 46; Ex. 2 (“NEFCO-Casella 2021 Contract”), ECF No. 527-2]. That contract was substantially similar to NEFCO's 2016 contract with Casella Organics, covering the marketing, sale, and distribution of the Product. [Third-Party Compl. ¶ 47]. The 2021 contract's signature page reflects execution by CMA and NEFCO. [NEFCO-Casella 2021 Contract at 15]. It further includes a notice on every page, stating that the document “shall not be reproduced, copied, loaned, or transferred ․ without the prior written consent of Casella Organics.” [see NEFCO-Casella 2021 Contract]. The contract does not reference CWS. [See id.] The Third-Party Complaint alleges that CWS oversaw the execution of the marketing agreements through the employees of CMA and Casella Organics. [Third-Party Compl. ¶ 19]. However, the signature page for the 2016 contract identifies Casella Organics as the Contractor and NEFCO as the Customer. [NEFCO-Casella 2016 Contract at 18]. The signature page for the 2021 contract identifies CMA as the Contractor and NEFCO as the Customer. [NEFCO-Casella 2021 Contract at 15]․

The Third-Party Complaint alleges that from May 3, 2018, to February 3, 2022, Casella Organics and CMA delivered the Product to MassNatural through a separate arrangement or contract between the Casella subsidiaries and MassNatural. [Third-Party Compl. ¶ 49]. NEFCO emphasizes that it was not a party to any arrangement between any Casella entity and any other party, including MassNatural, for delivery of the NEFCO Product to the MassNatural site. [Id. ¶ 56]. NEFCO asserts the MassNatural composting site and composting operations were not a “beneficial use outlet,” as that term is defined by the 2016 and 2021 Contracts. [Id. ¶ 51]. The Third-Party Complaint alleges, upon information and belief, that the Casella subsidiaries did not notify NEFCO of their intent to distribute Product to MassNatural and the Casella subsidiaries disposed of the Product at the MassNatural site, which was not contemplated or agreed between the parties in the 2016 or 2021 Contracts. [Id. ¶¶ 52–53]. Further, upon information and belief, NEFCO asserts that neither MassNatural nor any other entity paid any Casella entity for MassNatural's receipt of NEFCO's product at the MassNatural site. [Id. ¶ 55].

ii. Relevant Terms of the Contract

There are various terms of the NEFCO-Casella Contracts that figure prominently in the parties’ arguments. NEFCO argues that the Contract makes clear that Casella was acting as a distributor and characterizes the Contracts as “distribution contracts.” [ECF No. 540 at 15]. The second “whereas” clause of both the 2016 and 2021 contracts provides that the Casella signatories will “provide a comprehensive service for the distribution and marketing of said [biosolids] Product.” [NEFCO-Casella 2016 Contract at 1; NEFCO-Casella 2021 Contract at 1 (emphasis added)]. Section 1.1.1 of these Contracts provides that the Casella signatories will “collect, transport, distribute and otherwise manage Product to Beneficial Use Markets described and the territories identified in this Agreement.” [Id. (emphasis added)]. Section 1.1.2 calls the Casella signatories the “Exclusive Distributor[s]” of NEFCO's biosolids in New England, New Jersey, Pennsylvania, and parts of New York. [Id.] NEFCO points out that “the term ‘distributor’ appears in some form nearly 40 times in each version of the Contract.”³ [ECF No. 540 at 15]. NEFCO emphasizes the Contract terms focusing on distribution because it seeks to disavow any authority for Casella to have disposed of the Product instead of finding a Beneficial Use Market for the Product. [Id. at 21].

“Beneficial Use Markets” are defined as “any direct land application usage of bulk Product, including farmland application, land reclamation, turf production & maintenance, topsoil manufacturing, landfill capping, and any use where the Product is used to improve soil growth characteristics.” [NEFCO-Casella 2016 Contract § 1.1.1; NEFCO-Casella 2021 Contract § 1.1.1]. Beneficial Use Markets “also include distribution of bagged Product to retail and commercial outlets for similar uses.” [Id.]

Another key contract provision is Section 11.1's Indemnification Clause, which reads in full:

Contractor, by acceptance of the Product identified in this Agreement, agrees, for itself, its successors, and assigns, to defend, indemnify, and hold harmless Customer, its shareholders, officers, affiliates/partners, directors and employees from and against any and all loss, damage, suits, penalties, costs, liabilities, expenses, claims, and actions (including, but not limited to, reasonable investigation and legal expenses) arising from Contractor's handling, transporting, recycling or disposing of Product, to the extent said loss, damage, suits, penalties, costs, liabilities, expenses, claims, and/or actions result from the negligence or willful misconduct of Contractor or Contractor's breach of the terms and conditions of this Agreement. This indemnity shall be inapplicable to the extent that the loss, damage, suits, penalties, costs, liabilities, expenses, claims, and/or actions result from Customer's provision to Contractor of Hazardous Waste or Non-Conforming Product.

[NEFCO-Casella 2016 Contract § 11.1; NEFCO-Casella 2021 Contract § 11.1]. In summary, this clause stipulates that Casella must indemnify NEFCO for losses, damages, and liability resulting from Casella's handling, transporting, or disposing of the product to the extent that those losses, damages, or liability are cause by either (a) Casella's negligence or willful misconduct, or (b) from Casella's breach of the terms of the Contracts. Id. The clause does not apply if the losses result from NEFCO sending Casella hazardous waste or non-conforming product.

There is also an inverse indemnification provision that binds NEFCO to indemnify Casella for losses, damages, and liability arising out of any claim for injuries to persons to the extent they are caused by or result from NEFCO's (a) negligence or willful misconduct, (b) provision to Casella or non-conforming product, or (3) any other breach of the contract. [Id. § 11.2].

Lastly, the 2016 and 2021 Contracts include a special title provision that relieves Casella of ownership and responsibility for the Product if NEFCO provides Product that constitutes Non-Conforming Waste. [Id. § 4.1]. In all other circumstances, title to the Product passes to Casella when it or its subcontractors remove Product from the NEFCO Plant or upon delivery to the final site. [Id.] “Non-Conforming Product” is defined in the Contracts as biopellets that do not meet the quality standards delineated in Section 3. [NEFCO-Casella 2016 Contract § 3.5; NEFCO-Casella 2021 Contract § 3.6]. Those standards require that NEFCO warrants that the Product is “not classified as hazardous waste under United States Environmental Protection Agency (US EPA) and/or any other applicable laws & regulations, including but not limited to, state laws and regulations.” [Id. § 3.1]. Notably neither the 2016 nor the 2021 Contracts include any mention of PFAS.

iii. Casella's Knowledge of PFAS

NEFCO's Third-Party Complaint alleges that Casella had actual knowledge that the NEFCO biopellets contained PFAS and that Casella has known about the risks of improper PFAS handling throughout the time period in which Casella or its subsidiaries actively received, marketed, transported, and sold NEFCO biosolids pellet fertilizer products. [See Third-Party Compl. ¶¶ 21–34]. First, like the Ryan Plaintiffs in their Complaint, NEFCO alleges that Casella is a leader in the biosolids industry; however, unlike the Ryan Plaintiffs, NEFCO asserts additional facts to bolster this claim. [Id. ¶ 22]. For example, NEFCO alleges that Casella has held an active membership in the New England Biosolids & Residuals Association (“NEBRA”) since at least 2017. [Id.] NEFCO asserts that due to the potential existence of PFAS in biosolids, NEBRA tracks proposed PFAS legislation and regulation and shares that information with its members. [Id.] Further, NEFCO asserts that multiple Casella employees have participated in NEBRA conference calls focused on PFAS, have served in leadership positions on the NEBRA board, and have presented on PFAS at NEBRA conferences. [Id. ¶¶ 22–25, 27–28]. NEFCO alleges that one particular Casella employee, Jeff McBurnie served as NEBRA's vice chair of the legislative committee on PFAS. [Id. ¶ 27]. NEFCO additionally alleges that Mr. McBurnie corresponded and communicated with NEFCO through the parties’ course of dealings going back to 2017. [Id. ¶ 28]. McBurnie is now a CMA employee, but his correspondence with NEFCO was conducted while he was Director of Permitting & Regulatory Affairs for Casella Organics. [Id.]

As for Casella's actual knowledge: NEFCO alleges that Casella had specific knowledge that NEFCO's biopellets contained PFAS due to a few key facts. Beginning in 2019, NEFCO sent testing results to Casella indicating that NEFCO's products contained PFAS. [Id. ¶ 31]. Additionally, the Casella subsidiaries attached a label to NEFCO products including a disclaimer about PFAS. [Id. ¶ 30]. NEFCO also included an addendum to its sampling and analysis workplan which listed PFAS beginning in 2019. [Id. ¶ 33]. This addendum was shared directly with Jeff McBurnie on March 29, 2019. [Id.] Finally, NEFCO alleges that, per its Contract with the Casella entities, Casella was required to submit reports and permits to state agencies on behalf of NFECO, including reporting requirements about PFAS, which the Massachusetts Department of Environmental Protection (“MassDEP”) required beginning in 2020. [Id. ¶ 32]. NEFCO alleges on “information and belief” that Casella did report NEFCO's PFAS amounts to agencies like MassDEP. [Id.]

iv. MassNatural's Compliance History

The Third-Party Complaint includes several allegations to support NEFCO's claim that MassNatural had a known history of noncompliance and mismanagement. [Id. ¶¶ 64–70]. MassNatural operates under Recycling, Composting or Conversion (“RCC”) permits issued by the MassDEP in 1987 and 2020 and both MassNatural's 1987 and 2021 permits required groundwater monitoring programs and certifications of permit compliance. [Id. ¶ 62]. NEFCO alleges specific issues with regulatory compliance at MassNatural from 1988 to 1995, including odor issues and incidents in 1988 where MassNatural was targeted by environmental agencies for “improper handling of compost material” and failing to contain eroding soils that “possibly contaminat[ed]” neighboring properties’ groundwater wells. [Id. ¶ 64]. As for more recent violations, NEFCO alleges MassNatural received an odor complaint in 2013 and reports including photographs from 2016 revealed the presence of trash, including plastic bags, in compost piles, which violated the 1987 permit. [Id. ¶¶ 65, 69]. While NEFCO alleges decades of environmental violations, the photographs from 2016 mentioned above are the only violation close to the period of business relations between NEFCO and the Casella entities.

Still, NEFCO asserts that MassNatural's history of mismanagement and contamination was available for Casella to access publicly or through state information records requests and “[a]ll Casella entities knew or should have known about MassNatural's history” of noncompliance. [Id. ¶ 72]. The Complaint alleges that MassNatural's record of violations made the presence of PFAS in Westminster alleged by the Plaintiffs a foreseeable risk to CWS and its subsidiaries, and Casella's failure to perform due diligence, including by researching MasNatural's past environmental violations, caused Casella to not adequately assess the risk of delivering NEFCO product to MassNatural. [Id. ¶¶ 71, 73]. As NEFCO tells it, “Casella could have, and should have, foreseen the risk of PFAS from the MassNatural site spreading to MassNatural's surroundings, as a result of MassNatural mismanagement, if Casella had performed reasonable due diligence on MassNatural and its operations before selecting MassNatural as a destination site for NEFCO's Product.” [Id. ¶ 76]. Moreover, NEFCO argues that “because other Casella subsidiaries directly operate waste disposal and composting facilities, Casella was knowledgeable about industrial composting and was well-positioned to adequately vet MassNatural's operational risks.” [Id. ¶ 75].

v. Procedural History

On August 2, 2022, a subset of Plaintiffs initiated the action now-captioned Ryan v. Newark Grp., No. 22-cv-40089-MRG (D. Mass) against defendants 3M, MassNatural, Newark Group, Greif, Inc., Caraustar Industries, Otter Farm, Inc., and Seaman Paper (“Ryan I”). On September 1, 2023, Magistrate Judge David Hennessy issued a Report and Recommendations on the Ryan I defendants’ respective motions to dismiss the Ryan I Second Amended Complaint, largely denying the Ryan I defendants’ motions but dismissing certain entities related to The Newark Group for lack of personal jurisdiction. [See Ryan I, ECF No. 159]. On December 21, 2023, this Court largely adopted Judge Hennessy's R&R with slight modifications. [See Ryan I, ECF No. 181]. On May 13, 2024, some of the Defendants in Ryan I sought to amend their answers to assert crossclaims against Casella Organics, the DuPont Entities, Ball, Rust-Oleum, NEFCO, and several other non-party proposed defendants. [Ryan I, ECF Nos. 233, 240, 246, 271]. Simultaneously, the Plaintiffs in Ryan I moved for leave of Court to file a Third Amended Complaint adding the DuPont Entities, Ball, and Rust-Oleum as defendants to the Ryan I action. [Ryan I, ECF No. 274].

On October 8, 2024, in a 58-page order, the Court denied the motions to amend because joining the additional parties at that stage, two years into the litigation, would cause undue delay and prejudice the proposed defendants. [Joinder Order, ECF No. 360]. In that Order, the Court noted that the significant passage of time between the filing of Ryan I complaint and the joinder motion hindered the proposed defendants’ abilities to mount a defense because it is “increasingly difficult for them to conduct reliable, independent testing ․ or to determining if there was any comingling of their materials with materials from other sources [in MassNatural].” [Joinder Order at 31].

Having been barred from adding the DuPont Entities, Ball, and Rust-Oleum to Ryan I by amending their complaint, on February 23, 2025, the Ryan Plaintiffs decided to file an entirely separate lawsuit against those same entities, as well as the NEFCO Defendants, on the eve of the tolling of the statute of limitations for their claims. See Ryan v. EIDP, INC., No. 4:25-cv-40026-MRG, ECF No. 1 (“Ryan II”). After hearing arguments from all parties, the Court consolidated Ryan I and Ryan II for purposes of case management. [Ryan I, ECF No. 423]. The Ryan Plaintiffs filed their Amended Complaint in this action on April 22, 2025. [Ryan II, ECF No. 16]. After another round of motions to dismiss by the new Defendants, the Court granted in part and denied in part the NEFCO Entities’ motion to dismiss. [Ryan II NEFCO MTD Order]. The Court dismissed NEFCO's parent company (Synagro) but found that Plaintiffs had plausibly alleged a claim for medical monitoring and negligence against NEFCO, NEFCO GP I and NEFCO GP II. [Id.] All other claims against the NEFCO Entities were dismissed. [Id.]

As to Casella Organics, the Court dismissed all claims against Casella Organics primarily because the Court ruled – based on Amended Complaint and Casella's Contract with NEFCO – the NEFCO biopellets at issue were not waste to be disposed, but rather a fertilizer product for which MassNatural served as a beneficial use market. [Ryan II Casella MTD Order at 14–16]. Said another way, Casella Organics did not create the danger or contribute as a substantial factor in the same way that other defendants like Newark or even NEFCO, as it had no role in the production of a product containing PFAS and it did not carelessly dispose of PFAS-containing materials. [Id.] Further, based on the limited facts in the Amended Complaint, the Court found that Plaintiffs failed to plausibly allege Casella had knowledge, actual or constructive, that the NEFCO biopellets contained PFAS. [Id.]

Following publication of the Orders on the motions to dismiss, NEFCO filed a Third-Party Complaint against the Casella Entities discussed in this Order. [ECF No. 527]. The Third-Party Complaint contains substantially more facts than the Ryan Plaintiffs’ Amended Complaint regarding Casella's corporate structure, business relationship with NEFCO, and sources of knowledge that the NEFCO biopellets contained PFAS. [See id.] Casella filed the present motion to dismiss the Third-Party Complaint on February 24, 2026. [ECF No. 537]. NEFCO opposed the motion on March 10, 2026. [ECF No. 540]. As stated, on April 28, 2026, the Court issued a preliminary ruling granting in part and denying in part Casella's Third-Party Motion to Dismiss. [ECF No. 548]. This Memorandum and Order provides the reasoning for those decisions.

III. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(2)

The Casella Entities move to dismiss under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction and under Fed. R. Civ 12(b)(6) for failure to state a claim. [ECF No. 440 at 6]. The First Circuit instructs the Court to decide the 12(b)(2) motion first. See Ne. Erectors Ass'n. v. Sec'y of Lab., 62 F.3d 37, 39 (1st Cir. 1995). The Court will thus begin its analysis by considering whether it has personal jurisdiction over the Defendants.

A motion under Rule 12(b)(2) challenges the Court's authority to exercise personal jurisdiction over a defendant. In a 12(b)(2) motion, the plaintiff has the “ultimate burden of showing by a preponderance of the evidence that jurisdiction exists.” Vapotherm, Inc. v. Santiago, 38 F.4th 252, 257 (1st Cir. 2022) (quoting Adams v. Adams, 601 F.3d 1, 4 (1st Cir. 2010)); Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002). “[A] district court ‘may choose from among several methods for determining whether the plaintiff has met [their] burden.’ ” Id. (quoting Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007)). As the Court makes its determination without first holding an evidentiary hearing, the prima facie standard is applied. Motus, LLC v. Cardata Consultants, Inc., 23 F.4th 115, 121 (1st Cir. 2022).

Under the prima facie approach, the court “must accept the plaintiff's (properly documented) evidentiary proffers as true” and construes them in the light most favorable to the plaintiff in determining the adequacy of their jurisdictional claim. Adelson, 510 F.3d at 48 (quoting Foster-Miller, Inc., 46 F.3d at 145). The court will not, however, credit “conclusory allegations” or “conclusory averments” without “evidence of specific facts,” and plaintiffs may not “rely on unsupported allegations in their pleadings.” Blanding v. FedEx Ground Package Sys., Inc., 722 F. Supp. 3d 12, 15 (D. Mass. 2024) (first quoting Lin v. TipRanks, Ltd., 19 F.4th 28, 33 (1st Cir. 2021); then quoting Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006)). Evidence must be produced to support a jurisdictional allegation. Boit v. Gar-Tec Prods, Inc. 967 F. 2d 671, 680 (1st Cir. 1992). Facts brought forth by the defendant “become part of the mix only to the extent that they are uncontradicted.” Adelson, 510 F.3d at 48. Properly proffered affidavits by the defendant may be considered to “examine not only the plaintiff's properly documented evidentiary proffers but also the defendant's undisputed jurisdictional fact.” Kuan Chen v. United States Sports Acad., Inc., 956 F.3d 45, 56 (1st Cir. 2020). Ultimately, “the plaintiff bears the burden of establishing jurisdiction.” Phillips v. Prairie Eye Ctr., 530 F.3d 22, 25 (1st Cir. 2008) (citing Adelson, 510 F.3d at 48).

To establish personal jurisdiction over a non-resident defendant for a claim, “the Due Process Clause requires that the defendant must have sufficient minimum contacts with the state, such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Nandjou v. Marriott Int'l, Inc., 985 F.3d 135, 148 (1st Cir. 2021) (internal quotation marks omitted) (quoting Adelson, 510 F.3d at 49); Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The exercise of personal jurisdiction must be authorized by state statute and consistent with the due process requirements of the United States Constitution. Blanding, 722 F. Supp. 3d at 15. In assessing personal jurisdiction over a non-resident defendant, “a federal court exercising diversity jurisdiction is the functional equivalent of a state court sitting in the forum state.” Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994). Therefore, Plaintiffs must demonstrate that Massachusetts’ long-arm statute grants personal jurisdiction and that it comports with the Due Process Clause of the United States Constitution. See Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009). Although “the reach of the Massachusetts long-arm statute may not be identical to that of the Due Process Clause,” the First Circuit has stated that the district court “need not inquire into such distinctions when the plaintiff has not satisfied the constitutional minimum demanded by due process.” Connoisseurs Prods. Corp. v. Fresh Finest, LLC, No. 23-CV-11649-AK, 2025 WL 786660, at *6 (D. Mass. Mar. 12, 2025) (citing Rosenthal v. Bloomingdales.com, LLC, 101 F.4th 90, 95 (1st Cir. 2024)).

Personal jurisdiction can be general or specific, but the plaintiff must allege sufficient contacts to sustain either theory. See Nandjou, 985 F.3d at 148. General jurisdiction exists when a foreign-state's corporation's “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Blanding, 722 F. Sup. 3d at 15 (alterations in original) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). “A corporation is ‘at home’ where it is incorporated and where it maintains its principal place of business.” Roy v. FedEx Ground Package Sys., Inc., No. 3:17-CV-30116-KAR, 2018 WL 2324092, at *6 (D. Mass. May 22, 2018) (quoting Daimler AG v. Bauman, 571 U.S. 117, 136 (2014)). In this case, Plaintiffs do not appear to be arguing that the Court has general jurisdiction over either CWS or CMA, so the Court will focus its analysis on specific jurisdiction.

Specific jurisdiction may be invoked where “there is a demonstrable nexus between a plaintiff's claims and a defendant's forum-based activities.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001) (citing Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998)). Accordingly, “for each claim and each defendant, [Plaintiffs] must make a tripartite showing: that the claim is sufficiently related to the defendant's contacts with Massachusetts, that the defendant's contacts with Massachusetts constitute purposeful availment of the protections and privileges of conducting business in the Commonwealth, and that the exercise of jurisdiction there is reasonable.” Nandjou, 985 F.3d at 148 (citing Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 712–13 (1st Cir. 1996)).

There is a longstanding common-law presumption of “corporate separateness” between an incorporated subsidiary and its parent. In re Lupron Mktg. & Sales Pracs. Litig., 245 F. Supp. 2d 280, 291 (D. Mass. 2003) (citing Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 336, 45 S. Ct. 250, 69 L. Ed. 634 (1925)). Corporate separateness exists when a “separately incorporated subsidiary is institutionally independent of its parent,” in these cases, “jurisdiction cannot therefore be asserted over a parent based solely on the conduct of the subsidiary.” Id. The presumption yields only to “clear evidence” to the contrary. See Escude Cruz v. Ortho Pharm. Corp., 619 F.2d 902, 905 (1st Cir. 1980) (“The mere fact that a subsidiary company does business within a state does not confer jurisdiction over its nonresident parent, even if the parent is the sole owner of the subsidiary.”). “Clear evidence” includes “monitoring of the subsidiary's performance, supervision of the subsidiary's finance and capital budget decisions, and articulation of general policies and procedures.” United States v. Bestfoods, 524 U.S. 51, 72 (1998).

B. Motion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual allegations must be enough to raise a right to relief above the speculative level, ․ on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).

“In resolving a motion to dismiss, a court should employ a two-pronged approach.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). “It should begin by identifying and disregarding statements in the complaint that merely offer ‘legal conclusion[s] couched as ․ fact[ ]’ or ‘[t]hreadbare recitals of the elements of a cause of action.’ ” Id. (alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A plaintiff is not entitled to ‘proceed perforce’ by virtue of allegations that merely parrot the elements of the cause of action.” Ocasio-Hernandez, 640 F.3d at 12 (citations omitted). Still, Plaintiff's burden is relatively low as “[a] court may not disregard properly pled factual allegations even if actual proof of those facts is improbable․ Rather, the relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw.” Afrasiabi v. Massachusetts, 272 F. Supp. 3d 256, 260 (D. Mass. 2017) (citing Ocasio-Hernández, 640 F.3d at 13). Unlike a motion made under Rule 12(b)(2) that allows the Court to look beyond the pleadings, on a motion to dismiss for failure to state a claim under Rule 12(b)(6), “the Court can consider only facts alleged in the complaint or documents fairly incorporated therein.” Theophile v. Conklin, No. CV 17-10868-FDS, 2017 WL 3140363, at *4 (D. Mass. July 24, 2017) (citing Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009)).

Finally, as this matter is just one motion in three years of litigation, the Court is mindful to follow the law of the case doctrine, which provides that “legal decisions, or rulings of law, made by a court at a particular stage of a civil or criminal proceeding become ‘law of the case,’ and that thereafter these determinations govern the same issues in subsequent stages of the same litigation, unless corrected by appellate review.” McConaghy v. Sequa Corp., 294 F. Supp. 2d 151, 160 (D.R.I. 2003) (citing Arizona v. California, 460 U.S. 605, 618 (1983); Ellis v. United States, 313 F.3d 636, 646 (1st Cir. 2002)).

IV. DISCUSSION

A. Timeliness of the Third-Party Complaint

Casella begins its motion to dismiss argument by asserting that NEFCO's Third-Party Complaint is untimely, but fails to request any action from the Court relating to striking the Third-Party Complaint or forcing NEFCO to seek leave to amend. [ECF No. 538 at 6–8]. The Court disagrees that NEFCO”s Third-Party Complaint was untimely because Casella incorrectly calculated the passage of time from the date of the Court's preliminary order on NEFCO's motion to dismiss: November 3, 2025 [ECF No. 507], not the date of publication of the Court's full Memorandum and Order on NEFCO's motion to dismiss: December 30, 2025 [ECF No. 516]. The Federal Rules of Civil Procedure provide that a defending party may serve a third-party complaint on a nonparty within fourteen (14) days of its answer, unless it receives leave from the Court. See Fed. R. Civ. P. 14(a)(1). NEFCO filed its answer to the Ryan II Complaint on January 13, 2026. [ECF No. 519]. Thus, it had until January 27, 2026 to file a third-party complaint. See Fed. R. Civ. P. 14(a)(1). NEFCO ultimately filed its Third-Party Complaint against Casella on January 27, 2026. [ECF No. 527].

Because the Court's preliminary order was not final and “clearly demonstrated [the Court's] intent to take further action,” the responsive deadlines did not begin to run until the final Memorandum and Order with the Court's full reasoning was entered on December 30, 2025. See WM Cap. Partners 53, LLC v. Barreras, Inc., 975 F.3d 77, 83 (1st Cir. 2020). Accordingly, the Court rejects Casella's argument that the Third-Party Complaint was untimely.

B. Motion to Dismiss for Lack of Personal Jurisdiction

In its motion to dismiss, Casella challenges the Court's personal jurisdiction over CWS and CMA. [ECF No. 538 at 8]. Casella does not challenge personal jurisdiction over Casella Organics. [See id.]

1. Casella Waste Systems (“CWS”)

The Court first considers whether it may exercise personal jurisdiction over CWS, and concludes that it may not. NEFCO argues that the Court has specific jurisdiction over CWS in light of its allegations that CWS directly controlled commercial activities in Massachusetts, including commercial relationships with NEFCO and MassNatural regarding biosolids business in Massachusetts. [ECF No. 540 at 11–12; Third-Party Compl. ¶¶ 11, 14, 16, 19–20, 59, 80–82]. The Court is not persuaded that the cited allegations provide the support to meet NEFCO's burden of establishing personal jurisdiction because each of the cited allegations is based “upon information and belief.” [See Third-Party Compl. ¶¶ 11, 14, 16, 19–20, 59, 80–82]. Even under the prima facie approach, the Court will not credit “conclusory allegations” or “conclusory averments” without “evidence of specific facts,” and plaintiffs may not “rely on unsupported allegations in their pleadings.” Blanding, 722 F. Supp. 3d at 15 (citations omitted). Given the First Circuit's clear order that unsupported allegations are insufficient to make a prima facie showing of personal jurisdiction, see Boit, 967 F. 2d at 676, the Court concludes that “assertions based on ‘information and belief’ are not competent evidence to defeat a motion for lack of personal jurisdiction.” Quick Fitting, Inc. v. Wai Feng Trading Co., No. CA 13-56S, 2015 WL 5719503, at *4 (D.R.I. Feb. 27, 2015), report and recommendation adopted, No. CA 13-056 S, 2015 WL 5719571 (D.R.I. Sept. 29, 2015) (citing Youming Jin v. Ministry of State Sec., 335 F.Supp.2d 72, 81 (D.D.C. 2004)). NEFCO fails to include substantive allegations that support the cited assertions beyond “information and belief.”

NEFCO's proffer of an affidavit from NEFCO Senior Vice President of Operations, Manuel Irujo, is likewise insufficient to establish personal jurisdiction because Mr. Irujo's assertion of jurisdictional facts are confined to conclusory statements without supporting factual allegations. [See Irujo Aff., ECF No 540-1 ¶ 7 (CWS “actively participated in the business activities carried out by [Casella Organics and CMA]”); id. ¶ 9 (CWS “exercised oversight and control over major business decisions of its subsidiaries ․ sensitive policy matters—such as the handling of trace chemicals in waste streams, including PFAS—were directed by Casella Waste Systems.”)]. While Irujo asserts he observed the Casella subsidiaries “frequently requiring approval from their parent company before making decisions pertaining to their business relationship with NEFCO[,]” his support for this allegation is that Casella subsidiary employees “were required to run an idea ‘up the chain’ for approval ․” [Id. ¶ 8]. Notably, Irujo fails to provide evidence that “up the chain” refers to getting approval from CWS as opposed to approval from supervisors at the subsidiaries. He does not reference a specific communication or provide any exhibits of correspondence between CWS and NEFCO. Irujo does not name a single CWS employee who he supposedly dealt with. These allegations are insufficient “conclusory averments” without “evidence of specific facts,” which plaintiffs may not rely on for proving personal jurisdiction. See Blanding, 722 F. Supp. 3d at 15 (citations omitted).

A court may, in certain circumstances, attribute the forum contacts of a subsidiary to a parent corporation when the relationship between the entities justifies treating them as one for jurisdictional purposes. Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A, 290 F.3d 42, 54 (1st Cir. 2002). Under this agency theory, the relevant inquiry is “whether the relationship between [the agent and the parent defendant], however it is labeled, is sufficient to attribute [Casella Organics’ and CMA's] in-state contacts with [CWS] to exercise jurisdiction that comports with due process.” Weinberg v. Grandcircle Travel, LLC, 891 F. Supp. 2d 228, 240 (D. Mass. 2012) (citing Jet Wine & Spirits, Inc. v. Bacardi & Co., 298 F.3d 1, 7-8 (1st Cir. 2002)).

As stated previously, under Massachusetts law, “there is a presumption of corporate separateness which may be overcome only in rare particular situations in order to prevent gross inequity.” Am. Well Corp. v. Indegene Ltd., 761 F. Supp. 3d 249, 257 (D. Mass. 2024) (quoting Platten v. HG Berm. Exempted Ltd., 437 F.3d 118, 128 (1st Cir. 2006) (internal quotation marks omitted)); My Bread Baking Co. v. Cumberland Farms, Inc., 233 N.E.2d 748, 752 (Mass. 1968)). When analyzing “whether it can disregard corporate form and pierce the corporate veil, this Court must examine a series of [twelve] factors in its analysis of the extent of the corporate interrelationship between [CWS and the Casella subsidiaries.]” Am. Well Corp., 761 F. Supp. 3d at 257. NEFCO does not address the twelve factors the Court must consider. [See ECF No. 540 at 11–12]. Neither the Third-Party Complaint nor the Irujo Affidavit provide factually supported evidence of CWS exercising “pervasive control” over the subsidiaries or CWS “creating sufficient intermingling that warrants disregard of the doctrine of corporate separateness.” Am. Well Corp., 761 F. Supp. 3d at 257–58. NEFCO's final allegation that CWS and the Casella subsidiaries all use email addresses associated with the “casella.com” domain, [Irujo Aff. ¶ 11], likewise does not demonstrate pervasive control; instead, common email addresses are a “normal badges of ownership[,]” not “ ‘clear evidence’ of parental subjugation.” See In re Lupron Mktg. & Sales Pracs. Litig., 245 F. Supp. 2d 280, 291 (D. Mass. 2003) (quoting Escude Cruz v. Ortho Pharm. Corp., 619 F.2d 902, 905 (1st Cir.1980)).

Finally, the Court notes that to pierce a corporate veil under Massachusetts law, “a court must conclude ․ that the parent corporation directed and controlled the subsidiary and used it for an improper purpose.” Barsoum v. Kinderhook Indus., LLC, 701 F. Supp. 3d 160, 161–62 (D. Mass. 2023) (emphasis added) (quoting TechTarget, Inc. v. Spark Design, LLC, 746 F. Supp. 2d 353, 356 (D. Mass. 2010)). Without a connection between the injury and the parent's improper purpose, corporate separateness remains even when the parent exercises pervasive control over the subsidiary. Bradford Carpet One Co. v. Piedmont St., LLC, No. 1777CV1274, 2019 WL 6681659, at *2 (Mass. Super. Ct. Oct. 16, 2019) (citing My Bread Baking Co., 233 N.E.2d at 752).

Here, at the motion to dismiss stage, NEFCO has not plausibly alleged that CWS's relationship with its subsidiaries was used for an improper purpose sufficient to justify imputing their forum contacts to the parent company. It is insufficient to state that CWS “exercised oversight and control over major business decisions of its subsidiaries, including decisions relating to contracts and major operational policies,” or that CWS directed the subsidiaries on how to handle PFAS in waste streams. [ECF No 540 at 12].⁴ Such allegations describe ordinary parent–subsidiary oversight rather than misuse of the corporate form. Moreover, the conduct NEFCO identifies does not itself constitute an improper purpose. PFAS, while subject to increasing regulatory scrutiny, is not inherently unlawful to manage or process. [See Ryan II NEFCO MTD Order at 3–6]. Thus, the allegation that CWS directed policies concerning PFAS handling does not establish that the parent corporation used its subsidiaries to engage in wrongful conduct. Accordingly, in terms of CWS, Defendants’ motion to dismiss due to lack of personal jurisdiction is ALLOWED.

2. Casella Major Account Services

Turning to CMA, the Court concludes that CMA maintains sufficient contacts with Massachusetts to warrant the exercise of personal jurisdiction. Unlike with CWS where NEFCO's main jurisdiction arguments were premised on a parent-subsidiary relationship, NEFCO alleges direct forum state contacts with CMA. As required by the Due Process Clause, to subject a nonresident defendant to jurisdiction within a state, the defendant must “have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int'l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Because the First Circuit has stated that “the limits of Massachusetts’ long-arm statute is as coextensive with those of the Due Process Clause,” the Court will “sidestep the statutory inquiry and proceed directly to the constitutional analysis.” Ace Am. Ins. Co. v. Oyster Harbors Marine, Inc., 310 F. Supp. 3d 295, 302 (D. Mass. 2018) (first quoting Copia Commc'ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016); then quoting Evans Cabinet Corp. v. Kitchen Int'l, Inc., 593 F.3d 135, 146 (1st Cir. 2010)). NEFCO does not argue that the Court has general jurisdiction over CMA; therefore, the Court will consider only Casella's argument that the Court lacks specific jurisdiction over CMA.

For specific personal jurisdiction, the constitutional analysis has three distinct prongs: relatedness, purposeful availment, and reasonableness. Phillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008). As such, the plaintiff must establish: “(1) their claims directly arise out of or relate to the defendant's forum activities; (2) the defendant's forum contacts represent a purposeful availment of the privilege of conducting activities in that forum, thus invoking the benefits and protections of the forum's laws and rendering the defendant's involuntary presence in the forum's courts foreseeable; and (3) the exercise of jurisdiction is reasonable.” Knox v. MetalForming, Inc., 914 F.3d 685, 690 (1st Cir. 2019). Specific jurisdiction may be invoked where “there is a demonstrable nexus between a plaintiff's claims and a defendant's forum-based activities.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).

As the primary contact providing personal jurisdiction, NEFCO alleges that it entered a marketing Contract with CMA in February 2021 to distribute, market, and sell NEFCO Products. [Third-Party Compl. ¶ 46; NEFCO-Casella 2021 Contract]. A contract may serve as a viable contact to supply specific jurisdiction over a nonresident defendant when the contract indicates a “structured [ ] relationship” between the defendant and a forum state plaintiff. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479–80 (1985). However, a contract standing alone cannot supply personal jurisdiction. Id. at 478. The Court must consider factors such as the parties’ prior negotiations, contemplated future consequences, the terms of the contract, and the parties’ actual course of dealings, to determine whether the defendant purposefully established minimum contacts with the forum. Id. at 479. Applying such principles, the Court finds that CMA has availed itself of the benefits and protections of Massachusetts, and therefore, the Court has personal jurisdiction over CMA.

a. Relatedness

A defendant “need not be physically present in the forum state” to engage in forum-based activities. N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 25 (1st Cir. 2005). However, “the action must directly arise out of the specific contacts between the defendant and the forum state.” Sawtelle v. Farrell, 70 F. 3d 1381, 1389 (1st Cir. 1995). Here, the dispute grows directly out of CMA's contractual relationship with NEFCO, a Massachusetts partnership. As in Burger King Corp., 471 U.S. 462, NEFCO's operative claims stem from CMA's obligations created by a structured, ongoing commercial agreement with a forum resident (NEFCO). The alleged injuries arise from the performance/breach of the 2021 NEFCO-Casella Contract, which explicitly contemplates the marketing, distribution, and delivery of NEFCO's biosolid products to Beneficial Use Markets in New England. [See NEFCO-Casella 2021 Contract]. Unlike CWS, which never signed a contract with NEFCO, CMA was the signatory on the 2021 Contract with NEFCO. [Id. at 15]. Additionally, NEFCO alleges that CMA actually performed under the 2021 Contract: that Casella Services managed the “marketing, handling, transportation, and distribution” of NEFCO's biosolids in New England and four other States. [Third-Party Compl. ¶ 97]. While Casella submitted an affidavit from Shelley E. Sayward, Senior Vice President and General Counsel at CWS that asserts “[t]he business relationships with NEFCO and the Mass Natural Composting Site were managed by Casella Organics,” the Court is unpersuaded by this conclusory assertion that is devoid of factual support. [Sayward Aff. ¶ 4, ECF No. 537-1]. Where Sayward's assertion directly contradicts NEFCO's assertion, NEFCO's assertion must prevail at this stage of the litigation. See Adelson, 510 F.3d at 48 (facts brought forth by the defendant “become part of the mix only to the extent that they are uncontradicted.”). Accordingly, the Court concludes that CMA's contacts to Massachusetts are sufficiently related to NEFCO's claims.

b. Purposeful Availment

As stated above, a contract may supply minimum contacts where it creates a “structured [ ] relationship” between a defendant and a forum-state plaintiff. Burger King, 471 U.S. at 479. In assessing purposeful availment, courts must examine prior negotiations, contemplated future consequences, the contract's terms, and the parties’ actual course of dealing. Id.

Casella's reliance on Burger King to argue against jurisdiction is misplaced. While the Supreme Court clarified that a contract alone does not automatically establish jurisdiction, it held that a contract creating a “substantial connection” with the forum is sufficient, even absent physical presence. Id. at 479–80. There, the defendant had never visited the forum state, yet jurisdiction was proper because he deliberately entered into a carefully structured, long-term relationship envisioning continuing contacts with the forum plaintiff. Id. at 480–82.

The present facts are materially similar. The 2021 Contract between CMA and NEFCO contemplated an ongoing course of communications regarding sales progress, order management, and product pickup logistics. [NEFCO-Casella 2021 Contract at 4, 7–8]. CMA deliberately entered into a commercial relationship with a Massachusetts partnership and derived economic benefit from that affiliation; this demonstrates purposeful availment. See Dynamic Concepts, Inc. v. Modern Chain Mfg. Co., Inc., 610 F. Supp. 285, 288 (D.R.I. 1985). The 2021 Contract further provides that Massachusetts law governs disputes and that actions “arising in connection with this agreement” shall be litigated in Norfolk County, Massachusetts. [NEFCO-Casella 2021 Contract at 14–15]. Such provisions reinforce CMA's deliberate affiliation with Massachusetts and the foreseeability of litigation in this forum. See Burger King, 471 U.S. at 482.

Moreover, the 2021 Contract with CMA closely mirrors NEFCO's earlier 2016 Contract with Casella Organics, an relationship for which personal jurisdiction is not contested. [Compare NEFCO-Casella 2016 Contract with NEFCO-Casella 2021 Contract]. This parallel structure demonstrates that CMA's Contract was not an isolated transaction but rather a continuation of an established and ongoing commercial relationship between NEFCO and Casella-affiliated entities. CMA therefore purposefully availed itself of the privilege of conducting business in Massachusetts.

c. Reasonableness

Where relatedness and purposeful availment are established, jurisdiction is rarely unreasonable. Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H & Co. Kg., 295 F.3d 59, 66 (1st Cir. 2002). Absent any showing by defendants that “exercising jurisdiction would be unreasonable,” the relatedness and purposeful availment showings in this case are sufficient to establish personal jurisdiction. Macri v. Macri, No. 01-464-JD, 2002 WL 826823, at *9 (D.N.H. May 1, 2002) (citing Nowak v. Tak How Investments, Ltd., 94 F.3d 708, 719 (1st Cir. 1996)). Still, the Court engages in the analysis of reasonableness by examining the “Gestalt factors.” Foster-Miller, 46 F.3d at 150. Those factors are:

(1) the defendant's burden of appearing, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies.

Id. at 150.

Nothing in the record suggests that requiring CMA to litigate in Massachusetts would be constitutionally unfair. Casella does not point to any persuasive or specific Gestalt arguments as to why the assertion of jurisdiction would be unreasonable here, particularly given the undisputed fact that CMA entered a Contract governed by Massachusetts law and expressly agreed to litigate disputes in Norfolk County. Under these circumstances, the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. Accordingly, the Court finds NEFCO has met its burden in establishing personal jurisdiction over CMA, and Defendant's motion to dismiss for personal jurisdiction is DENIED.

C. Motion to Dismiss for Failure to State a Claim

NEFCO asserts four claims against Casella, including contribution (Count I, against CWS, CMA, & Casella Organics); express contractual indemnification (Count II, against CMA & Casella Organics); common law indemnity (Count III, against CMA & Casella Organics); and negligent breach of contractual obligation (Count IV, against CMA & Casella Organics). [Third-Party Compl. ¶¶ 78–107]. In its motion to dismiss pursuant to Rule 12(b)(6), Casella challenges the sufficiency of NEFCO's allegations as to all causes of action. [ECF No. 538]. In response, NEFCO argues that the factual allegations of the Third-Party Complaint satisfy Rule 12 because they fully address the areas of deficiency that the Court identified in the Ryan Plaintiffs’ claims against Casella in the Ryan II motion to dismiss order. [ECF No. 540 at 13–23].

1. Contribution

Under Mass. Gen. Laws ch. 231B, § 1(a), “[w]here two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them even though judgment has not been recovered against all or any of them.” Id. The purpose of the statute is “to distribute damages among all those liable in tort for the same offense.” Berube v. Northampton, 602 N.E.2d 560, 562 (Mass. 1992) (citations omitted). Additionally, “contribution claims are derivative and not new causes of action,” and where there is no liability in tort there is no right to contribution. Id. A party may seek contribution only where the proposed contributor would be “directly liable to the injured person[,]” i.e. the proposed contributor must be directly liable to the main plaintiffs. LeBlanc v. Logan Hilton J.V., 974 N.E.2d 34, 42 (Mass. 2012) (quoting O'Mara v. H.P. Hood & Sons, 268 N.E.2d 685, 687 (Mass. 1971)); Berube, 602 N.E.2d at 563 (collecting cases). Accordingly, contribution is appropriate only “between persons who are liable jointly in tort for the same injuries.” Wolfe v. Ford Motor Co., 434 N.E.2d 1008, 1011 (Mass. 1982). However, “joint tortfeasors need not be liable under the same legal theory.” Walter & Shuffain, P.C. v. CPA Mut. Ins. Co., No. 06CV10163-NG, 2008 WL 885994, at *5 (D. Mass. Mar. 28, 2008) (citing Wolfe v. Ford Motor Co., 434 N.E.2d 1008, 1011 (Mass. 1982)).

Where contribution is premised on negligence, a third-party plaintiff must plausibly show “that the [third-party] defendant owed the plaintiff a duty of reasonable care, that the [third-party] defendant breached this duty, that damage resulted, and that there was a causal relationship between the breach of the duty and the damage.” Jupin v. Kask, 849 N.E.2d 829, 834–35 (Mass. 2006). The Court is tasked with deciding the legal question of whether the third-party defendant owed the plaintiff a duty of care. See Brettel v. Omron Sci. Techs., Inc., 302 F. Supp. 3d 460, 467 (D. Mass. 2018) (citing Jupin, 849 N.E. 2d at 835). “The concept of ‘duty’ is not sacrosanct in itself but is only an expression of the sum total of considerations of policy which lead the law to say that the plaintiff is entitled to protection. No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” Jupin, 849 N.E. 2d at 835 (internal punctuation and citation omitted). Generally, “every actor has a duty to exercise reasonable care to avoid physical harm to others.” Remy v. MacDonald, 801 N.E. 2d 260, 262–63 (Mass. 2004) (citing Restatement (Second) Torts § 302 comment a (1965)).

In Ryan I & II, the Court held that a duty of care attaches “to any entity that continues to supply, distribute, or introduce PFAS-containing material into a disposal stream with knowledge, actual or constructive, of PFAS's persistence, toxicity, and resistance to conventional treatment processes.” [Ryan II Casella MTD Order at 13 (emphasis added) (citing Parris v. 3M Co., 595 F. Supp. 3d 1288, 1328 (N.D. Ga. 2022))]. Under this framework, “[f]acilities that use and dispose of PFAS-contaminated materials, knowing of the risks associated with PFAS ingestion and the potential for environmental contamination following improper disposal, owe foreseeable victims a duty of care.” [Id.] Applying that standard, the Court dismissed the Ryan II negligence claim against Casella, concluding that the Amended Complaint failed to establish that Casella engaged in the careless disposal of PFAS-containing materials and, that the Amended Complaint's failure to plausibly allege Casella's knowledge of PFAS in the biopellets was fatal to establishing that Casella owed Plaintiffs a duty of care. [Id. at 13–16].

NEFCO reviewed the Court's prior ruling carefully and argues that it has filled the gaps in the Ryan II Plaintiffs’ pleadings by alleging that Casella was a distributor, not a mere broker or transporter, and that Casella was disposing of the NEFCO biopellets at MassNatural, not selling them as products to a Beneficial Use Market pursuant to Casella and NEFCO's Contracts. [ECF No. 540 at 13–17]. Further, NEFCO argues that, unlike the Ryan Plaintiffs, it adequately alleges that Casella had full knowledge of PFAS in the biosolids products supplied by NEFCO. [Id. at 17].

As stated above, the operative negligence standard under Parris/Ryan I & II, distributors of PFAS-containing material into a disposal stream with knowledge of PFAS's persistence, toxicity, and resistance to conventional treatment processes may be liable to foreseeable victims for environmental contamination following improper disposal. [Ryan II Casella MTD Order at 13 (emphasis added) (citing Parris, 595 F. Supp. 3d at 1328)]. NEFCO's first hurdle is to plausibly allege that Casella is a distributor of the NEFCO biopellets, not a mere broker or transporter.

In the Third-Party Complaint, NEFCO directly alleges that Casella is a distributor and highlights that its 2016 and 2021 Contracts with Casella contemplated Casella's service as a distributor of NEFCO products. [Third-Party Compl. ¶¶ 39, 47; ECF No. 540 at 14–15]. NEFCO alleges that “[t]he purpose of the 2016 Marketing Agreement was for [Casella Organics] to distribute NEFCO's Product as a useful product in commerce. The 2016 Marketing Agreement was not a disposal agreement, and NEFCO did not provide its product to [Casella Organics] to dispose of it.” [Third-Party Compl. ¶ 39]. As to the 2021 Contract, NEFCO alleges that the 2021 Marketing Agreement retains “substantially similar material terms and conditions as the 2016 Marketing Agreement regarding marketing, sale, and distribution ․” [Id. ¶ 49]. The Third-Party Complaint also references Casella's role in biosolids distribution repeatedly. [Id. ¶¶ ¶¶ 40–41, 45, 52, 58, 80, 81, 87–89, 91–93, 96–97].

Turning to the Contracts themselves, NEFCO characterizes these agreements as “distribution contracts.” [ECF No. 540 at 15]. The second “whereas” clause of the Contracts provides that the Casella signatories will “provide a comprehensive service for the distribution and marketing of [NEFCO biosolids] Product.” [NEFCO-Casella 2016 Contract at 1 (emphasis added); NEFCO-Casella 2021 Contract at 1 (emphasis added)]. Section 1.1.1 of both Contracts stipulates that the Casella signatories will “collect, transport, distribute and otherwise manage Product to Beneficial Use Markets described and the territories identified in this Agreement.” [Id. at § 1.1.1 (emphasis added)]. Section 1.1.2, titled “Exclusive Distributor,” provides that the Casella signatories are the “exclusive distributor[s]” of NEFCO's biosolids in New England, New Jersey, Pennsylvania, and parts of New York. [Id. at § 1.1.2]. As noted previously, the term “distributor” or some form of it appears nearly forty times in each version of the contract. [See id.]

In its motion to dismiss, Casella does little to negate NEFCO's characterization of it as a distributor. In arguing that it complied with all contractual requirements to NEFCO, Casella describes how it distributed NEFCO's products to MassNatural and argues that the Contracts did not require Casella to “obtain [NEFCO's] approval for distribution.” [ECF No. 538 at 13]. Casella argues that MassNatural was an “appropriate distribution point under the contract with NEFCO.” [Id. at 14]. Further, Casella rejects that Casella Organics “somehow missed a step in distributing the biopellets to MassNatural or was otherwise negligent in distributing the product ․” [Id. at 15]. In reciting the facts of the Third-Party Complaint, Casella repeats NEFCO's allegation that the purpose of the Contracts was to “distribute a useful product,” and that from May 2018 to February 2022 “Casella Organics distributed the product as intended pursuant to both agreements.” [Id. at 6 (citing Third-Party Compl. ¶ 49)]. Casella stipulates that in reciting the facts of the Third-Party Complaint, it “do[es] not admit any of the facts alleged ․ but accept[s] them as true for the purposes of their 12(b)(6) motion.” [Id. at 5 n.1]. Herein lays an important point – in evaluating a motion to dismiss under Rule 12(b)(6), Casella and the Court must accept the well-pleaded facts alleged in the Third-Party Complaint as true and draw all inferences in favor of the plaintiff. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014) (quoting A.G. ex rel. Maddox v. Elsevier, Inc., 734 F.3d 77, 80 (1st Cir. 2013)). NEFCO's Third-Party Complaint clearly alleges that Casella is a distributor of the NEFCO biopellets and supports that assertion with citations to the Contracts and the parties’ course of dealing. This well-pleaded allegation must be accepted as true at this stage. Accordingly, the Court finds that NEFCO has sufficiently alleged that Casella is a distributor of a PFAS-containing product, satisfying the first requisite of the Ryan-Parris framework for duty. [See Ryan II Casella MTD Order at 13 (emphasis added) (citing Parris, 595 F. Supp. 3d at 1328)].

Next, NEFCO must allege that Casella distributed the biopellets into the disposal stream, i.e. that it disposed of the biopellets rather than sold them as part of a transaction for Beneficial Market use. First, NEFCO directly alleges Casella disposed of the Product. [Third-Party Compl. ¶¶ 53, 55, 58, 80, 84]. Second, NEFCO alleges that MassNatural could not be a Beneficial Use Market under the Contracts because MassNatural's own website stated that its soil products do not use sewage sludge inputs. [Id. ¶ 54; ECF No. 540 at 22]. Casella counters and argues that the NEFCO biopellets are not sewage sludge, but rather “heavily treated fertilizer pellets,” and MassNatural satisfies the 2016 and 2021 Contracts’ definition of “Beneficial Use Market” because MassNatural “both engaged in topsoil manufacturing and was a location where the biopellets were used to improve soil characteristics.” [ECF No. 538 at 14–15]. NEFCO responds that the biopellets are simply “treated sewage sludge,” citing to an Environmental Protection Agency (“EPA”) publication providing information on sewage sludge and biosolids. [ECF No. 540 at 22 n.8]. Whether or not MassNatural was a Beneficial Use Market under the Contracts, NEFCO alleges (and Casella does not contest) that MassNatural did accept the NEFCO biopellets from Casella from 2018 to 2022. [Third-Party Compl. ¶ 49]. Notably, the Third-Party Complaint alleges that “neither MassNatural nor any other entity paid any Casella entity for MassNatural's receipt” of the NEFCO products at the MassNatural site. [Id. ¶ 55]. The Court finds the allegation of the lack of payment supports an inference that Casella was not transacting with MassNatural as a market to incur revenue, but rather dumping or disposing of the Product for zero value.

Ultimately, the question of whether Casella disposed of the biopellets at MassNatural or whether it sold them for beneficial use is a disputed factual issue that cannot be resolved at the 12(b)(6) stage. NEFCO has done enough to state a plausible claim that Casella distributed the NEFCO biopellets into the disposal stream, and taking that allegation as true (which the Court must at this stage), NEFCO at least meets its burden in establishing that discovery should proceed on this point.

NEFCO's allegation that Casella was a distributor of PFAS-containing biopellets into the disposal stream can establish duty so long as it can plausibly claim that Casella had the requisite knowledge of PFAS's presence in the biopellets and its toxicity. Unlike the complaint in Ryan II, NEFCO's Third-Party Complaint has alleged sufficient facts concerning Casella's knowledge of “PFAS's persistence, toxicity, and resistance to conventional treatment processes.” Ryan, 2025 WL 3777207, at *19. At a general level, it asserts that Casella “has known about the risks of improper PFAS handling” throughout its involvement in the biosolids industry. [Third-Party Compl. ¶ 21]. In support, NEFCO points to Casella's participation in industry organizations such as NEBRA, including attendance at PFAS-focused conferences, involvement in legislative efforts, and internal discussions concerning PFAS regulation and treatment. [Id. ¶¶ 22–29]. These allegations, taken together, suggest that Casella was aware of the emerging regulatory and environmental concerns associated with PFAS in biosolids. More specifically, the Third-Party Complaint further alleges that Casella, through product labeling, PFAS testing results provided by NEFCO beginning in 2019, and regulatory reporting obligations related to PFAS content, also possessed “specific knowledge that NEFCO's biosolid pellets contained PFAS.” [Id. ¶¶ 30–34]. Moreover, NEFCO also alleges that NEFCO shared the fact that the biopellets contained PFAS directly with Casella personnel involved in the parties’ business relationship. [Id. ¶¶ 28, 31, 33].

Accordingly, NEFCO has filled the gap of the Ryan II Plaintiffs’ complaint and succeeds in plausibly alleging that Casella had the requisite knowledge to establish a duty to Plaintiffs and negligence liability.

With the benefit of a more detailed and developed pleading, the Court has reconsidered Casella's role in the PFAS supply chain. Unlike the Court's earlier Ryan II finding (based on the Plaintiffs’ complaint) that Casella “was not disposing of NEFCO's biopellets but rather sending them to MassNatural as a useful fertilizer product,” [Ryan II Casella MTD at 14], the Third-Party Complaint alleges a materially different set of facts. Taken together, NEFCO's allegations plausibly suggest that Casella's distribution of the biopellets to MassNatural functioned as disposal rather than productive reuse. Viewed through this expanded factual lens, the considerations that previously supported dismissal of the claims against Casella have been mitigated. Accepting the Third-Party Complaint's allegations as true, NEFCO has plausibly alleged that Casella owed a duty of care to foreseeable plaintiffs, breached that duty by continuing to dispose of NEFCO's products as waste while aware of PFAS's persistence, toxicity, and resistance to conventional treatment processes, and that such conduct was a substantial factor in causing the alleged injuries. Accordingly, NEFCO has stated a plausible negligence-based contribution claim sufficient to survive a motion to dismiss and the motion to dismiss Count I of the Third-Party Complaint is DENIED.

The Third-Party Complaint only contemplates a contribution claim based on negligence claim facing NEFCO, [Third-Party Compl. ¶¶ 78–82], it does not allege contribution relating to the Plaintiffs’ medical monitoring claim against NEFCO, which the Court allowed to proceed in the NEFCO Motion to Dismiss ruling, [Ryan II NEFCO MTD Order at 31–35]. The Third-Party Complaint does not contain the words “medical monitoring,” and the parties did not brief the issue of whether contribution for medical monitoring would be appropriate. [See Third-Party Compl.; ECF No. 538; ECF No. 540]. Accordingly, NEFCO has waived any claim for contribution against Casella based on medical monitoring. See Labranche v. United States Liberty Ins. Co., 786 F. Supp. 3d 262, 273 (D. Mass. 2025) (“The court will not read causes of action into the complaint which are not alleged.” (quoting Superior Kitchen Designs, Inc. v. Valspar Indus. (U.S.A.), Inc., 263 F. Supp. 2d 140, 148 (D. Mass. 2003))).

2. Indemnification

In Count II, NEFCO alleges express contractual indemnification, and in Count III NEFCO alleges tort-based common law indemnification. A right to indemnification may not be implied simply because a defendant is subject to tort liability for an injury that it believes a third party helped cause. Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Auth., 693 F.2d 1, 2 (1st Cir. 1982). As the First Circuit cautioned, such a theory “turns indemnity on its head.” Id. (quoting Santisteven v. Dow Chemical Co., 506 F.2d 1216, 1219 (9th Cir. 1974)). Rather, indemnification arises only in limited circumstances: (a) the existence of an express agreement creating a right to indemnification, (b) “a tort-based right to indemnification,” or (c) “a contractual right to indemnification ․ implied from the nature of the relationship between the parties.” Araujo, 693 F.2d at 2 (citations omitted).

a. Express Contractual Indemnification

In Count II, NEFCO alleges that Casella must indemnify it in the Ryan litigation pursuant to express contractual indemnification. [Third-Party Compl. ¶¶ 83–94]. When there is an “express agreement of indemnity, ․ it [would not be] disputed that it would be enforceable against the indemnitor.” Bader v. Watson, No. 4:23-CV-11354-MRG, 2024 WL 4894765, at *5 (D. Mass. Nov. 26, 2024) (citation omitted). “Under Massachusetts law, where material facts are not in dispute, interpretation of an indemnity clause is an issue of law.” Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 215 (1st Cir. 2006) (citing Post v. Belmont Country Club, Inc., 805 N.E.2d 63, 67 (Mass. App. Ct. 2004)). Interpretation of words that are “plain and free from ambiguity must be construed in their usual and ordinary sense.” Nordberg v. Ivy Studio, LLC, No. CV 21-10648-FDS, 2022 WL 20138586, at *3 (D. Mass. July 19, 2022) (citing Bukuras v. Mueller Grp., LLC, 592 F.3d 255, 262 (1st Cir. 2010)).

The indemnification clause in Section 11.1 of the 2016 and 2021 NEFCO-Casella Contracts in essence requires Casella to indemnify NEFCO for all loss, damage, suits, penalties, costs, liabilities, expenses, claims, and actions arising from Casella's handling, transporting, recycling, or disposing of the Product that are incurred as a result of either (i) Casella's negligence or willful misconduct, or (ii) Casella's breach of the terms and conditions of the Contracts. [NEFCO-Casella 2016 Contract § 11.1; NEFCO-Casella 2021 Contract § 11.1]. There is an inverse indemnification provision in Section 11.2 of the Contracts that reverses the obligation to indemnify to require NEFCO to indemnify Casella for all loss, damage, suits, penalties, costs, liabilities, expenses, claims, and actions arising from any claim of loss, property damage, or personal injury that was caused by (i) NEFCO's negligence or willful misconduct; (ii) NEFCO's provision to Casella of Non-Conforming Product, or (iii) any other breach of the conditions of the Contracts. [NEFCO-Casella 2016 Contract § 11.2; NEFCO-Casella 2021 Contract § 11.2].

Casella argues that it is not liable for indemnification under the Contracts for three primary reasons: (1) because NEFCO's negligence caused the Ryan Plaintiffs’ injuries, triggering the inverse indemnification provision; (2) NEFCO's biopellets were non-conforming product and, as such, title and liability for the Product never passed to Casella; and, (3) because it claims Casella complied with all terms of the agreements. [ECF No. 538 at 19].

The Court first considers Casella's non-conforming waste argument. In the NEFCO-Casella Contracts, NEFCO warranted that its biopellet Product are not “classified as hazardous waste under the United States Environmental Protection Agency and/or any other applicable laws and regulation.” [NEFCO-Casella 2016 Contract § 3.1; NEFCO-Casella 2021 Contract § 3.1]. Under Section 3.5 of the Contracts, Product that failed to meet that standard is considered “Non-Conforming Product,” and under Section 4.1 of the Contracts, “[t]itle to and legal responsibility and liability for Non-Conforming Waste shall, at all times, remain with” NEFCO. [NEFCO-Casella 2016 Contract §§ 3.5, 4.1; NEFCO-Casella 2021 Contract §§ 3.6, 4.1]. Casella argues that the PFAS-containing NEFCO biopellets were actually provided to Casella as Non-Conforming Hazardous Waste and, therefore, title to the biopellets and any liability stemming from the biopellets remains solely with NEFCO. [ECF No. 538 at 3]. In response, NEFCO argues that the biopellets, and PFAS compounds generally, do not constitute “hazardous waste” under any state or federal law and that Casella is conflating “hazardous materials” with “hazardous waste,” which each have distinct meanings in environmental law. [ECF No. 540 at 24].

The Court agrees with NEFCO. First, hazardous waste and hazardous materials are not the same thing under environmental law. As NEFCO asserts, the term “hazardous waste” has specific statutory meaning in federal and state environmental law and does not mean “hazardous materials” or “anything hazardous.” See, e.g., 42 U.S.C. § 9601(14) (defining “hazardous substance”); 42 U.S.C. § 6903(5) (defining “hazardous waste”); Mass. Gen. Laws ch. 21E, § 2 (defining “hazardous material”); 310 C.M.R. 30.010 (defining “hazardous waste”). Under federal law, in 2024, the EPA officially designated two of the most common PFAS substances—PFOA and PFOS, including their salts and structural isomers—as hazardous substances under CERCLA (the federal Superfund law, 42 U.S.C. § 9601 et seq.). EPA, EPA-HQ-OLEM-2019-034, Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances (2024). CERCLA does not itself define the term “waste” but instead incorporates the meaning of “disposal” and “hazardous waste” as provided in section 1004 of the Solid Waste Disposal Act, 42 U.S.C. § 6903. That Act's definition of “hazardous waste” refers to “solid waste,” which explicitly contemplates “discarded material.” See 42 U.S.C. §§ 6903(5), 6903(27). Under state law, PFAS are considered hazardous materials under Mass. Gen. Laws Chapter 21E (“Chapter 21E”) because they are included in the Massachusetts Oil and Hazardous Substance List found in the Massachusetts Contingency Plan (“MCP”), 310 C.M.R. 40.0000. Under the MCP, “Hazardous Material” may include hazardous waste, 310 C.M.R. 40.0006, but the term “Hazardous Waste” specifically means a “waste,” defined in 310 C.M.R 30.010, as “any discarded material.”

In the Contracts, NEFCO warranted that its Product are not “hazardous waste,” under state and federal law, and the title provision for non-conforming product specifically refers to “Non-Conforming Waste.” [NEFCO-Casella 2016 Contract §§ 3.1, 3.5, 4.1 (emphasis added); NEFCO-Casella 2021 Contract §§ 3.1, 3.6, 4.1 (emphasis added)]. As has been discussed at length, the Contracts refer to the NEFCO biopellets as Products for distribution to Beneficial Use Markets; the contracts do not contemplate them as mere “discarded material” such that they would meet the definition of “hazardous waste” under state or federal law. Accordingly, Casella's argument that NEFCO provided it with Non-Conforming Waste such that title and liability for the biopellets remained with NEFCO is inapplicable.

The Court next considers whether NEFCO has plausibly alleged that its liability to Plaintiffs was caused by Casella's breach of the Contracts. NEFCO argues that its Contracts with Casella specifically required distribution of the product for Beneficial Use, not disposal, and Casella's decision to dispose of the biopellets at MassNatural constituted a breach of the Contracts. [ECF No. 540 at 21; Third-Party Compl. ¶¶ 53, 55, 58, 80, 84]. As discussed in the Contribution section, supra, Casella disputes that it breached the Contracts in bringing the biopellets to MassNatural; however, based on the constraints of the legal standard in reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the well-pleaded allegations of the Third-Party Complaint as true and draw all inferences in favor of NEFCO. See Ruivo, 766 F.3d at 90 (quoting A.G. ex rel. Maddox, 734 F.3d at 80). In doing so, the Court finds that NEFCO has plausibly alleged that Casella breached the 2016 and 2021 Contracts when Casella disposed of the NEFCO biopellets at MassNatural instead of distributing them to a Beneficial Use Market. The Ryan Plaintiffs’ claims against NEFCO result from Casella's decision to bring the NEFCO biopellets to MassNatural because Plaintiffs allege the PFAS from the biopellets (and other composting materials) leeched from the MassNatural site and contaminated the surrounding groundwater and Plaintiffs’ wells. Accordingly, NEFCO has plausibly stated a claim for express contractual indemnification where it has alleged that the liabilities it is facing from the Ryan Plaintiffs arise from Casella's disposing of the Product at MassNatural and are a result of Casella's breach of the terms and conditions of the Contracts. [See NEFCO-Casella 2016 Contract § 11.1; NEFCO-Casella 2021 Contract § 11.1]. As articulated at the start of this section, breach of the Contracts is just one theory on which NEFCO could plausibly state a claim for express contractual indemnification. The other theory arises when the liabilities NEFCO is facing are incurred as a result of Casella's negligence or willful misconduct. [See id.]

Because the Court declined to dismiss the Ryan Plaintiffs’ negligence claim against NEFCO, Casella argues that the reverse indemnification provision applies and NEFCO actually must indemnify Casella. [ECF No. 538 at 19]. It is true that the Court in the Ryan II motion to dismiss stage sustained Plaintiffs’ negligence claim against NEFCO. [See Ryan II NEFCO MTD Order at 22–31]. In that Order, the Court rejected NEFCO's argument that Casella bringing the biopellets to MassNatural posed a superseding cause / intervening actor theory that broke the chain of causation for negligence against NEFCO. [Id. at 25]. The Court reiterated the standard from Parris that “suppliers have a duty to protect third parties from reasonably foreseeable harm that occurs during the normal use of their products,” 595 F.Supp. 3d at 1328, and that an “intervening actor” does not break the causal chain where the defendant should have anticipated the downstream disposal practices and their consequences, id. at 1333. The Ryan Plaintiffs asserted that NEFCO was negligent not only for supplying materials that were mishandled by MassNatural, but also because of more general conduct “by failing to employ safe methods of disposal [of biopellets] to adequately prevent, control, or eliminate PFAS discharge into the environment,” and “by failing to institute proper procedures and training to prevent, minimize, and/or promptly and effectively respond to the release of PFAS from its waste products into the environment.” [Ryan II Am. Compl. ¶ 456(c)–(d)]. The Court found that either theory stated a plausible claim. [Ryan II NEFCO MTD Order at 22–31].

Casella's argument about inverse indemnification generates a proverbial “chicken or the egg” problem, i.e. a circular cause-and-effect dilemma. On one hand, NEFCO's land application of toxic PFAS biopellets started the chain of causation for the claims facing both NEFCO and Casella. On the other hand, Casella starts the chain because it is possible that NEFCO would not be a party to this lawsuit without Casella's decision to bring the NEFCO biopellets to MassNatural. The biopellets may never have been a source of PFAS contamination injuring the Plaintiffs without Casella choosing MassNatural. Again, NEFCO adamantly asserts that it had no role or oversight in Casella's choice of MassNatural and that it would not have sanctioned disposing of the biopellets there because the Contracts with Casella contemplated Beneficial Use Markets, not disposal. Both NEFCO and Casella face plausible claims for negligence (either directly or indirectly via contribution); however, the Court declines to find that the contracts’ inverse indemnification provision applies at this time for two reasons.

First, Casella's theory on this point is not supported by the terms of the Contracts. Casella asserts that NEFCO was negligent “in providing a product to Casella Organics which did not meet the quality standard under the contract,” [ECF No. 538 at 19]; however, nothing in the Quality Standard provisions of either Contract contemplate NEFCO's conduct here. The Quality Standard requires that NEFCO warrant that the Product does not contain any trash or debris; that the Product is not hazardous waste under federal or state laws and regulations; and that the Product complies with state and federal permits, laws, and regulations for general distribution as soil amendment and fertilizer without site specific licenses. [NEFCO-Casella 2016 Contract § 3; NEFCO-Casella 2021 Contract § 3]. Neither Contract contains a quality-related provision about common law liability as opposed to requirements for licenses under state and federal law. Accordingly, NEFCO did not breach the Quality Standard of the Contracts and does not owe Casella inverse indemnification under that theory.

As to the other theory about NEFCO's general negligence, there remain several disputed factual issues that require the benefit of discovery and an evidentiary record before the Court would conclude that the reverse indemnification provision applies. For example, the parties dispute whether Casella was disposing rather than distributing the biopellets. Further, in the NEFCO Motion to Dismiss Order, the Court signaled that NEFCO may be able to raise a permit defense at a later stage of the litigation that might relieve it of negligence liability. [Ryan II NEFCO MTD Order at 28–31]. With these key issues undetermined by the available evidence, it would be premature to find that NEFCO owes Casella indemnification, particularly where the Court has just found above that NEFCO plausibly states a contractual indemnification claim against Casella based on the breach of contract theory. At the motion to dismiss stage, this is sufficient to sustain NEFCO's claim, and the Court will not invalidate the direct indemnification provision prematurely. See Langadinos v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000) (Dismissal is appropriate only if “it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.” (citation omitted)).

Accordingly, the motion to dismiss Count II is DENIED.

b. Common Law Indemnification

In Count III, NEFCO alleges Casella is liable to it under “common law indemnification”. The term “common law indemnification” is more appropriately referred to as “tort-based indemnification” under Massachusetts law. In re Access Cardiosystems, Inc., 361 B.R. 626, 648 (Bankr. D. Mass. 2007) (citing Clark v. Gen. Inv. & Dev. Co., 1999 WL 788433, at *2 n.5 (Mass. App. Div. Aug. 23, 1999)). NEFCO cannot rely on the tort-based theory/common law indemnification because it is facing claims of active negligence that preclude any claim for indemnification under this theory. Tort-based indemnification “has usually been available only when the party seeking it was merely passively negligent while the would-be indemnitor was actively at fault.” Araujo, 693 F.2d at 3 (first citing Loose v. Offshore Navigation, Inc., 670 F.2d 493, 499 (5th Cir. 1982); then citing Bosse v. Litton Unit Handling Systems, 646 F.2d 689, 694 (1st Cir.1981)). And so called “ ‘[p]assive negligence’ has been limited to instances in which the indemnitee was vicariously or technically liable.” Id. (citations omitted). In other words, passive negligence is found only “where a non-culpable party—being held liable solely by dint of its relationship to a culpable party—seeks indemnification from that culpable party.” Braintree Lab'ys, Inc. v. Bedrock Logistics, LLC, No. CV 16-11936-IT, 2017 WL 2637387, at *2 (D. Mass. June 19, 2017) (citing Araujo, 693 F.2d at 2-3). “Where the party seeking indemnification was itself guilty of acts or omissions proximately causing the plaintiff's injury, tort indemnification is inappropriate.” Araujo, 693 F.2d at 3 (citation omitted).

As discussed in the preceding section, the Ryan Plaintiffs have asserted two theories of negligence liability against NEFCO: one theory where NEFCO's relationship to Casella is central because Casella sent the NEFCO biopellets to MassNatural; and one theory that is not reliant on any connection to MassNatural and is more generally based on NEFCO's alleged negligence in applying its biopellets for direct land application knowing that they contain highly concentrated amounts of toxic PFAS/failing to ensure proper disposal downstream. Neither theory supports a claim for common law indemnification because under both theories NEFCO is not a “non-culpable party.” In both theories, NEFCO supplies the PFAS-containing biopellets that leech PFAS, injuring Plaintiffs. In other words, NEFCO is not merely “passively negligent” or “non-culpable” and “being held liable solely by dint of its relationship” to Casella. See Braintree Lab'ys., Inc, 2017 U.S. Dist. LEXIS 93655, at *3 (citing Araujo, 693 F.2d at 2-3). Instead, as discussed above in the “chicken or the egg” analysis, NEFCO is accused of its own individual acts of negligence such that tort-based indemnification is inappropriate.

Accordingly, the motion to dismiss Count III is GRANTED. The granting on the motion to dismiss Count III is different from the Court's prior preliminary determination that NEFCO plausibly stated a claim on all counts. [See ECF No. 507]. This Order supersedes that prior ruling and Count III is DISMISSSED as of publication of this Order.

3. Negligent Breach of Contractual Obligation

In Count IV, NEFCO asserts a claim for negligent breach of contractual obligation. Under Massachusetts law, a cause of action for negligent breach of contractual duties “is available when a party to a contract carelessly fails to perform as required and, as a result, foreseeably exposes third parties to injury.” Katz v. Pershing, LLC, 672 F.3d 64, 75 (1st Cir. 2012) (citing Anderson v. Fox Hill Vill. Homeowners Corp., 676 N.E.2d 821, 823 (Mass. 1997)). Additionally, a plaintiff must also establish the “familiar elements of negligence, including duty, breach, causation, and harm.” Id. (citing Banaghan v. Dewey, 162 N.E.2d 807, 812–13 (Mass. 1959)). Importantly, “a plaintiff must demonstrate that the defendant had an ‘obligation[ ] imposed apart from and independent of promises made and therefore apart from any manifested intention of [the] parties to a contract or other bargaining transaction.’ ” Noble Foods, Inc. v. Woodland Partners, Inc., No. 19-10324, 2019 WL 2918044, at *4 (D. Mass. July 8, 2019) (quoting Anderson, 676 N.E.2d at 823). In other words, “the plaintiff must identify an ‘extra-contractual duty’ which the defendant bore.” Id. at *4 (quoting Bargantine v. Mechs. Coop. Bank, No. 13-11132-NMG, 2013 WL 6211845, at *7 (D. Mass. Nov. 26, 2013). Further, negligent breach of contractual duties is a tort claim, and the key inquiry is whether the damage was caused by “negligence in the manner of performing” the duty, “as distinguished from mere failure to perform it.” Id. at *3 (quoting Anderson, 676 N.E.2d at 823). Accordingly, “failure to perform a contractual obligation is not a tort in the absence of a duty to act apart from the promise made.” Id.

In this case, NEFCO meets its burden of alleging the elements of negligent breach of contractual duties. First, the third parties that are affected are the Ryan Plaintiffs. Second, Casella's duty to those third parties arises under common law as a contributor of PFAS-containing materials into the disposal stream; i.e. the duty recognized in Parris and Ryan I & II. Third, NEFCO is alleging more than mere breach of contract. NEFCO alleges that Casella was negligent and acted below the standard of reasonable care in selecting MassNatural as a disposal site without conducting thorough due diligence on its regulatory compliance history. [Third-Party Compl. ¶¶ 59–77, 105].

While it is conceivable that a product distributor may have a duty to check a destination site's compliance history, the facts cited by NEFCO assert just enough to make out a plausible claim without the benefit of discovery. Many of the allegations about MassNatural's compliance history refer to decades old complaints, but NEFCO does include allegations of non-compliance dating to 2016, which falls within the window of NEFCO's Contracts with Casella. [Third-Party Compl. ¶¶ 59–77]. With respect to the standard of reasonable care, NEFCO asserts repeatedly that Casella knew or should have known about MassNatural's spotty compliance history before selecting it as a destination for the biopellets. [Id. ¶ 75, 76]. In essence, NEFCO is alleging that Casella was negligent in engaging with an actor that had a reputation and history of non-compliance because Plaintiffs would be foreseeably harmed when MassNatural failed to comply with testing and proper disposal techniques for PFAS-containing materials. While not the strongest claim, at the motion to dismiss stage it is sufficient to warrant the benefit of discovery on Mass Natural's compliance history and what Casella knew or should have known before choosing it as a disposal or distribution site. See Pettengill v. Curtis, 584 F. Supp. 2d 348, 364 (D. Mass. 2008) (denying a motion to dismiss where questions of fact on a claim could not properly be resolved without discovery).

NEFCO also alleges that Casella negligently breached its contractual duties in choosing MassNatural instead of a Beneficial Use Market; however, the Court finds this theory unavailing because the facts alleged support a claim for mere breach of the terms of the contract. Under that theory, NEFCO fails to allege an “ ‘extra-contractual duty’ which the defendant bore[.]” Noble Foods, Inc., 2019 U.S. Dist. LEXIS 112311, at *4 (quoting Bargantine, 2013 WL 6211845, at *7). In other words, under the beneficial use market theory, NEFCO alleges a mere “failure to perform,” rather than “negligence in the manner of performing,” an extra-contractual duty. Id. at *4 (quoting Anderson, 676 N.E.2d at 823). This showing fails to meet the elements of the claim.

As the Court finds NEFCO plausibly states a claim for negligent breach of contractual duties under the first theory, the motion to dismiss Count IV is DENIED.

V. CONCLUSION

For the reasons stated above, ECF No. 537 is GRANTED IN PART AND DENIED IN PART:

(1) The motion to dismiss for lack of personal jurisdiction is GRANTED as to CWS on all counts;

(2) The motion to dismiss for lack of personal jurisdiction is DENIED as to CMA on all counts;

(3) The motion to dismiss for failure to state a claim is DENIED on Counts I, II, and IV of the Third-Party Complaint as to Casella Organics and CMA.

(4) The motion to dismiss for failure to state a claim is GRANTED on Count III as to Casella Organics and CMA.

SO ORDERED.

FOOTNOTES

1.   Unless otherwise stated, all record citations here forward are to the docket of 4:22-cv-40089-MRG.

2.   The granting on the motion to dismiss Count III is different from the Court's prior preliminary determination that NEFCO plausibly stated a claim on all counts. [See ECF No. 507]. This Order supersedes that prior ruling, and Count III is DISMISSSED as of publication of this Order.

3.   In contrast, the term “disposal” only appears twice in each version of the Contract. First, under Section 9 (Force Majeure), referring to either party's excusable non-performance for causes beyond a party's reasonable control, including the “revocation, suspension, denial or modification of any permit, license or approval regarding ․ disposal of Product.” [NEFCO-Casella 2016 Contract § 9; NEFCO-Casella 2021 Contract § 9 (emphasis added)]. And second, in the Indemnification Clause of Section 11.1 where Casella, as the Contractor, agrees to indemnify NEFCO “from and against any and all loss, damage, suits, penalties, costs, liabilities, expenses, claims, and actions (including, but not limited to, reasonable investigation and legal expenses) arising from Contractor's handling, transporting, recycling or disposing of Product, to the extent said loss, damage, suits, penalties, costs, liabilities, expenses, claims, and/or actions result from the negligence or willful misconduct of Contractor or Contractor's breach of the terms and conditions of this Agreement.” [Id. § 11.1 (emphasis added)].

4.   The Court notes that NEFCO also alleges that CWS generally did commercial activities in Massachusetts, implying that CWS did business in Massachusetts other than with its subsidiaries. [ECF No. 540 at 11-12 (“[T]he company directly controlled commercial activities in Massachusetts, including commercial relationships with NEFCO and MassNatural regarding biosolids business in Massachusetts.”)]. However, as NEFCO has offered no affirmative proof that goes beyond this conclusory allegation, the Court does not take this allegation into consideration under a 12(b)(2) analysis. Weinberg, 891 F. Supp. 2d at 237 (D. Mass. 2012) (citing Boit, 967 F.2d at 675).

Margaret R. Guzman United States District Judge