Acme Printing Ink Co. v. Menard, Inc.
| Decision Date | 28 March 1995 |
| Docket Number | No. 89-C-834.,89-C-834. |
| Citation | 881 F. Supp. 1237 |
| Parties | ACME PRINTING INK COMPANY, a Delaware corporation, Plaintiff, v. MENARD, INC., a Wisconsin corporation; Ed's Masonry and Trucking, Inc., a Wisconsin corporation; Edward J. Fadrowski; Marcia Smith; Anthony Ivancich; Bel-Aire Enterprises, Concrete Contractors, Inc., a Wisconsin corporation; Brey's Saw Shop, a partnership; Dan Brey; Max Brey; Cambridge Chemical, Inc., a Wisconsin corporation; Cardinal Fabricating Corp., a Wisconsin corporation; John A. Davis, Jr.; Commercial Heat Treating, Inc., a Wisconsin corporation; Herb Engel Realty Co., Inc., a Wisconsin corporation; Hartwig, Inc., a Wisconsin corporation, d/b/a Hartwig Exhibitions; Helmut's Building Service, Inc., a Wisconsin corporation; Kramer Brass Foundry, Inc., a Wisconsin corporation; Dennis J. Cortte, d/b/a Layton Motor Sales; Jerry Lesperance, d/b/a Lesperance Construction; Lincoln Savings Bank, S.A., f/k/a Lincoln Savings & Loan Association, a Wisconsin chartered savings and loan association; Vernin Tretow, d/b/a Loomis Center Garage; Lubricants, Inc., a Wisconsin corporation; Richard W. Drexler; Robert Howell; Miller Tilt-Top Trailer, Inc., a Wisconsin corporation; Lewis Miller; Robert Bera; Pemper Engineering Co., Inc., a Wisconsin corporation; Frank Povlick, Inc., a Wisconsin corporation; Charles E. Rickheim; Service Painting Corp., a Wisconsin corporation; Sun Control Corporation, a/k/a Milwaukee Venetian Blind Co., a Wisconsin corporation; Supreme Casting, Inc., a Wisconsin corporation; Texaco, Inc., a foreign corporation; Wauwatosa Savings & Loan, a loan association; Williams Petroleum, Inc., a Wisconsin corporation; CIGNA Property and Casualty Companies, a Connecticut corporation; Ranger Insurance Company, a Delaware corporation; Hartford Accident & Indemnity Company, a Connecticut corporation; Employers Insurance of Wausau, a Wisconsin corporation; and Reliance Insurance Company, a Pennsylvania corporation, Defendants, v. TRAVELERS COMPANIES, INC., a Connecticut corporation and Home Insurance Co., Inc., a New Hampshire corporation, Third-Party Defendants. CAMBRIDGE CHEMICAL, INC., a Wisconsin corporation, Third-Party Plaintiff, v. HARTFORD ACCIDENT & INDEMNITY CO., a Connecticut corporation, Third-Party Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
William S. Roush, Jr., Davis & Kuelthau, Milwaukee, WI, for plaintiff.
Robert W. Corey, Menard, Inc. Legal Dept., Eau Claire, WI, for Menard, Inc.
Edward R. Cameron, Milwaukee, WI, for Ed's Masonry and Trucking, Edward J. Fadrowski deceased.
Anthony Ivancich, Milwaukee, WI, pro se.
Timothy J. Strattner, Schellinger & Doyle, Brookfield, WI, for Bel-Aire Enterprises Concrete Contractors, Inc.
Bruce C. O'Neill, Fox, Carpenter, O'Neill & Shannon, Milwaukee, WI, for Cambridge Chemical, Inc.
Daniel M. Leep, McNally, Maloney & Peterson, Milwaukee, WI, for Cardinal Fabricating Corp. and Robert Howell.
William Wiseman, O'Neil, Cannon & Hollman, Milwaukee, WI, for Chromium, Inc.
James A. Baxter, Mitchell, Baxter, O'Meara & Mathie, Milwaukee, WI, for Kramer Brass Foundry, Inc.
William H. Harbeck, Quarles & Brady, Milwaukee, WI, for John A. Davis, Jr.
Steve Enich, Charles Johnson, Milwaukee, WI, for Commercial Heat Treating.
Herb Engel Realty Co., c/o Gerald L. Engel, Milwaukee, WI, for Herb Engel Realty Co.
Raymond J. Pollen, Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, WI, for Hartwig, Inc. d/b/a Hartwig Exhibitions.
Stuart B. Eiche, Jacqueline E. Frakes, Eiche & Frakes, Milwaukee, WI, for Helmut's Building Service.
John A. Fiorenza, John P. Hayes, Fiorenza & Hayes, Milwaukee, WI, for Williams Petroleum.
Michael P. Carlton, von Briesen & Purtell, Milwaukee, WI, for Dennis J. Cortte d/b/a Layton Motor Sales.
Michael W. Rohr, Krawczyk & Duginski, Milwaukee, WI, for Lincoln Sav. Bank and Pemper Engineering Co.
Tom Duggan, John T. Lynch, Duggan, Lynch & Fons, Greenfield, WI, for Vernin Tretow d/b/a Loomis Center Garage.
Richard Drexler, c/o Lubricants, Inc., Milwaukee, WI, for Lubricants, Inc.
Thomas S. Sommers, Sommers & Sommers, Milwaukee, WI, for Richard W. Drexler.
David V. Meany, Michael, Best & Friedrich, Milwaukee, WI, for Service Painting Corp.
Richard E. Schmidt, Fellows, Piper & Schmidt, Milwaukee, WI, for Frank Povlick, Inc.
Michael P. Dunn, Davis & Kuelthau, Milwaukee, WI, for Supreme Casting, Inc.
Jeffrey P. Clark, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, WI, for Texaco.
Michael Pfau, Thomas Schrimpf, Hinshaw & Culbertson, Milwaukee, WI, for Ranger Ins. Co.
Richard M. Hagstrom, Zelle & Larson, Minneapolis, MN, Michael R. Wherry, Davis & Kuelthau, Milwaukee, WI, for Employers Ins. of Wausau.
Ralph A. Weber, Kravit, Gass & Weber, Milwaukee, WI, for The Travelers Companies, Inc. and The Home Ins. Co.
Lawrence K. Rynning, Williams & Montgomery, Ltd., Chicago, IL, for Home Ins. Co.
Paul J. Pytlik, Otjen, Van Ert, Stangle, Lieb & Weir, Milwaukee, WI, for Hartford Acc. & Indem.
Jeffrey Leavell, Kevin Harrington, Jeffrey Leavell, S.C., Racine, WI, for Waukesha Rubber Co.
DECISION AND ORDER
Now before the Court is plaintiff Inx International Ink Co. Inc.'s ("Inx")1 motion for leave to amend its complaint. For the following reasons, this motion will be granted, except to the extent that it seeks to add claims under section 6972(a)(1)(A) of the Resource Conservation Recovery Act ("RCRA").
The full factual background of this complex multi-party environmental litigation has been fully discussed in prior opinions of this Court, see Decision and Order of December 5, 1994; Acme Printing Ink Co. v. Menard, Inc., 812 F.Supp. 1498, 1507 (E.D.Wis.1992), and will not be recounted here. In a nutshell, the plaintiff — a generator of hazardous wastes disposed of at the Fadrowski landfill — seeks contribution from other parties — including the current and past owners of the site and other generators that allegedly disposed of hazardous wastes there — for the response costs it has incurred in connection with the site. Inx also seeks injunctive relief and civil penalties from other responsible parties.
On December 11, 1991, the plaintiff moved the Court for leave to file an amended and supplemental complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. Through this amendment, Inx seeks:
1. To update the prayer for relief to fully reflect all costs incurred (Plaintiff's Motion to File an Amended and Supplemental Complaint at ¶ 1);
2. To add several parties which were generators of waste ultimately disposed of at the Fadrowski landfill via waste oil processor and defendant, Lubricants, Inc. (Plaintiff's Motion to File an Amended and Supplemental Complaint at ¶¶ 2-3);
3. To add the principal of defendant Herb Engel Realty, Inc. as a defendant in this case (Plaintiff's Motion to File an Amended and Supplemental Complaint at ¶ 4);
4. To add the factual allegation that the plaintiff was identified as a party potentially responsible for undertaking or paying for the Remedial Design and Remedial Action at the Fadrowski site, and possibly to amend its claim against the defendants to reflect this fact (Plaintiff's Motion to File an Amended and Supplemental Complaint at ¶ 5);
5. To amend the caption to reflect that several parties have been dismissed from this case, and the plaintiff's name change. (Plaintiff's Motion to File an Amended and Supplemental Complaint at ¶¶ 6-7.)
The Court has held this motion to amend in abeyance pending its decision on several summary judgment motions filed in this action. A decision on these motions was finally rendered on December 5, 1994. Shortly thereafter, at a status conference, the Court took up the issue of Inx's motion for leave to amend its complaint. The Court provided all parties an opportunity to file their objections to the plaintiff's motion, and Inx was given the opportunity to reply.2
Objections to Inx's motion have been filed by Waukesha Rubber Co. Inc., Lindberg Corp., and Harley-Davidson Inc. (collectively "the objecting parties"). Each of these companies has been identified by the plaintiff as a generator of waste, waste solvents, and waste oil/water mixtures that were allegedly contaminated with hazardous substances. Inx alleges that these wastes were disposed of through defendant Lubricants, Inc., and that Lubricants commingled and processed the waste, disposing of the contaminated waste from this process at the Fadrowski site. (See Decision and Order of December 5, 1994 at 49-50). Thus, Inx alleges, each of these parties, as well as several other parties listed in its motion, are liable under RCRA and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA").
A motion for leave to amend is governed by Rule 15 of the Federal Rules of Civil Procedure which provides, in pertinent part, that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Whether to grant or deny leave to amend is thus within the sound discretion of the district court. Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir.1991); Campbell v. Ingersoll Mill. Mach. Co., 893 F.2d 925, 927 (7th Cir.1990). The plain language of the rule, however, directs the court to grant leave "when justice so requires," Fed.R.Civ.P. 15(a), and "the court must respect the spirit of the rule, which is tolerant toward amendments." Select Creations, Inc. v. Paliafito America, Inc., 830 F.Supp. 1213, 1216 (E.D.Wis.1993) (citing Jafree v. Barber, 689 F.2d 640, 644 (7th Cir.1982)).
"Thus, absent a good reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Select Creations, 830...
To continue reading
Request your trial
-
Prisco v. State of NY
...waste at the site, or whether a citizen may also seek restitution for cost incurred in a clean-up. Acme Printing Ink Co. v. Menard, Inc., 881 F.Supp. 1237, 1248 n. 8 (E.D.Wis.1995); compare Furrer v. Brown, 62 F.3d 1092, 1100-02 (8th Cir.1995) (denying plaintiffs a remedy for costs they inc......
-
Glazer v. American Ecology Environmental Services, 6:94 CV 708.
...by RCRA, it became effective pursuant to RCRA. Sierra Club, 824 F.Supp. at 197; Lutz, 725 F.Supp. at 261; Acme Printing Ink Co. v. Menard, 881 F.Supp. 1237, 1237 (E.D.Wis.1995); but see Dague, 935 F.2d at 1353; City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 978-79 (S.D.Ohio 1993......
-
A-C Reorganization Trust v. E.I. DuPont De Nemours
...addressed by existing section 106 orders. It is the scope of the abatement action that is relevant...." Acme Printing Ink Co. v. Menard, Inc., 881 F.Supp. 1237, 1245 (E.D.Wis.1995); Coburn v. Sun Chemical Corp., 1988 WL 120739, *12, 28 E.R.C. 1665(E.D.Pa.1988) (discussing legislative histor......
-
Taylor v. Chater, 3:94 cv 662 AS.
...Ass'n v. Philips Medical Sys. Int'l, 15 F.3d 1419, 1422-23 (7th Cir.1994) (footnote omitted); see also Acme Printing Ink Co. v. Menard, Inc., 881 F.Supp. 1237, 1243 (E.D.Wis.1995). The proponent of a Rule 12(b)(7) motion to dismiss has the burden of producing evidence which shows the nature......
-
Defenses and Exceptions to Liability
...615 (D.N.H. 1988); see United States v. Parsons, 723 F. Supp. 757 (N.D. Ga. 1989); see also Acme Printing Ink Co. v. Menard, Inc., 881 F. Supp. 1237, 1249 (E.D. Wis. 1995) (“[V]irtually every court to address this issue has concluded that a defendant cannot escape generator liability simply......
-
Erin F. Greenfield, Cercla's Applicability Abroad: Examinging the Reach of a U.s. Environmental Statute in the Face of a Cross-border Pollution Dispute
...215 See Pierson Sand & Gravel, Inc. v. Pierson Twp., 851 F. Supp. 850, 855 (W.D. Mich. 1994); Acme Printing Ink Co. v. Menard, Inc., 881 F. Supp. 1237, 1250 (E.D. Wis. 1995). 216 See CPC Int'l, Inc. v. Aerojet-General Corp., 759 F. Supp. 1269, 1279 (W.D. Mich. 1991). 217 TMG, 979 F. Supp. a......