ConocoPhillips Pipe Line Company v. Rogers Cartage Company

Filing 84

ORDER granting 67 Motion for Leave to File; finding as moot 70 Motion for Hearing; and adopting 81 Report and Recommendations. Plaintiff shall file its first amended complaint by February 12, 2013.Signed by Chief Judge David R. Herndon on 2/5/2013. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PHILLIPS 66 PIPELINE LLC,
formerly known as ConocoPhillips
Pipe Line Company,
Plaintiff,
v.
ROGERS CARTAGE COMPANY,
Defendant.

No. 11-cv-497-DRH-DGW
MEMORANDUN & ORDER

HERNDON, Chief Judge:
I.

INTRODUCTION

Pending before the Court is plaintiff Phillips 66 Pipeline LLC’s motion for
leave to file first amended complaint (Doc. 67), as well as a Report a
Recommendation (R&R) of United States Magistrate Judge Donald G. Wilkerson
on the truthfulness of assertions made by the parties in connection with plaintiff’s
motion for leave to file the first amended complaint (Doc. 81). As no party objects
to the findings of Magistrate Judge Wilkerson, see SDIL-LR 73.1(b), the Court
ADOPTS the R&R (Doc. 81) and GRANTS plaintiff’s motion for leave to file first
amended complaint (Doc. 67).
II.

BACKGROUND AND FACTUAL FINDINGS

Plaintiff’s instant complaint consists of two counts encompassing CERCLA
Cost Recovery, 42 U.S.C. § 9607(a), and RCRA, § 6972(a)(1)(B) (Doc. 2). Plaintiff
seeks leave to file an amended complaint (Doc. 67), to reflect plaintiff’s right of
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contribution against defendant created by plaintiff’s recent settlement with the
United States. See United States v. Phillips 66 Pipeline LLC, 12-cv-1159-DRHPMF. Thus, plaintiff’s proposed amended complaint consists of Count I: CERCLA
Cost Recovery, 42 U.S.C. § 9607(a). and Count II: CERCLA Contribution, 42
U.S.C. § 9613(f). Plaintiff alleges that because a contribution claim is based on the
same standard of liability as plaintiff’s existing Count I (CERCLA Cost Recovery),
the proposed amended complaint would not cause any prejudice to defendant as
it would require minimal additional discovery and would further simplify this
litigation by eliminating plaintiff’s claim for injunctive relief under the RCRA.
Defendant opposes plaintiff’s request, arguing that plaintiff has not shown
good cause for seeking leave to amend after the deadline of March 1, 2012, set for
the filing of amended pleadings (Doc. 25). Defendant argues plaintiff did not
sufficiently alert defendant of its negotiations with the government until November
9, 2012. Defendant argues if it had sufficiently known of such negotiations, it
would have concurrently conducted discovery related to issues for a contribution
claim under CERCLA § 113(f). Thus, defendant alleges plaintiff improperly
“remained mum until after [defendant] had incurred significant discovery-related
legal fees and until after discovery deadlines had passed,” to sufficiently inform it
of its negotiations with the government. Additionally, defendant alleges plaintiff
improperly failed to supplement discovery with its communication with the
government. Thus, in sum, defendant alleges it will be prejudiced if the Court
allows plaintiff to “change the basis and theory of its lawsuit at this late date.”

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Relevantly, after defendant filed its response in opposition to plaintiff’s
request, plaintiff filed a reply stating exceptional circumstances in support. See
Doc. 69; SDIL-LR 7.1(c). Plaintiff alleges defendant misrepresented plaintiff’s
disclosures concerning its negotiations with the government and the amount of
additional discovery necessary to plaintiff’s proposed amended complaint.
In light of the parties’ allegations charging each other with various
misrepresentations and failures to disclose relating to discovery, the Court
referred this matter to Magistrate Judge Wilkerson for hearing to “discern if any
officer of the Court violated any of his or her obligations to deal truthfully with the
Court and to get to the facts of the dispute at bar on the issue that is pending”
(Doc. 71). Magistrate Judge Wilkerson conducted said hearing and issued a
report and recommendation as to certain findings of fact relevant to the instant
dispute (Doc. 81). As no party objected to Magistrate Judge Wilkerson’s findings,
the Court ADOPTS the R&R in its entirety. Thus, relevant to the instant dispute,
the Court finds:
Defendant actually was aware of the negotiations between plaintiff
and the government, which had been going on for years, since
before the filing of this lawsuit.
Defendant was not surprised as to the fact that plaintiff and the
government were negotiating with respect to the site at issue and
that they would eventually enter into a formal agreement. Indeed,
this was the subject of defendant’s October 31, 2011 motion to
dismiss (Doc. 12).
Defendant was surprised that plaintiff and the government
actually entered into a Consent Decree.

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Defendant acknowledges that it received discovery in April, 2012
which included correspondence between plaintiff and the
government.
Defendant further acknowledges that it received a letter from the
government, dated August 28, 2012, inviting it to join the consent
decree.
Defendant therefore was completely aware of the negotiations
between plaintiff and the government- plaintiff was not deceiving
either defendant or the Court with respect to the negotiations.
Plaintiff served upon defendant various correspondence between
itself and the government on April 9, 2012 related to the consent
decree
Plaintiff did not serve upon defendant additional relevant
discovery related to the consent decree until December 5, 2012.
Plaintiff’s supplemental discovery responses were not prompt.
Defendant has suffered no prejudice as a result of the failure to
promptly serve discovery responses.
The parties have already engaged in discovery related to CERCLA
§ 113(f) because such a claim is included in defendant’s answer.
The proposed amended complaint will not add significantly to
discovery in this matter: Defendant stated that it will conduct 2 or
3 additional depositions which can be concluded within the next
30 days (although plaintiff does not believe that any additional
discovery is necessary).
III.

LAW AND APPLICATION

To amend a pleading after the expiration of the trial court’s scheduling
order deadline to amend pleadings, the moving party must show “good cause.”
See Fed. R. Civ. P. 16(b)(4); Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir.
2011); Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553
(7th Cir. 2005). This standard primarily considers the diligence of the party

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seeking amendment. Trustmark, 424 F.3d at 553. Plaintiff seeks to amend the
pleadings approximately eight months after the deadline imposed pursuant to the
parties’ agreed scheduling order (Doc. 25). However, as explained above,
plaintiff’s proposed amended complaint arises from plaintiff’s recent settlement
with the government. Thus, although plaintiff did not seek leave to file an
amended complaint until November 2012, as this Court did not approve the
Consent Decree until December 2012, the Court finds plaintiff has been diligent in
its attempts to amend the pleadings and accordingly has shown “good cause” for
amendment.
Further,

on

the

basis

of

the

above

statements

and

the

R&R’s

recommendation, the Court finds that while plaintiff has been at most tardy in
supplementing discovery, such tardiness has not prejudiced defendant. Further,
plaintiff has been conservative in pursuing its claims so as not to prematurely
waive any claim or defense. As for defendant, the Court finds defendant has
exaggerated the amount of discovery that would be required in light of plaintiff’s
new proposed claim and engaged in hyperbole with respect to the surprising
nature of the Consent Decree. Therefore, plaintiff’s motion for leave to file first
amended complaint is GRANTED (Doc. 67). See Fed. R. Civ. P. 15(a)(2) (The
court should freely give leave [to amend] when justice so requires).
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS plaintiff’s motion for leave to
file first amended complaint (Doc. 67). Accordingly, defendant’s motion for
hearing regarding plaintiff’s motion for leave to file first amended complaint is
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RENDERED MOOT (Doc. 70). Plaintiff shall file its amended complaint by
February 12, 2013. Further, the Court ADOPTS the findings of the R&R (Doc.
81).
IT IS SO ORDERED.
Signed this 5th day of February, 2013.

Digitally signed by
David R. Herndon
Date: 2013.02.05
11:49:16 -06'00'
Chief Judge
United States District Court

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