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

Filing 42

ORDER Granting 38 Motion to Amend. (Amended Complaint due by 7/18/2018. ) Signed by District Judge Thomas L. Ludington. (KWin)

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

Case No. 17-cv-11174

v.

Honorable Thomas L. Ludington

UNITED STATES OF AMERICA,
Defendant.
__________________________________________/
ORDER GRANTING MOTION TO AMEND
On April 4, 2018, the Court entered an order granting Defendant’s motion to dismiss and
dismissing the complaint without prejudice because Plaintiffs failed to plead that they incurred
response costs that were necessary and consistent with the National Contingency Plan (NCP).
Order at 29–34, ECF No. 37. Plaintiffs have now moved to amend their complaint. ECF No. 38.
On June 15, 2018, Defendant filed a response in opposition to the motion to amend. ECF No. 40.
Plaintiffs replied on June 22, 2018. ECF No. 41.
I.
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleading
with the court’s leave and that “the court should freely give leave when justice so requires.”
Denial of a motion to amend is appropriate, however, “‘where there is ‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.’” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir.
2002) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

An amendment would be futile if the amended complaint does not state a claim upon
which relief can be granted. Midkiff v. Adams Cty. Reg’l Water Dist., 409 F.3d 758, 767 (6th Cir.
2005). A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that
support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the nonmovant’s favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517
F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed factual allegations” to
survive dismissal, but the “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the
pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” and “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678–79
(quotations and citation omitted).
II.
The issues raised by the current briefing are rather narrow. Defendant has not provided a
particularly robust opposition to Plaintiffs’ motion. Indeed, Defendant’s response contains 7
pages of briefing (2 of which consist of a block quote and a lengthy footnote), and is largely
devoid of legal citations. Defendant argues that amendment would be futile because Plaintiffs
have failed to cure the deficiencies identified in the Court’s April 4 Order. Resp. at 2, ECF No.
40. Defendant does not appear to contest whether the proposed amended complaint sufficiently
alleges the necessity of response costs or their consistency with the NCP. Rather, Defendant

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contends that the proposed amended complaint fails to allege that Plaintiffs themselves were the
ones who incurred those response costs:
A key element of a CERCLA cost-recovery claim is that the plaintiff has incurred
costs that are necessary and consistent with the NCP; merely pleading that costs
have been incurred by an unnamed entity is not sufficient. Inexplicably, the
additional paragraphs detailing alleged prior remediation efforts at each site do
not include a single allegation that any Plaintiff was the actual party that
performed the alleged CERCLA-related cleanup activities, and thus incurred costs
while undertaking those activities, at any of the sites.
Id. at 3. In short, whereas Defendant’s motion to dismiss focused on cost necessity and
consistency with the NCP, Defendant’s current argument focuses on who has incurred the costs
in question.
Plaintiffs identify a number of allegations from the proposed amended complaint which
attribute the responses costs to the Plaintiffs’ efforts at the refineries, or the efforts of their
predecessors in interest. For example, the proposed amended complaint alleges that “Valero
Companies are addressing contamination and incurring environmental response costs,” “the
Valero Companies have incurred and will continue to incur response costs consistent with the
National Contingency Plan (“NCP”) and investigation and monitoring costs to which the NCP
does not apply.” Proposed Am. Compl. ¶ 2, 29.
Defendant correctly points out that the Court previously found that these “bare
assertion[s]” were insufficient to state a claim that the costs incurred were necessary and
consistent with the NCP. ECF No. 37 at 29-33. However, Defendant no longer appears to
challenge the necessity of the costs incurred or their consistency with the NCP. Rather,
Defendant contends that the proposed amended complaint does not sufficiently allege that
Plaintiffs incurred the costs in question. The global allegations highlighted above, in conjunction
with the refinery-specific information concerning what remediation and investigation efforts

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were undertaken, are more than sufficient to put Defendant on notice that Plaintiffs incurred the
response costs in question. To the extent Defendant will seek to defend against Plaintiffs’ claims
on the grounds that neither Plaintiffs nor their predecessors in interest incurred the response costs
in question, there is no reason why that defense cannot be developed during discovery.
III.
Accordingly, it is ORDERED that Plaintiffs’ motion to amend, ECF No. 38, is
GRANTED.
It is further ORDERED that Plaintiffs are DIRECTED to file their amended complaint
by July 18, 2018.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 10, 2018

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 July 10, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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