US v. Fairchild Industries, Inc.

• Citation: 766 F. Supp. 405
• Decision Date: 02 May 1991
• Docket Number: Civ. A. No. R-88-2933,R-89-2870.
• Parties: UNITED STATES of America, Plaintiff, v. FAIRCHILD INDUSTRIES, INC., and Cumberland Cement & Supply Co., Defendants. UNITED STATES of America, Plaintiff, v. KELLY-SPRINGFIELD TIRE CO., Precise Metals & Plastics, Inc., and Joseph Diggs, Defendants.
• Court: U.S. District Court — District of Maryland

766 F. Supp. 405

UNITED STATES of America, Plaintiff, v. FAIRCHILD INDUSTRIES, INC., and Cumberland Cement & Supply Co., Defendants.

UNITED STATES of America, Plaintiff, v. KELLY-SPRINGFIELD TIRE CO., Precise Metals & Plastics, Inc., and Joseph Diggs, Defendants.

Civ. A. Nos. R-88-2933, R-89-2870.

United States District Court, D. Maryland.

May 2, 1991.

COPYRIGHT MATERIAL OMITTED

Arnold Rosenthal, Seth Low, U.S. Dept. of Justice, Land and Natural Resources Div., Environmental Enforcement Section, Washington, D.C., for plaintiff.

Tracy Getz, Winston and Strawn, Washington, D.C., for defendant Farichild Industries, Inc.

Philip M. Andrews, Kramon & Graham, Baltimore, Md., for defendant Cumberland Cement & Supply Co.

RAMSEY, District Judge.

Pending before the Court in the above-captioned case is plaintiff United States of America's motion to strike certain defenses of the various defendants. This motion has been fully briefed by the parties and is ripe for consideration by the Court. Pursuant to Local Rule 105.6, the Court shall rule without a hearing.

I. FACTUAL BACKGROUND¹ AND PROCEDURAL HISTORY

This case involves a 210 acre tract of land located near Cumberland, Maryland known as the Limestone Road Site. In 1982, the EPA tested the site and found high levels of inorganic and organic compounds considered hazardous under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq. Subsequently, the site was placed on the National Priorities List. The EPA has continued to study the site; in 1986, the EPA issued a Record of Decision which discussed interim remedial action and also called for further study and plan development.

On September 11, 1988, the United States filed a complaint against defendants Cumberland and Fairchild. The United States sought injunctive relief under 42 U.S.C. § 9606 as well as cost recovery under 42 U.S.C. § 9607.² The injunctive claim was settled through a Partial Consent Decree entered by the Court on February 28, 1990.

On October 12, 1989, the United States filed another complaint involving the Limestone Road Site, this one against defendants Kelly-Springfield, Precise Metals and Joseph Diggs. This second case was later consolidated with the first.

The United States seeks judgment against the defendants, jointly and severally, for costs incurred by the United States which are not inconsistent with the National Contingency Plan. CERCLA § 107; 42 U.S.C. § 9607. The United States also asks the Court to enter declaratory judgment regarding defendants' liability for further clean-up costs related to the Limestone Road Site. CERCLA § 113; 42 U.S.C. § 9613.

II. PLAINTIFF'S MOTION TO STRIKE INSUFFICIENT DEFENSES

On April 2, 1990, the United States filed a motion to strike insufficient defenses of defendants Fairchild and Cumberland. On May 7, 1990, the United States filed much the same motion against defendants Kelly-Springfield and Precise Metals. The United States has organized the many defenses at issue into ten categories based on the substance of the defense. The defendants have also referred to this organization in their opposition memoranda, and the Court, for convenience, shall do the same.

III. STANDARDS ON A MOTION TO STRIKE

Federal Rule of Civil Procedure 12(f) provides that: "Upon motion ... the court may order stricken from any pleading any insufficient defense...." A motion to strike is a drastic remedy and is therefore not favored. 5A C. Wright and A. Miller, Federal Practice and Procedure: Civil, § 1380 at 647; Steuart Investment Co. v. Bauer Dredging Const. Co., 323 F.Supp. 907, 909 (D.Md.1971). Specifically, a motion to strike insufficient defenses, "should not be granted when the sufficiency of the defense depends upon disputed issues of fact or unclear questions of law." U.S. v. Marisol, Inc., 725 F.Supp. 833, 836 (M.D. Pa.1989) (a CERCLA case).

"The court must review with extreme scrutiny a motion to strike which seeks the opportunity to determine disputed and substantial questions of law, particularly when no significant discovery has occurred in the case."

U.S. v. Hardage, 116 F.R.D. 460, 463 (W.D. Okl.1987) (a CERCLA case). Such questions of law "quite properly are viewed as determinable only after discovery and a hearing on the merits." 5A C. Wright and A. Miller § 1381 at 674-6. Thus, "even when technically appropriate and well-founded, a motion to strike is often not granted in the absence of a showing of prejudice to the moving party." 5A C. Wright and A. Miller § 1381 at 672.

Having stated these points, it is equally important to recognize that a motion to strike insufficient defenses does

"serve a useful purpose by eliminating insufficient defenses and saving the time and expense which would otherwise be spent in litigating issues which would not affect the outcome of the case."

Marisol, 725 F.Supp. at 836.

"A defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action can and should be deleted."

5A C. Wright and A. Miller § 1381 at 665.

In sum, the court should strike defenses which cannot succeed under any set of circumstances; however, where there is any question of fact or any substantial question of law, the court should refrain from acting until some later time when these issues can be more appropriately dealt with. These are the standards under which this Court shall consider plaintiff's motions.

IV. THE DEFENSES AT ISSUE

A. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED³

Defendant Fairchild does not oppose the U.S.'s motion to strike this defense. See Fairchild Opp. at 2 n. 2. Defendants Precise Metals and Kelly-Springfield do oppose the government's motion to strike this defense.⁴ Kelly-Springfield argues that the defense of failure to state a claim raises substantial questions of law and also implicates factual issues such that striking this defense would be improper. Precise Metals argues that there are several affirmative defenses which the U.S. has not moved to strike and that this indicates that the U.S. may indeed have failed to state a claim.

A motion to dismiss for failure to state a claim is a means for testing the legal sufficiency of a complaint. When deciding the motion, a court must take all well-pleaded material allegations of the complaint as admitted. A complaint may be dismissed if the law does not support the conclusions argued, or where the facts alleged are not sufficient to support the claim presented. However, "a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." 2A Moore's Federal Practice § 12.08 at 2271-74 (2d Ed. 1983) (emphasis in original).

In this case, the United States has properly alleged all of the elements of a prima facie case for liability under 42 U.S.C. § 9607: that the site is a facility within the meaning of the statute, that a release or threatened release of hazardous substance has occurred, that the release has caused the government to incur response costs not inconsistent with the national contingency plan, and that each defendant is a covered person. See U.S. v. Monsanto Co., 858 F.2d 160, 167 (4th Cir. 1988); Retirement Community Developers, Inc. v. Merine, 713 F.Supp. 153, 155 (D.Md.1989).

There is no substantial question of law: these elements have been clearly outlined in this circuit and in others. See United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373 (8th Cir.1989); New York v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir.1985). There is no issue of fact: this defense relates only to the sufficiency of plaintiff's allegations. Defendants may ultimately prevail on one or more of their affirmative defenses; this is irrelevant to the issue of the sufficiency of the allegations. Accordingly, this Court will strike defendants' affirmative defense of failure to state a claim.

B. LACK OF PROOF OF IMMINENT AND SUBSTANTIAL ENDANGERMENT⁵

Again, Fairchild has not opposed the striking of this affirmative defense. See Fairchild Opp. at 2 n. 2. Precise Metals, however, does oppose the government's motion to strike this defense.

Section 107 of CERCLA (42 U.S.C. § 9607) does not itself require that the government prove imminent and substantial endangerment in order to recover its response costs. It requires only proof of the elements listed above in part A. This is in contrast to the emergency abatement provision of § 106 (42 U.S.C. § 9606) which by its terms requires proof of imminent and substantial endangerment before action may be taken. Accordingly, in U.S. v. Conservation Chemical Co., 619 F.Supp. 162, 184 (D.C.Mo.1985), the court stated that "proof of `imminent and substantial endangerment' ... is not required in a Section 107 action." (The court went on to consider the necessity of this proof in a § 106 action.) The court in Marisol, supra, also held that § 107 does not require "any allegation or proof of an imminent and substantial endangerment to public health, welfare, or the environment," 725 F.Supp. at 837, and therefore granted the government's motion to strike this defense.

Precise Metals acknowledges that CERCLA § 107 does not itself require this proof. Instead, defendant compares the language of § 107 (which lacks this requirement) with that of § 106 (which expressly requires such proof) and infers that

"it is evident that Congress meant to have some type of standard upon which the government and reviewing judiciary may judge an agency's response to a perceived threat to the public or the environment."

Precise Metals Opp. at 17.

The standard by which the reviewing judiciary is to judge an agency's response is provided by the National Contingency Plan NCP with which a cost-recovery plaintiff's response costs must conform. 42 U.S.C. § 9607(a)(4)(A) (covered person "shall be...