U.S. v. Atlas Lederer Co.

• Decision Date: 12 September 2001
• Docket Number: No. 91-CV-309.,91-CV-309.
• Citation: 282 F.Supp.2d 687
• Parties: UNITED STATES of America Plaintiff, v. THE ATLAS LEDERER COMPANY, et al. Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 687

282 F.Supp.2d 687

UNITED STATES of America Plaintiff, v. THE ATLAS LEDERER COMPANY, et al. Defendants.

No. 91-CV-309.

United States District Court, S.D. Ohio, Western Division.

September 12, 2001.

COPYRIGHT MATERIAL OMITTED

David F. Musel, Deborah M. Reyher, Gregory L. Sukys, Joseph W.C. Warren, Matthew A. Fogelson, US Department of Justice, Washington, DC, Jacqueline Schuster Hobbs, Ulmer & Berne, Cincinnati, OH, Patrick Dennis Quinn, United States Attorney's Office, Dayton, OH, Sherry L. Estes, Assistant Regional Counsel, Chicago, IL, for Plaintiff.

Ben Lefever Pfefferle, III, Louis L. McMahon, Thompson Hine LLP, Columbus, OH, Michael A. Cyphert, Walter Haverfield, Cleveland, OH, Douglas G. Haynam, Louis E. Tosi, Shumaker, Loop & Kendrick, Toledo, OH, Matthew Yackshaw, Day, Ketterer, Raley, Wright & Rybolt, Canton, OH, Richard Paul Fahey, Vorys, Sater, Seymour & Pease, Columbus, OH, Laura Alicia Ringenbach, Taft, Stettinius & Hollister, Cincinnati, OH, Charles H. Pangburn, III, Hemmer, Spoor, Pangburn, DeFrank & Kasson, PLLC, Ft. Mitchell, KY, Jonathan P. Saxton, William Roger Fry, Rendigs, Fry, Kiely & Dennis, LLP, Cincinnati, OH, Jacqueline F. Allen, Philadelphia, PA, Philip R. Boxell, Pepper, Hamilton & Scheetz, Philadelphia, PA, Charles Patrick Houdyschell, Jr., Charleston, WV, Darrell V. McGraw, Jr., West Virginia Attorney General, Charleston, WV, Stephen Neal Haughey, Frost Brown Todd LLC, Cincinnati, OH, Susan W. Horn, Barger & Wolen LLP, Los Angeles, CA, Martha Ellen Horvitz, Bricker & Eckler, Columbus, OH, Thomas A. Linton, Cleveland, OH, James Alan Dyer, Martin A. Beyer, Sebaly, Shillito & Dyer, Dayton, OH, Peter M. Burrell, Wood & Lamping, Cincinnati, OH, Richard A. Frye, Chester, Willcox & Saxbe, Columbus, OH, Daniel C. Murray, Frederick S. Mueller, Johnson & Bell, Ltd, Chicago, IL, James R. Sheatsley, Gorman, Sheatsley & Company LC, Beckley, WV, Bedford Auto Wrecking, Gary William Auman, William Hadwen Barney, III, Dunlevey, Mahan & Furry, Dayton, OH, Richard H. Friedman, McNees, Wallace & Nurick, Harrisburg, PA, Ralph C. Megargel, Delbene & Megargel, Kent, OH, Jerome David Catanzaro, Catanzaro & Rosenberger, Waverly, OH, for Defendants.

EXPANDED OPINION SETTING FORTH REASONING AND CITATION OF AUTHORITY IN SUPPORT OF DECISION AND ENTRY (DOC. # 427) SUSTAINING IN PART AND OVERRULING IN PART MOTION FOR SUMMARY JUDGMENT (DOC. # 333) FILED BY PLAINTIFF UNITED STATES OF AMERICA AND UNITED SCRAP LEAD RESPONDENT GROUP; UNITED SCRAP LEAD RESPONDENT GROUP GRANTED LEAVE TO FILE CONTRIBUTION CLAIMS, WITHIN 14 DAYS FROM DATE; FURTHER PROCEDURES ORDERED OF PLAINTIFF UNITED STATES OF AMERICA, WITHIN SEVEN DAYS FROM DATE; PLAINTIFF UNITED STATES OF AMERICA DIRECTED TO FILE STATUS REPORT WITHIN 20 DAYS FROM DATE

RICE, Chief Judge.

This litigation involves an effort by Plaintiff United States of America and the United Scrap Lead Respondent Group ("Respondent Group") to recover response costs incurred in remediating environmental contamination at the United Scrap Lead Company Superfund Site ("USLC Site" or "Site") in Troy, Ohio.¹ Each Defendant in this action allegedly is liable for a portion of those response costs, as a result of its role in arranging for the disposal of hazardous waste. In a Decision and Entry filed on February 29, 2000 (Doc. # 427), the Court sustained in part and overruled in part a Motion for Summary Judgment (Doc. # 333) filed by the Movants. In so doing, the Court noted that it would file an Expanded Opinion, with reasoning and citation of authority, to support its ruling on that Motion. This Expanded Opinion supplies that reasoning and citation of authority.

I. Summary Judgment Standard

The Court first will set forth the parties' relative burdens once a motion for summary judgment is made. Summary judgment must be entered "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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Of course, [the moving party] 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.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial[,]" quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th Cir.1987]). The burden then shifts to the non-moving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law under Fed. R.Civ.P. 50. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff"). Rather, Rule 56(e) "requires the non-moving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726.

In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990); see also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment ...."), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, upon only those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

II. Analysis of Motion for Partial Summary Judgment (Doc. # 333)

In their Motion for Partial Summary Judgment, the United States and the Respondent Group seek to establish the liability of certain Defendants under CERCLA.² Specifically, the Movants have requested summary judgement on the issue of the Defendants' liability for clean-up or "response" costs in this action. The Movants seek to establish that the Defendants are liable, as a matter of law, for expenses which have been incurred by the United States and the Respondent Group in connection with the release and threatened release of hazardous substances at the USLC Site, where spent lead-acid batteries were discarded for nearly forty years. The United States brings its action for response costs under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), seeking to hold the Defendants jointly and severally liable. The Respondent Group seeks contribution from the Defendants for its costs, pursuant to § 113(f) of CERCLA, 42 U.S.C. § 9613(f).

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