Kelley v. Thomas Solvent Co., K86-164

Citation714 F. Supp. 1439
Decision Date07 March 1989
Docket NumberNo. K86-164,K86-167.,K86-164
PartiesFrank J. KELLEY, Attorney General of the State of Michigan; and the State of Michigan, Plaintiffs, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; Richard E. Thomas; and Grand Trunk Western Railroad Company, Defendants. GRAND TRUNK WESTERN RAILROAD COMPANY, Counter Plaintiff, v. Frank J. KELLEY, Attorney General of the State of Michigan; and the State of Michigan, Counter Defendants. GRAND TRUNK WESTERN RAILROAD COMPANY, Cross Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; and Richard E. Thomas, Cross Defendants (Two Cases). THOMAS SOLVENT COMPANY and Richard Thomas, Counter Plaintiffs, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Counter Defendant (Two Cases). GRAND TRUNK WESTERN RAILROAD COMPANY, Third-Party Plaintiff, v. Richard E. THOMAS, as Trustee of The Richard E. Thomas Living Trust; The Richard E. Thomas Living Trust; and Letha Thomas, Third-Party Defendants (Two Cases). UNITED STATES of America, Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation Company; Richard E. Thomas; and Grand Trunk Western Railroad Company, Defendants.
CourtU.S. District Court — Western District of Michigan

COPYRIGHT MATERIAL OMITTED

Frank J. Kelley, Atty. Gen. by Robert P. Reichel, Asst. Atty. Gen., Environmental Protection Div., Lansing, Mich., for plaintiff.

Bremer, Wade, Nelson & Alt by Michael D. Wade, Grand Rapids, Mich., for Great American Surplus Lines Ins. Co., intervening non-party and non-participant; Jessie A. Goldfarb, U.S. E.P.A., Office of Enforcement & Compliance Monitoring, Washington, D.C., of counsel.

Foster, Swift, Collins & Coey, P.C. by Charles E. Barbieri, Lansing, Mich., for Thomas Solvent Co. and Richard E. Thomas.

Sullivan, Hamilton & Schulz by James M. Sullivan, Battle Creek, Mich., for Thomas Solvent Co. of Detroit, Inc., Thomas Solvent Inc. of Indiana, TSC Transp. Co., Thomas Solvent Co. of Muskegon, Inc. Thomas Development Co.

Bodman, Longley & Dahling by Frederick J. Dindoffer, R. Craig Hupp, and Mary P. Sclawy, Detroit, Mich., for Grand Trunk Western R. Co.

John S. Smietanka, U.S. Atty. by Julie Ann Woods, Asst. U.S. Atty., Grand Rapids, Mich., Joel M. Gross, Steven J. Willey, Environmental Enforcement Section Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for U.S.; Roger Grimes Asst. Regional Counsel, U.S. Environmental Protection Agency, Chicago, Ill., of counsel.

OPINION

ENSLEN, District Judge.

This case is before the Court on plaintiff United States's Motion to Strike Certain Affirmative Defenses under Rule 12(f) of the Federal Rules of Civil Procedure.

Plaintiff asserts that the bulk of the defenses which have been asserted by defendants are, as a matter of law, not defenses to the claim asserted here by the United States under Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S. C. § 9607, for recovery of costs incurred in responding to releases and threatened releases of hazardous substances. Plaintiff understands section 107 to contain a clearly defined liability scheme and an explicit limitation of defenses. Defenses which are not within the scope of those enumerated, narrow defenses, or which are otherwise legally insufficient, should be stricken so as to narrow the issues in this litigation and to avoid unnecessary expenditures of time and resources in discovery. Defendant responds by stressing the strict standard under Rule 12(f) on a motion to strike affirmative defenses should not be freely granted.

By way of a brief background, in this action, plaintiff seeks to recover costs incurred by the United States Environmental Protection Agency ("EPA") in responding to releases of hazardous substances which penetrated soil, entered groundwater and contaminated a substantial number of wells at the Verona Well Field. The Verona Well Field serves as a public water supply for 35,000 residents of the City of Battle Creek, Michigan.

The complaint alleges that in August of 1981 the Verona Well Field was found to be contaminated with various organic solvents. Since 1981, EPA has taken, and it continues to take, various response actions at and around of the Verona Well Field to prevent the further migration of the contamination, and to protect the public health, welfare, and the environment. At this time, EPA's response costs exceed 4.5 million dollars. In this action, plaintiff seeks recovery of the costs incurred to date and a declaration that defendants are liable for future response costs.

Discussion
Motion to Strike Standard

Under Rule 12(f) of the Federal Rules of Civil Procedure, a court may strike from any pleading "any insufficient defense." An affirmative defense is insufficient if it is not recognized as a defense to the cause of action. See, e.g., Memorex Corp. v. International Business Machines Corp., 555 F.2d 1379, 1382 (9th Cir.1977); 5 Wright & Miller, Federal Practice and Procedure, § 1381, at 789 (1969) (cases cited therein). The purpose of the motion to strike here is to obtain an adjudication of the sufficiency of the defense. Clark Engineering & Construction Co. v. United Brotherhood of Carpenters & Joiners, 510 F.2d 1075 (6th Cir.1975).

In State of California v. United States, 512 F.Supp. 36 (N.D.Cal.1981), the district court granted plaintiff's motion to strike the affirmative defenses of statute of limitations, laches, and estoppel on grounds that these defenses could not be asserted against the State in its sovereign immunity. The court observed that a motion to strike is well-taken in the following circumstances:

The motion is proper where it may have the effect of making the trial of the action less complicated, or it may have the effect of otherwise streamlining the ultimate resolution of the action.

Id. at 38. Indeed, the motion to strike under Rule 12(f) is to "avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir.1986) (quoting Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983)). See also, e.g., Anchor Hocking Corp. v. Jacksonville Elec. Authority, 419 F.Supp. 992 (D.C.Fla.1976).

Once the defense has been stricken, defendant is precluded from offering any evidence in support of it. Clark Engineering and Constr. Co. v. United Brotherhood of Carpenters, 510 F.2d 1075, 1083 (6th Cir.1975). Such a motion should be considered carefully and not freely granted. Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819 (6th Cir. 1953). See also Dunbar & Sullivan Dredging Co. v. Jurgensen Co., 44 F.R.D. 467, 472 (D.Ohio) (motion sparingly granted), aff'd, 396 F.2d 152 (6th Cir.1968). The Sixth Circuit in Brown & Williamson stated as follows:

Partly because of the practical difficulty of deciding cases without a factual record it is well established that the action of striking a pleading should be sparingly used by the courts. It is a drastic remedy to be resorted to only when required for the purposes of justice.

201 F.2d at 822 (citations omitted).

It is not unusual, however, for courts to use a motion to strike for dealing with insufficient defenses raised in CERCLA cost recovery actions. See, e.g., United States v. Dickerson, 640 F.Supp. 448 (D.Md.1986).

I. Liability Based on Unconstitutionally Retroactive Claims

Each of the defendants asserts that the claims of the United States are unconstitutionally retroactive. For example, Grand Trunk asserts in its First Defense that "Plaintiff's claims constitute an unconstitutional and impermissible retroactive application of law." The Third Defense in the Thomas Solvent Amended Answer and in the Spinoffs Amended Answer are identical. Defendants argue that imposing response costs incurred as a result of acts performed by defendants prior to the enactment of CERCLA is an unconstitutional retroactive application of CERCLA. According to defendants, it would violate due process if this Court were to hold these defendants liable for acts performed prior to the enactment of CERCLA in December 1980. Yet statutes such as CERCLA, "which adjust the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and ... the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way." Pension Benefit Guaranty Corp. v. R.A. Bray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984) (upholding certain retroactive amendments to ERISA challenged by employers on due process grounds), quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976). Defendants do not overcome this presumption of constitutionality.

To begin with, plaintiff argues that CERCLA is not considered to be a retroactive statute in the constitutional sense because of its broad remedial nature premised upon present and future effects of defendants' past actions.1 A number of courts analyzing the legislative history of this statute have concluded, however, that the purpose inherent in CERCLA is retrospective and remedial. United States v. Dickerson, 640 F.Supp. 448, at 451 (D.Md. 1986); United States v. Conservation Chemical, 619 F.Supp. 162, 220 (W.D.Mo. 1985); United States v. Shell Oil Co., 605 F.Supp. 1064, 1072 (D.Colo.1985). Accord United States v. South Carolina...

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