Stychno v. Ohio Edison Co.
| Decision Date | 05 October 1992 |
| Docket Number | No. 5:90 CV 2096.,5:90 CV 2096. |
| Citation | 806 F. Supp. 676 |
| Parties | Leonoid STYCHNO, Plaintiff, v. OHIO EDISON COMPANY, Defendant and Third-Party Plaintiff, v. Linda MARSTELLER, et al., Third-Party Defendants. |
| Court | U.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.
Summarized below are the allegations found in the amended complaint of plaintiff Stychno, which are necessary for a complete understanding of the instant matter.
On December 30, 1980, the defendant, Ohio Edison, conveyed property used by it as an electrical power generating and transmitting station to Nestor Stychno and William Marsteller. The plaintiff, Leonoid Stychno acquired Marsteller's interest in this property in August of 1987. The plaintiff's co-tenant, Nestor Stychno, has filed a bankruptcy petition, precluding his joinder in this action pursuant to the automatic stay provisions of the Bankruptcy Code, 11 U.S.C. § 362. Since the initiation of this case, the Marstellers have been joined as third-party defendants.
On November 16, 1990, plaintiff Stychno filed a complaint for declaratory relief against Ohio Edison. The plaintiff alleges that during the defendant's ownership of the property, the defendant improperly disposed of asbestos and polychlorinated biphenyls (PCBs). Consequently, the plaintiff seeks a declaration from this court that Ohio Edison is responsible for anticipated clean-up costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended. CERCLA, 42 U.S.C. § 9607. The plaintiff claims that he has "already incurred response costs of approximately Four Thousand Five Hundred ... Dollars ($4,500.00) for a comprehensive site survey of hazardous substances at the facility in question, pursuant to order (sic) of a governmental agency. ) Alternatively, the plaintiff seeks an equitable share of these costs in accordance with a different provision of the same Act, 42 U.S.C. § 9613(f).
Currently before this court is plaintiff Stychno's motion for partial summary judgment. (Docket # 39) This motion is the subject of the following opinion.
In reviewing a motion for summary judgment, a court must consider the pleadings, related documents, evidence, and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). Rule 56 provides, in relevant part, as follows:
Three Supreme Court cases have provided guidance as to the nature of the respective burdens allocated under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate burden lies with the non-moving party to show the existence of a genuine issue of material fact. Matsushita, 475 U.S. at 586-587, 106 S.Ct. at 1356 (emphasis supplied). "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court in Anderson held that Anderson, 477 U.S. at 257, 106 S.Ct. at 2514.
On the other hand, the moving party's burden under Rule 56 is lighter.
Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c) ... suggests the absence of such a requirement.
Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis supplied).
The Sixth Circuit Court of Appeals, in Street v. J.C. Bradford and Co., 886 F.2d 1472 (6th Cir.1989) recently reviewed court decisions and commentary regarding the impact of Anderson, Celotex, and Matsushita on summary judgment practice. The court concluded that a "new era" in summary judgment practice has opened in the court system as a result of these opinions.
Scholars and courts are in agreement that a "new era" in summary judgments dawned by virtue of the Court's opinions in these cases ... On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact and tended to emasculate summary judgment as an effective procedural device.
The court enunciated the following "new era" principles, among others: as on federal directed verdict motions, the "scintilla" rule applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion; the respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment"; the trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. Id. at 1479-1480 (footnotes and citations omitted).
As a preliminary matter, the court shall note that Ohio Edison's brief in response to plaintiff's motion relies in part upon the reasoning advanced in Ohio Edison's motion to dismiss, Docket # 33. (See, e.g., Defendant's Reply to Plaintiff's Motion for Summary Judgment, Docket # 60 at 7) As was determined last Fall at conference with counsel, the plaintiff's amended complaint rendered moot the defendant's motion to dismiss. The first portion of the defendant's motion relied upon the plaintiff's failure to allege the incurrence of response costs. Plaintiff's amended complaint includes these allegations. The second segment of the defendant's motion requested partial summary judgment. It is clear that genuine issues of fact precluded a grant of that motion. See, e.g., United States v. Metate Asbestos Corp., 584 F.Supp. 1143 (D.Ariz.1984). On the 9th of September, 1991, a ruling to that effect was dispensed by marginal entry order.
It has now come to the court's attention that, through some mishap, this ruling was never entered upon the docket. This error has been corrected and, should the instant ruling precede the parties' receipt of a copy of that marginal entry order, the instant opinion should also serve to advise the parties that defendant's motion to dismiss, Docket # 33, was denied. Nevertheless, the court shall consider the arguments raised by defendant's motion to dismiss as they relate to the instant motion for summary judgment. The remainder of this order shall address exclusively the plaintiff's motion for summary judgment.
Although the plaintiff's motion nowhere articulates the statutory section relied upon for relief, plaintiff's complaint apparently grounds his claim in the provisions of Section 107(a)(2)(B) of CERCLA, 42 U.S.C. § 9607(a)(2)(B). (See Complaint, Docket # 1, at para. 8, 9) This section provides, in pertinent part, the following:
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