MRP Properties Company, LLC et al v. The United States of America

Filing 26

ORDER Denying 13 MOTION to Dismiss and Motion to Transfer and Setting Deadline to Respond to Plaintiffs' 4 Complaint. ( Response due by 12/5/2017.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MRP PROPERTIES, LLC, et al.,
Plaintiffs,
v.

Case No. 17-cv-11174
Honorable Thomas L. Ludington

UNITED STATES OF AMERICA,
Defendant.
__________________________________________/
ORDER DENYING MOTION TO DISMISS AND MOTION TO TRANSFER AND
SETTING DEADLINE TO RESPOND TO PLAINTIFFS’ COMPLAINT
Plaintiffs MRP Properties, et al., filed its complaint against Defendant United States of
America in this Court on April 13, 2017, under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA). Plaintiffs seek payment of response costs
arising from investigation and cleanup of contamination at Plaintiffs’ refineries, contending that
the United States exercised control over the refineries before and during World War II. Compl.,
ECF No. 1. Plaintiffs did not initially serve the Complaint on Defendant, but filed an Amended
Complaint on July 5, 2017, which was served on Defendant. Am. Compl, ECF No. 4.
Defendant filed the instant motion to dismiss all Plaintiffs other than MRP Properties as
improperly joined under Rule 20 or, in the alternative, to sever and transfer those Plaintiffs to a
proper venue. Mot. Dismiss, ECF No. 13; Fed. R. Civ. P. 20. On August 25, 2017, Defendant
filed a motion to stay their answer deadline until thirty days after the Court rules on the pending
motion to dismiss. ECF No. 14. The parties stipulated to extend the answer deadline from
September 5 to October 10, 2017. ECF No. 16. On October 6, 2017, the Court entered an order

staying Defendant’s answer deadline until seven days after the Court’s decision on the instant
motion to dismiss.
I.
Plaintiffs are six wholly owned subsidiaries or affiliates of the Valero Energy
Corporation. See Discl. Corp. Aff., ECF No. 5. Plaintiffs collectively own twelve refinery sites
(the Sites) located in Michigan, Oklahoma, Kansas, Tennessee, Illinois, Texas, and California.
With one exception, Plaintiffs did not own the refineries during WWII, but acquired the
refineries afterward. Id. Plaintiffs allege that before and during WWII, the Government
controlled the operations of the refining industry. Id. at 5. Pursuant to Executive Order 9276,
President Roosevelt established the Petroleum Administration for War (PAW), and vested PAW
with broad discretionary authority to carry out the national plans, policies, and objectives for the
petroleum industry. Id. at 7. The PAW divided the nation into districts, and implemented the
national policy at a regional and refinery level by orders and directives controlling operations
and refinery yields. Id. at 8. The executive order provides, in part:
“[t]here is established a Petroleum Administration for War, at the head of which
shall be a Petroleum Administrator who shall be directly responsible to the
President . . . The Administrator shall: a. Subject to the provisions of this order,
establish basic policies and formulate plans and programs to assure for the
prosecution of the war the conservation and most effective development and
utilization of petroleum in the United States and its territories and possessions,
issue necessary policy and operating directives to parties engaged in the
petroleum industry . . . c. (1) Obtain from the Departments of War and the Navy,
the Office of Lend-Lease Administration, the Department of State and the Board
of Economic Warfare, the several divisions and branches of the War Production
Board, and such other Federal departments and agencies as may be appropriate,
estimates of the amounts of petroleum which will be required from the United
States, its territories and possessions, to meet direct and indirect military, and
essential industrial and civilian, requirements; and compile and analyze such
estimates and submit them to the War Production Board with recommendations
for the allocation of petroleum to meet such requirements. (2) Prepare and
recommend to the War Production Board estimates of the quantities and kinds of
material needed by the petroleum industry to produce, refine, store, distribute
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(excluding transportation), or otherwise make available the amount of petroleum
recommended by the Administrator for allocation by the War Production Board.

Exec. Order No. 9276, 7 FR 100912 (1942).
Plaintiffs allege that PAW proceeded to operate the nation’s refineries by directing and
controlling, at the refinery level: “(i) the allocation—by time and amount—of crude oil and other
feed stocks . . .; (ii) the procurement priorities to obtain services, equipment and parts . . .; (iii)
the types and specifications of war-related products to be manufactured; (iv) the levels of
production for each of those products; (v) the price of the products and profits made; and (vi) to
whom the products would be sold within the Government-controlled supply chain.” Id. at 9.
Plaintiffs allege that by serving as the “de facto operator” of the refineries, and controlling the
inputs and outputs, the Government’s control “necessarily extended to the generation of waste
and its release into the environment.” Id. at 11.
Plaintiffs’ amended complaint further alleges that the Government’s control of all inputs
and outputs necessarily impacted the hazardous waste profile of their refineries. Plaintiffs also
contend that the Government specifically exercised control over the hazardous waste
management process itself by controlling approval of war-time construction projects, denying
approval for some projects “relating to pollution control that were deemed non-essential to the
war effort” while approving other projects. Id. at 10. The Government also “oversaw the amount
and type of wastes (i.e. ‘losses’) generated (and ultimately released)” and tracked production
statistics including production yields and losses. Id. at 15.
In sum, the Government did everything other than “manually turn the levers and valves.”
Id. at 9. Thus, Plaintiffs contend that the level of control exercised by PAW was “well beyond
the Government’s regulatory role,” and that the Government is appropriately responsible as an
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operator under CERCLA. Id. at 10. As such, Plaintiffs contend the Government must pay its
share of response costs that Plaintiffs have incurred and continue to incur to dispose of hazardous
waste arising from the Government’s operation of their refineries during the wartime period. Id.
at 15.
Plaintiffs’ first claim for relief seeks response cost recovery under CERCLA section
107(a), codified at 42 U.S.C. 9607(a). Plaintiffs assert a second claim for relief arising under
CERCLA section 113(g)(2), codified at 42 U.S.C. 9613(g)(2), and the declaratory judgment act,
28 U.S.C. 2201(a), seeking a declaratory determination binding the Defendant in subsequent
actions to pay response costs or damages.
II.
Defendant moves to dismiss all Plaintiffs other than MRP properties (MRP) as
improperly joined, and to dismiss the claims asserted by MRP that concern refineries outside of
Michigan. Mot. at 1, ECF No. 13. If Defendant’s requested relief is granted, the only claims
remaining would be MRP’s claims concerning the Leonard Alma, Mid-West Alma, and
Roosevelt Mount Pleasant refineries, all of which are located in the Eastern District of Michigan.
In the alternative, Defendant moves to sever all other parties and claims and transfer them to the
districts where the refineries are located. Id.
A.
Defendant argues that Plaintiffs are improperly joined under Rule 20(a)(1). Fed. R. Civ.
P. 20(a)(1)(A). Defendant asserts that Plaintiffs’ claims do not arise out of the same transaction,
occurrence, or series of transactions or occurrences, nor do they present “predominantly the same
question of law or fact.” Def. Br. at 13. Defendant notes that no refinery is owned by a common
subsidiary or affiliate, and that there is a “different factual bases underlying each claim” that will

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require “substantial site-specific discovery relating to each refinery.” Id. at 2. Defendant
contends that
the allegations of the Amended Complaint described refineries that produced a
different mix of products, received different production orders from the relevant
government agencies . . . were in operation for different lengths of time, were
owned or operated by a different combination of entities both during and after
World War II, and may have experienced differing levels of hazardous substance
releases both during and after World War II.
Id. at 10. Defendant underscores a number of other variations between refineries. Each
refinery may have had other previous owners or operators who contributed to hazardous waste
generation and disposal and could be liable as third party defendants for contribution under
section 113(f) of CERCLA, 42 U.S.C. 9613(f)(1). Defendant also highlights a number of site
specific details necessary to sustain each Plaintiff’s burden of proof under CERCLA to establish
recoverable response costs. These include the care exercised in the operation of the refinery,
activities undertaken by Plaintiffs to address waste, the necessity of the cleanup costs incurred,
their compliance with the National Contingency Plan, and the adequacy of documentation
surrounding these costs. Id. at 12 (citing United States v. R.W. Meyer, Inc., 932 F.2d 568, 571
(6th Cir. 1991)).
Defendant argues that, even if joinder is proper under Rule 20, fairness and practicality
strongly favor a transfer of venue to the districts in which each refinery is located. Defendant
believes the balance of factors outlined in Overland favor a transfer of venue. Id. at 18 (citing
Overland, Inc. v. Taylor, 79 F. Supp. 2d 809, 811 (E.D. Mich. 2000)).
B.
Plaintiffs respond that they are properly joined under Rule 20, as their claims present
common issues of fact or law and arise from the same series of transactions and occurrences. Pl.
Br., ECF no. 20. “Each site presents common issues of fact relating to Government control and
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involvement at the refineries and common issues of law relating to the proper standard for the
Government’s liability as an operator of the refineries.” Id. at 2.
Plaintiffs contend their claims arise from the same series of transactions or occurrences,
because they arise from the same “highly coordinated national policy of control over the entire
refinery industry” that was carried out “in a common, core manner, by controlling and directing,
among other things, what was produced, how much was produced, to whom products were sold
and at what price.” Id. at 3, 6, 9. Plaintiffs acknowledge the need for site-specific discovery in
this case, including specific cleanup costs. Id. at 3. Nevertheless, Plaintiffs assert this does not
render joinder improper, and intends to address refinery specific factual issues with common
company representatives and experts. Id. at 3–4.
Plaintiffs also oppose severance and transfer under 28 U.S.C. § 1404(a), and contend that
fairness and practicality counsel in favor of permitting their claims to proceed in their chosen
forum. Id. at 13. They argue that Defendant cannot meet its “heavy burden” as the moving party
to “show that the balance of factors weighs strongly in favor of transfer.” Id. (citing Sullivan v.
Tribley, 602 F.Supp.2d 795, 799 (E.D. Mich. 2009); Steelcase, Inc. v. Smart Technologies, Inc.,
336 F.Supp.2d 714, 719 (W.D. Mich. 2004)).
III.
A.
Federal Rule of Civil Procedure 20 provides that persons “may be joined in one action as
plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P.
20(a)(1). Thus, to join plaintiffs in a single action the two independent requirements of Rule 20

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must be met: (1) their claims must be asserted “with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences,” and (2) there must be a
“question of law or fact common to all plaintiffs.” Fed. R. Civ. P. 20(a)(1).
The “transaction-or-occurrence” test of Rule 20(a) “is similar to the transaction-oroccurrence test of Rule 13(a) for compulsory counterclaims, which has been construed as
requiring a ‘logical relationship’ between the claims.” In re EMC Corp., 677 F.3d at 1357–58
(quoting Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610 (1926)). The “logical relationship” test,
in turn, “is satisfied if there is substantial evidentiary overlap in the facts giving rise to the cause
of action . . .” Id. Courts have applied the “logical relationship” test when interpreting the “same
transaction or occurrence” standard not only under Rule 20(a)(2) for joinder of defendants and
Rule 13(a) for compulsory counter claims, but also to joinder of plaintiffs under Rule 20(a)(1).
See, e.g., Mosley v. Gen. Motors Corp., 497 F.2d 1330 (8th Cir. 1974) (“rule 20 would permit all
reasonable related claims for relief by or against different parties to be tried in a single
proceeding”).
Doubts are to be resolved in favor of joinder. See United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 724 (1966). That is, “Under the Rules, the impulse is toward entertaining the
broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties
and remedies is strongly encouraged.” Id.; see also LASA Per L’Industria Del Marmo Societa
Per Azioni of Lasa, Italy v. Alexander, 414 F.2d 143, 147 (6th Cir. 1969) (“The words
‘transaction or occurrence’ are given a broad and liberal interpretation.”). “Rule 20 clearly
contemplates joinder of claims arising from a ‘series of transactions or occurrences’ — a single
transaction is not required.” In re EMC Corp., 677 F.3d at 1356 (quoting Fed. R. Civ. P. 20(a)).

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B.
Venue is in the judicial district where either all defendants reside or where the claim
arose. Al-Muhaymin v. Jones, 895 F. 2d 1147, 1148 (6th Cir. 1990); 28 U.S.C. § 1391(b).
CERCLA provides that “[v]enue shall lie in any district in which the release or damages
occurred, or in which the defendant resides, may be found, or has his principal office.” 42 U.S.C.
§ 9613(b). For the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where the action might have been
brought. See United States v. P.J. Dick, Inc., 79 F. Supp. 2d 803, 805-06 (E.D. Mich. 2000); 28
U.S.C. § 1404(a).
In deciding a motion to transfer venue, it must be determined whether the action could
have been brought in the proposed transferee district or division, whether a transfer would
promote the interests of justice, and whether a transfer would serve the parties’ and witnesses’
convenience. P.J. Dick, Inc., 79 F. Supp. 2d at 806; Perceptron, Inc. v. Silicon Video, Inc., 423 F.
Supp. 2d 722, 728-29 (E.D. Mich. 2006). The factors that guide a district court’s discretion in
deciding whether to transfer a case include: (1) the convenience of the witnesses; (2) the location
of relevant documents and the relative ease of access to sources of proof; (3) the convenience of
the parties; (4) the locus of the operative facts; (5) the availability of process to compel the
attendance of unwilling witnesses; (6) the relative means of the parties; (7) the forum’s
familiarity with governing law; (8) the weight accorded the plaintiff’s choice of forum; and (9)
trial efficiency and interests of justice, based upon the totality of the circumstances. Overland,
Inc. v. Taylor, 79 F. Supp. 2d 809, 811 (E.D. Mich. 2000).

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Section 1404(a), the Supreme Court explains, “is intended to place discretion in the
district court to adjudicate motions for transfer according to an individualized, case-by-case
consideration of convenience and fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)
(quotation marks omitted) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
A district court possesses broad discretion in deciding whether to transfer venue,
and the party seeking a transfer under § 1404(a) bears the burden of
demonstrating by a preponderance of the evidence that transfer to another district
is warranted. To that end the court may examine facts outside the complaint, but
must draw all reasonable inferences and resolve factual conflicts in favor of the
plaintiff.
United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 677 F. Supp. 2d 987, 991
(W.D. Tenn. 2010).
IV.
A.
As an initial matter, it is important to note that the definition of “operator” under CERLA
is a central legal question in this case. The term is not specifically defined in the statute,
however. Rather, the statute provides a circular definition: “any person . . . operating a facility.”
United States v. Bestfoods, 524 U.S. 51, 56 (1998) (quoting § 9601(20)(A)(ii)). Courts have not
defined the term uniformly.
The “indicia of control” test was applied by the Third Circuit Court of Appeals in FMC
Corp. v. U.S. Dep’t of Commerce. 29 F. 3d 833, 843. The Third Circuit determined that the
government controlled the “product the facility would produce, the level of production, the price
of the product, and to whom the product would be sold,” and therefore exercised “substantial
control” over plaintiff’s production facility so as to subject the government to operator liability.
Id.

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In Bestfoods, however, the Supreme Court rejected the “participation-and-control” test
for determining direct liability of a parent company as an operator of a facility owned by its
subsidiary. United States v. Bestfoods, 524 U.S. 51, 70, (1998). The Court stated that, under
CERCLA:
An operator is simply someone who directs the workings of, manages, or
conducts the affairs of a facility. To sharpen the definition for purposes of
CERCLA’s concern with environmental contamination, an operator must manage,
direct, or conduct operations specifically related to pollution, that is, operations
having to do with the leakage or disposal of hazardous waste, or decisions about
compliance with environmental regulations.
Id. at 66–67.
Later that same year, in an unrelated case, the Sixth Circuit Court of Appeals decided
Brighton Township vacating the district court’s ruling that Brighton Township was liable as an
operator of the facility and remanding for further proceedings. United States v. Twp. of Brighton,
153 F.3d 307, 314 (6th Cir. 1998). The Sixth Circuit found FMC instructive, and determined that
“mere regulation does not suffice to render a government entity liable, but actual operation (or
“macromanagement”) does.” Id. at 316. One panel member concurred in result, but articulated a
separate standard for operator liability, because the majority opinion “fail[ed] to define this
standard clearly so as to provide the lower courts with direct guidance as to when a governmental
entity engages in regulatory activities extensive enough to make it an operator of the facilities in
question.” Id. at 325 (Moore, J., concurring in result). Another panel member dissented in part
and concurred in result, noting disagreement with his colleagues “that a governmental entity
should be held to a lower threshold level of control which would give rise to liability. Instead, I
find that Bestfoods’ standard should be applied to both corporate form and governmental entities
situations.” Id. at 332 (Dowd, J., dissenting in part and concurring in result).

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More recently, an opinion from the Southern District of Texas was released holding that
the United States was not an operator of the plaintiff’s oil refineries under CERCLA. Exxon
Mobil Corp. v. United States, 108 F. Supp. 3d 486 (S.D. Tex. 2015). The court interpreted the
standard promulgated in Brighton as inconsistent with Bestfoods: “The distinction that opinion
drew between the government-entity and private-entity cases, applying the “regulation” versus
“macromanagement” test only when a government entity is involved is not consistent with
Bestfoods.” Id. at 422. The court surveyed decisions from other circuits which “have recognized
that FMC’s test is unhelpful after Bestfoods.” Id. at 521. Additionally, in Lockheed Martin, the
court observed that “FMC’s ‘substantial control’ test . . . is in tension with Bestfood’s focus on a
party’s particularized control over hazardous waste disposal processes” but declined to opine as
to whether FMC remains good law. Lockheed Martin Corp. v. United States, 35 F. Supp. 3d 92,
149 (D.D.C. 2014), aff’d, 833 F.3d 225 (D.C. Cir. 2016).
It is in the context of this substantive law that we must address the propriety of party
joinder. Because the parties view the scope of operator liability differently, they have different
views regarding the propriety of joinder. Consistent with Defendant’s narrow view of operator
liability, Defendant has a narrow view of the facts relevant to the joinder inquiry, namely facts
demonstrating particularized government control over hazardous waste disposal at each refinery.
Defendant likewise has a narrow view of how to define the “series of transactions or
occurrences” giving rise to Plaintiffs’ claims. Defendant contends any national policy of control
is irrelevant except for how implementation of the policy resulted in control over waste disposal.
Plaintiffs, by contrast, have a broader view of the common factual predicates, and the scope of
the “series of transactions or occurrences.”

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It bears repeating, however, that the specific task at hand is to decide the propriety of
party joinder under Rule 20. To that end, it is necessary to “entertain the broadest possible scope
of action consistent with fairness to the parties.” Gibbs, 383 U.S. at 724; LASA, 414 F.2d at 147.
The only facts before the Court at this stage of the case are those alleged in the amended
complaint. The task at hand is not to resolve the merits of the underlying claims, or analyze the
sufficiency of the allegations in the amended complaint.
i)
Plaintiffs’ claims arise out of the same series of transactions or occurrences. The
amended complaint asserts that the United States is liable as an operator under CERCLA for
hazardous waste response costs stemming from the Government’s control of Plaintiffs’ refineries
during WWII. Am. Compl. at 11. The amended complaint alleges a common factual predicate
giving rise to Defendant’s liability. Plaintiffs allege that PAW operated the nation’s refineries by
directing and controlling, at the refinery level: “(i) the allocation—by time and amount—of
crude oil and other feed stocks . . .; (ii) the procurement priorities to obtain services, equipment
and parts . . .; (iii) the types and specifications of war-related products to be manufactured; (iv)
the levels of production for each of those products; (v) the price of the products and profits
made; and (vi) to whom the products would be sold within the Government-controlled supply
chain.” Id. at 9.
Defendant argues that Plaintiffs’ allegation of a “systematic, nationwide plan and policy
of refinery control during the relevant wartime period” is insufficient, on its own, to satisfy the
permissive joinder standard of Rule 20. Reply. at 1. Defendant contends the existence of such a
nationwide plan is irrelevant for the purposes of establishing operator liability under CERCLA,
which turns on “whether a party manage[d], direct[ed], or conduct[ed] operations specifically

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related to pollution.” Reply. at 1 (citing United States v. Bestfoods, 524 U.S. 51, 66-67 (1998);
United States v. Twp. of Brighton, 153 F.3d 307, 316 & n.11 (6th Cir. 1998) (“[T]he dispositive
question . . . [i]s whether the government entity was running the facility or merely regulating it,”
because “mere regulation does not suffice to render a government entity liable.”)). Thus, the
nationwide policy is only relevant to the extent the implementation of the policy at each refinery
gave rise to response costs attributable to alleged Government operation of those refineries.
However, the nationwide policy is not the sole factual predicate common to Plaintiffs’
claims. Rather, the amended complaint alleges that the Government controlled all inputs,
outputs, and “day-to-day” operations of each refinery, thereby serving as the “de facto” operator
of the refineries. Am. Compl. at 11. Thus, Plaintiffs contend the “Government’s control
necessarily extended to the generation of waste and its release into the environment.” Id.
Defendant also underscores a number of site-specific details that differ across refineries:
the allegations of the Amended Complaint described refineries that produced a
different mix of products, received different production orders from the relevant
government agencies . . . were in operation for different lengths of time, were
owned or operated by a different combination of entities both during and after
World War II, and may have experienced differing levels of hazardous substance
releases both during and after World War II.
Id. at 10.
Nevertheless, Rule 20(a)(1)(A) does not require an “absolute identity of all events.” Mosley v.
Gen. Motors Corp., 497 F.2d at 1333 (8th Cir. 1974). Rather, a “substantial evidentiary overlap
in the facts giving rise to the cause of action” is sufficient. In re EMC Corp., 677 F.3d at 1357–
58.
(ii)
Plaintiffs also satisfy prong two of Rule 20(a)(1), as a “question of law or fact common to
all plaintiffs will arise in the action.” Notably, the only facts in the record at this point are those
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alleged in the amended complaint. Furthermore, it is not the Court’s task at this stage to define
the operative legal standard or express an opinion regarding what facts may be dispositive. At
this stage in the development of the case, it is apparent that at least the following common
questions of fact and law will arise: the proper legal standard for assessing the Federal
Government’s liability as an operator; whether the conduct undertaken by the PAW or related
entities during the wartime period pursuant to executive order 9276 is in fact sufficient to
establish the Government’s liability as an operator. Defendant does not contend that no question
of law or fact common to all Plaintiffs will arise in this action. Rather, Defendant contends that
Plaintiffs’ claims do not present “predominantly the same question of law or fact.” Def. Br. at 13.
However, Rule 20(a)(1)(B) is satisfied if “any question of law or fact common to all plaintiffs
will arise in the action.” (emphasis added).
Thus, Plaintiffs are properly joined under the Rule 20 standard for permissive joinder of
parties. Defendant also seeks to “dismiss the portion of MRP’s claims relating to refineries
outside the Eastern District of Michigan” on the basis that those claims are misjoined. However,
Defendant does not identify a basis for dismissal of those claims other than Rule 20, which
applies only to permissive joinder of parties. Rule 18, on the other hand, governs joinder of
claims. It contains none of the requirements of Rule 20, and provides that “a party asserting a
claim . . . may join, as independent or alternative claims, as many claims as it has against an
opposing party.” Fed. R. Civ. P. 18(a). Thus, MRP’s claims are properly joined.
B.
For the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where the action might have been
brought. See United States v. P.J. Dick, Inc., 79 F. Supp. 2d 803, 805-06 (E.D. Mich. 2000); 28

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U.S.C. § 1404(a). The proposed transferee districts are proper venues, as Defendant proposes to
sever and transfer claims to the specific district where each refinery is located. See 42 U.S.C. §
9613(b); Perceptron, 423 F. Supp. 2d at 728–29; 28 U.S.C. § 1404(a). However, Defendant has
not met its burden to establish that fairness and practicality “strongly favor the forum to which
transfer is sought” in light of the nine factors set forth in Overland. See Thomas, 131 F. Supp. 2d
at 936; Overland, 79 F. Supp. at 811.
A word of caution is again in order here before addressing the Overland factors.
Plaintiffs’ amended complaint provides the sole introduction the Court has had to the facts of this
case. The Court’s perspective regarding venue transfer could change as the case develops further.
(i)
The convenience of the witnesses is one of the most important factors in deciding
whether a motion to transfer under 29 U.S.C. § 1404(a) should be granted. Thomas, 131 F. Supp.
2d at 937. A party seeking to transfer a case should specify the key witnesses and the nature of
their testimony. New World Systems Corp. v. Jones, 2009 WL 996954, *6 (E.D. Mich. 2009).
“[W]ithout a specific list of witnesses’ names and an outline of what material testimony the
witnesses would provide, this Court cannot properly assess the convenience of the witnesses.” Id.
at *6.
Defendant “anticipates that witnesses in this case are likely to include persons who
worked or now work at each refinery and would know about plant waste handling and disposal
practices during the relevant time periods.” Def. Br. at 20. However, Defendant does not identify
any witnesses. Furthermore, “[I]t is the convenience of non-party witnesses, rather than
employee witnesses . . . that is accorded greater weight.” Steelcase, Inc. v. Smart Technologies,
Inc., 336 F. Supp. 2d 714, 721 (W.D. Mich. 2004). This conclusion makes sense because “each

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party is obligated to procure the attendance of its own employees for trial.” American Env.
Services, Inc. v. Metalworking Lubricants Co., 634 F. Supp. 2d 568,576 (W.D. Penn. 2009).
Defendant identifies some hypothetical non-party witnesses which may include state regulatory
employees and retired refinery workers.
Plaintiffs, on the other hand, have identified specific witnesses, including a non-party
expert witness A.J. Gravel of FTI Consulting’s Environmental Solutions practice. Pl. Br. at 16.
Mr. Gravel’s affidavit details the scope of his likely testimony and research he and his firm have
already conducted regarding the Government’s operation of refineries during WWII. Id. Ex. B
(Gravel Aff.). Mr. Gravel believes it would be “far more efficient, practical, and convenient for
me to testify in one court case.” Id. at 6.
In light of the limited information provided regarding the convenience of witnesses, this
factor does not weigh in favor of a transfer of venue.
(ii)
The locations of the documents and the relative ease of the access to sources of proof do
not weigh in favor of a transfer of venue. Defendant expects that most documents concerning
refinery operations and cleanup costs “will be located at the respective refineries, at Plaintiffs’
corporate offices, or in the offices of the state regulators overseeing cleanup efforts.” Def. Br. at
19. Plaintiffs, on the other hand, suggest that “evidence and sources of proof are available in a
central filing system in San Antonio” at their corporate headquarters. Id. at 18–19. In any case,
“the location of documentary evidence is a minor consideration.” United States v. Cinemark
USA, Inc., 66 F. Supp. 2d 881, 890 (N.D. Ohio 1999). The “technological advances of recent
years have significantly reduced the weight of this factor [i.e., the location of documents] in the
balance of convenience analysis.” American Env. Services, 634 F. Supp. 2d at 576; see also

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Grand Kensington, LLC v. Burger King Corp., 81 F. Supp. 2d 834, 837 (E.D. Mich. 2000)
(“Given the conveniences of today’s world, the Court finds that the bringing of various
documents to this district is not burdensome, let alone something that would tip the scales in
favor of transferring the matter . . . .”).
As a result, “this factor should thus be limited to the extent that the files could not be
produced in the alternative forum.” American Env. Services, 634 F. Supp. 2d at 576 (citing
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)). Plaintiffs note that “the bulk of
the evidence and available historical records are currently hosted electronically and available in
any form.” Pl. Br. at 18. Thus, this factor does not weigh in favor of a transfer of venue.
(iii)
The convenience of the parties does not weigh in favor of a transfer of venue. Defendant
does not explain why it would be inconvenient for it to defend the case in this forum. Rather,
Defendant speculates that “it would seem less convenient for the non-MRP plaintiffs to litigate
their claims in this forum.” Def. Br. at 21 (emphasis in original). Plaintiffs disagree. Without
more information, this factor does not weigh in favor of a transfer of venue.
(iv)
The locus of operative facts weighs in favor of a transfer. The locus of operative facts
with respect to each refinery is the district where it is located. All relevant facts occurred at each
refinery where the alleged acts or omissions giving rise to liability took place. Thus, this factor
weighs in favor of a transfer.
(v)
The ability of process to compel attendance of witnesses does not weigh in favor of
transfer. “[I]t is the convenience of non-party witnesses, rather than employee witnesses . . . that

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is accorded greater weight.” Steelcase, Inc. v. Smart Technologies, Inc., 336 F. Supp. 2d 714,
721 (W.D. Mich. 2004). This conclusion makes sense because “each party is obligated to procure
the attendance of its own employees for trial.” American Env. Services, 634 F. Supp. 2d at 576.
Non-party witnesses in this case may be beyond the Court’s subpoena power under Rule 45(c).
However, Defendant does not specify any non-party witnesses, but merely suggests such
witnesses may include state regulatory employees and retired refinery workers. Def. Br. at 20.
Thus, Defendant has not met its burden to establish that this factor weighs in favor of transfer.
(vi)
The relative means of the parties to litigate in other forums does not weigh significantly
in either direction. The United States has substantial resources in every district. While this may
not be equally true of Plaintiffs, their resources are likely substantial as well. Thus, this factor
does not weigh in favor of transfer.
(vii)
As both parties acknowledge, the forum’s familiarity with governing law does not affect
the analysis, as the governing law (CERCLA) is a federal statute and all proposed transferee
courts are equally familiar with federal law.
(viii)
When analyzing a transfer of venue issue under 28 U.S.C. § 1404(a), there is a strong
presumption in favor of a plaintiff’s choice of forum, which may be overcome only when the
private and public interest factors clearly point toward trial in the alternative forum. See Nicol v.
Koscinski, 188 F.2d 537,537 (6th Cir. 1951) (“Unless the balance is strongly in favor of the
defendant, a plaintiff’s choice of forum should rarely be disturbed.”).

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A plaintiff’s choice of forum is entitled to less weight where a plaintiff has little or no
connection to the chosen forum. Audi AG v. D’Amato, 341 F. Supp. 2d 734, 749–50 (E.D. Mich.
2004). On balance, this factor is neutral here. The Eastern District of Michigan is where three
refineries are located, more than any proposed transferee district. However, this case concerns
nine other refineries with little to no identified connection to the present forum.
Defendant has not pointed to private and public interest factors that clearly point toward
trial in the alternative forum.” See Nicol v. Koscinski, 188 F.2d 537,537 (6th Cir. 1951).
Defendant asserts that the proposed transferee forums each have a strong interest in adjudicating
claims that “concern cleanup of local contamination” and notes that courts routinely transfer
CERCLA cases to the place where the contamination is located. Def. Br. at 21. However, it is not
clear that “cleanup of local contamination” is as prevalent of a concern here. To a large extent,
the cleanup has already occurred. The more central issue in this case is whether the United States
is liable as an operator and therefore obligated to contribute payment for the cleanup. It is not
apparent that the proposed transferee districts have a stronger interest in adjudicating that
question. Furthermore, adjudication in one forum militates against the risk of inconsistent
judgments.
(ix)
Trial efficiency and the interests of justice do not weigh in favor of a transfer. Defendant
asserts that the relevant discovery in this case “is so site specific, it is unlikely that there are
meaningful efficiencies to be gained by a trial of all Plaintiffs’ claims before one court in a single
action.” Id. at 22. However, there are clearly common questions of law and fact to be decided, as
explained in section IV.A.(ii) above. Adjudication in one forum facilitates efficient and
consistent resolution of those common questions.

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Defendant has not carried its burden to establish that fairness and practicality “strongly
favor the forum to which transfer is sought” in light of the nine factors set forth in Overland. See
Thomas, 131 F. Supp. 2d at 936; Overland, 79 F. Supp. at 811. Defendant has not furnished
information regarding non-party witness convenience or party convenience that would warrant a
transfer. Plaintiffs, by contrast, have identified a non-party witness whose affidavit sets forth
why a transfer would greatly sacrifice efficiency and convenience.
The locus of operative facts is the site of each refinery, and this case will undoubtedly
involve substantial site specific discovery. However, this is not a sufficient reason to transfer the
case. Plaintiffs indicate that records are maintained in a central filing system at its corporate
headquarters. Furthermore, there is no reason to believe that the bulk of relevant discovery
cannot be produced electronically.
VI.
Accordingly, it is ORDERED that Defendant’s “motion to dismiss misjoined plaintiffs
and claims or, in the alternative, to sever and transfer claims,” ECF No. 13, is DENIED.
Pursuant to the Court’s October 5, 2017, order staying Defendant’s answer deadline
pending resolution of the instant motion, Defendant is ORDERED to respond to Plaintiffs’
amended complaint within seven (7) days of the entry of this order.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: November 28, 2017

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on November 28, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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