Hobart Corp. v. Dayton Power & Light Co.

• Decision Date: 18 February 2014
• Docket Number: Case No. 3:13–cv–115.
• Citation: 997 F.Supp.2d 835
• Court: U.S. District Court — Southern District of Ohio
• Parties: HOBART CORPORATION, et al., Plaintiffs, v. The DAYTON POWER & LIGHT CO., et al., Defendants.

997 F.Supp.2d 835

HOBART CORPORATION, et al., Plaintiffs,

v.The DAYTON POWER & LIGHT CO., et al., Defendants.

Case No. 3:13–cv–115.

United States District Court,

S.D. Ohio,

Western Division.

Feb. 18, 2014.

David C. Ahlstrom, James Alan Dyer, Sebaly Shillito & Dyer, Dayton, OH, David E. Romine, Jennifer Graham Meyer, Langsam Stevens & Silver LLP, Philadelphia, PA, Larry Silver, Langsam Stevens & Silver LLP, Philadelphia, PA, for Plaintiff.

Anthony M. Sharett, Drew H. Campbell, Frank Leslie Merrill, Bricker & Eckler, LLP, Michael D. Dortch, Kravitz, Brown

& Dortch LLC, Columbus, OH, William H. Harbeck, Quarles & Brady LLP, Milwaukee, WI, for Defendant.

DECISION AND ENTRY OVERRULING THE “ RES JUDICATA DEFENDANTS' ” MOTION TO DISMISS COMPLAINT OR ALTERNATIVE MOTION TO STAY PENDING APPEAL (DOC. # 99), AND DEFENDANT THE DAYTON POWER & LIGHT COMPANY'S MOTION TO DISMISS COUNT I (“MIGRATION CLAIM”) OF THE COMPLAINT (DOC. # 138); SUSTAINING IN PART AND OVERRULING IN PART EACH OF THE FOLLOWING: CERTAIN DEFENDANTS' MOTION TO DISMISS (DOC. # 100); DEFENDANT L.M. BERRY AND CO. LLC'S MOTION FOR JUDGMENT ON THE PLEADINGS, JOINDER IN OTHER DEFENDANTS' MOTIONS AND ALTERNATIVE MOTION FOR STAY (DOC. # 115); DEFENDANT REYNOLDS AND REYNOLDS CO.'S MOTION FOR JUDGMENT ON THE PLEADINGS, JOINDER IN OTHER DEFENDANTS' MOTIONS, AND ALTERNATIVE MOTION FOR STAY (DOC. # 118); MOTION TO DISMISS OF DEFENDANT NEWMARK LLC (DOC. # 157); MOTION TO DISMISS OF DEFENDANT LA MIRADA PRODUCTS CO., INC. (DOC. # 164); DEFENDANT FICKERT DEVCO, INC.'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT (DOC. # 168)

WALTER H. RICE, District Judge.

Plaintiffs Hobart Corporation, Kelsey–Hayes Company, and NCR Corporation filed suit against more than thirty defendants, all allegedly “potentially responsible parties” under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), as amended, 42 U.S.C. §§ 9607 and 9613, in connection with clean-up efforts at the South Dayton Dump and Landfill Site. Plaintiffs assert claims for cost recovery under § 107(a) of CERCLA, contribution under § 113(f)(3)(B) of CERCLA, declaratory judgment, and unjust enrichment.

This matter is currently before the Court on several motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docs. 99, 100, 138, 157, 164, 168), and two motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) (Docs. 115, 118).

I. Background and Procedural History

This is the third lawsuit that Plaintiffs have filed in their effort to recover costs incurred in connection with their clean-up efforts at the South Dayton Dump and Landfill Site (the “Site”). An understanding of what transpired in the first two lawsuits is crucial to resolving the pending motions in the above-captioned case.

According to the First Amended Complaint, the Site, located in Moraine, Ohio, is contaminated with several hazardous substances, including 1, 2–dichloroethene, tetrachloroethene, toluene, polychlorinated biphenyls, vinyl chloride, arsenic, barium, cadmium, chromium, mercury, nickel, lead, zinc, and polynuclear aromatic hydrocarbons, including phenanthrene, benzoanthracene, benzopyrene, and flouranthene. Doc. # 144, at ¶ 3. The United States Environmental Protection Agency (“EPA”) has proposed listing the Site on the National Priorities List.

Plaintiffs were identified as potentially responsible parties (“PRPs”) under CERCLA, because they either: (1) own and operate the Site; (2) owned or operated the Site when hazardous substances were disposed of there; (3) arranged for disposal or transport for disposal of hazardous substances at the Site; or (4) accepted hazardous substances for transport to the Site. See42 U.S.C. § 9607(a).

A. 2006 ASAOC

In August of 2006, Plaintiffs and the EPA entered into an “Administrative Settlement Agreement and Order on Consent for Remedial Investigation/Feasibility Study” (“2006 ASAOC”). Plaintiffs agreed to conduct a remedial investigation and feasibility study (“RI/FS”) for the Site.¹ Stated objectives included the determination of the nature and extent of contamination and any current or potential threats to the public health, welfare, or the environment, the identification and evaluation of remedial alternatives, and the recovery of response and oversight costs incurred by the EPA with respect to the ASAOC. Ex. 1 to Doc. # 100, ¶ 9.

In exchange, the EPA agreed not to sue or take administrative action against Plaintiffs for the “Work” that was the subject of the 2006 ASAOC or for “Future Response Costs.” Id. at ¶ 82. The 2006 ASAOC defined “the Work” as “all activities Respondents are required to perform under this Settlement Agreement.” “Future Response Costs” were defined as all costs incurred by the United States in implementing, overseeing, and enforcing the Settlement Agreement. Id. at ¶ 11(i) and (x).

The parties agreed that the “Settlement Agreement constitute[d] an administrative settlement for purposes of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2),” and that Plaintiffs were therefore entitled to protection from contribution actions for matters addressed therein. They also agreed that the Settlement Agreement constituted “an administrative settlement for purposes of Section 113(f)(3)(B) of CERCLA, 42 U.S.C. § 9613(f)(3)(B),” pursuant to which Plaintiffs “have, as of the Effective Date, resolved their liability to the United States for the Work, and Future Response Costs.” The ASAOC did not prevent the parties from asserting claims for indemnification, contribution, or cost recovery against others who were not parties to it. Id. at ¶ 96.

1. Hobart I (Case No. 3:10–cv–195)

On May 24, 2010, Plaintiffs filed suit against eight PRPs, including Waste Management of Ohio, Inc. (“Waste Management”), The Bimac Corporation, Bridgestone Americas Tire Operations, LLC (“Bridgestone”), Cargill, Inc. (“Cargill”), The Dayton Power & Light Company (“DP & L”), Monsanto Company, Valley Asphalt Corporation, and IRG Dayton I, LLC (“IRG”). Plaintiffs asserted four causes of action in connection with the RI/FS: (1) cost recovery under CERCLA § 107(a); (2) contribution under CERCLA § 113(f)(3)(B); (3) unjust enrichment; and (4) declaratory judgment.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants DP & L, Bridgestone, and IRG filed motions to dismiss for failure to state a claim upon which relief can be granted. On February 10, 2011, the Court issued a Decision and Entry ruling on those motions. Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 840 F.Supp.2d 1013 (S.D.Ohio 2011). The Court dismissed in part the § 107(a) cost recovery claim asserted in Count 1. To the extent Plaintiffs alleged that Defendants disposed of hazardous substances directly at the Site, the allegations were sufficient to state a claim under § 107(a). However, to the extent Plaintiffs alleged that Defendants released hazardous substances on property adjacent to the Site and allowed those substances to migrate through the groundwater to contaminate the Site, Plaintiffs had failed to state a claim upon which relief could be granted.

The Court dismissed Count 2 in its entirety, finding that Plaintiffs' § 113(f) contribution claim was not filed within the applicable three-year statute of limitations and was therefore time-barred. The Court also dismissed Count 3 in its entirety, holding that because Plaintiffs had a legal duty to pay remediation costs, they were precluded from pursuing a claim for unjust enrichment. As to Count 4, which sought declaratory judgment concerning the parties' rights and responsibilities under CERCLA for the response costs incurred by Plaintiffs, the Court sustained the motion to dismiss to the same extent it had sustained the motion to dismiss the substantive claims under §§ 107(a) and 113(f). Id.

On June 21, 2012, Defendant DP & L filed a motion for summary judgment on the remaining portion of Plaintiffs' § 107(a) claim and related request for declaratory judgment. Doc. # 121 in Case No. 3:10–cv–195. Defendants Waste Management, Bridgestone, and Cargill joined in that motion. Docs. # 125, 126, 140 in Case No. 3:10–cv–195. Defendants argued that §§ 107(a) and 113(f) of CERCLA are mutually exclusive, and that, because Plaintiffs entered into an administrative settlement under § 113(f)(3)(B) of CERCLA, resolving some of their liability to the United States, Plaintiffs were limited to a § 113(f) contribution claim, and were barred, as a matter of law, from pursuing a cost recovery claim under § 107(a).

On June 29, 2012, Plaintiffs moved for leave to file a third amended complaint, seeking to add several newly-discovered defendants, a theory of owner/ operator liability against DP & L, and allegations concerning Waste Management's successor liability. Doc. # 124 in Case No. 3:10–cv–195.

2. Hobart II (Case No. 3:12–cv–213)

On June 29, 2012, Plaintiffs also filed a second lawsuit arising out of the same facts, and asserting the same four causes of action asserted in Hobart I. Defendants named in the second suit included Coca–Cola Enterprises, Inc., DAP Products, Inc., GlaxoSmithKline, LLC, and The Sherwin–Williams Company.

On August 15, 2012, these defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. # 12 in Case No. 3:12–cv–213. They noted that, in Hobart I, the Court previously dismissed many of the claims asserted. They further argued that the remaining claims should be dismissed for the same reason asserted in the summary judgment motions filed by the defendants in Hobart I, namely that a PRP with a § 113(f) contribution claim cannot also seek cost recovery under § 107(a).

3. February 8, 2013, Decision and Entry

On February 8, 2013, the Court entered judgment in favor of Defendants in Hobart I and Hobart II. Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 923 F.Supp.2d 1086 (S.D.Ohio 2013). The Court held that cost recovery actions under § 107(a) and contribution claims...