Akzo Coatings, Inc. v. Ainger Corp.
| Decision Date | 25 October 1995 |
| Docket Number | No. 3:91-CV-570RM.,3:91-CV-570RM. |
| Citation | 909 F. Supp. 1154 |
| Parties | AKZO COATINGS, INC., et al., Plaintiffs v. AINGER CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
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Timothy W. Woods, Jones Obenchain Ford Pankow and Lewis, South Bend, IN, Gary R. Letcher, Timothy L. Harker, Colleen M. Morgan, David Zachary Kaufman, The Harker Firm, Washington, DC, for plaintiffs Akzo Coatings, Inc., O'Brien Corp. Pierre C. Talbert, Jr., Christopher W. Brownell, Deanna S. Brocker, Foley and Lardner, Chicago, IL, for defendants Aigner Corp., American Can Company, Duplicolor Products Co., Illinois Bronze Paint Co., Motorola, Inc., Prefinish Metals, Inc., S & C Elec. Co., Whittaker Corp.
Pierre C. Talbert, Jr., Foley and Lardner, Chicago, IL, for defendants Bee Coated Film Co., Dexter Corp.
Pierre C. Talbert, Jr., Christopher W. Brownell, Deanna S. Brocker, Foley and Lardner, Chicago, IL, Kenneth Anspach, John D. Dalton, Margaret Rosenberg Milsky, Anspach and Dalton, Chicago, IL, James E. McKinnon, Reynolds Metals Company, Richmond, VA, for defendant Graham Paint & Varnish Co., Inc.
James H. Milstone, Thorne Grodnik Ransel Duncan Byron and Hostetler, Elkhart, IN, Philip B. McKiernan, Hackman McClarnon Hulett and Cracraft, Indianapolis, IN, for defendant IVC Industrial Coatings, Inc.
Pierre C. Talbert, Jr., Christopher W. Brownell, Deanna S. Brocker, Foley and Lardner, Chicago, IL, James E. McKinnon, Reynolds Metals Co., Richmond, VA, for defendant Reynolds Metals Company.
Richard W. Paulen, Barnes and Thornburg, Elkhart, IN, Pierre C. Talbert, Jr., Christopher W. Brownell, Deanna S. Brocker, Foley and Lardner, Chicago, IL, for defendant Rollcoater.
Pierre C. Talbert, Jr., Christopher W. Brownell, Deanna S. Brocker, Foley and Lardner, Chicago, IL, Mark J. Steger, McBride Baker and Coles, Chicago, IL, for defendant Sherwin Williams Company.
Ronda P. Bayer, and Pierre C. Talbert, Jr., Christopher W. Brownell, Deanna S. Brocker, Foley and Lardner, Chicago, IL, for defendant Valspar, Inc.
David M. Brooks, L. Michael Koch, Matthew R. Clark, Clark Quinn Moses and Clark, Indianapolis, IN, for defendant Vista Products, Inc. (National Products Division).
Robert C. Mitchell, Morton International Inc., Chicago, IL, Christopher W. Brownell, Deanna S. Brocker, Foley and Lardner, Chicago, IL, Thomas T. Terp, Robert A. Bilott, Taft Stettinius and Hollister, Cincinnati, OH, for defendant Bee Chemical Company.
Timothy J. Abeska, Jeanine M. Gozdecki, Roemer and Mintz, South Bend, IN, Donald B. Hilliker, John J. O'Shea, Pope and John Ltd., Chicago, IL, James R. Morrin, Leo P. Dombrowski, Wildman Harrold Allen and Dixon, Chicago, IL, for defendants CFC Intern., Inc., Coated Film Co.
This cause comes before the court on the RD/RA Settling Defendants' motion for clarification and motion for partial reconsideration of the court's October 1994 Memorandum and Order, reported at 881 F.Supp. 1202 (N.D.Ind.1994). Also before the court is the motion to strike paragraph 18 of the Settling Defendants' amended counterclaim filed by Akzo Coatings, Inc. and The O'Brien Corporation. For the following reasons, the court grants in part the Settling Defendants' motions for clarification and partial reconsideration of the October 1994 order, and denies Akzo and O'Brien's motion to strike paragraph 18 of the Settling Defendants' amended counterclaims.
The court presumes a familiarity with the facts of this case, the court's prior holdings, and the Seventh Circuit's decision reported at 30 F.3d 761 (7th Cir.1994). The October 1994 order addressed two summary judgment motions: (1) the Settling Defendants' motion for partial summary judgment on Count 1 of their counterclaim against Akzo and O'Brien as to the issue of liability; and (2) Akzo and O'Brien's cross-motion for summary judgment on the Settling Defendants' counterclaims. The court denied the Settling Defendants' partial summary judgment motion, which only addressed the Settling Defendants' claim to hold Akzo and O'Brien jointly and severally liable for all the response costs the Settling Defendants have incurred or may incur, pursuant to § 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a). Following the Seventh Circuit's lead in Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994), the court held that the Settling Defendants could only make a claim for contribution, pursuant to § 113(f) of CERCLA, against Akzo and O'Brien, and accordingly denied the Settling Defendants' motion for partial summary judgment as to Akzo and O'Brien's liability under § 107(a) for all costs. Akzo Coatings, Inc. v. Aigner Corp., 881 F.Supp. 1202, 1209 (N.D.Ind.1994).
The court granted in part and denied in part Akzo and O'Brien's cross-motion for summary judgment on the Settling Defendants' counterclaims; this ruling produces the asserted confusion leading to these motions. The Settling Defendants seek a clarification and partial reconsideration of that order.
The Settling Defendants' motion for clarification requests the court to clarify that:
The first item for which the Settling Defendants seek clarification (that the October Order did not constitute an entry of a partial final judgment in favor of Akzo and O'Brien, but rather was an interlocutory order deeming certain facts admitted) is easily addressed. Federal Rule of Civil Procedure 56(d) provides:
If on a motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court ... shall if practical ascertain what material facts exist without substantial controversy and what material facts are actually in good faith controverted. It shall therefore make an order specifying the facts that appear without substantial controversy ... and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
The final sentence of Rule 56(c) states that "a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." Since the court could not enter final judgment in Akzo and O'Brien's favor on portions of the Settling Defendants' counterclaims, the October 1994 Order was interlocutory in character, and the court's findings were intended to satisfy the requirements of Rule 56(d).
The second item for which the Settling Defendants seek clarification is not as easily resolved. The Settling Defendants ask the court to hold that the October 1994 Order did not "adjudicate, or otherwise address, the RD/RA Settling Defendants' claims and/or the Plaintiffs' liability with respect to (a) areas of contamination within the Fisher-Calo Superfund Site (the "Site") which have not been earmarked for remediation and (b) non-remedial response costs." The Settling Defendants contend that Akzo and O'Brien's cross-motion for summary judgment did not address areas within the Site not "earmarked for remediation," or "non-remedial response costs." The Settling Defendants seek clarification that the October 1994 Order did not foreclose these claims in any way.
Akzo and O'Brien argue that the Settling Defendants invented these claims only after losing on portions of Akzo and O'Brien's cross-motion for summary judgment. The Settling Defendants respond that these claims are not new, and always have been encompassed by their counterclaims. The Settling Defendants' concession that the claims are not new, and that they have always been asserted as part of their counterclaims, actually harms their argument for clarification of the October 1994 Order: if Akzo and O'Brien's cross-motion failed to address any of the Settling Defendants' claims, and the Settling Defendants intended for those claims to survive Akzo and O'Brien's cross-motion, it was the Settling Defendants' obligation in responding to Akzo and O'Brien's cross-motion to protect those claims by demonstrating how Akzo and O'Brien's motion did not affect them. The Settling Defendants did not do this.
The court does not mean to suggest that the October 1994 Order fully addressed the Settling Defendants' claims with respect to areas within the Site not "earmarked for remediation" or with respect to "non-remedial response costs." The court did not address these claims (nor was it aware of them) in the Order at all. Rather, the court's interlocutory findings in the October 1994 Order, to the extent not changed below, merely foreclose the Settling Defendants' opportunity to assert those claims to the extent they are affected by those factual findings.
The court's treatment of this issue in this order should neither surprise nor disappoint the parties. As Akzo and O'Brien assert in their response, the October 1994 Order held that Akzo and O'Brien are "not liable for response costs associated with specific areas and specific harms." As the Settling Defendants correctly state, however, "the Court did not rule that the Plaintiffs are not liable for response costs associated with all areas and all harms at the Site."1
Therefore, the...
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