Steego Corp. v. Ravenal, CA No. 91-12280-T.

• Decision Date: 28 June 1993
• Docket Number: CA No. 91-12280-T.
• Citation: 830 F. Supp. 42
• Parties: STEEGO CORPORATION, et al., Plaintiffs, v. Earl C. RAVENAL, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

830 F. Supp. 42

STEEGO CORPORATION, et al., Plaintiffs, v. Earl C. RAVENAL, et al., Defendants.

CA No. 91-12280-T.

United States District Court, D. Massachusetts.

June 28, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Martha B. Sosman, Eileen M. Hagerty, Kern, Sosman, Hagerty, Roach & Carpenter, Boston, MA, John J. Lormon, Robert W. Ayling, Robert C. Longstreth, Robert H. Hayes, Gray, Cary, Ames & Frye, San Diego, CA, for plaintiffs.

Richard J. Medalie, Medalie & Ferry, Washington, DC, Nancy L. Brush, Albert F. Cullen, Jr., Cullen & Butters, Boston, MA, for Earl C. Ravenal and Richard Ravenal.

Ernest M. Ladeira, City of Fall River Law Dept., Fall River, MA, for City of Fall River.

MEMORANDUM

TAURO, Chief Judge.

Plaintiffs, Steego Corporation ("Steego") and ECI Residuary Corporation ("ECI"), owners of an old mill site located at 649 Alden Road in Fall River, Massachusetts, sue the former owners and operators of the site and their legal representatives, heirs and beneficiaries, alleging that defendants caused the release of hazardous materials at the site. Counts I and II of plaintiffs' complaint seek response costs, indemnity and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675 and the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Mass.Gen.L. ch. 21E, § 4.

On January 21, 1993, this court dismissed Counts III, IV and V of plaintiffs' complaint which sought damages for trespass, nuisance and unjust enrichment. Presently before the court are defendants' various motions to dismiss and for summary judgment.

I Background

According to plaintiffs' first amended complaint, from approximately 1930 through approximately 1945, the site was owned by defendant City of Fall River. Thereafter, from approximately 1945 through 1968, the site was owned by defendant Cornell Corporation ("Cornell"), a company owned and operated by the Ravenal family: the father Alan, his wife Mildred, and their son defendant Earl.¹ In 1969, Cornell was liquidated and the site was transferred to both Earl and his brother, defendant Richard Ravenal, who jointly owned the site until 1974.

From approximately 1940 through 1974, Elbe File & Binder Company ("Elbe") operated a manufacturing facility on the site in which degreasing and plating operations were conducted. The materials used in such operations, which were disposed of and stored on the site, constitute "hazardous substances" as defined by 42 U.S.C. § 9601(14) and "hazardous materials" as defined by Mass.Gen.L. ch. 21E, § 2. Elbe was owned, managed, directed and/or controlled during this period by defendant Kaday Realty Corporation ("Kaday"), Alan, Mildred, Earl and Richard Ravenal.²

In 1968, plaintiffs' predecessor, Sterling Precision Corporation ("Sterling"), purchased the outstanding capital shares of Elbe from Alan, Mildred, Earl and Richard Ravenal and Kaday. Sterling then leased the site from Earl and Richard Ravenal to whom Cornell had transferred the site. In 1969, Earl Ravenal transferred his interest in the site to a trust for the benefit of his children, Cornelia, John and Rebecca. In 1974, Sterling purchased the site.

In 1971, Mildred executed a will³ and in 1981, Alan executed a will. Under both wills, the assets of the estates were distributed to the Ravenal sons, Earl and Richard, to the Ravenal grandchildren, Cornelia, John, and Rebecca, and to a charitable trust, the Alan M. and Mildred S. Ravenal Foundation (the "estate beneficiaries"). Plaintiffs now allege that at the time these wills were executed, CERCLA was in effect, a release of hazardous substances at the site had occurred and Alan and Mildred were liable for the costs of investigating and remediating environmental contamination at the site. The distribution of the assets, however, left the estates without sufficient funds either to meet their environmental liabilities or to pay their creditors, including plaintiffs.

In 1989, plaintiffs conducted a site investigation and discovered that hazardous substances had been released at the site from approximately 1940 through 1974. Plaintiffs notified the Massachusetts Department of Environmental Quality Engineering (now the Department of Environmental Protection ("DEP")) of the release of hazardous materials at the site. Plaintiffs claim that they have now expended $250,000 as part of the cleanup and expect that the total cost of cleanup will exceed $1 million.

II Analysis

A. Motion by Estate Executors to Dismiss and for Summary Judgment

1. Failure to state a claim

Earl Ravenal, in his capacity as executor under the will of Alan and co-executor under the will of Mildred, and Richard Ravenal and Richard Levin, in their capacities as co-executors under the will of Mildred (the "estate executors") move to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim against them. Specifically, the estate executors contend that the first amended complaint refers to them only in the caption, in the "Parties" portion and in the headings of the six claims for relief against "All Defendants." They cite Marvasi v. Shorty, 70 F.R.D. 14 (E.D.Pa.1976) in support of the proposition that where the names of defendants appear only in the caption and the identification of the parties section of the complaint but nowhere else, dismissal is warranted. Id. at 23.

The facts of Marvasi, however, are distinguishable from those presently before the court. There, the complaint alleged that the defendants were a part of a conspiracy to deprive the plaintiff of medical and pension benefits, without supporting this conclusory allegation with factual averments. Here, the complaint does state factual averments to support a claim against the estate executors. Specifically, the complaint alleges that the estates are liable under CERCLA and that the distribution of the assets of the estates left the estates without sufficient assets to either meet its environmental liabilities, or to pay its creditors, including plaintiffs. Compl. ¶¶ 29, 32. The estate executors have, therefore, been made aware of the claims being asserted against them. Furthermore, the estate executors have responded to each allegation in the first amended complaint and have replied with various affirmative defenses, counterclaims and cross-claims.

Plaintiffs' claims against the estate executors are thus supported by factual averments and the estate executors' motion to dismiss on this basis is DENIED.

2. Timeliness of claims

The estate executors further argue that plaintiffs' claims are time-barred under the Rhode Island Probate Code. Under R.I.Gen.Laws § 33-11-5, claims against an estate must be filed within six months of the first publication of the will. If a creditor has failed to file his claim within that six-month period "by reason of accident, mistake or any other cause," the creditor may petition the Probate Court for leave to file the claim, and the claim will be paid out of the assets remaining in the hands of the executor at the time the petition is received. In addition, creditors may file suits directly against estate executors within two years from the date of the first publication. R.I.Gen.Laws § 33-11-50. A creditor whose cause of action did not accrue within the six-month time period may file suit directly against the will's beneficiaries within three years of the first publication, or one year after the cause of action accrues. Id. § 33-13-15. After all of the assets of an estate have been distributed, the Probate Court is without jurisdiction to entertain claims. Chatigny v. Gancz, 84 R.I. 255, 258, 123 A.2d 140, 141 (1956).

The first publication of Mildred's estate occurred April 16, 1976 and the first publication of Alan's estate occurred October 7, 1982. Mildred's estate assets were distributed in 1980. Alan's estate assets were distributed in 1983. Plaintiffs became aware of the release at the site by March 1990, at the conclusion of the site investigation. Plaintiffs did not file their complaint until August 28, 1991 and did not move to amend their complaint to include the estate executors until February 13, 1992. Thus, under the Rhode Island Probate Code, the statute of limitations had already run.

This court finds, however, that CERCLA preempts the Rhode Island Probate Code statute of limitations due to "CERCLA's broad remedial purpose and Congress's expressed intent that those responsible for hazardous waste sites bear the cost of cleaning them up...." United States v. Sharon Steel Corp., 681 F.Supp. 1492, 1496 (D.Utah 1987) (holding that CERCLA preempts a state statute where its effect was to limit the liability of a party Congress intended to hold liable for cleanup costs). See also 42 U.S.C. § 9613(f)(1) ("Such claims ... shall be governed by Federal law"); Freudenberg-NOK Gen. Partnership v. Thomopoulos, 34 Env't Rep.Cas. (BNA) 1461, 1991 WL 325290, 1991 U.S.Dist. LEXIS 19421 (D.N.H. Dec. 9, 1991) (holding that CERCLA preempts New Hampshire probate statute of limitations where a suit against an estate executor for contribution would otherwise be time-barred); accord Soo Line R.R. Co. v. B.J. Carney & Co., 797 F.Supp. 1472, 1485 (D.Minn.1992).

Defendants next argue that since the estate assets have already been distributed, CERCLA cannot preempt the Rhode Island Probate Code. Defendants cite no case law in the probate context to support this assertion, but rather analogize to the law of dissolved corporations. See United States v. Distler, 741 F.Supp. 643 (W.D.Ky.1990) (refraining from imposing liability on a corporation nine years after it had wound down and had distributed all of its assets); Sharon Steel, 681 F.Supp. at 1498 (holding liable under CERCLA a dissolved corporation which had not yet distributed all of its assets). Even in that context, however, courts have been liberal in allowing CERCLA cases to proceed against corporations with no...