Stychno v. Ohio Edison Co.

Citation806 F. Supp. 663
Decision Date03 August 1992
Docket NumberNo. 5:90 CV 02096.,5:90 CV 02096.
PartiesLeonoid STYCHNO, Plaintiff, v. OHIO EDISON COMPANY, Defendant/Third-Party Plaintiff, v. Linda MARSTELLER, et al., Third-Party Defendants.
CourtU.S. District Court — Northern District of Ohio


Thomas E. Schubert, Fred A. Culver, Warren, Ohio, for Leonoid Stychno.

Jeffrey J. Casto, Roetzel & Andress, Akron, Ohio, for Ohio Edison Co.

Thomas C.B. Letson, Sr., Letson, Griffith, Woodall & Lavelle, Warren, Ohio, for Linda and William Marsteller.

Harley M. Kastner, Keith L. Pryatel, Millisor & Nobil, Cleveland, Ohio, for Summit-Warren Industries Co., Harold F. Glunt, and John S. Petrilla.


SAM H. BELL, District Judge.

Currently before the court is a motion to dismiss Ohio Edison's third party complaint. (Docket # 56) The moving parties are two third-party defendants, Summit-Warren Industries and Harold F. Glunt. This motion requests prejudicial dismissal of the entire third party complaint pursuant to Federal Rule of Civil Procedure 12, subdivisions (b)(6) and (c). This motion is the exclusive subject of the following order.


In its third party pleading, Ohio Edison seeks to shift liability it may incur for hazardous waste contamination under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). As such, it is helpful to review both the circumstances surrounding the underlying litigation and the allegations of the defendant/third party plaintiff.

The above captioned case was originally instituted by Leonoid Stychno on the 26th of November, 1990. By way of amended complaint, Stychno claims that he is currently the owner of a parcel of real property located in the City of Warren, Trumbull County, Ohio.1 Stychno alleges that during Ohio Edison's ownership of the property, the defendant, Ohio Edison, improperly disposed of asbestos and polychlorinated biphenyls ("PCBs"). Consequently, plaintiff seeks a declaration from this court that Ohio Edison is responsible for anticipated clean-up costs pursuant to CERCLA, 42 U.S.C. § 9607. Alternatively, plaintiff seeks an equitable share of these costs in accordance with a different provision of the same Act, 42 U.S.C. § 9613(f).

Ohio Edison's first third-party complaint was filed with this court in the Fall of 1991. The instant motion to dismiss, filed on the 7th of November, 1991, is addressed to that complaint. On November 29, 1991, this court granted Ohio Edison leave to file an amended pleading; it contains three counts. The first count alleges that the moving parties here, Summit-Warren and Glunt, leased the disputed property and that these third party defendants were the persons who "ordered, caused, contributed, generated, or participated in ... disposal" of the hazardous wastes. (Amended Third-Party Complaint at para. 9) This action, Ohio Edison claims, makes the movants herein, Summit-Warren and Glunt, liable for complete or partial contribution in the event plaintiff Stychno obtains a judgment against Ohio Edison. Ohio Edison seeks such contribution pursuant to the provisions of CERCLA, the "federal common law, other applicable law ... or other equitable relief."

In count two of the amended third-party complaint, Ohio Edison asserts that third-party defendants Summit-Warren and Glunt, as signatories to a written lease agreement, have breached their contractual obligations to defend Ohio Edison in the underlying litigation. It is undisputed that this lease contained the following provision upon which Ohio Edison bases this claim:

Lessees agree to defend, indemnify and save Lessor harmless from and against any and all claims, demands, damages, actions or causes of action, together with any and all losses, costs or expenses in connection therewith or related thereto asserted by any person or persons for bodily injury, death or property damage arising or in any manner growing out of Lessees' use of said premises during the term of this Lease or any extension thereof.

(Amended Third-Party Complaint, Exhibit C at 2). Despite the indemnification language recited above, it is clear that the third party plaintiff seeks damages for breach of Summit-Warren and Glunt's duty to defend.2 The third count asks this court for declaratory judgment "concerning the rights, duties, and obligations of the parties under Plaintiff's Amended Complaint and/or the agreements referenced in Count II of the Amended Third-Party Complaint."

The third-party defendants' motion to dismiss, addressed to the initial third-party complaint, necessarily contains arguments which have been obviated by the filing of the amended third-party complaint. The defendant/third party plaintiff contends, and this court agrees, that the amended complaint "renders moot all of the arguments contained in the Memorandum in Support of Third-Party Defendants' Motion to Dismiss except two: first, that a `defunct corporation and its shareholder distributee cannot be held liable under CERCLA' ... and second, that Plaintiff's Complaint does not trigger Summit-Warren Industries' or Harold Glunt's duty to defend Ohio Edison." (Third Party Plaintiff's Memorandum Opposing Third-Party Defendant's Motion to Dismiss at 1, 2). This court, then, here limits its discussion to these two remaining issues.


When considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is constrained to accept as true the allegations of a complaint. Associated Gen'l Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983), Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062, 1065 (6th Cir.1984). The motion to dismiss under 12(b)(6) should be denied unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Nishiyama v. Dickson City, 814 F.2d 277, 279 (6th Cir.1987) (en banc).

Similarly, when considering a Rule 12(c) motion, the court must accept all factual allegations of the complaint as true. Beal v. Missouri Pac. R.R., 312 U.S. 45, 51, 61 S.Ct. 418, 421, 85 L.Ed. 577 (1941); Paskvan v. City of Cleveland Civil Service Commission, 946 F.2d 1233, 1235 (6th Cir. 1991). The motion is granted when the movant is entitled to judgment as a matter of law. Paskvan, 946 F.2d at 1235. Thus, the analytical framework for motions requesting judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) mirrors that utilized under 12(b)(6). When, as here, a "defendants' motion for judgment on the pleadings under Rule 12(c) is essentially a challenge to the legal basis of the complaint ... such a challenge is more appropriately viewed as a motion to dismiss for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6)." Moxley v. Vernot, 555 F.Supp. 554, 556 (S.D.Ohio 1982) (Rice, J.,); see also Drouillard v. Roche Biomedical Laboratories, Inc., 861 F.2d 720 (6th Cir.1988) ("Although styled as a motion under Rule 12(b)(6), defendant's motion is actually for judgment on the pleadings under Rule 12(c). Our standard of review, however, is the same.").

With these standards in mind, the court will scrutinize the complaint in order to determine whether it states a viable cause of action.


In their motion to dismiss, the third-party defendants Summit-Warren and Glunt assert that they, as a defunct corporation and shareholder distributee, cannot be held liable under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Courts are currently divided on their approach to this issue. It has not been considered by either the Sixth Circuit or any Ohio district court.

In its complaint, the defendant/third party plaintiff seeks to hold the third-party defendants wholly or partially liable for any response costs incurred pursuant to §§ 107(a)(2) and 113(f) of CERCLA. Section 107(a)(2) holds liable "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of". 42 U.S.C. § 9607(a)(2). Section 113(f) provides for contribution in the case where fault is divisible. This section provides the following:

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title.

42 U.S.C. § 9613(f)(1). Essential to liability under these sections is identification of the defendant as a "person" within the meaning of CERCLA. Section 101(21) of the statute provides that "the term "person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body." 42 U.S.C. § 9601(21) CERCLA, then, gives broad definition to the term "person", arguably triggering the inference that the term intends to cover dissolved corporations. Nevertheless, it must be recognized that the statute is silent on the liability of dissolved corporations and their shareholder distributees. This discrete issue merits resolution and is the subject of some controversy.3

The first line of decisions dealing with the matter at hand is best typified by the Ninth Circuit's decision in Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987). See also Columbia River Service Corp. v. Gilman, 751 F.Supp. 1448 (W.D.Wash.1990); Onan Corp. v. Industrial Steel Corp., 770 F.Supp. 490 (D.Minn.1989), aff'd 909 F.2d 511 (8th Cir.1990), cert. denied 498 U.S. 968, ...

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