Courtland Co. v. Union Carbide Corp., Civil Action No. 2:19-cv-00894

• Decision Date: 10 May 2021
• Docket Number: Civil Action No. 2:19-cv-00894
• Court: U.S. District Court — Southern District of West Virginia
• Parties: THE COURTLAND COMPANY, INC., a West Virginia Business Corporation, Plaintiff and Counterdefendant, v. UNION CARBIDE CORPORATION, a New York Corporation, Defendant and Counterclaimant.

THE COURTLAND COMPANY, INC.,a West Virginia Business Corporation,Plaintiff and Counterdefendant, v. UNION CARBIDE CORPORATION,a New York Corporation, Defendant and Counterclaimant.

Civil Action No. 2:19-cv-00894

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

May 10, 2021

MEMORANDUM OPINION & ORDER

Pending is the plaintiff's motion to dismiss the defendant's counterclaim and strike its affirmative defenses, filed on September 30, 2020 (ECF No. 103).

I. Background

The plaintiff and the defendant are corporations that own parcels of real property near Davis Creek in Kanawha County, West Virginia. See ECF No. 1 ¶¶ 5-6, 15, 25; ECF No. 82 ¶¶ 5-6, 15, 25. The plaintiff initiated this action on December 13, 2019, by filing a complaint alleging that the defendant has used two of its properties adjacent to the plaintiff's property to store hazardous and toxic materials, which have been released into the nearby environment including the plaintiff's property. See ECF No. 1 ¶¶ 1, 14-57.

Based on these allegations, the plaintiff asserts three federal causes of action: Count I seeks recovery of response costs and declaratory relief under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9607(a), 9613(g); Count II seeks citizen-suit relief for violations of § 7002(a)(1)(A) of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6972(a)(1)(A), and the West Virginia Hazardous Waste Management Act; and Count III seeks citizen-suit relief for judicial abatement of an imminent and substantial endangerment under § 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B). See ECF No. 1 ¶¶ 58-88. The plaintiff's complaint also asserts state-law causes of action for judicial abatement of a public nuisance in Count IV, judicial abatement of a public nuisance per se in Count V, private nuisance in Count VI, negligence in Count VII, gross negligence in Count IX, and strict liability in Count X. See id. ¶¶ 89-134.¹

After the court ruled on the defendant's motion to dismiss the plaintiff's complaint, see ECF No. 75, the defendanttimely filed a responsive pleading that included an answer, 38 affirmative defenses, and a counterclaim, see ECF No. 82. In its counterclaim, the defendant alleges that, in 1980, the plaintiff became the owner or operator of its property, which it or its lessees has used for "the storage and disposal of raw coal, fly ash, diesel fuel, concrete, timber, and other materials" and thus has "contributed to the release or threatened release of [h]azardous [s]ubstances" from, in, or onto the plaintiff's property, which "have caused or will cause" the defendant to incur necessary response costs, including removal costs and costs incurred to monitor, assess, and evaluate the release. Id. ¶¶ 7-11. Based on these allegations, the defendant asserts a first cause of action under CERCLA, 42 U.S.C. §§ 9607 and 9613(f), for response costs and contribution; a second cause of action under CERCLA, 42 U.S.C. § 9613(g), for declaratory relief; a third state-law cause of action for negligence; a fourth cause of action for declaratory relief under W. Va. Code § 55-13-1; and a fifth state-law cause of action for equitable indemnity. See id. ¶¶ 5-27.

The plaintiff thereafter filed the current motion, which seeks to strike the defendant's 38 affirmative defenses and to dismiss the five causes of action in its counterclaim. The motion has been fully briefed and is ready for disposition.

II. Discussion

In the current motion, the plaintiff asks the court to strike the defendant's affirmative defenses and to dismiss its counterclaim. Although brought in the same motion under Fed. R. Civ. P. 12, the court addresses each issue separately.

A. Motion to Strike

Rule 12(f) allows the court to strike pleadings of "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Rule 12(f) motions to strike "are generally viewed with disfavor 'because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.'" Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A Charles Alan Wright et al., Federal Practice and Procedure § 1380, 647 (2d ed. 1990)). A decision from this district adequately sets forth the standards for considering a Rule 12(f) motion:

the standard by which courts judge Rule 12(f) motions imposes a sizable burden on the movant. . . . Before granting a motion to strike, a court must be convinced 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. It is difficult to establish a defense is clearly insufficient.

Clark v. Milam, 152 F.R.D. 66, 70 (S.D.W. Va. 1993) (internal quotation marks and citations omitted). "[W]hen ruling on a motion to strike, the court must view the pleading under attack in a light most favorable to the pleader." Id. at 71.

Further, "[e]ven where technically appropriate and well-founded, motions to strike defenses as insufficient are often denied in absence of a showing of prejudice to the moving party." Id. at 70 (internal quotation marks omitted); see also 5A Charles Alan Wright et al., Federal Practice and Procedure §§ 1380-83 (3d ed. 2020). Prejudice may exist, "for instance, where an 'irrelevant affirmative defense results in increased time and expense of trial, including the possibility of extensive and burdensome discovery.'" Villa v. Ally Fin., Inc., No. 1:1CV953, 2014 WL 800450, at *1 (M.D.N.C. Feb. 28, 2014) (internal quotation marks, brackets, and ellipsis omitted) (quoting, ultimately, Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313, 325 (N.D.N.Y 2003)). The movant bears the burden of demonstrating prejudice. See United States v. Gwinn, No. 5:06-cv-00267, 2006 WL 3377636, at *3 (S.D.W. Va. Nov. 30, 2006) (citing, inter alia, Clark, 152 F.R.D. at 70); see also 2 Moore's Federal Practice § 12.37[3] (2020) ("[T]he movant must clearly show . . . that [the challenged matter's] inclusion will prejudice the [movant].").

The plaintiff raises six arguments challenging all 38 of the defendant's affirmative defenses.² The court addresses each of these arguments separately.

(1) Reservation of affirmative defenses (No. 15)

In its fifteenth affirmative defense, the defendant states that it

reserves the affirmative defenses of statute of frauds, statute of limitations, laches, estoppel, ratification, affirmation, doctrine of unclean hands, waiver, failure to mitigate damages, all defenses contemplated under Rules 8 and 12 of the Federal Rules of Civil Procedure, and such other affirmative defenses required by law to the Complaint or additional defenses that may subsequently become apparent as discovery proceeds in this matter.

ECF No. 82 at 34. The plaintiff argues that this affirmative defense should be stricken because it attempts to reserve potential future defenses.³ The plaintiff further argues that, to the extent it attempts to incorporate all defenses availableunder Rules 8 and 12, the defense should be stricken because it fails to give fair notice of the nature of any defense asserted.

For support, the plaintiff cites Commerce & Industry Insurance Co. v. Newhall Contracting, Inc., No. 2:13-cv-30260, 2014 WL 4161971 (S.D.W. Va. Aug. 19, 2014) (Johnston, J.). In that case, the court faced affirmative defenses that purported to assert all defenses listed in Kentucky Rule of Civil Procedure 8.03 and to reserve all defenses that might arise from additional discovery. See id. at *1. The court concluded that the defenses should be stricken. See id. at 2-3. To the extent the defendant asserted defenses set forth in the Kentucky Rule, it was determined that such an incorporation by reference failed to provide fair notice of the nature of the defenses asserted, especially because the defenses listed in the Kentucky Rule differed from those listed in the Federal Rules. See id. at 2 (citing Clem v. Corbeau, 98 F. App'x 197, 203 (4^th Cir. 2004)). More importantly for purposes of the current motion, to the extent the defendant purported to reserve the right to add defenses in the future, the court noted that courts consistently strike such reservations on the ground that defendants may amend their pleading to include additional defenses that emerge in discovery. See Com. & Indus., 2014 WL 4161971, at *3 (collecting cases).

The court agrees with the decision in Commerce & Industry and applies its reasoning in this case. In the fifteenth affirmative defense, the defendant attempts not to assert an affirmative defense but to reserve the right to raise affirmative defenses at some indefinite time in the future. See ECF No. 82 at 34, 36. A reservation of potential future defenses is inappropriate primarily because it is not really an assertion of any affirmative defense. See Long v. Welch & Rushe, Inc., 28 F. Supp. 3d 446, 465 (D. Md. 2014); Racick v. Dominion Law Assocs., 270 F.R.D. 228, 237 (E.D.N.C. 2010); see also Mulvey Constr., Inc. v. Bituminous Cas. Corp., No. 1:07-0634, 2011 WL 1231603, at *2 (S.D.W. Va. March 30, 2011) ("[A] reservation of affirmative defenses is of no force and effect." (internal quotation marks omitted)). Additionally, because defenses that emerge in subsequent litigation may be asserted through amendment under Fed. R. Civ. P. 15, the right to later assert them need not be "reserved" in a responsive pleading. See Com. & Indus., 2014 WL 4161971, at *3. Furthermore, the court concludes that permitting the defendant to reserve defenses in this manner prejudices the plaintiff because doing so risks litigation over defenses that the defendant might not ultimately assert. See id. But see Francisco v. Verizon S., Inc., No. 3:09cv737, 2010 WL 2990159, at *9 (E.D. Va. July 29, 2010) ("[A]lthough a reservation of unpled defenses...