CITY OF GARY, INDIANA v. Shafer
| Decision Date | 10 February 2010 |
| Docket Number | Cause No.: 2:07-CV-056-PRC. |
| Citation | 683 F. Supp.2d 836 |
| Parties | The CITY OF GARY, INDIANA, Plaintiff v. Paul SHAFER d/b/a Paul's Auto Yard, and Paul's Auto Yard, Inc., Defendants v. Waste Management Systems n/k/a Waste Management of Indiana, L.L.C., Third-Party Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Michael O. Nelson, Jennifer C. Baker, Leah B. Silverthorn, Hunsucker Goodstein & Nelson PC, Indianapolis, IN, for Plaintiff.
Michael J. Maher, Jody E. Kahn, John P. Arranz, Swanson Martin & Bell LLP, Chicago, IL, Gregg D. Romaine, Fishers, IN, for Defendant.
This matter is before the Court on the Complaint DE 1 filed by the Plaintiff the City of Gary, Indiana on February 26, 2007; the Answer DE 13 filed by Defendants Paul Shafer d/b/a Paul's Auto Yard and Paul's Auto Yard, Inc. on April 30, 2007; the Third-Party Complaint DE 14 filed by Defendants Paul Shafer d/b/a Paul's Auto Yard and Paul's Auto Yard, Inc. on April 30, 2007; the Third-Party Defendant's Answer DE 34 filed by Third-Party Defendant Waste Management Systems n/k/a Waste Management of Indiana, L.L.C. on May 30, 2007; the Counterclaim DE 61 filed by Defendants Paul Shafer d/b/a Paul's Auto Yard and Paul's Auto Yard, Inc. on September 30, 2008; and the Answer to Counterclaim DE 63 filed by Plaintiff the City of Gary, Indiana on October 22, 2008.
On November 2, 3, 4, and 5, 2009, the Bench Trial proceedings were held in Hammond, Indiana. At the Bench Trial, Plaintiff the City of Gary, Indiana, appeared by its Environmental and MS4 Coordinator Dorreen Carey and by counsel Michael O. Nelson and Leah B. Silverthorn. Defendants Paul Shafer d/b/a Paul's Auto Yard and Paul's Auto Yard, Inc. appeared by Paul Shafer and by counsel Michael J. Maher and John P. Arranz. Third-Party Defendant Waste Management Systems n/k/a Waste Management of Indiana, L.L.C. appeared by counsel Michael O. Nelson and Leah B. Silverthorn.
In determination of these issues the Court FINDS, ORDERS, ADJUDGES, and DECREES:
PROCEDURAL BACKGROUND
1. On February 26, 2007, Plaintiff the City of Gary, Indiana, filed its Complaint alleging that it became the owner of real estate once formerly owned by Defendants Paul Shafer d/b/a Paul's Auto Yard (hereinafter for the sake of convenience referred to simply as Paul Shafer), that the real estate is in need of environmental remediation required by the United States Environmental Protection Agency (EPA), by the Indiana Department of Environmental Management (IDEM), and by the City of Gary Environmental Ordinance due to environmental contamination caused by Paul Shafer and Paul's Auto Yard, Inc.; that Paul Shafer and Paul's Auto Yard, Inc. created a nuisance on the real estate; that Paul Shafer and Paul's Auto Yard, Inc. should be required by monetary judgment and declaratory judgment to pay contribution toward past and future costs associated with the remediation according to their proportionate share of liability, pay a judgment for damages to the real estate, and pay for attorney fees and court costs.
2. The Complaint by the City of Gary alleges that Paul Shafer and Paul's Auto Yard, Inc. are liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607 and under the Indiana Environmental Legal Actions law (ELA), Indiana Code § 13-30-9-1 through XX-XX-X-X.
3. On April 30, 2007, Defendants Paul Shafer and Paul's Auto Yard, Inc. filed their Answer denying the substantive allegations in the Complaint and asserting affirmative defenses.
4. On April 30, 2007, Defendants Paul Shafer and Paul's Auto Yard, Inc. also filed a Third-Party Complaint against Third-Party Defendant Waste Management Systems n/k/a Waste Management of Indiana, L.L.C. (hereinafter for the sake of convenience referred to as "Waste Management") alleging that Waste Management acquired ownership of the real estate from Paul Shafer and/or Paul's Auto Yard, Inc. and later conveyed ownership to the City of Gary, that Waste Management caused environmental contamination to the real estate, and requesting that Waste Management pay contribution toward past and future costs associated with the remediation according to its proportionate share of liability.
5. On May 30, 2007, Third-Party Defendant Waste Management filed its Answer denying the substantive allegations in the Third-Party Complaint and asserting affirmative defenses.
6. On September 30, 2008, Defendants Paul Shafer and Paul's Auto Yard, Inc. filed their Counterclaim alleging that the City of Gary, in operation of its municipal landfill adjacent to the subject real estate, caused environmental contamination of the real estate and requesting that the City of Gary be required by Court judgment to pay contribution toward past and future costs associated with the remediation.
7. On October 22, 2008, Plaintiff City of Gary filed its Answer denying the substantive allegations of Paul Shafer and Paul's Auto Yard, Inc. in the Counterclaim.
8. On April 30, 2007, Paul Shafer and Paul's Auto Yard, Inc. filed a Motion For Partial Summary Judgment as to Count Three of Plaintiff's Complaint and a Memorandum in Support. On May 30, 2007, the City of Gary filed a Response to the Motion For Partial Summary Judgment. On June 13, 2007, Paul Shafer and Paul's Auto Yard, Inc. filed their Reply thereto.
9. On October 4, 2007, 2007 WL 2962640, the Court issued an Order granting the Motion For Partial Summary Judgment as to Count Three of Plaintiff's Complaint entering summary judgment on Count Three of the Complaint in favor of Paul Shafer and Paul's Auto Yard, Inc. against the City of Gary.
10. On April 30, 2007, Paul Shafer and Paul's Auto Yard, Inc. filed two Motions To Dismiss pertaining to Count Five and Count Six of Plaintiff's Complaint, together with a Memorandum In Support. On May 15, 2007, the City of Gary filed Responses in Opposition to the two Motions. On May 22, 2007, Paul Shafer and Paul's Auto Yard, Inc. filed Replies thereto.
11. On October 4, 2007, 2007 WL 3019918, the Court issued an Order granting both of the Motions To Dismiss Counts Five and Six and the Court dismissed Counts Five and Six of the Plaintiff's Complaint.
12. On February 17, 2009, Paul Shafer and Paul's Auto Yard, Inc. filed a Motion For Summary Judgment and a Memorandum in Support. On March 23, 2009, the City of Gary filed a Memorandum In Opposition to the summary judgment motion. On April 6, 2009, Paul Shafer and Paul's Auto Yard, Inc. filed their Reply thereto.
13. On June 2, 2009, 2009 WL 1605136, the Court issued an Order denying the Motion For Summary Judgment.
14. Thus, by the time of trial, the surviving Counts in Plaintiff's Complaint were Counts One, Two, and Four; the Counterclaim and Third-Party Complaint also remained at issue for trial.
15. The case proceeded to Bench Trial which was held November 2, 3, 4, and 5, 2009. The Court received evidence. By agreement of the parties, trial on the amount of damages was bifurcated from trial on the liability issues so that trial on the damages issues (allocation of proportionate shares of liability and possibly the amounts of damages) will be held later in the event that the Court finds any of the parties to be liable.
16. Following the trial, the Court ordered the parties to file Proposed Findings of Fact and Conclusions of Law by December 7, 2009.
17. On December 7, 2009, the City of Gary and Paul Shafer and Paul's Auto Yard, Inc. filed their separate Proposed Findings of Fact and Conclusions of Law DE 163, DE 164. Waste Management did not file any proposed findings of fact and conclusions of law.
18. On February 1, 2010 the parties filed a joint stipulation submitting an additional evidentiary fact in response to the Court's request for the additional evidence.
19. This Court has federal question subject matter jurisdiction in this case pursuant to 28 U.S.C. § 1331 based on the City of Gary's federal claims in its Complaint brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367, arising out of the same facts and circumstances.
20. Venue is proper under 28 U.S.C. § 1391(b)(2).
21. On April 30, 2007, this case was reassigned to the undersigned Magistrate Judge. The parties filed forms of consent to have this case assigned to a Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, the undersigned Magistrate Judge has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
22. This matter being a civil case, Plaintiff City of Gary carries the burden to prove the claims alleged in its Complaint and its affirmative defenses in its Answer to the Counterclaim by a preponderance of the evidence. Defendants Paul Shafer and Paul's Auto Yard, Inc. carry the burden to prove their Answer, the claims alleged in their Counterclaim, and the claims alleged in their Third-Party Complaint by a preponderance of the evidence. Waste Management carries the burden to prove the affirmative defenses in its Answer to the Third-Party Complaint by a preponderance of the evidence.
23. The findings of fact herein are based upon the trial evidence. Where factual conflicts in the evidence exist, the findings herein are the facts the Court has determined to be more credible after resolving the factual conflicts.
24. Where conflicts exist between the trial testimony of the City of Gary's expert witness Jay Vandeven and the trial testimony of Paul Shafer's and Paul's Auto Yard, Inc.'s expert witness Geoffrey Glanders, the Court finds Mr. Glanders' testimony to be more credible because his educational training is in geology (he is a licensed professional geologist), of the...
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