Walls v. Waste Resources Corp., Civ. No. 2-83-418.
| Decision Date | 08 May 1986 |
| Docket Number | Civ. No. 2-83-418. |
| Citation | 640 F. Supp. 79 |
| Parties | Linda WALLS, et al., Plaintiffs, v. WASTE RESOURCES CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
Allan Kanner, Douglas Lind, Howard J. Sedran, Arnold Levin, Philadelphia, Pa., John T. Milburn Rogers, Greeneville, Tenn., J.D. Lee, Knoxville, Tenn., Richard M. Bank, Washington, D.C., for plaintiffs.
Richard T. Sowell, Wanda Sobieski, Baker, Worthington, Crossley, Stansberry & Woolf, Knoxville, Tenn., for defendant Waste Resources Corp.
William T. Wray, Jr., Hunter, Smith & Davis, Kingsport, Tenn., for defendant Waste Resources of Tennessee, Inc.
John S. Bingham, Bingham & Francisco, Kingsport, Tenn., for defendant Gary L. Phillips.
Jack B. Draper, Knoxville, Tenn., for defendants Allied Chemical Corp. and American Cyanamid.
Donald B. Oakley, P.C., Morristown, Tenn., for defendant Arapahoe Chemicals, Inc.
Paul R. Leitner, Chattanooga, Tenn., for defendant Arapahoe Chemicals, Inc. and Westinghouse Elec. Corp.
William E. Godbold, III, Chattanooga, Tenn., for defendant Westinghouse Electric Corp.
Thomas C. McKee, Johnson City, Tenn., for defendants Burton Rubber Processing, Inc., Hayes-Albion Corp., I.P.C. Dennison Co., and International Playing Card & Lable.
Frank Winston, Bristol, Tenn., for Intern. Playing Card & Lable.
Fred H. Cagle, Jr., Knoxville, Tenn., for defendants General Elec. Co., and Aladdin Plastics, Inc.
R. Hunter Cagle, Poor, Cox, Baker, Ray & Burne, Knoxville, Tenn., for Hoover Ball & Bearing Co., Inc.
John R. Cromer, Indianapolis, Ind., for defendant The Nat. Cash Register Co.
Keith McCord, Knoxville, Tenn., for defendant Rohm & Hass of Tennessee, Inc.
R. Keith Hopson, Dennis P. Reis, Brown, Maroney, Rose, Barber & Dye, Austin, Tex., James H. Epps, III, Johnson City, Tenn., for defendant Texas Instruments, Inc.
James W. Gentry, Jr., Chattanooga, Tenn., for defendant Velsicol Chemical Corp.
N.R. Coleman, Jr., Ronald W. Woods, Greeneville, Tenn., for defendants Central Soya of Monroe, Inc., ABS Industries, Inc., Columbus McKinnon Corp., and Ball Metal & Chemical Corp.
Bill W. Petty, Child, O'Connor & Petty, Knoxville, Tenn., for defendant Waste Management, Inc. Noel F. Stahl, Nashville, Tenn., for defendant TRW, Inc.
Shelton B. Hillman, Jr., Bristol, Tenn., for defendants Beecham, Inc. and Orkin Exterminating Co., Inc.
Carey S. Sheldon, Sheldon & Andrews, Ashtabula, Ohio, for defendant ABS Industries, Inc.
Allan Hull, Cleveland, Ohio, for defendant Grief Brothers, Inc.
Richard M. Currie, Jr., Kingsport, Tenn., for defendant Kingsport Press, Inc.
Daniel W. Hammer, Thompson, Hine & Flory, Cleveland, Ohio, for defendant Normandex, Inc.
Wheeler A. Rosenbalm, Frantz, McConnell & Seymour, Knoxville, Tenn., for defendant General Elec. Co.
William G. Cockrill, Bud Gilbert, Knoxville, Tenn., for defendant Tri-State Container Corp.
This is an action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. CERCLA brought by private parties to recover "response costs" not from the "superfund" but from the principal responsible parties. Under the provisions of 42 U.S.C. § 9612(a), private plaintiffs are required, as a jurisdictional pre-requisite, to give sixty days notice before filing claims against the superfund. There is a split in district court decisions on the question of whether this notice requirement should also be applied to actions against "responsible parties".
After careful analysis of the differing district court decisions on this question, a magistrate in this district has adopted the position that the sixty-day notice requirement applies to actions, such as this one, against responsible parties. Because the plaintiffs in this case failed to give the requisite actual notice, he has recommended that this case be dismissed for lack of subject matter jurisdiction. Rule 12(b)(1), Federal Rules of Civil Procedure. Doc. 199
After careful consideration of the plaintiff's exceptions Doc. 200, this Court agrees.
Accordingly, this action is hereby DISMISSED.
REPORT AND RECOMMENDATION
ROBERT P. MURRIAN, United States Magistrate.
This matter was referred to the undersigned pursuant to Rule 72(b), Federal Rules of Civil Procedure, on January 13, 1986, for a report and recommendation on the following motions:
In remanding this action to this Court, the United States Court of Appeals for the Sixth Circuit did not decide and expressed no opinion as to whether the notice provision in 42 U.S.C. § 9612(a) applies to private response cost recovery actions (such as this one) under 42 U.S.C. § 9607. Walls v. Waste Resources Corporation, 761 F.2d 311, 318-19 (6th Cir.1985).
Court File No. 121, III.A., p.7. United States District Judge Thomas G. Hull affirmed that Report and Recommendation and overruled all objections thereto in an order filed October 11, 1985 Court File No. 143. Therefore, the only viable claim remaining after that was that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601, et seq. (CERCLA). Thereafter, Judge Hull declined to allow appeals requested by some of the parties and invited motions addressing whether or not the CERCLA claim was barred by any applicable statute of limitations Court File No. 168. The motions indicated above followed.
Among the motions filed was that of defendant Velsicol Chemical Corporation Court File No. 193. It renewed its argument that the Court lacks jurisdiction over the CERCLA count due to the failure of the plaintiffs to give Velsicol the proper presentation of their claims prior to the commencement of an action in this Court as dictated by 42 U.S.C. § 9612(a).
In this action, the plaintiffs' CERCLA claim is made in an effort to recover "necessary costs of response" under 42 U.S.C. § 9607(a)(3)(B) (Public L. 96-510, Title I, § 107). In connection with renewal of its motion to dismiss for lack of subject matter jurisdiction, Velsicol very recently filed a copy of the decisions in the cases of Dedham Water Co. v. Cumberland Farms, Inc., (1986, D.Mass.) 643 F. Supp. 667 () and State of Idaho v. Howmet Turbine Component Corporation, 627 F.Supp. 1274, (1986, D. Idaho) Court File Nos. 197 and 198 ().
After further reflection upon the matter, and in light of these two recent decisions, I am of the opinion that the 60-day notice provision in § 9612 is a jurisdictional prerequisite to a CERCLA action and that I erred in recommending that the defendants' earlier motions on that ground be denied.
An objection to the subject matter jurisdiction of a federal court goes to the power of the court to hear and decide the case. Wright & Miller, Federal Practice and Procedure: Civil § 1350, 546 (1969). All questions regarding subject matter jurisdiction must be resolved before the merits are addressed. Gross v. Hougland, 712 F.2d 1034, 1036 (6th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1281, 79 L.Ed.2d 684 (1984); see also Rule 12(h)(3), Federal Rules of Civil Procedure. As the Court noted in Dedham Water Co., Slip op. at 5. Likewise, I conclude that "the cloak" was never present here in connection with the CERCLA claim to begin with.
In Howmet, the court noted that there are no federal appellate decisions on the point but it cited six federal district court decisions, including the 1983 reported decision in Dedham Water Company reported at 588 F.Supp. 515 (Dedham I). See also United States v....
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Utah State Dept. of Health v. Ng, Civ. No. C86-0023G.
...General Electric Co., 592 F.Supp. 291, 199-300 (N.D.N.Y.1984). Defendant counters with the following citations: Walls v. Waste Resources Corp., 640 F.Supp. 79 (E.D.Tenn.1986); Dedham Water Co. v. Cumberland Farms, Inc., 643 F.Supp. 667 (D.Mass.1986); Idaho v. Howmet Turbine Component Corp.,......