Davis v. Sun Oil Co.

• Decision Date: 27 August 1996
• Docket Number: No. C-3-93-408.,C-3-93-408.
• Citation: 953 F.Supp. 890
• Parties: Donald DAVIS, et al., Plaintiffs, v. SUN OIL COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

Page 890

953 F.Supp. 890

Donald DAVIS, et al., Plaintiffs, v. SUN OIL COMPANY, Defendant.

No. C-3-93-408.

United States District Court, S.D. Ohio, Western Division.

August 27, 1996.

A. Mark Segreti, Jr., Dayton, OH, for plaintiffs.

Michael R. Blumenthal, Dayton, OH, David S. Hoffman, Cleveland, OH, for defendant.

DECISION AND ENTRY OVERRULING IN PART AND SUSTAINING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. # 26); JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFFS; TERMINATION ENTRY

RICE, Chief Judge.

In 1985, the Plaintiffs purchased a parcel of real estate located in Montgomery County Ohio, on which the Defendant, a previous owner of that property, had operated a gas station. Defendant had removed the gasoline storage tanks before it sold the property; however, it did not remove the pipes through which gasoline would flow from those tanks to the pumps. Plaintiffs bring this action under the citizen suit provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1). In their Complaint, the Plaintiffs allege that "Defendant, while the owner of the property, handled hazardous substances on that property, and contributed to and caused the disposal of solid or hazardous waste on the property which may present an imminent and substantial endangerment to health or the environment, i.e., gasoline components, including benzene, toluene, ethylbenzene and xylenes." Doc. # 1 at ¶ 5. The Plaintiffs request that the Court "order the defendant to take such actions as are necessary to remedy the situation caused on the property, impose appropriate civil penalties under 42 U.S.C. § 6928(g), and award plaintiffs their reasonable attorney and expert witness fees." Id. at 2-3.

This case is now before the Court on the Defendant's Motion for Summary Judgment (Doc. # 26). As a means of analysis, the Court will initially set forth the standards which govern all motions for summary judgment, following which it will turn to the instant motion.

A motion for summary judgment "should be granted where the evidence is such that it `would require a directed verdict [now a judgment as a matter of law] for the moving party.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), quoting Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967 (1944). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

477 U.S. at 323, 106 S.Ct. at 2553. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial." quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th Cir.1987]). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). See also, Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14 (emphasis added). Of course, if the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). See also, L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment...."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

The Defendant initially argues that the Plaintiffs are not entitled to two types of relief which it claims they are seeking, to wit: 1) restitution for sums which they expended attempting to clean up the property, hiring expert witnesses and conducting an environmental investigation, and 2) civil penalties, given that the only relief the Plaintiffs can obtain under RCRA is an order requiring it to take certain action. See Doc. # 26 at 4-5. The Court will address these two forms of relief in the above order.

In their Complaint (Doc. # 1), the Plaintiffs did not request that the Court order restitution for any past costs they have incurred. However, in their Motion for Summary Judgment,¹ the Plaintiffs did request that the Court enter summary judgment in their favor and enter appropriate equitable relief, including ordering the Defendant "to provide restitution to the Plaintiffs for monies spent by Plaintiffs in attempting to clean up the property, hiring expert witnesses, and incurring costs of environmental investigation." Doc. # 21 at 11. The Court need not rule upon the merits of this aspect of the Defendant's Motion for Summary Judgment (Doc. # 26). Under Rule 8(a)(3) of the Federal Rules of Civil Procedure, the type of relief sought must be contained in the pleading, in this case, the Complaint. No provision of those Rules or any case law extant authorizes a person to request a form of relief in a motion for summary judgment, different from that requested in his pleading. Moreover, the Plaintiffs have not sought leave to amend their Complaint to request the remedy of restitution.² In sum, since the Plaintiffs' Complaint did not pray for restitution as a form of relief, they are not entitled to an order granting same. Nor is the Defendant entitled to a ruling addressing the merits of said non-existent claim. Therefore, since a live controversy regarding Plaintiffs' entitlement to an order of restitution does not exist, this Court overrules, without addressing the merits of the parties' arguments, the Defendant's Motion for Summary Judgment (Doc. # 26), to the extent that, with said motion, Defendant seeks summary judgment on the Plaintiffs' "request" for such an order.

The Defendant also argues that it is entitled to summary judgment on the Plaintiffs' request that the Court impose a civil penalty upon Defendant.³ The Defendant argues that this Court cannot impose civil penalties in an action brought by a private party. Defendant's argument is predicated upon 42 U.S.C. § 6928(g), which authorizes the imposition of civil penalties. Section 6928(g) provides:

(g) Civil penalty

Any person who violates any requirement of this subchapter [§§ 6921-6939e] shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation.

The Defendant argues that a private party cannot enforce the civil penalty provision, since § 6928(g) renders a violator liable to the United States. This Court does not agree. The citizen suit provision of RCRA explicitly grants District Courts the jurisdiction "to apply any appropriate civil penalties under section 6928(a) and (g) of this title." 42 U.S.C. § 6972(a). Courts which have considered the question have concluded that said citizen suit provision, § 6972(a), permits the imposition of a...