Hobart Corp. v. Dayton Power & Light Co.
| Decision Date | 20 August 2018 |
| Docket Number | Case No. 3:13-cv-115 |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | HOBART CORPORATION, et al., Plaintiffs, v. The DAYTON POWER & LIGHT COMPANY, et al., Defendants. |
David C. Ahlstrom, Pro Hac Vice, Law Offices, Columbus, OH, David E. Romine, Pro Hac Vice, Jennifer Graham Meyer, Pro Hac Vice, Larry Silver, Pro Hac Vice, Langsam Stevens, Silver & Hollaender, LLP, Philadelphia, PA, Scott Sander Davies, James Alan Dyer, Toby K. Henderson, Sebaly, Shillito, & Dyer, Dayton, OH, Daniel John Donnellon, Sebaly Shillito + Dyer, West Chester, OH, for Plaintiffs.
Drew H. Campbell, Frank Leslie Merrill, Sommer Lynn Sheely, Daniel E. Gerken, Bricker & Eckler LLP, Michael D. Dortch, Kravitz, Brown & Dortch LLC, Joseph R. Durham, Eastman & Smith Ltd, Orla Ellis Collier, III, Benesch Friedlander Coplan & Aronoff LLP, Joseph Jude Golian, Dickie, McCamey & Chilcote, P.C., Jack Allen Van Kley, Columbus, OH, Jennifer Nijman, Pro Hac Vice, Kristen Gale, Pro Hac Vice, Nijman Franzetti, LLP, Chicago, IL, David T. Moss, Hanna Campbell & Powell, Shane A. Farolino, Stephen W. Funk, Roetzel & Andress, Akron, OH, E. Chase Dressman, Kim Kenneth Burke, Taft Stettinius & Hollister LLP, Daniel E. Izenson, Michael Thomas Cappel, Keating Muething & Klekamp, Stephen Neal Haughey, Thaddeus Henderson Driscoll, Frost Brown Todd LLC, Laura Irene Hillerich, Robert Joseph Thumann, Crehan & Thumann, LLC, Robert Brent Sherwood, Goldenberg Schneider, Cincinnati, OH, William Wick, Pro Hac Vice, Wactor and Wick, LLP, Oakland, CA, Robert J. Hanna, Melissa Z. Kelly, Tucker Ellis LLP, William E. Coughlin, Calfee Halter & Griswold, Joseph P. Koncelik, Cleveland, OH, John C. Musto, City Attorney's Office, Shannon Lesley Costello, Coolidge Wall Womsley & Lombard, David Philip Pierce, Coolidge Wall Co., L.P.A., Dayton, OH, Leah J. Knowlton, Pro Hac Vice, Donald P. Boyle, Pro Hac Vice, Leeann Jones, Pro Hac Vice, Taylor English Duma LLP, Keisha Oldacre Coleman, Pro Hac Vice, Ballard Spahr LLP, Atlanta, GA, John A. Andreasen, Kristopher J. Covi, Pro Hac Vice, McGrath North Mullin & Kratz, PC LLP, Omaha, NE, Leighann Kathryn Fink, Kent, OH, Bonni Fine Kaufman, Pro Hac Vice, Holland & Knight LLP, Steven A. Luxton, Morgan, Lewis & Bockius, LLP, William Brad Nes, Pro Hac Vice, Washington, DC, Andrew W. Knuth, III, Morgan, Lewis & Bockius, Peter T. Stinson, Pro Hac Vice, Dickie McCamey & Chilcote, P.C., Pittsburgh, PA, Robert H. Eddy, Shumaker Loop & Kendrick, LLP, Toledo, OH, James A. Bax, Boyle Brasher LLC, Allison Schaper, Pro Hac Vice, Jane E. Fedder, Pro Hac Vice, Polsinell PC, St. Louis, MO, for Defendants.
City of Dayton, Ohio, pro se.
DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS' MOTION TO DISMISS DEFENDANT VALLEY ASPHALT CORPORATION'S AMENDED COUNTERCLAIM (DOC. # 794); SUSTAINING PLAINTIFFS' MOTION TO DISMISS DEFENDANT THE DAYTON POWER & LIGHT COMPANY'S AMENDED COUNTERCLAIM (DOC. # 798)
This matter is currently before the Court on Plaintiffs' Motion to Dismiss Defendant Valley Asphalt Corporation's Amended Counterclaim, Doc. # 794, and Plaintiffs' Motion to Dismiss Defendant The Dayton Power & Light Company's Amended Counterclaim, Doc. # 798.
Plaintiffs, Hobart Corporation, Kelsey-Hayes Company and NCR Corporation, filed suit against numerous defendants under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. § 9601 et seq. , seeking contribution for response costs incurred in connection with the South Dayton Dump and Landfill Site ("the Site"). The response costs arose out of two Administrative Settlement Agreements and Orders on Consent ("ASAOCs"), executed in 2013 and 2016 between Plaintiffs and the United States Environmental Protection Agency ("EPA").
Many of the defendants filed counterclaims. On August 29, 2017, the Court issued a Decision and Entry Sustaining in Part and Overruling in Part Plaintiffs' Motion to Dismiss Counterclaims to Fifth Amended Complaint. Doc. # 774. With respect to the Counterclaims of all Defendants, the Court: (1) dismissed all claims seeking indemnification; (2) permitted Defendants to proceed on their counterclaims for contribution for the cost of identifying other potentially responsible parties ("PRPs");1 and (3) dismissed all claims for contribution for future response costs. Id.
The Court also dismissed Counterclaims filed by Defendants Valley Asphalt Corporation ("Valley Asphalt") and The Dayton Power & Light Company ("DP & L"), who alleged that they incurred certain response costs as a result of releases of hazardous substances from the Site onto their own properties. They sought contribution and/or indemnification from Plaintiffs under 42 U.S.C. §§ 9607(a) and § 9713(f). Although the Court held that these two defendants had failed to state a claim upon which relief can be granted, it gave them leave to file Amended Counterclaims to cure the cited deficiencies. Doc. # 774.
On October 5, 2017, Valley Asphalt and DP & L each filed an Amended Counterclaim, Docs. ## 787, 788. Plaintiffs have moved to dismiss both Amended Counterclaims, Docs. ## 794, 798, arguing that Defendants have still failed to state a claim upon which relief can be granted.
Federal Rule of Civil Procedure 8(a) provides that a claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The pleading must provide the opposing party with "fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a claim on the basis that it "fail[s] to state a claim upon which relief can be granted." The moving party bears the burden of showing that the opposing party has failed to adequately state a claim for relief. DirecTV, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch , 946 F.2d 451, 454-55 (6th Cir. 1991) ). The purpose of a motion to dismiss under Rule 12(b)(6)"is to allow a [party] to test whether, as a matter of law, the [opposing party] is entitled to legal relief even if everything alleged in the [claim] is true."
Mayer v. Mylod , 988 F.2d 635, 638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a court must construe the pleading in the light most favorable to the non-moving party, accept its allegations as true, and draw all reasonable inferences in favor of the non-moving Party. Handy-Clay v. City of Memphis , 695 F.3d 531, 538 (6th Cir. 2012).
Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), the pleading must contain "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. Unless the facts alleged show that the claim crosses "the line from conceivable to plausible, [the] complaint must be dismissed." Id. Although this standard does not require "detailed factual allegations," it does require more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 555, 127 S.Ct. 1955. " Rule 8... does not unlock the doors of discovery for a [party] armed with nothing more than conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Legal conclusions "must be supported by factual allegations" that give rise to an inference that the opposing party is, in fact, liable for the misconduct alleged. Id. at 679, 129 S.Ct. 1937.
The Court starts with a brief review of remedies available under CERCLA. Section 106 of the statute sets forth remedies available to the United States to abate imminent dangers to public health or welfare or the environment because of an actual or threatened release of a hazardous substance. 42 U.S.C. § 9606(a) ("Section 106").
CERCLA also provides two distinct avenues for private parties to recover costs incurred in cleaning up contaminated sites. United States v. Atl. Research Corp. , 551 U.S. 128, 131, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). Those remedies are set forth in 42 U.S.C. §§ 9607 ("Section 107") and 9613 ("Section 113"). Under § 107, a private party who has voluntarily incurred cleanup costs may recover "necessary costs of response" if those costs are "consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(B). Liability under § 107(a) is joint and several. See Atl. Research , 551 U.S. at 140 n.7, 127 S.Ct. 2331 ().
Section 113 provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title." 42 U.S.C. § 9613(f)(1). "[A] PRP's right to contribution under § 113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties." Atl. Research , 551 U.S. at 139, 127 S.Ct. 2331. "Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under § 106 or § 107(a)." Id. Accordingly, a party that is sued under § 106 or § 107 "may seek contribution from other PRPs under § 113(f)(1), so that the recovery costs can be distributed in an equitable fashion." Hobart Corp. v. Waste Mgmt. of Ohio , 758 F.3d 757, 762 (6th Cir. 2014) (footnote omitted).
Section 113 also provides that "a person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for contribution regarding matters addressed in the settlement." 42 U.S.C. § 9613(f)(2). However, a person who has resolved its liability to the...
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