In re Southdown, Inc., Litigation

• Decision Date: 13 January 1999
• Docket Number: No. C-3-93-270.,C-3-93-270.
• Citation: 104 F.Supp.2d 765
• Parties: In re SOUTHDOWN, INC., LITIGATION.
• Court: U.S. District Court — Southern District of Ohio

104 F.Supp.2d 765

In re SOUTHDOWN, INC., LITIGATION.

No. C-3-93-270.

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

January 13, 1999.

Robert J. Shostak, Jeffrey A. Kodish, Quintin F. Lindsmith, Athens, OH, for Plaintiff.

Frank L. Merrill, Christopher C. woods, Jacob A. Myers, David L. Smiga, Columbus, OH, for Defendant.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART MOTION OF DEFENDANT SOUTHDOWN, INC., FOR SUMMARY JUDGMENT (DOC. # 81); DECISION AND ENTRY SUSTAINING UNOPPOSED, RENEWED MOTION OF PLAINTIFF GREENE ENVIRONMENTAL COALITION, INC., TO JOIN PARTIES AS DEFENDANTS AND TO AMEND COMPLAINT (DOC. # 87); GREENE ENVIRONMENTAL COALITION, INC., DIRECTED TO FILE AND TO SERVE AMENDED COMPLAINT WITHIN STATED PERIOD OF TIME

RICE, Chief Judge.

Plaintiff, Greene Environmental Coalition, Inc. ("GEC"), has brought this lawsuit against Defendant, Southdown, Inc. ("Southdown"), under the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. § 1365. When this litigation was initiated, Southdown owned a tract of land within Greene and Clark Counties, Ohio, on which a large landfill is located. In its Complaint, GEC alleges that Southdown has discharged and continues to discharge pollution from that landfill into Mud Run Creek, without having obtained a permit as required by the CWA. GEC alleges that it is a non-profit corporation, comprised of citizens who reside or recreate near Mud Run Creek, in the vicinity of the area where Southdown is discharging pollutants without the requisite permit. In its Complaint, GEC requests that the Court declare that Southdown has violated the CWA, enjoin it from future violations of that statute, impose per diem civil penalties upon Southdown pursuant to 33 U.S.C. § 1319(d), and award costs to GEC, including the fees it incurs for attorneys and expert witnesses. Shortly after this lawsuit had been filed, Southdown filed an action against USX Corporation ("USX"), the entity from which it had purchased the land upon which the landfill is located. Southdown, Inc. v. USX Corporation, Case No. C-3-93-354 (S.D.Ohio).¹ The two lawsuits were consolidated by this Court, under the above caption. Thereafter, this litigation was stayed for an extended period of time, in order to permit the parties to attempt to resolve their disputes by way of a settlement. Their efforts in that regard failed to bear fruit.

While settlement efforts were ongoing, Southdown transferred the tract of land, upon which the landfill is located, to Dirtvest, Ltd. ("Dirtvest"), and 444 Sandhill, Inc. ("Sandhill"). In response, GEC sought leave to amend its Complaint, to join Dirtvest and Sandhill as Defendants and to assert a claim under Ohio's Fraudulent Conveyances Statute against Southdown and the two to-be-added Defendants. See Doc. # 69. In a Decision of January 13, 1999, this Court overruled that motion in its entirety; however, the Court expressly stated that GEC could renew its request to amend in order to join Dirtvest and Sandhill as Defendants.² See Doc. # 80.

This case is now before the Court on Southdown's Motion for Summary Judgment (Doc. # 81) and GEC's Unopposed, Renewed Motion to Join Parties as Defendants and to Amend Complaint (Doc. # 87). As a means of analysis, this Court will initially rule upon GEC's unopposed motion requesting leave to join Defendants and to amend its Complaint, following which it will turn to Southdown's entreaty for summary judgment.

I. GEC's Unopposed, Renewed Motion to Join Parties as Defendants and to Amend Complaint (Doc. # 87)

In its Decision of January 13, 1999, this Court noted that the joinder of Dirtvest and Sandhill as Defendants was permissible under Fed.R.Civ.P. 19(a). Doc. # 80 at 8-9. However, the Court declined to allow GEC to amend its Complaint to accomplish that end, because it had not provided evidence that it had served the statutory notice, as required by 33 U.S.C. § 1365(b).³ Id. at 9-10. In the absence of such notice, the Court concluded that allowing GEC to amend in order to join Dirtvest and Sandhill would have been futile, since claims against those entities would have been subject to dismissal under Fed.R.Civ.P. 12(b)(6). Id. at 10. With its renewed motion, GEC has provided a copy of the notice it served upon the Administrator of the United States Environmental Protection Agency, the state of Ohio, Dirtvest and Sandhill. Therefore, GEC has remedied the defect which caused this Court to deny its earlier request to amend in order to join Dirtvest and Sandhill. It is axiomatic that leave to amend is to be "freely given when justice so requires." Fed.R.Civ.P. 15(a). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court indicated that a District Court should deny leave to amend, only in instances where the amendment would be futile, the moving party has acted in bad faith or has repeatedly failed to cure the deficiencies by previous amendments, the opposing party would be subjected to unfair prejudice or the moving party has unduly delayed. See also, Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.1994). Herein, given that GEC's renewed motion has not been opposed, this Court concludes none of the considerations identified by the Supreme Court in Foman convinces this Court that it should deny GEC's motion. Indeed, this Court has previously concluded that the joinder of Dirtvest and Sandhill as Defendants would have been appropriate, except for the absence of notice. Accordingly, the Court sustains GEC's Unopposed, Renewed Motion to Join Parties as Defendants and to Amend Complaint (Doc. # 87), which has not been opposed. GEC is ordered to file and to serve its amended complaint, within 20 days from date. As soon as these newly added Defendants have entered an appearance, a scheduling conference will be held.

II. Southdown's Motion for Summary Judgment (Doc. # 81)

As an initial matter, this Court will set forth the standards which are applicable to all motions for summary judgment. 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, 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.

Id. at 323, 106 S.Ct. 2548. 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 v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

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, 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. 2548. 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). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, 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. 2505 (emphasis added). 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 factfinder. 10A Charles A. Wright, Arthur R. Miller & Mary Kay...