Levin Metals Corp. v. Parr-Richmond Terminal Co.

• Decision Date: 27 May 1987
• Docket Number: No. 86-1927,PARR-RICHMOND,86-1927
• Citation: 817 F.2d 1448
• Parties: , 7 Fed.R.Serv.3d 1204, 17 Envtl. L. Rep. 20,737 LEVIN METALS CORP.; Levin-Richmond Terminal Corporation, Plaintiffs- Appellants, v.TERMINAL COMPANY, a dissolved corporation; Parr Industrial Corporation, a dissolved corporation; John Parr Cox; Fred Paar Cox, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1448

817 F.2d 1448

25 ERC 2113, 7 Fed.R.Serv.3d 1204, 17

Envtl. L. Rep. 20,737

LEVIN METALS CORP.; Levin-Richmond Terminal Corporation Plaintiffs- Appellants, v. PARR-RICHMOND TERMINAL COMPANY, a dissolved corporation Parr Industrial Corporation, a dissolved corporation; John Parr Cox; Fred Paar Cox, Defendants-Appellees.

No. 86-1927.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 1987.

Decided May 27, 1987.

Stephen B. Peck, San Francisco, Cal., for plaintiffs-appellants.

Andrew R. Adler, Laura S. Lowe, Oakland, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before POOLE and BOOCHEVER, Circuit Judges, and DAVIES, ^* District Judge.

POOLE, Circuit Judge:

Appellants Levin Metals Corporation and Levin-Richmond Terminal Corporation (collectively referred to as "Levin") appeal the district court's dismissal of their action against appellee Parr Industrial Corporation ("Parr Industrial") for damages and declaratory relief pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Secs. 9601-9657 (1982). We affirm.

FACTS

On July 17, 1985, Levin filed a complaint for damages and declaratory relief under CERCLA against defendants Parr Industrial, Parr-Richmond Terminal Company, John Cox, and Fred Cox. The complaint made the following allegations. From 1947 to 1981, either Parr Industrial or the Parr-Richmond Terminal Company owned the Richmond Bulk Terminal, real property located in Richmond, California. Defendants operated facilities on the property for the manufacture, storage, and distribution of fertilizers, herbicides, pesticides, and scrap metals, resulting in the release of hazardous substances ¹ which contaminated the property and surrounding water. Beginning in 1983, Levin, as the current owner of the Richmond Bulk Terminal, incurred $600,000 in investigatory and cleanup costs consistent with the national contingency plan. The complaint sought recovery of these response costs from defendants, and a declaration that defendants were liable for all such costs incurred in the future.

Parr Industrial voluntarily dissolved in 1971. Levin sued Parr Industrial in its corporate name through its former shareholders, John and Fred Cox, pursuant to Cal.Corp. Code Sec. 2011(a) (West 1977).

Parr Industrial moved to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). On March 21, 1986, the district court granted this motion. Levin Metals Corp. v. Parr Richmond Terminal Co., 631 F.Supp. 303 (N.D.Cal.1986). It reasoned that, under California law, a dissolved corporation could not be sued for causes of action arising after its dissolution. The court held that Levin's CERCLA cause of action did not arise until after Parr Industrial's dissolution in 1971, because (a) CERCLA was not enacted until December 11, 1980, and (b) no cause of action could accrue under CERCLA until Levin incurred cleanup costs. Id. at 304.

On appeal, Levin contends that, because liability under CERCLA is retroactive, its cause of action may be considered to have arisen before Parr Industrial dissolved. Alternatively, Levin argues the district court erred in applying California law pursuant to Fed.R.Civ.P. 17(b), and that CERCLA preempts California law. ²

DISCUSSION

We review de novo the district court's dismissal for failure to state a claim. Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir.1984).

I.

Levin sued Parr Industrial through its shareholders, pursuant to Cal.Corp.Code Sec. 2011(a):

In all cases where a corporation has been dissolved, the shareholders may be sued in the corporate name of such corporation upon any cause of action against the corporation arising prior to its dissolution. This section is procedural in nature and is not intended to determine liability.

(Emphasis added.) By its own terms, section 2011(a) does not authorize suit against a former shareholder on a cause of action arising after dissolution. See Beckwith v. Web Wilson Tools, Inc., No. 78-8757 (Nev.Super.Ct., August 13, 1981). Since CERCLA was not enacted until 1980, Levin's cause of action under CERCLA arose after Parr Industrial's dissolution in 1971, and may not be brought pursuant to section 2011(a).

Levin also relies on Cal.Corp.Code Sec. 2010 (West 1977), which provides in relevant part:

(a) A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations, dispose of and convey its property and collect and divide its assets, but not for the purpose of continuing business except so far as necessary for the winding up thereof.

(Emphasis added.)

Two cases have broadly stated that, under section 2010, a dissolved corporation may be sued for injuries arising out of its pre-dissolution activities. Abington Heights School District v. Speedspace Corp., 693 F.2d 284, 286 (3d Cir.1982); North American Asbestos Corp. v. Superior Court, 180 Cal.App.3d 902, 904, 225 Cal.Rptr. 877, 879 (1986). However, these cases did not consider the issue presented here, i.e., whether a dissolved corporation may be sued for injuries arising out of its pre-dissolution activities, even though the cause of action was not created until after its dissolution.

One commentator has suggested that section 2010 authorizes only business activity aimed at terminating corporate existence, and not the assertion of causes of action which arise after the corporation is dissolved. Comment, Continuing Corporate Existence for Post-Dissolution Claims: The Defective Products Dilemma, 13 Pac.L.J. 1227, 1239-40 (1982). We need not decide the validity of the comment's sweeping assertion; it is sufficient for the purposes of this case that, considering the section's general purpose of authorizing dissolved corporations to wind up their affairs, it nowhere purports to prolong the life of a dissolved corporation so that, on these facts, Levin may maintain this action even though CERCLA was enacted some nine years after Parr Industrial's demise.

Levin argues that CERCLA is retroactive and therefore this cause of action may be deemed to have arisen as of the time Parr Industrial allegedly contaminated the Richmond Bulk Terminal, even though that occurred before CERCLA's enactment in 1980. Thus, Levin reasons, its cause of action arose before Parr Industrial's dissolution in 1971. We disagree. Assuming arguendo that CERCLA imposes liability for acts committed before its enactment, see, e.g., United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726 (8th Cir.1986); United States v Dickerson, 640 F.Supp. 448 (D.Md.1986); United States v. Shell Oil Co., 605 F.Supp. 1064 (D.Colo.1985), the effect of such retroactivity is that a cause of action may arise after CERCLA's enactment, based on pre-enactment conduct. Therefore, since CERCLA was enacted after Parr Industrial's dissolution, Levin's cause of action logically arose after the dissolution, and may not now be asserted against Parr Industrial. The district court so held.

In its ruling, the district court also relied on the fact that Levin did not incur response costs until 1983, some twelve years after the dissolution. Levin argues that CERCLA's reference to liability for costs incurred, see 42 U.S.C. Sec. 9607(a), is only a reference to the measure of damages recoverable. On the...