Davenport v. Neely

• Decision Date: 29 May 1998
• Docket Number: No. CIV. A. 97-D-1019-N.,CIV. A. 97-D-1019-N.
• Citation: 7 F.Supp.2d 1219
• Parties: Henry DAVENPORT and Davenport R.V., Inc., Plaintiffs, v. Thomas Ross NEELY, Jr., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

7 F.Supp.2d 1219

Henry DAVENPORT and Davenport R.V., Inc., Plaintiffs, v. Thomas Ross NEELY, Jr., et al., Defendants.

No. CIV. A. 97-D-1019-N.

United States District Court, M.D. Alabama, Northern Division.

May 29, 1998.

COPYRIGHT MATERIAL OMITTED

Susan S. DePaola, Montgomery, AL, for Plaintiffs.

Walter R. Byars, Alvin L. Fox, Jr., Montgomery, AL, for Defendants.

ORDER

DE MENT, District Judge.

Before the court is Defendants' "Motion For Leave To File Third-Party Complaint" ("Defs.' Mot.") filed October 27, 1997. Plaintiffs filed a Response ("Pls.' Resp.") on November 12, 1997, to which Defendants filed a reply ("Defs.' Reply") on November 24, 1997. On December 15, 1997, the court directed the Parties to file further pleadings regarding the propriety of Defendants' proposed third-party complaint. Defendants filed their Supplemental Pleading ("Defs.' Supp.") on January 20, 1998. Plaintiffs filed their Responsive Submission ("Pls.' Supp.") on the same date.

Defendants' proposed third-party complaint is a quintessential "shotgun" pleading, casting vague assertions at a wide variety of parties in an attempt to deflect potential liability. See Ebrahimi v. City of Huntsville Board of Education, 114 F.3d 162, 165 (11th Cir.1997) (trial) ("Experience teaches that when district courts abdicate [their] responsibility [to narrow and define the issues at the earliest stages of the litigation], `issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.'" (citation omitted)); see also Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir.1997).

For the reasons set forth below, the court finds that Defendants' Motion For Leave To File Third-Party Complaint is due to be granted in part and denied in part.

I. Factual And Procedural Summary

Plaintiffs sued Thomas Ross Neely, Jr., ("Neely") in his individual capacity, and as owner and/or operator of a facility located at 3370 Birmingham Highway, Montgomery, Alabama, ("Facility") and Neely, Margaret Ann Cundiff Neely, Thomas Ross Neely, III, and Margaret Carol Neely Miller in their capacities as Trustees of the Thomas Ross Neely, Jr. Revocable Trust, which Plaintiffs contend is the owner and/or operator of the Facility.

Plaintiffs contend that the Facility is "being used at the present time as an unpermitted solid waste landfill and/or open dump. This facility consists of approximately eight acres of open land upon which are deposited hundreds of thousands of discarded tires." (Pls.' First Am. Compl. ¶ 10.) According to the Plaintiffs, "[t]he unauthorized dump came into existence as a result of the defendants' decision to allow various tenants beginning in 1992 to attempt to operate a tire recycling facility on the premises without adequate monitoring and/or control over the operation of the facility." (Id. at ¶ 11.) The tenants have abandoned the premises with a huge stockpile of tires remaining. (Id. at ¶ 13.)

Plaintiffs contend that "[a]t all times material hereto, the defendants had knowledge of the problems with the operation(s) of the facility by their tenants and failed to take any action to stop the disposal of used tires on site and/or to require the immediate clean up of the facility." (Id. at ¶ 12.) Plaintiffs contend that the Defendants "do not have a permit to operate the facility as a solid waste disposal facility," that the Facility is an "unpermitted open dump" in violation of state and federal law, (Id. at ¶ 13), and that "defendants have ignored warnings by various state officials regarding usage of the premises and allowed the continued growth of this unpermitted facility." (Id. at ¶ 15.)

Plaintiffs assert that the Facility is immediately adjacent to Davenport R.V., Inc., that it poses a health and welfare risk to Henry Davenport personally, and "has caused an interference with the use and occupation of the land by the corporate plaintiff including a loss of business and a continuing fire hazard associated with the facility." (Id. at ¶ 17.)

Plaintiffs' First Amended Complaint is brought pursuant to the citizens suit provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a), as well as 42 U.S.C. § 6945 and various state laws. Count I is brought pursuant to 42 U.S.C. § 6972(a)(1)(A) and 42 U.S.C. § 6945. Plaintiffs state that "the Defendants' conduct ... is in violation of permits, standards, regulations, conditions, requirements, prohibitions or orders which are effective pursuant to 42 U.S.C. § 6901 et seq." (Id. at ¶ 18.) Count II alleges Nuisance pursuant to Ala. Code § 6-5-120 et seq. (Id. at ¶¶ 20-25.) Count III alleges Negligence. (Id. at ¶¶ 26-27.) Count IV alleges Wanton/Reckless Conduct. (Id. at ¶¶ 28-31.) Plaintiffs request that the court enter an order: (1) requiring Defendants to abate the nuisance by immediately removing all solid wastes from the Facility and/or closing the Facility in compliance with applicable state laws for open dumps; (2) requiring the Defendants to maintain a program adequate to control insects and vegetative control at the facility; (3) requiring Defendants to pay compensatory and punitive damages and interest and costs to which Plaintiffs may be entitled; (4) requiring Defendants to reimburse Plaintiffs for the cost of insect control on their premises; (5) requiring Defendants to pay Plaintiffs' attorneys fees and costs; and (6) requiring Defendants to pay other and further relief to which Plaintiffs may be entitled. (Id. at 5-6.)

Defendants "admit that they own real property located at the named location," (Defs.' Answer To First Am. Compl. at ¶ 10), but deny that "any Defendant served as an operator of the [Facility]." (Id. at ¶¶ 4-6.) Defendants also admit that Plaintiffs' business operations are "immediately adjacent" to the Facility. (Id. at ¶ 16.) Otherwise, Defendants deny all of the substantive allegations in Plaintiffs' First Amended Complaint.

In their Motion For Leave to File Third Party Complaint, brought pursuant to Federal Rule of Civil Procedure 14, Defendants seek to add as third-party defendants: (1) Elton G. Dyess; (2) Leon Hoffman; (3) Hoffman Tire, Inc.; (4) the Alabama State Department of Public Health; (5) the Alabama State Board of Health; (6) the Alabama State Committee of Public Health; (7) Donald Williamson; (8) the Montgomery County Board of Health; (9) the Montgomery County Health Department; (10) the Montgomery County Commission; (11) the City of Montgomery; (12) the City of Montgomery Fire Department; and (13) American Energy Recyclers, Inc. (Defs.' Mot. at 1-2.) Defendants contend that, for various reasons, these proposed third-party defendants are liable for any clean-up necessary on their property, and request compensatory damages plus costs. (See Proposed Third-Party Complaint ¶¶ 33, 36, 38.)

Rule 14(a) provides in pertinent part that:

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action.

Fed.R.Civ.P. 14(a). Essentially, Rule 14(a) allows a defendant to assert a claim against any person not a party to the main action if that third person's liability on that claim is in some way dependent upon the outcome of the claim asserted by the plaintiff in the main action. "Rule 14(a) does not allow the defendant to assert a separate and independent claim even though the claim arises out of the same general set of facts as the main claim." United States v. Olavarrieta, 812 F.2d 640, 643 (11th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987); see also United States v. Joe Grasso & Son, Inc., 380 F.2d 749 (5th Cir.1967)(noting that impleader is only permitted where the third party's liability is in some way derivative of the main claim; the third party "must be `liable secondarily to the original defendant in the event that the latter is held liable to the plaintiff.'") (citations omitted);<sup>1</sup> 3 Moore's Federal Practice, ¶ 14.07 at 14-48 (2d ed. 1995)("Given the emphasis on the liberal reading of `claim,' it is easy to lose track of a major limitation on the availability of impleader: it must be an assertion of the third-party defendant's derivative liability to the third-party plaintiff. Thus, an impleader claim cannot assert any and all rights to recovery arising from the same transaction or occurrence as the underlying action.") (footnotes omitted). The issue for the court to determine, therefore, is whether Defendants' claims against the proposed third-party defendants are derivative of Plaintiffs' claims against Defendants, and therefore proper impleader claims, or whether they are separate and independent, even though arising out of the same general set of facts as the main claim.

Without distinguishing between the private and governmental proposed third-party defendants,² Defendants contend that the proposed third-party defendants were the "actual operators" of the Facility, (Defs.' Reply at 2), and thus Defendants would be entitled to indemnity and/or contribution from these parties. (Id. at 2-4.) Plaintiffs object on the grounds that: (1) Plaintiffs' claims against the Defendants are unrelated to Defendants' claims against the proposed third-party defendants (Pls.' Resp. at 2); (2) Defendants have not established any right to contribution and/or indemnity from the proposed third-party defendants (Id. at 3); and (3) "the addition of the third-party...