California Dept of Toxic Substance v. Alco Pacific

• Decision Date: 09 July 2002
• Docket Number: No. CV.01-09294 MMM (FMOx).,CV.01-09294 MMM (FMOx).
• Citation: 217 F.Supp.2d 1028
• Parties: STATE OF CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. ALCO PACIFIC, INC., Morris P. Kirk, Allied Precious Metals Recycling Company, Inc., Davis Wire Corporation, Exide Technologies, P. Kay Metal Supply, Inc., Lead Products Company, Inc., Pasminco, Incorporated, Quemetco, Inc., RSR Corporation, J.L. Shepherd and Associates, and Does 1 through 10,m includsive, Defendants.
• Court: U.S. District Court — Central District of California

Page 1028

217 F.Supp.2d 1028

STATE OF CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. ALCO PACIFIC, INC., Morris P. Kirk, Allied Precious Metals Recycling Company, Inc., Davis Wire Corporation, Exide Technologies, P. Kay Metal Supply, Inc., Lead Products Company, Inc., Pasminco, Incorporated, Quemetco, Inc., RSR Corporation, J.L. Shepherd and Associates, and Does 1 through 10,m includsive, Defendants.

No. CV.01-09294 MMM (FMOx).

United States District Court, C.D. California.

July 9, 2002.

COPYRIGHT MATERIAL OMITTED

Bill Lockyer, Attorney General of the State of California, Theodora Berger, Senior Assistant Attorney General, Donald A Robinson, Supervising Deputy Attorney General, Sean B. Hecht, Deputy Attorney General, California Department of Justice, Los Angeles, for State of California Department of Toxic Substances Control.

Charles H. Pomeroy, Michael Stiles, McKenna Long & Aldridge LLP, Los Angeles, CA, for Morris P. Kirk & Defendant Alco Pacific, Inc.

Michele B. Corash, James M. Schurz, Aaron P. Avila, Esq., Morrison & Foerster LLP, San Francisco, CA, for Exide Technologies.

Coralie Kupfer, Kupfer Law & Mediation, Pasadena, CA, for P. Kay Metal Supply, Inc.

Gordon A. Greenberg, Chris M. Amantea, Brandon Roker, McDermott, Will & Emery, Los Angeles, CA, for Quemetco, Inc., RSR Corporation.

Colin Lennard, Patricia J. Chen, Fulbright & Jaworski L.L.P., Los Angeles, CA, for Lead Products Company, Inc.

Gary A. Hamblet, Rebecca S. Glos, Breidenbach, Buckley, Huchting & Hamblet, A Law Corporation, Los Angeles, CA, for J.L. Shepherd & Associates.

Walt Stringfellow, Lisa Schwartz Tudzin, Stringfellow & Associates, Los Angeles, CA, for PASMINCO Incorporated.

Mark A. Bilut, Todd Wiener, McDermott, Will & Emery, Chicago, IL, for Davis Wire Corporation.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE DEFENSES PLEADED IN VARIOUS DEFENDANTS' ANSWERS, DEFENDANT J.L. SHEPHERD AND ASSOCIATES' JURY DEMAND, AND DEFENDANTS' REQUESTS FOR ATTORNEYS' FEES

MORROW, District Judge.

This is a cost recovery action brought by the State of California, Department of Toxic Substances Control, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). The State seeks reimbursement of the costs it has incurred cleaning the site of a former lead processing facility in Carson, California, as well as a declaration that it is entitled to recoup any costs it may incur in the future. Eleven defendants have answered the complaint; the State now moves to strike various affirmative defenses asserted by eight of the eleven on the grounds that the defenses pled are unavailable under the governing statutory framework. The State also seeks to have the jury demand made by defendant J.L. Shepherd and Associates stricken on the basis that there is no statutory or constitutional right to jury trial in a CERCLA case. With the exceptions discussed infra, the court concludes that the challenged defenses are insufficient as a matter of law. It thus orders them stricken, and directs defendants to file amended answers to plaintiff's complaint within twenty days of the date of this order. The court further concludes that there is no right to jury trial in CERCLA actions and strikes Shepherd's jury demand as a result. The court grants the State's motion to strike defendants' prayer for attorneys' fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action concerns a parcel of real property in Carson, California, known as the Alco Pacific site. A lead reprocessing business operated on the site from approximately 1950 to 1990,¹ which reclaimed lead from various lead-containing materials generated by other parties and delivered to the site.² The State alleges that surface soil sampling revealed a number of hazardous chemicals present at the site above maximum allowable levels.³ As a result, it undertook clean-up at the site, and now seeks to recover the costs it has incurred to date, as well as future remediation costs.

Plaintiff Department of Toxic Substances Control ("DTSC") is a department of the State of California.⁴ Defendant Morris P. Kirk has owned and operated the Alco Pacific site at all times since 1972. Defendant Alco Pacific, Inc., a defunct corporation, owned and operated the site at the time hazardous wastes were delivered and treated there. The complaint alleges that the hazardous substances that have been found at the site were released while it was owned and operated by Alco Pacific and Kirk.⁵ The remaining defendants purportedly arranged for the delivery and treatment of the substances.⁶

The complaint contains a single claim for relief under CERCLA. DTSC seeks recovery of at least $851,840 in response costs incurred as of the filing of the complaint. It seeks to impose liability for this amount against defendants jointly and severally pursuant to 42 U.S.C. § 9607.⁷ DTSC also requests that the court declare that defendants are jointly and severally liable for any future response costs or damages incurred due to the release of hazardous substances at or from the Alco Pacific site pursuant to 42 U.S.C. § 9613(g)(2).⁸

Each defendant has answered the complaint and asserted various affirmative defenses.⁹ DTSC has moved to strike certain defenses it contends are not available under CERCLA. It also requests that the court strike defendant Shepherd's jury trial demand and all defendants' prayer for attorneys' fees, on the basis that these too are not available under CERCLA.¹⁰

II. DISCUSSION

A. Legal Standard Governing Motions To Strike Pursuant to Rule 12(f)

Rule 12(f) provides that a court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED.R.CIV.PROC. 12(f). To show that a defense is "insufficient," "the moving party must demonstrate that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed." Securities & Exchange Comm'n v. Sands, 902 F.Supp. 1149, 1165 (C.D.Cal. 1995). "`Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.... `Impertinent' matter consists of statements that do not pertain, and are not necessary, to the issues in question." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993) (citing 5A Charles A. Wright & Arthur R. Miller FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d, § 1382, pp. 706-07, 711 (1990)), rev'd. on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). "Redundant" allegations are those that are needlessly repetitive or wholly foreign to the issues involved in the action. Gilbert v. Eli Lilly Co., Inc., 56 F.R.D. 116, 121, n. 4 (D.P.R. 1972).

Motions to strike are generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic. See Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (C.D.Cal.2000); Bureerong v. Uvawas, 922 F.Supp. 1450, 1478 (C.D.Cal.1996); Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D.Cal.1991). See also United States v. 729.773 Acres of Land, Etc., 531 F.Supp. 967, 971 (D.Haw.1982) ("a motion to strike is a severe measure and it is generally viewed with disfavor"). Given their disfavored status, courts often require "a showing of prejudice by the moving party" before granting the requested relief. Sands, supra, 902 F.Supp. at 1166 (citations omitted). The possibility that issues will be unnecessarily complicated or that superfluous pleadings will cause the trier of fact to draw "unwarranted" inferences at trial is the type of prejudice that is sufficient to support the granting of a motion to strike. See Fogerty, supra, 984 F.2d at 1528 (holding that the district court properly struck lengthy, stale and previously litigated factual allegations in order to the streamline action).

Ultimately, whether to grant a motion to strike lies within the sound discretion of the district court. Fantasy, supra, 984 F.2d at 1528. In exercising its discretion, the court views the pleadings in the light most favorable to the non-moving party (see In re 2TheMart.com Securities Litigation, 114 F.Supp.2d 955, 965 (C.D.Cal. 2000)), and resolves any doubt as to the relevance of the challenged allegations or sufficiency of a defense in defendant's favor. This is particularly true if the moving party can demonstrate no resulting prejudice. Wailua Assocs. v. Aetna Casualty and Surety Co., 183 F.R.D. 550, 553-54 (D.Haw.1998) ("Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation; if there is any doubt as to whether under any contingency the matter may raise an issue, the motion may be denied ..."). See also Dah Chong Hong, Ltd. v. Silk Greenhouse, Inc., 719 F.Supp. 1072, 1073 (M.D.Fla. 1989); United States v. $200,226.00 in U.S. Currency, 864 F.Supp. 1414, 1421 (D.P.R. 1994). "Even when the defense presents a purely legal question, ... courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits." 5 Charles Wright & Arthur Miller, FEDERAL PRACTICE & PROCEDURE, § 1381, at pp. 800-01. See Sands, supra, 902 F.Supp. at 1166.

Despite the disfavored nature of motions to strike, and the strict standards applied, courts often strike affirmative defenses in CERCLA actions pursuant to Rule 12(f). See, e.g., United States v. Atlas Minerals & Chemicals, Inc., 797 F.Supp. 411, 413-14 (E.D.Pa.1992) (citing Kelley v. Thomas Solvent Co., 714 F.Supp. 1439, 1442 (W.D.Mich.1989)); see generally United States v. Rohm and Haas Co., 939 F.Supp. 1142 (D.N.J.1996); United States v. Pretty Products, Inc., 780 F.Supp. 1488 (S.D.Ohio 1991); ...