Wisconsin Central Ltd. v. Soo Line Railroad Company

Filing 94

MOTION by Counter Claimant Soo Line Railroad Company, Defendant Soo Line Railroad Company for judgment (Entry of Judgment) (Davis, Andrew)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WISCONSIN CENTRAL LTD.,
Plaintiff,
v.
SOO LINE RAILROAD COMPANY,
Defendant.

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Case No. 1:16-cv-04271
Honorable Andrea R. Wood

DEFENDANT AND COUNTERCLAIM PLAINTIFF SOO LINE RAILROAD
COMPANY'S MOTION FOR ENTRY OF JUDGMENT
Soo Line Railroad Company ("Soo Line") submits this Motion for Entry of Judgment
setting forth the amount of damages caused by Wisconsin Central Ltd.'s ("WCL") breach of the
1987 Asset Purchase Agreement ("APA"), and the evidentiary bases for the amount of damages,
as directed by the Court on November 14, 2018. Soo Line also requests an award of attorneys'
fees and costs incurred in this litigation, as provided by the terms of the APA, and an award of
prejudgment interest on its damages, as required by Minnesota law.
PROCEDURAL BACKGROUND
On September 30, 2018, this Court issued a Memorandum Opinion and Order granting
Soo Line's Motion for Summary Judgment, and denying WCL's Motion for Summary Judgment,
on the parties' respective claims for breach of contract under the APA. The Court determined
that two claims were asserted against Soo Line under the APA for which WCL was required, but
failed, to defend and indemnify Soo Line: (1) the administrative action initiated against Soo Line
by the U.S. Environmental Protection Agency ("EPA") pursuant to its Special Notice Letter on
April 27, 2011 (the "EPA Claim"), and (2) NSP's complaint against Soo Line filed in 2012 in the
United States District Court for the Western District of Wisconsin, in the action entitled
16182932.5

Northern States Power Co. v. The City of Ashland, et al., Case No. 12-cv-602 (W.D. Wis.) (the
"NSP Claim") (collectively, the "Superfund claims"). (Docket No. 84, at 22.) This Court's
Memorandum Opinion and Order determined that WCL's failure to defend and indemnify Soo
Line for the defense and the settlement of the Superfund claims was a breach of the APA:
Soo Line has established that there is no genuine dispute of material fact that [the]
APA required WCL to indemnify it for the defense and settlement of the
Superfund claims. Having received timely notice of its obligation, WCL's failure
to do so was a breach of the APA. Consequently, summary judgment is granted
in favor of Soo Line on its counterclaim.
(Docket No. 84, at 23.) On September 30, 2018, the Court entered judgment in favor of Soo
Line. (Docket No. 85.) Thereafter, both parties filed post-judgment motions requesting that the
Court address Soo Line's damages, attorneys' fees, and costs.
Soo Line filed a motion for fees, expenses, and costs (Docket No. 86), proposing a
procedure largely mirroring the one set forth under Local Rule 54.3(b). Soo Line asserted that
this proposed procedure provides the most efficient way to establish the factual basis for both the
amount of Soo Line's damages (including the $5.25 million settlement amount and the attorneys'
fees and expert witness fees and costs with respect to the Superfund claims), and the amount of
Soo Line's attorney's fees and costs from the instant litigation.
WCL's motion requested that the Court withdraw its judgment pursuant to Federal
Rules 59(e) or 60(a), and modify the Memorandum Opinion. (Docket No. 88.) WCL argued,
contrary to the parties' previously filed Joint Motion to Amend Pretrial Scheduling Order with
Respect to Fact Discovery (Docket No. 35) (the "Joint Motion"), that expert depositions based on
expert reports addressing liability issues were still required to address Soo Line's damages,
notwithstanding the Court's liability determinations in its Memorandum Opinion and Order.
During a meet and confer with Soo Line, and in its representations to the Court during the status
hearing on October 18, 2018, WCL took the novel position that Soo Line's damages should be
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subject to an allocation analysis, a method of allocating costs among liable parties that is used in
contribution actions under the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C. § 9613(f). Soo Line filed an objection to WCL's motion.
(Docket No. 90.)
Following the October 18, 2018 status hearing, the Court granted WCL's motion in part,
vacating the final judgment without modifying its liability determinations, and continued Soo
Line's motion. (Docket No. 91.) The Court took the allocation argument raised by WCL under
advisement. (Docket No. 91.) During the follow-up status hearing on November 15, the Court
directed Soo Line to submit this Motion for Entry of Judgment specifying the amounts of
damages caused by WCL's breach of the APA, and the evidentiary basis for those damages.
(Docket Nos. 93.)
ARGUMENT
Soo Line is entitled to recover the damages caused by WCL's contractual breach,
including Soo Line's agreed-upon share of the settlement payment for the Superfund claims and
its attorneys' fees and costs (including expert witness fees and costs) incurred in defending
against those claims. Soo Line also renews its motion to recover its attorneys' fees and costs
incurred in the instant litigation, pursuant to Federal Rule 54(d) and Section 19(a) of the APA,
which expressly authorizes Soo Line to recover its attorneys' fees and costs. Soo Line further
moves the Court for an award of prejudgment interest on all damages caused by WCL, as
specifically provided for under applicable Minnesota law.
I.

THE APA REQUIRED WCL TO INDEMNIFY SOO LINE FOR THE DEFENSE
AND SETTLEMENT OF THE SUPERFUND CLAIMS.
An indemnitee is entitled to the damages caused by an indemnitor's breach of an

indemnity agreement, as provided for in the agreement. See In re RFC & RESCAP Liquidating
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Trust Action, Case No. 13-cv-3351, 2018 WL 3911424, at *12 (D. Minn. Aug. 15, 2018) (stating
that under Minnesota law, "the threshold question is whether that for which the indemnitee seeks
indemnification—whether it be losses, damages, or liabilities—falls within the language of the
contract"). Under Section 19(a)(i) of the APA, WCL agreed to indemnify Soo Line for "any and
all liabilities and obligations assumed by [WCL] pursuant to this Agreement," which included
"all claims for environmental matters relating to the ownership of the Assets or the operation of
LST that are asserted after the tenth anniversary of the Closing Date [i.e., October 11, 1997]."
APA §§ 19(a) and 4(a)(v)(3), as amended (emphasis added). WCL also agreed to indemnify Soo
Line for "any and all demands, claims, actions, suits, proceedings, assessments, judgments, costs
and legal and other expenses (including attorneys fees) incident to" WCL's assumed liabilities
and obligations. APA § 19(a)(iv) (emphasis added).
Applying the plain language of the APA, this Court determined in its Memorandum
Opinion and Order that "there is no genuine dispute of material fact that [the] APA required
WCL to indemnify [Soo Line] for the defense and settlement of the Superfund claims."
(Docket No. 84, at 23) (emphasis added). Pursuant to the Court's Memorandum Opinion and
Order, all that remains in this case with respect to those damages is for the Court to quantify the
dollar amount incurred and paid by Soo Line for the settlement and defense of the Superfund
claims, and to award Soo Line its costs and fees in this case, along with prejudgment interest.
Soo Line paid $5,250,000 (50-percent of the railroads' $10.5 million settlement), plus
pre-payment interest, to fully and finally resolve the two Superfund claims, for a total settlement
amount of $5,259,555. (Andrew W. Davis Declaration ("Davis Decl.") ¶ 12.) In addition, Soo
Line incurred $5,082,545 in attorneys' fees, and $291,065 in litigation costs (not including expert
witness fees), to defend against the Superfund claims. (Davis Decl. ¶ 4.) Soo Line also incurred

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expert witness fees and related costs of $706,262 to defend against the Superfund claims. (Davis
Decl. ¶ 10.) These expert fees and costs represented Soo Line's share of the total amount of
expert witness fees and costs (and mediation costs), which Soo Line and WCL agreed to split on
a 50-50 basis. (Davis Decl. ¶ 10.)
The defense of the Superfund claims involved both an administrative action commenced
by the EPA and U.S. Department of Justice, and federal court litigation against NSP and three
other parties. Soo Line and WCL jointly defended against the EPA Claim and the NSP Claim
pursuant to a joint defense agreement. Soo Line's outside counsel played a lead role in the
defense of the administrative action and the litigation, including conducting discovery, taking
and defending fact and expert depositions, researching and briefing substantive motions, and
mediating and negotiating settlement. (Davis Decl. ¶ 5.)
Together, litigation of the Superfund claims continued from April 2011 through
early 2015. The two cases involved complex scientific and technical matters relating to the
causes and remediation of contamination from a manufactured gas plant owned by NSP's
predecessors.

Both cases encompassed factual matters that stretched back to the 1800s,

numerous expert witnesses and reports from multiple parties, dozens of expert and fact
depositions, millions of pages of produced documents, and extended settlement efforts, including
multiple rounds of formal mediation proceedings and informal multi-party negotiations. (Davis
Decl. ¶ 5.)
WCL shared in Soo Line's work product and expert reports in both cases, joined in Soo
Line's substantive motions and mediation filings, and generally benefitted from Soo Line's trial
preparation and negotiation efforts, allowing the parties to generally avoid duplication of efforts.
(Davis Decl. ¶ 5.) WCL relied on Soo Line’s legal research, drafting, development of expert

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reports, and discovery and settlement efforts, rather than develop its own independent theories
and expert reports, allowing it to reduce its own fees and costs.1
Under CERCLA Section 107, 42 U.S.C. § 9607, Soo Line and WCL faced the possibility
of joint and several liability to the United States and/or NSP for the entire cost of cleaning up the
Ashland/NSP Lakefront Superfund Site, with cleanup-related costs estimated in the range of at
least $180 million. (Davis Decl. ¶ 6.) Further, if Soo Line (and WCL) had refused to participate
in the administrative action initiated by EPA's Special Notice Letter, it could have faced
substantial penalties and the potential for treble damages, as allowed under CERCLA
Sections 106 and 107, 42 U.S.C. §§ 9606(b)(1) and 9607(c)(3). (Davis Decl. ¶ 7.) Thus, as Soo
Line prepared its defense to the two Superfund claims, it reasonably understood that total joint
and several liability exposure for the Site could be $200 million or more. (Davis Decl. ¶ 9.)
Federal law in this Circuit governs the extent of fees that Soo Line can recover. See
Capital One Auto Fin., Inc. v. Orland Motors, Inc., No. 09-cv-4731, 2012 WL 3777025, at *3
(N.D. Ill. Aug. 27, 2012). Under Medcom Holding Co. v. Baxter Travenol Labs., 200 F.3d 518,
521 (7th Cir. 2000), attorneys' fees are recoverable where they are commercially reasonable,
which is assessed "by looking to market mechanisms" to ensure a party's fees and costs are
"'reasonable in relation to the stakes of the case and [the] litigation strategy.”2

1

Even though WCL joined in most filings and reports, WCL still incurred more than $2
million in attorneys’ fees, suggesting Soo Line's greater efforts reasonably necessitated the larger
amount of its incurred fees.
2

"One indicator of reasonableness, and indeed 'the best evidence of the market value of
legal services is what people pay for it.'” Id. (quoting Balcor Real Estate Holdings, Inc. v.
Walentas-Phoenix Corp., 73 F.3d 150, 153 (7th Cir. 1996)). Other indicators include whether a
litigant paid for the bills when their ultimate recovery was uncertain, and whether bills were
monitored by inside counsel. See id.
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Given the complex nature of the two Superfund claims, the prospect of joint and several
liability potentially in the range of $200 million or more, the joint defense arrangement between
WCL and Soo Line, and the scope of work undertaken by Soo Line's counsel, the record
demonstrates that Soo Line's fees in defending against the two Superfund claims are
commercially reasonable under applicable law. Indeed, given WCL’s reliance on the work
product generated by Soo Line’s litigation team and the benefits WCL derived from such work
product, WCL has no legitimate basis for challenging the fees associated with the Superfund
claims on the basis of reasonableness. Finally, Soo Line closely monitored and paid the legal
fees it now seeks to recover during the pendency of the Superfund claims, at a time when
recovery was not certain. (Davis Decl. ¶ 4); Medcom, 200 F. 3d at 521 (actual payment of fees
when right to recovery not yet determined is indicator of reasonableness and guards against
“moral hazard” of taking incurring additional risks and costs when another is liable for them).
In summary, Soo Line is entitled to recover the following damages amounts caused by
WCL's failure to defend and indemnify Soo Line for the Superfund claims:
Soo Line's Damages under the APA

Amount

Soo Line Settlement Payment (with pre- $5,259,555
payment interest)
Attorneys' fees for Superfund claims
$5,082,545
Costs for defending Superfund claims (not $291,065
including expert witness fees)
Soo Line's 50-percent share of expert witness $706,262
fees for Superfund claims
Less insurance payments received by Soo Line3 ($540,000)
Total Damages for the Superfund Claims

$10,799,427

3

Soo Line received reimbursements from certain insurance carriers in connection with
the Superfund claims, which amounts are deducted from Soo Line's damages calculation. (Davis
Decl. ¶ 11.)
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II.

THE APA AUTHORIZES SOO LINE TO RECOVER ATTORNEYS' FEES AND
COSTS INCURRED IN THIS BREACH OF CONTRACT LITIGATION.
Soo Line is also entitled by the express terms of the APA to recover all of its attorneys'

fees and costs incurred in the instant breach of contract litigation with WCL. Accordingly, Soo
Line renews its Motion for Fees and Costs pursuant to Fed. R. Civ. P. 54(d).4 (Docket No. 86.)
"A prevailing plaintiff may recover attorneys' fees in a contract action if the contract
expressly allows such recovery." Hallmark Ins. Adm'rs, Inc. v. Colonial Penn Life Ins. Co., 697
F. Supp. 319, 328 (N.D. Ill. 1988), aff'd 990 F.2d 984 (7th Cir. 1993). Section 19(a)(iii) of the
APA specifically requires WCL to indemnify Soo Line for "any and all loss, injury, damage or
deficiency resulting from any non-fulfillment of any covenant or agreement on the part of Buyer
under this Agreement." (Davis Decl. ¶ 13.)5

Under Section 19(a)(iv), WCL's indemnification

obligation includes "any and all demands, claims, actions, suits, proceedings, assessments,
judgments, costs and legal and other expenses (including attorneys fees) incident to any of the
foregoing." (Davis Decl. ¶ 13) (emphasis added). Accordingly, the APA expressly authorizes
Soo Line to recover its attorneys' fees, costs, and other expenses incurred in this litigation.
Medcom, 200 F.3d at 520; Chamberlain Mfg. Corp. v. Maremont Corp., No. 92-C-0356, 1995
WL 769782, at *6 (N.D. Ill. Dec. 29, 1995) (finding similar contract language entitled prevailing
party to an award of attorneys' fees); Kessler v. Superior Care, Inc., 127 F.R.D. 513, 522 (N.D.
Ill. 1989).
4

Under Rule 54(d), Soo Line must specify the judgment and the statute, rule, or other
grounds entitling it to the award, state the amount sought or provide a fair estimate of it, and
disclose, if the court so orders, the terms of any agreement about fees for the services for which
the claim is made. Fed. R. Civ. P. 54(d)(2)(B). This information is provided above.
5

Section 19(a)(ii) similarly requires WCL to indemnify Soo Line for "any and all loss,
injury, damage or deficiency resulting from any . . . breach of warranty on the part of Buyer
under this Agreement."
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To date, Soo Line has incurred $1,661,058 in attorneys' fees in this case. (Davis Decl.
¶ 13.) Soo Line is continuing to incur attorneys' fees in connection with this motion (including
October and November invoices), and will incur fees to the extent additional motion practice or
legal work is required for the Court to enter a final judgment and specify any additional
monetary awards to which Soo Line is entitled. In addition, Soo Line has incurred $115,706 in
costs, which includes expert witness fees, in the instant litigation with WCL. (Davis Decl. ¶ 13.)
In total, Soo Line has incurred attorneys' fees and costs of $1,776,764 in this case as of the date
of this filing.
Applying the Medcom factors and other precedent discussed above, the Court should find
that Soo Line's fees and costs in this case are commercially reasonable. Indeed, it was WCL, not
Soo Line, that initiated this lawsuit, rather than accept the shared-responsibility of the settlement
of the Superfund claims. Even now, WCL continues to raise new substantive issues that
effectively seek to re-litigate the Court's liability determination. Under these circumstances,
WCL is hardly in a position to complain about attorneys’ fees and other litigation expenses that
Soo Line was forced to incur by WCL’s actions.
III.

SOO LINE IS ENTITLED TO AN AWARD OF PREJUDGMENT INTEREST ON
ITS DAMAGES.
Soo Line is also entitled to an award of prejudgment interest on all damages caused by

WCL's breach of the APA. See Osterneck v. Ernst & Whitney, 489 U.S. 169, 175 (1989)
("[P]rejudgment interest is an element of [plaintiff's] complete compensation."); McNabola v.
Chicago Transit Auth., 10 F.3d 501, 520 (7th Cir. 1993) (same). Minnesota law governs the
award of prejudgment interest applicable to Soo Line's damages. Matter of Oil Spill by Amoco
Cadiz Off Coast of France, 954 F.2d 1279, 1333 (7th Cir. 1992); Tech. Sols. Co. v. Northrop
Grumman Corp., 826 N.E.2d 1220, 1225 (Ill. 2005) (stating the law of the state that controls the
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substantive issues in the case also controls the issue of prejudgment interest); Memorandum
Opinion and Order at 14 (noting that the APA contains a choice-of-law provision applying
Minnesota law).
Under Minnesota law, prejudgment interest is computed pursuant to Minn. Stat. § 549.09,
subd. 1(c), which provides that for an award greater than $50,000, the interest rate is 10-percent
per year. Prejudgment interest runs beginning no later than "the time of the commencement of
the action or a demand for arbitration." Minn. Stat. § 549.09, subd. 1(b).
Here, Soo Line filed its Answer and Counterclaim against WCL in this action on
July 11, 2016. Thus, under Minnesota law, prejudgment interest on Soo Line's damages runs
from July 11, 2016, at 10-percent per year. Using the date of Soo Line's initial pleading in this
case through the date of this submission,6 prejudgment interest currently amounts to $2,635,060.
(Davis Decl. ¶ 15.) Accordingly, Soo Line respectfully requests that the Court include in its
judgment an award of prejudgment interest of at least $2,635,060, plus the additional amount
calculated using the foregoing formula through the date that judgment is entered.
IV.

WCL'S CERCLA-BASED ALLOCATION ARGUMENT IS INCONSISTENT
WITH THE APA AND CONTRADICTS ITS PRIOR LITIGATION POSITION.
During the two status hearings in October and November 2018, and after losing its

summary judgment motion, WCL's counsel argued that Soo Line's $5.25 million settlement
should be subjected to a CERCLA-based allocation. Having failed to persuade the Court on
liability issues, WCL apparently now wants to apportion the railroads' collective settlement
payment based on each party's respective period of ownership and operation of the railroad rightof-way at Kreher Park, and to thereby reduce Soo Line's damages. While Soo Line cannot fully
6

The Court should recalculate the prejudgment interest using the date that judgment is
entered by the Court in this action.
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anticipate the arguments that WCL will make, and will respond to WCL's arguments in a reply
memorandum, defects in WCL's allocation argument are already apparent.
As Soo Line stated in its objection (Docket No. 90.), WCL's "allocation" argument is
inconsistent with the legal positions previously asserted by WCL in the Superfund claims and in
this case, is contrary to the scope of the agreed-upon discovery in the parties' Joint Motion,7 and
ignores the fact that neither Soo Line nor WCL had disclosed a damages expert during discovery.
Perhaps most importantly, WCL is essentially attempting to re-litigate the scope of the liability
issues that were thoroughly addressed by the Court in its Memorandum Opinion and Order.
This is a breach of contract case, not a contribution action under CERCLA. But the
"allocation" analysis now apparently being raised by WCL is akin to that conducted by courts
when assessing response costs in CERCLA contribution actions under 42 U.S.C. § 9613(f). See
Environmental Law Handbook (21st ed.) 586-87 (2011). CERCLA Section 113(f) gives "courts
broad discretion in determining cost allocation among jointly and severally liable parties in a
contribution action." 42 U.S.C. § 9613(f)(1).

To allocate CERCLA response costs, courts

consider numerous equitable factors such as (1) "the volume of hazardous substances contributed
by each party," (2) the "relative degree of toxicity of each party's wastes," and (3) the "extent to
which each party was involved in the generation, transportation, treatment, storage, or disposal
of the substances involved," among others. Environmental Law Handbook (21st ed.) 586-87
(2011).

7

As the Court correctly observed during the November 15, 2018 status hearing, that Joint
Motion said nothing about the need for discovery of allocation-related evidence, but was limited
on its face to discovery related to the amounts of certain categories of damages, including the
settlement amount and any interest, consultant and expert witness costs, attorneys' fees, and
insurance payments. (Docket No. 35, at 2-3.)
11
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By contrast, in this breach of contract case, Soo Line is entitled to "all" damages caused
by WCL's breach, according to the plain language of the APA. APA § 19(a)(i), (iv); In re RFC
& RESCAP Liquidating Trust Action, supra, 2018 WL 3911424, at *12. The APA is devoid of
any language that suggests the parties agreed their indemnity obligations should be subject to an
equitable allocation analysis.
Not surprisingly, WCL did not include a CERCLA contribution claim in its Complaint or
Amended Complaint against Soo Line; WCL asserted a single cause of action for breach of
contract. Nor did WCL seek only its "allocated" share of the railroads' joint settlement or
otherwise assert such an "allocation" argument in either its pleadings or in its discovery
responses. It was only after Soo Line prevailed on the merits of the parties' breach of contract
claims that WCL now requests that the Court revisit its liability determination and, even worse,
invites the Court to become entangled in the complexities of the underlying Superfund claims via
a back-door damages-allocation theory.
An identical allocation argument was rejected in Southern California Gas Co. v.
Syntellect, Inc., No. 08-CV-941, 2014 WL 334462 (S.D. Cal. Jan. 28, 2014). In that case, the
indemnitor (Syntellect) argued that it should not be liable for all of the indemnitee's settlement,
because fault could be apportioned among other culpable parties.

The Court rejected this

argument as contrary to the indemnity agreement, which required the indemnitor to pay "'any
and all claims, actions, suits, proceedings, losses, liabilities, penalties, damages, costs, or
expenses of any kind whatsoever arising from patent infringement allegations in connection the
System." Id. at *6 (emphasis added).8 Here, the APA similarly required WCL to indemnify Soo

8

Minnesota courts have reached the same conclusion: the duty to indemnify does not
depend on an allocation or apportionment of fault, unless expressly required by the indemnity
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Line for "any and all liabilities and obligations assumed by [WCL] under this Agreement,"
without regard to fault. APA § 19(a)(1).
WCL's new allocation argument also contradicts its prior litigation position in the
Superfund claims, its representations to a federal court in a judicially binding Consent Decree,
and its own obligations under that Consent Decree.9

In their pleadings and joint summary

judgment motion to the federal court in the NSP Claim, in submissions to the United States in the
EPA Claim, and in their expert reports in the Superfund claims, both railroads repeatedly denied
any liability for the Ashland/NSP Lakefront Superfund Site. WCL's and Soo Line's position was
well supported by extensive expert analysis and reports.10 These reports stated, among other
things, that the railroads did not in fact cause or contribute to any contamination at the Site, and
that WCL and Soo Line were never “owners” within the meaning of CERCLA based on
Wisconsin real property law and CERCLA case law.11 In the Consent Decree and in settlement

language. Christenson v. Egan Cos., No. A09-1539, 2010 WL 2161822, at *2 (Minn. Ct. App.
June 1, 2010) (holding the indemnitor must pay all damages; a sub-sub-contractor's duty to
indemnify a subcontractor "was contractual and thus did not depend on a determination of
comparative fault").
9

Among other things, the Consent Decree requires WCL to notify the EPA and U.S.
Department of Justice if it asserts a contribution claim relating to the Consent Decree. (Consent
Decree Between United States, NSP, Soo Line, and WCL, at § XI.30 (Ex. JJJ to Declaration of
Aleava Sayre in Support of Soo Line's Summary Judgment Motion, Docket No. 50-3).) Soo
Line is not aware that WCL has provided any such notice. In point of fact, WCL has not and
cannot now assert a contribution claim, but it is attempting to secure the benefit of such a claim
by asking this Court to allocate liability based on CERCLA “equitable” factors.
10

The amount of the railroads' settlement ($10.5 million) in proportion to the estimated
$200 million in estimated cleanup and other costs at the Site suggests that the United States and
NSP were persuaded by the railroads' technical and legal analyses.
11

Soo Line demonstrated in its defense of the underlying Superfund claims that much of
the property subject to the claims did not qualify for ownership liability because (1) the property
remained classified as a lakebed that, by operation of law, can never be owned by a private party;
and (2) most of the property was only held as easements, which federal courts have recognized
does not constitute a basis for CERCLA ownership liability. WCL joined in these arguments.
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agreements filed to resolve the underlying Superfund claims, the railroads again denied any and
all liability for the Site.12 Yet the allocation of response costs under CERCLA is available only
"among liable parties." 42 U.S.C. § 9613(f)(1) (emphasis added). Indeed, having repeatedly
disclaimed all liability in binding representations to a federal district court, the United States, and
other parties, WCL should be estopped from now asserting that Soo Line and WCL are in fact at
fault for contamination at the Site. Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp.,
179 F.3d 523, 527 (7th Cir. 1999) (discussing elements of judicial estoppel).
In short, WCL's allocation argument is a last ditch attempt to avoid the conclusion that
"there is no genuine dispute of material fact that [the] APA required WCL to indemnify it for the
defense and settlement of the Superfund claims." (Docket No. 84, at 23) (emphasis added).
WCL should not be allowed to re-litigate the issues already resolved by this Court.
CONCLUSION
Soo Line respectfully requests that the Court grant its Motion for Entry of Judgment,
enter a final Judgment in this case, and specifically quantify in its Judgment the amount of Soo
Line's damages, fees, costs, and prejudgment interest, as discussed above.
Respectfully submitted,
Soo Line Railroad Company
Dated: December 19, 2018

/s/Andrew W. Davis
Andrew W. Davis (pro hac vice) (MN #0386634)
Nathan E. Endrud (pro hac vice) (MN #0389459)
STINSON LEONARD STREET LLP

12

See Settlement Agreement and Release between NSP, WCL, and Soo Line, at p. 2 and
¶ 13(a) (Ex. 48 to WCL's Motion for Summary Judgment, Docket No. 54-48); Consent Decree,
at § I.J, Docket No. 50-3); Settlement Agreement Between WCL and Soo Line dated November
4, 2014, at p. 1 (WCL Complaint Ex. 1, Docket No. 1-12) ("[E]ach Railroad has denied any
liability or other responsibility for the Site in the USEPA CERCLA Claims and NSP Lawsuit.").
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50 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: [phone]
Facsimile: [phone]
Gregory A. Fontaine (pro hac vice) (MN #0131908)
Aleava R. Sayre (pro hac vice) (MN #0386491)
STOEL RIVES LLP
33 South Sixth Street, Suite 4200
Minneapolis, MN 55402
Telephone: [phone]
Facsimile: [phone]
Michael J. Hughes (IL #6201324)
NEAL, GERBER & EISENBERG LLP
Two North LaSalle Street, Suite 1700
Chicago, IL 60602-3801
Attorneys for Defendant and Counterclaim
Plaintiff Soo Line Railroad Company

CERTIFICATE OF SERVICE
I, Andrew W. Davis, an attorney, hereby certify that a copy of the foregoing Motion for
Entry of Judgment was served on counsel for all parties electronically via the CM/ECF system
on December 19, 2018.
Dated: December 19, 2018

/s/Andrew W. Davis
Andrew W. Davis

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