STRATFORD HOLDING, LLC, Plaintiff-Appellant, v. FOG CAP RETAIL INVESTORS LLC, Foot Locker Retail, Inc., Defendants-Appellees, 516 F. App'x 874

PER CURIAM: In this appeal, Appellant Stratford Holding, LLC, challenges the district court’s dismissal of its complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellant had filed the suit seeking cost recovery under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.

The district court granted Appellees’ motion to dismiss upon a finding that a No-Listing Letter from the Georgia Environmental Protection Division conclusively established that Appellant could not state a claim for cost recovery because it had not incurred “necessary costs of response” under CERCLA. A dismissal for failure to state a claim is reviewed de novo. Timson v. Sampson, 518 F.3d 870, 872 (11th Cir.2008). After carefully considering the parties’ briefs and having the benefit of oral argument, we conclude that the district court imper-missibly drew a factual inference from the No-Listing Letter.

The No-Listing Letter is but one item of evidence the district court may consider in a merits-based decision at trial or in

summary judgment proceedings, but the letter alone should not have been used to conclusively resolve Appellant’s CERCLA claim on a Rule 12(b)(6) motion. Accordingly, the district court’s judgment dismissing the ease is REVERSED, and the action is REMANDED for further proceedings. . The No-Listing Letter informed Appellant that the Georgia Environmental Protection Division had determined that the subject property would not be listed on the State’s Hazardous Site Inventory ("HSI”) at that time. The letter was issued after the Appellant had filed its complaint. There is no dispute that the No-Listing Letter is a public record of which the district court could take judicial notice.