US v. Taylor

Decision Date28 November 1995
Docket NumberNo. 3:89CV00231.,3:89CV00231.
Citation909 F. Supp. 355
CourtU.S. District Court — Middle District of North Carolina
PartiesUNITED STATES of America, Plaintiff, v. J.M. TAYLOR, et al.,

Lawrence W. Puckett, Environmental Enforcement Section, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, Charles V. Mikalian, United States Environmental Protection Agency, Region IV, Atlanta, GA, for plaintiff.

Richard E. Fay, Petree Stockton, L.L.P., Charlotte, NC, for Shell Oil Company and Liaison Counsel for Group I Defendants (E.I. DuPont de Nemours & Company, Inc., Olin Corporation, UCI Holdings, Inc., Hercules Incorporated, The Boots Company (USA) Inc., NOR-AM Chemical Company, Shell Oil Company, Mobil Oil Corporation and Third-Party Defendant American Cyanamid Company).

Thomas McKee Dee, Jerry Kevin Ronecker, Husch & Eppenberger, St. Louis, MO, for Olin Corporation.

R. Howard Grubbs, Jeffrey L. Furr, Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, for Ciba-Geigy Corporation and Liaison Counsel for Group II Defendants (J.M. Taylor, George D. Anderson, Grower Service Corporation, Farm Chemicals, Inc., Ciba Geigy Corporation, and Union Carbide Corporation).

David E. Nash, Thompson, Hine & Flory, Cleveland, OH, for Mobil Oil Corporation.

Michael B. Victorson, Robert E. Lannan, Robinson & McElwee, Charleston, WV, for Kaiser Aluminum & Chemical Corporation.

John A. Andreason, McGrath North Mullin & Kratz, P.C., Omaha, NE, for Grower Service Corporation.

L. Neal Ellis, Jr., Christopher G. Browning, Jr., Matthew P. McGuire, Hunton & Williams, Raleigh, NC, for Union Carbide Corporation.

George E. McGrann, Peter T. Stinson, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, James W. Miles, Jr., Greensboro, NC (Anne M. Foulkes, PPG Industries, Inc., of counsel), for Third-Party Defendant, PPG Industries, Inc.

ORDER

ELIASON, United States Magistrate Judge.

This matter comes before the Court on defendant PPG Industries, Inc.'s ("PPG") Consolidated Motion to Strike Declaration of Intent and Third-Party Complaint and for More Definite Statement. Because the events leading up to this motion are somewhat unusual, it will be helpful to give a few details about this case prior to entertaining the motion.

In this litigation, the plaintiff United States is attempting to establish liability and recover its costs as a result of its environmental cleanup of a Super Fund site known as the "Aberdeen Pesticide Site." The United States seeks to recover cleanup costs under Sections 104 and 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9604 and 9607(a), as amended. The site includes five areas and the contaminate primarily involves pesticides.

This case has been pending since 1989, during which time the United States has added a number of defendants that it suspects were involved in the formulation, production, transportation, disposal, etc., of the pesticides. Defendant PPG was added as a defendant several years after the case was filed. Later, several defendants filed third-party complaints against a number of other companies as well as persons who had some ownership interest in the land.

In 1992, because of the growth of the number of parties, the Court entered a Case Management and Scheduling Order ("CMSO"). This order set up a sequential discovery schedule, document depository sites, and liaison counsel to help coordinate discovery. In order to curb an alarmingly thick and growing file, the Court ordered, upon the parties' agreement, that "all defendants shall be deemed to have asserted cross-claims against all other defendants in this action, asserting rights to contribution and indemnity under common law and Section 113(f) of CERCLA, 42 U.S.C. § 9613(f), and any other bases, without the necessity of having asserted these cross-claims by pleading." (CMSO, pp. 11-12) The Order also provided that such claims were deemed denied.

At the end of 1993, having found insufficient evidence to pursue its action against defendant PPG, the United States moved to dismiss those claims. No objections were filed. However, when PPG prepared the order for the Court's signature, it changed the language slightly so instead of merely dismissing plaintiff's claims against it, PPG was dismissed as a defendant from the lawsuit. Other co-defendants objected and pointed out that by virtue of the CMSO there were pending cross-claims by them against PPG. This prevented a dismissal without their consent. See Fed.R.Civ.P. 41(a)(1) & (c). As a consequence, the Court amended the order of dismissal to state that only plaintiff's claims against defendant PPG were being dismissed.

Cognizant that the plaintiff had found its case against defendant PPG too slim to pursue, the Court determined that PPG should not remain as a party unless the other defendants had sufficient evidence to pursue the matter against PPG and intended to do so. However, the Court was faced with several problems. First, because of the CMSO, the defendants had never actually filed crossclaims against defendant PPG. On the other hand, PPG was no longer a defendant as a result of the plaintiff dismissing its claims against PPG.

In order to resolve the confusion, the Court directed those parties interested in pursuing a claim against PPG to file a more definite statement of their claims against PPG. (See April 18, 1995 Order) Said statement was to be in the form of a third-party complaint. Several defendants1 then filed a pleading2 which appeared to expand the claims against PPG from those pursued by plaintiff and in the court-ordered cross-claims. First, the defendants allege additional contaminants are involved in this litigation, and second, they assert liability under Section 107(a) of CERCLA. This expansion prompted the motion by PPG to strike these claims against it or in the alternative, that the Court order these defendants to make an even more definite statement concerning the alleged evidence of PPG's liability. In the meantime, the first phase of liability discovery, which involves plaintiff's claims, is soon coming to a close.

Motion to Strike under Rule 12(e) or 12(f)

PPG requests that defendants' complaint or at least certain portions of it be stricken under Fed.R.Civ.P. 12(f). PPG lists the following grounds in support of the motion for striking the "new" claims: (1) infusion of new allegations at this stage of the proceedings prejudices PPG and the allegations are not authorized by this Court's order; (2) claims under CERCLA Section 107 are improper; and (3) attorneys' fees are not permitted by law.

Rule 12(f) provides that a court may "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R.Civ.P. 12(f). The allegations in defendants' complaint do not on their face fit within any of those categories. Defendants have merely stated a garden variety claim under CERCLA. Thus, it would seem that PPG is really attempting to assert a motion to dismiss defendants' complaint for failure to state a claim upon which relief can be granted, as well as on procedural grounds.

Motions to dismiss, which are veiled in the form of a motion to strike, are viewed with disfavor and are not a "proper way to procure the dismissal of all or a part of a complaint." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380, at 644 (1990). On the other hand, the technical name given to a pleading is inconsequential, and an improperly designated Rule 12(f) motion may be treated as a motion to dismiss by the court. Id. at 644-46, 657. Some parts of defendants' complaint are subject to dismissal on this basis.

The procedural objections in PPG's Rule 12(f) motion are more properly considered under Fed.R.Civ.P. 12(e). That rule provides that when a party fails to comply with an order to make a more definite statement, the court may "strike the pleading to which the motion was directed or make such order as it deems just." Fed.R.Civ.P. 12(e). As Wright and Miller note, "the language `such order as it deems just' in the test of Rule 12(e) permits a variety of sanctions that stand midway between the harsh course of dismissal and the relatively benign punishment of repeating the order for a more definite statement." Wright & Miller, supra, § 1379, at 642. With these standards in mind, the Court will determine whether the new claims should be stricken or the defendants should be required to make a more definite statement.

1. New allegations — Non — Compliance with Court Orders and Prejudice

PPG argues that those portions of defendants' complaint which charge Columbia Southern, PPG's predecessor-in-interest, with being involved (along with the Taylor Chemical Company) in the manufacture, formulation and packaging of more than cotton dust pesticides violate the Court's April 18, 1995 Order. They allegedly broaden the claim against PPG without setting out the factual bases for the claims. If so, they may be stricken pursuant to Rule 12(e).

The April 18, 1995 Order became necessary because the United States dismissed its claims against PPG, which then remained a party only by virtue of other defendants' cross-claims against it. Furthermore, because the defendants had only asserted cross-claims against PPG via the CMSO, the factual bases for the cross-claims were never specified. In issuing the April 18, 1995 Order, the Court assumed that the only claims any defendant had against the other defendants were with respect to the pesticides identified by the United States. On reflection, that assumption may not be correct. Nothing in the CMSO or the April 18, 1995 Order expressly forbids allegations concerning other or new contaminants. Thus, it cannot be said that the new factual allegations exceed the bounds of the order.

Next, PPG claims that permitting the new allegations at this late date will...

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