A. Shapiro & Sons, Inc. v. Rutland Waste & Metal
| Decision Date | 19 November 1999 |
| Docket Number | No. Civ.A. 98-30107 KPN.,Civ.A. 98-30107 KPN. |
| Citation | 76 F.Supp.2d 82 |
| Parties | A. SHAPIRO & SONS, INC., Plaintiff, v. RUTLAND WASTE & METAL COMPANY, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Daniel R. Solin, Pittsfield, MA, for A. Shapiro & Sons, Inc.
Michael E. Scott, Kristine E. George, Warner & Stackpole, Boston, MA, Theodore F. Haussmann, Jr., John M. Armstrong, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, Michael DeMarco, Kirkpatrick & Lockhart, LLP, Boston, MA, for Rutland Waste & Metal Company, Sears-Roebuck & Co.
John A. Agostini, Pittsfield, MA, for Philip Apkin.
Thomas Frisardi, Adam D. Rogoff, Peabody & Arnold, LLP, Boston, MA, for Morris Alpert.
This case centers around a multi-million dollar cleanup of the Marjol Battery and Equipment Co. ("Marjol") in Throop, Pennsylvania. In April of 1999, following a lengthy trial in the United States District Court for the Middle District of Pennsylvania, A. Shapiro & Sons, Inc. ("Plaintiff"), one of several hundred defendants in that case, was found liable for an approximately $60,000 share of the cleanup costs. At issue here is whether Plaintiff's present action for contribution from and indemnification by Sears, Roebuck & Co. ("Sears"), Rutland Waste & Metal Company ("Rutland") and Morris Alpert d/b/a North Adams Junk Co. ("Alpert") (collectively "Defendants") is ripe given that Plaintiff has not yet paid the judgment and, therefore, may not have "incurred" any response costs as required by statute. This issue is raised in the context of Defendants' motions for summary judgment. With the parties' consent, the matter has been assigned to the court for all purposes pursuant to 28 U.S.C. § 636(c).
Because the court agrees with the moving Defendants that Plaintiff's complaint is premature, it will dismiss the complaint against them without prejudice. The court, sua sponte, will apply this dismissal to Philip Apkin ("Apkin") as well, the only remaining defendant.1
The court states the facts and reasonable inferences derived therefrom, consistent with the record, in a light most favorable to Plaintiff, the non-moving party. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir.1999).
In 1961, Marjol opened a battery breaking facility in Throop, Pennsylvania. Plaintiff had an ongoing business relationship with Marjol in the 1960s and 1970s to gather junk lead-acid batteries in the North Adams, Massachusetts, area and sell them to Marjol. In 1980, Gould, Inc. ("Gould") purchased the Marjol facility and operated it for one year before shutting it down. Six years later, the Environmental Protection Agency ordered Gould to remediate the site.
In 1991, Gould commenced an action in the Middle District of Pennsylvania against several hundred battery suppliers and other potentially responsible parties seeking contribution for its cleanup costs. See Gould, Inc. v. A & M Battery and Tire Co., U.S.D.C., M.D. Pa., Civil Action No. 91-1714. After settling with many of the defendants in that action, Gould commenced a six week trial in February of 1997 against the remaining thirty-eight defendants, one of which was Plaintiff. On April 13, 1999, Plaintiff was adjudged liable and ordered to pay Gould a judgment for remedial costs at the Marjol site in the amount of $59,849.26 plus interest. Plaintiff's liability derived from its arranging the disposal of battery lead at the Marjol site in the 1960s and 1970s. Plaintiff indicates that it also "remains liable for future response costs, to be determined at further proceedings in the underlying action." (Docket No. 54 at 1.) In June of 1999, Burton Shapiro, Plaintiff's president and sole owner, testified at his deposition in the present matter that he intended to pay the judgment, but that he did not have the funds at the time. He stated that he would like to pay the judgment "tomorrow" and that it was his intention to pay it within the next year.
One other lawsuit casts its shadow here as well. In 1996, Gould commenced a satellite cost-recovery action in the Middle District of Pennsylvania against, inter alia, Sears and Rutland. See Gould v. Bergen Metals, U.S.D.C., M.D. Pa., Civil Action No. 96-0661. In that complaint, Gould alleged that Sears entered into a relationship with Sam Kassab ("Kassab"), a battery "peddler" in Pennsylvania (see Docket No. 61, Ex. A at 2), whereby Sears arranged, through Kassab, for the disposal or treatment of hazardous substances at the Marjol site. Sears and Rutland eventually settled their Kassab-based liability with Gould and, in 1997, were dismissed from the action.2
In June of 1998, Plaintiff instituted the present contribution action against Sears, Rutland, Alpert, Apkin and MWC in relation to Plaintiff's liability in the Gould v. A & M Battery case. The facts alleged against each of the defendants differ somewhat. As to Rutland, Plaintiff alleges that, between 1967 and 1979, Rutland provided nearly three million pounds of batteries to Plaintiff for transport to Marjol. Regarding Apkin, the complaint alleges that, in 1967, Apkin sold Plaintiff approximately forty-eight thousand pounds of batteries.
The amount of batteries allegedly sold by Sears to Plaintiff for transport to Marjol, on the other hand, is unstated in the complaint. Sears asserts, however, without objection by Plaintiff, that all the batteries it sold Plaintiff came from its Sears store in North Adams (as opposed to the Pennsylvania Sears stores at issue in Gould v. Bergen Metals). At his deposition, Burton Shapiro testified that he never discussed with any Sears representative what he intended to do with the North Adams batteries once he purchased them.
With regard to Alpert, Burton Shapiro testified that, in 1967, he arranged for a Marjol truck to pick up two truck-loads of batteries from Alpert, eighty-eight thousand pounds worth, and that the batteries were loaded onto the trucks by Plaintiff's employees. Although Plaintiff does not have any records of having paid Alpert, Shapiro asserts that payments were made and that Alpert received approximately eighty-two percent of the revenues remitted by Marjol, or about three thousand dollars.
The instant complaint sounds in two counts. Count I alleges that all Defendants are liable for contribution pursuant to section 113(f)(1) of the Comprehensive Environmental Compensation, Response and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f)(1). Count II asserts that each defendant is liable for contribution and indemnification under "applicable Massachusetts law." The complaint also seeks, albeit not in a specifically-enumerated count, a declaratory judgment asserting its right to recover past and future contributions from Defendants in connection with the Marjol site.
Following Burton Shapiro's deposition in June of 1999, Sears and Rutland moved for summary judgment. (Docket No. 44.) Briefing on Sears and Rutland's motion was completed on October 21, 1999, and the court heard argument on October 25, 1999. At the same time, the court heard argument on Alpert's motion for summary judgment filed on September 27, 1999. (Docket No. 56.) Apkin, with whom Plaintiff is prepared to settle but for Alpert's resistance to dismiss a cross-claim against Apkin, has chosen to remain silent.
A court may grant summary judgment pursuant to Fed.R.Civ.P. 56(c) if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Once the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A "genuine" issue is one "that a reasonable jury could resolve ... in favor of the nonmoving party." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Accord United States v. One Parcel of Real Property, Great Harbor Neck, New Shoreham, R.I., 960 F.2d 200, 204 (1st Cir.1992).
Not every genuine factual conflict, however, necessitates a trial. "`It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.'" Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir.1997) (quoting Martinez v. Colon, 54 F.3d 980, 983-84 (1st Cir.1995)).
Three of the defendants, Sears, Rutland and Alpert, argue first that, because Plaintiff has admitted that it has not yet paid any money for which it seeks contribution, its causes of action are not ripe and, therefore, summary judgment should be granted in their favor. Two of the defendants, Sears and Alpert assert in the alternative that their lack of knowledge concerning Plaintiff's destination for disposing of their batteries allows them to escape liability under the "indirect seller" doctrine. Finally, Alpert contends that he should be free of liability under equitable principles recently enunciated by the First Circuit in Acushnet Co. v. Mohasco Corp., 191 F.3d 69 (1st Cir.1999), since he contributed an insignificant amount of hazardous materials to the Marjol site. Because the court agrees with Defendants' first argument, that the case is premature and should be dismissed without prejudice, it does not analyze in any detail the alternative "indirect seller" and Acushnet claims.
As a preliminary matter, the court rejects Plaintiff's assertion that Sears and Rutland's motion should be denied for their alleged failure to comply with Local Rule 56.1's requirement that they file with their motion a concise statement of material facts to which...
To continue reading
Request your trial
-
Exxon Mobil Corp. v. United States
...be spent on response costs prior to a [CERCLA] declaratory judgment action being considered ripe." A Shapiro & Sons, Inc. v. Rutland Waste & Metal Co., 76 F.Supp.2d 82, 87 (D.Mass.1999) (collecting cases). Exxon alleges and presents evidence that it has already incurred substantial cleanup ......
-
A Cal. Mun. Corp.. v. American Promotional Events Inc.-west
...was entitled to declaratory relief under CERCLA's more detailed declaratory relief provision. See A. Shapiro & Sons, Inc. v. Rutland Waste & Metal Co., 76 F.Supp.2d 82, 88 (D.Mass.1999) (declining “to permit an indirect approach to declaratory relief [under the Declaratory Judgment Act] whe......