Soo Line Railroad Company v. Werner Enterprises
Filing
74
ORDER denying 55 Motion to Alter/Amend/Supplement Pleadings (Written Opinion). Signed by Magistrate Judge Janie S. Mayeron on 6/4/13. (kt)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SOO LINE RAILROAD CO.,
A Minnesota Corporation d/b/a
CANADIAN PACIFIC RAILWAY,
CIV. NO. 12-1089 (DSD/JSM)
ORDER
Plaintiff,
v.
WERNER ENTERPRISES,
Defendant.
The above matter came before the undersigned on Plaintiff’s Motion for Leave to
Amend Complaint [Docket No. 55]. Timothy R. Thornton, Esq. and Matthew R. Brodin,
Esq. appeared on plaintiff’s behalf. Anthony J. Novak, Esq. and David Linder, Esq.
appeared on Defendant’s behalf.
The Court, being duly advised in the premises, upon all the files, records and
proceedings herein, and for the reasons described in the memorandum below, now
makes and enters the following Order.
IT IS HEREBY ORDERED that
Defendant’s Motion for Leave to Amend Complaint [Docket No. 55] is DENIED.
Dated: June 4, 2013
Janie S. Mayeron
JANIE S. MAYERON
United States Magistrate Judge
MEMORANDUM
I.
FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arose out of a collision between a truck owned by defendant Werner
Enterprises (“Werner”) and driven by its employee, Dale Buzzell, and a train operated
by plaintiff Soo Line Railroad Company, d/b/a Canadian Pacific Railway (“CP”). The
facts as alleged in the Amended Complaint are as follows. On March 31, 2012, Buzzell
drove a Werner-owned commercial truck north on U.S. Highway 59.
Amended
Complaint, ¶11 [Docket No. 32]. At approximately 3:20 a.m., Buzzell approached CP’s
tracks near Plummer, Minnesota. The crossing was protected with stop lines, railroad
crossing symbols, cross bucks and active signals. Id., ¶12. Before Buzzell reached the
tracks, two CP locomotives cleared the tracks. Id., ¶13. The train was comprised of
116 mixed freight railcars. Id. Buzzell crashed his truck into the tenth car in the train
and the force of the collision derailed several rail cars.
Id., ¶¶14, 15.
As a
consequence, one of the cars, a tanker car, was punctured and spilled thirty thousand
gallons of aromatic concentrate, a hazardous liquid, onto the ground. Id., ¶15. Buzzell
died at the scene. Id., ¶16. CP directed and paid for the emergency response and
remediation efforts. Id., ¶¶17-23. CP hired environmental experts and coordinated a
cleanup plan with the Minnesota Pollution Control Agency (“MPCA”). Id., ¶¶19, 20.
According to CP, “Werner did no more than send a claims adjuster with no authority to
the scene.” Id., ¶18. CP sought reimbursement for the cleanup from Werner, but
Werner “spurned” CP’s demand for reimbursement. Id., ¶25.
CP sued Werner on May 3, 2012, alleging that Werner is liable for CP’s cleanup
costs based on theories of respondeat superior, vicarious liability and negligence.
2
Complaint, ¶¶26-41 [Docket No. 1]. On July 5, 2012, this Court issued the Pretrial
Scheduling Order, which set August 1, 2012, as the deadline for filing any motions to
amend the pleadings. [Docket No. 12]. On July 13, 2012, CP moved for summary
judgment. [Docket No. 13]. On August 1, 2012, before filing its memorandum of law in
support of its motion for summary judgment, CP moved for leave to amend its
Complaint to add claims for nuisance and trespass. [Docket Nos. 16, 18]. On August
14, 2012, the day before this Court acted on CP’s motion to amend its Complaint, 1 CP
filed its memorandum in support of summary judgment.
[Docket No. 23].
In this
memorandum, CP contended that there were no genuine issues of material fact
regarding Werner’s vicarious liability for the accident and that as Buzzell’s employer,
Werner was liable for damages pursuant to Minn. Stat. §169.09, subd. 5a, which
provides that an owner of a vehicle who consents to another’s operation of that vehicle,
is liable in the case of an accident. CP’s Memorandum of Law in Support of Summary
Judgment (“CP Sum. J. Mem.”), pp. 6-8 [Docket No. 23]. CP also argued that based on
the doctrine of respondeat superior, Werner was liable for Buzzell’s conduct as a matter
of law where Buzzell was negligent per se pursuant to Minn. Stat. §169.96, because in
violation of Minn. Stat. § 169.26, he failed to yield to the CP train, which had the right of
way. Id., pp. 8-13. Further, CP submitted that Werner was liable as matter of law for
creating a public and private nuisance pursuant to Minn. Stat. §561.01, based on
Buzzell’s violation of the right-of-way law when he crashed into CP’s train and caused
among other damages, “the release of 30,000 gallons of aromatic concentrate into the
environment and onto CP’s right-of-way.”
1
Id., pp. 13-17.
In a footnote, CP
The motion to amend the Complaint was submitted on the papers.
3
acknowledged that it had filed a motion to add claims for nuisance and trespass and
stated that no discovery was needed to establish Werner’s liability for nuisance. Id., p.
13, n. 2.
On August 15, 2012, this Court granted CP’s motion for leave to amend its
Complaint and CP filed its first Amended Complaint (“FAC”) the next day. [Docket Nos.
31, 32]. The FAC alleged six causes of action: (1) respondeat superior; (2) vicarious
liability; (3) negligence by Werner; (4) declaratory judgment for contribution or
indemnification (5) nuisance; and (6) trespass.
FAC, ¶¶26-51.
After quoting the
Minnesota statute on nuisance, Minn. Stat. §561.01 (“Anything which is injurious to
health, or indecent or offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life or property, is a
nuisance”), Werner alleged that Werner’s and Buzzell’s wrongful conduct created a
nuisance on CP’s property and right-of-way. Id., ¶¶ 45, 46. As for its trespass claim,
CP alleged that Werner’s truck trespassed onto CP’s property and right-of-way. Id.,
¶53.
Werner answered the FAC, generally denying CP’s allegations and asserting
among other affirmative defenses that CP’s claims may be barred the emergency or
unavoidable accident doctrines. Answer to Amended Complaint, Affirmative Defenses,
¶5 [Docket No. 34].
In opposition to CP’s summary judgment motion, Werner asserted that the
motion was premature as no discovery had been conducted, and that discovery of “why”
Werner’s truck collided with CP’s train was highly material to defense to CP’s claims in
the suit, including respondeat superior, vicarious liability and nuisance. Defendant’s
4
Opposition to Plaintiff’s Motion for Summary Judgment, pp. 1-14 [Docket No. 35].
According to Werner, under the doctrine of respondeat superior, Werner is only liable if
its Buzzell is liable, and “[w]here the facts excuse [his] actions, then Werner has no
liability, vicarious or otherwise.” Id., pp. 7, 10-12. Similarly, Werner can only be liable
for nuisance if Buzzell’s acts were wrongful. Id., pp. 13-14. Werner represented that it
“reasonably believes discovery will reveal that the driver suffered a cardiac incident or
some sort of unexpected medical condition, causing him to lose control of the truck and
crash into the train.” Id., p. 2.
In reply, CP submitted that intent and negligence have no bearing on its
statutory, nuisance and trespass claims, and that all it needed to prove was that
Werner’s truck wrongfully intruded upon CP’s property and caused damages. Plaintiff’s
Reply Memorandum in Support of Summary Judgment, p. 1 [Docket No. 37]. In other
words, neither Buzzell’s intent nor negligence (or “why” he caused the collision) was a
prerequisite to a finding of liability under theories of respondeat superior, vicarious
liability and Minn. Stat. §561.01 (nuisance) liability; rather it was “Buzzell’s wrongful
conduct renders [that] him and his principal liable in both nuisance and trespass.” Id.
pp. 1, 3-4, 6.
On January 28, 2013, District Judge David Doty denied CP’s motion for summary
judgment. Order. [Docket No. 45]. Judge Doty rejected CP’s argument that Minn. Stat.
§169.09 made Werner vicariously liable for the accident regardless of whether Buzzell
was negligent, concluding that the statute imposes liability on a principle for the acts of
its agent “only if the agent would be liable to the third party for that act.” Id., p. 4. “As a
5
result, there must be a finding of liability against Buzzell before §169.09 imposes liability
on Werner.” Id.
With respect to CP’s contention that Werner’s liability stemmed from trespass,
negligence per se and nuisance, Judge Doty found that under Minnesota law, intent is a
required element of trespass. 2
Id., p. 5.
Recognizing that Werner had submitted
evidence that Buzzell had suffered a heart attack, which could negate any intent to
cause the accident and the ultimate trespass, Judge Doty determined there was a
genuine issue of material fact as to whether Buzzell had the requisite intent to establish
a trespass. Id., pp. 5-6.
Judge Doty also denied summary judgment on CP’s negligence per se claim,
which was based on CP’s theory that violation of a Minnesota traffic statute, Minn. Stat.
§169.26, constituted negligence per se. Id., p. 6. Judge Doty first noted that violations
of traffic statutes “shall not be negligence per se but shall be prima facie evidence of
negligence only.” Id. (quoting Minn. Stat. §169.96 (b)). Therefore, even if CP could
prove that Buzzell violated a traffic statute, Werner would still have the opportunity to
submit evidence “tending to show a reasonable ground for such violation.” Id. (quoting
Olson v. Duluth, M.&I.R. Ry. Co., 5 N.W.2d 492, 496 (Minn. 1942)).
As for CP’s nuisance claim, Judge Doty observed that to be liable in nuisance, a
defendant must engage in “‘some kind of conduct. . .which is wrongful.’” Id. (citation
2
Under Minnesota law, “a trespass is committed where a plaintiff has the right of
possession to the land at issue and there is a wrongful and illegal entry upon such
possession by defendant.” Johnson v. Paynesville Farmers Union Coop. Oil Co., 817
N.W.2d 693, 701 (Minn. 2012) (internal quotation marks and citations omitted).
Trespass is an intentional tort. Id.
6
omitted). 3
To prove wrongful conduct, “a plaintiff must show [that] the defendant
intentionally interfered with the use and enjoyment of the [plaintiff’s] land. Id., p. 8
(quoting Fagerlie v. City of Willmar, 435 N.W.2d 641, 643 (Minn. Ct. App. 1989)).
However, wrongful conduct may also be shown through “negligence, ultrahazardous
activity, violation of a statute or some other tortious activity.”
Id.
CP argued that
Buzzell’s alleged violation of the railroad right-of-way statute provided the necessary
“wrongful conduct.” Id. Judge Doty disagreed, finding that CP’s effort to support its
“wrongful conduct” allegation on Buzzell’s violation of Minnesota’s railroad right-of-way
statute (Minn. Stat. §169.26) failed because “the violation of a traffic statute may be
excusable in some instances.” Id. At this stage of the proceedings, a reasonable jury
could conclude that there was no violation of a traffic statute and, consequently, no
wrongful conduct to create a nuisance.
Id., p. 9.
Therefore, Judge Doty denied
summary judgment on that claim as well. Id.
3
Minnesota law defines “nuisance” as:
Anything which is injurious to health, or indecent or offensive
to the senses, or an obstruction to the free use of property,
so as to interfere with the comfortable enjoyment of life or
property, is a nuisance. An action may be brought by any
person whose property is injuriously affected or whose
personal enjoyment is lessened by the nuisance, and by the
judgment the nuisance may be enjoined or abated, as well
as damages recovered.
Minn.Stat. § 561.01. This statute has been interpreted to require harm to the plaintiff
and wrongful conduct on the part of the defendant. Highview N. Apartments v. County
of Ramsey, 323 N.W.2d 65, 70 (Minn. 1982). “This wrongful conduct varies and may at
times be characterized as intentional conduct, negligence, ultrahazardous activity,
violation of a statute or some other tortious activity.” Id., p. 71.
7
On April 11, 2013, CP filed the instant motion for leave to amend the FAC.
[Docket No. 55]. CP contended that its proposed Second Amended Complaint (“SAC”)
did not add new facts or claims but would merely “clarify” the already-pled nuisance and
trespass claims by referencing Werner’s duties under the Resource Conservation and
Recovery Act (“RCRA”). Plaintiff’s Memorandum of Law in Support of Motion to Amend
the Complaint (“Pl. Mem.”), p. 1 [Docket No. 58].
In the Background section of the SAC, Werner sought to add that Buzzell’s
smashing of his truck into CP’s tank car “caused or contributed to disposal of hazardous
substances that presented an imminent and substantial endangerment to health and the
environment.” Affidavit of Matthew R. Brodin (“Brodin Aff.”), Ex. 2 (redlined version of
SAC), ¶14; see also ¶18 (“Further by crashing into the train Werner violated federal law
by causing or contributing to the disposal of hazardous substances at the derailment
site. That disposal presented an imminent and substantial endangerment to health and
the environment. 42 U.S.C. §6973.”) [Docket No. 59-1].
In its nuisance count (Count V), Werner requested permission to add the
following:
[B]y crashing into CP’s train, Werner caused or contributed
to the improper disposal of the hazardous substances
contained in the punctured tanker. That disposal and the
continuing disposal associated with the hazardous
substances’ uncontrolled presence on the land presented an
imminent and substantial endangerment to health and the
environment. The [RCRA] . . . subjected Werner to strict
liability for remediating the imminent and substantial
endangerment to health and the environment caused by the
illegal disposal. Werner’s violation of RCRA by causing or
contributing to the improper disposal of hazardous
substances, and unjustified and illegal refusal to abate the
imminent and substantial threat to health and the
8
environment, created a nuisance on CP’s property and the
neighboring land.
Werner’s violation of RCRA, refusal to comply with RCRA
obligations, and failure to discharge RCRA liability were
wrongful and constituted a nuisance.
Id., ¶¶47, 48.
In its trespass count (Count VI), CP sought to allege:
[B]y crashing into the train, Werner caused or contributed to
the illegal disposal on CP’s property of hazardous
substances from the punctured tanker.
That disposal
presented an imminent and substantial endangerment to
human health and the environment. RCRA proscribed such
disposal and subjected Werner to strict liability for removing
the hazardous substances that the initial and continuing
illegal disposal placed on CP’s property. By causing or
contributing to the illegal and continuing disposal and
refusing to remove the hazardous substances that Werner
disposed of on CP’s property as required by law, Werner
trespassed on CP’s property.
Id., ¶53.
CP argued that the Court should grant its motion in light of the liberal standard
governing amendments to pleadings. Id., p. 4. Further, no additional discovery 4 would
be required regarding this “clarification” and Werner would not be prejudiced by the
amendment. Id., pp. 5, 9-10. CP also contended that the amendment was not futile
because Werner clearly violated the RCRA, which imposes strict liability on “any person
who is contributing or who has contributed to the disposal of hazardous substances that
4
The Second Amended Pretrial Scheduling Order provided that fact discovery
closed on March 1, 2013 (except for the Rule 30(b)(6) deposition of Werner which was
permitted to be taken on or before March 21, 2013), all expert discovery regarding
liability closed June 1, 2013 and all expert discovery closed on June 15, 2013. [Docket
No. 48]. As for expert disclosures bearing on liability, CP was required to disclose its
experts’ reports by March 1, 2013, Werner was required to disclose its experts’ reports
by May 1, 2013, and CP’s rebuttal expert reports were to be disclosed by May 15, 2013.
9
may present an imminent and substantial danger to health or environment.” Id., p. 5
(quoting 42 U.S.C. §6973). CP explained that the proposed amendment did not seek
relief under the RCRA, but sought to render the violation of the RCRA the “wrongful
conduct” that would support CP’s existing nuisance and trespass claims. Id., pp. 7-9.
The Second Amended Pretrial Scheduling Order provided that the deadline to
filing motions for leave to amend the pleadings to add claims or was August 1, 2012.
CP explained that it did not bring its motion earlier because it waited “months” for Judge
Doty’s summary judgment ruling and then this Court’s “busy schedule” forced CP to wait
“months” after Werner “refused to cooperate.” 5 Pl. Mem., p. 10. CP indicated that if the
Court denied its motion for leave to amend it would “simply file a new action.” Id., p. 11.
CP concluded by stating that it would be prejudiced if its motion for leave to amend
were denied. According to CP,
[it] would be significantly disadvantaged by the banishment
of RCRA-based allegations of wrongful conduct from this
action. The facts about what Werner did and failed to do are
not in dispute. The only question raised by the amendment is
whether spurning RCRA duties is sufficiently wrongful to
subject Werner to nuisance and trespass liability. To ensure
the dispute is determined on the merits, leave to amend
should be granted.
Id., pp. 11-12.
5
CP did not say how Werner refused to cooperate, but the Court assumes this
statement refers to Werner’s refusal to consent to the amendments without the need for
a motion. As for CP’s statement that it was forced to wait “months” after Werner
refused to cooperate, the Court notes that on March 6, 2012, CP sent Werner a copy of
the SAC and asked Werner to sign off on it. Meet-and-Confer Statement [Docket No.
57]. On March 20, 2013, Werner’s counsel informed CP’s counsel that Werner would
not consent to the amendments. Id. On April 11, 2013, CP scheduled the instant
motion, which was heard on May 1, 2013.
10
Werner opposed CP’s motion, arguing that the amendment was an entirely new
statutory claim—one that CP was attempting to assert long after the deadline for
amending pleadings and after the close of discovery. Defendant’s Opposition to the
Plaintiff’s Motion to Amend the Complaint (“Def. Mem.”), p. 1 [Docket No. 66]. Werner
rejected CP’s efforts to characterize the amendments as a “clarification,” and argued it
was nothing more than an effort to circumvent the Court’s scheduling order. Id., p. 3.
Under the Rule 16 standard for modification of a scheduling order, CP was required to
show that it had been diligent in attempting to meet the deadlines and that the opposing
party would not be prejudiced. Id., p. 4. CP could show neither. Id.
Werner submitted that it had at least three defenses to a RCRA claim,
development of which would be foreclosed by CP’s late motion, and would cause
Werner prejudice. First, the RCRA applies only to parties “with authority to control
waste disposal” at the accident site. Id., p. 6. Here, there is substantial question as to
whether CP can prove Werner had the requisite “authority to control.” Id. Second, a
party can be liable under the RCRA only if the hazardous waste presents “an imminent
and substantial endangerment to health or the environment.” Id. (citing 42 U.S.C. §
6973). Therefore, CP would have to prove that the release presented “an imminent and
immediate danger” within the meaning of the RCRA.
Id., p. 7.
Third, even if the
disposal created an “imminent and immediate danger,” the RCRA imposes liability only
if the danger exists at the time the plaintiff asserts a RCRA claim. Id. In other words,
the RCRA provides a remedy to “ameliorate present or obviate the risk of future
‘imminent’ harms, not a remedy that compensates for past cleanup efforts.”
Id.
(quoting Meghrig v. KFC Western, Inc., 516 U.S. 479, 486 (1996)). If the Court granted
11
CP’s untimely motion, Werner would be prejudiced because it would not be able to
develop these defenses to the new claims. Id., p. 6.
Conversely, had CP been timely in its amendment, Werner would have pursued
additional discovery, including examining CP’s witnesses about the applicability of
RCRA to the case, CP’s understanding of its responsibilities under the RCRA, and CP’s
personnel and contractors’ information about conditions at the site.
Id., p. 8.
Additionally, Werner would have presented its own witnesses to contest that Werner
had the “authority to control waste disposal”—a requirement under RCRA—and its own
experts to address this issue and whether an “imminent and substantial endangerment”
existed at the time of the RCRA claim. Id., pp. 8-9.
Werner contended that CP’s motion should also be denied under Rule 15,
because the proposed amendments were both futile and prejudicial. Id., p. 9. For
starters, Werner rejected CP’s threat to bring a new lawsuit if the Court did not allow the
amendments, noting that parties cannot bring a second lawsuit on the same facts based
on theories that “were or could have been raised.” Id., pp. 9-10 (quoting San Remo
Hotel, L.P. v. County of San Francisco, 545 U.S. 323, 336 fn. 16 (2005)). Werner then
argued that the amendments were futile because the RCRA cannot serve as the basis
for nuisance liability. 6 Id., p. 10. Under Minnesota law, violation of only two types of
statutes can support a nuisance claim: (1) statutes that prescribe a course of conduct
and establish a standard of care; and (2) statutes that expressly state that a violation of
6
Werner also submitted that its futility and prejudice arguments were equally
applicable to CP’s trespass claim, noting that in light of Judge Doty’s holding that “intent
is required for trespass liability” under Minnesota law, (Docket No. 45 at 5), adding a
strict liability claim under the RCRA or otherwise, could not establish the requisite
“intent.” Def. Mem., p. 13, n. 4.
12
their terms constitutes a nuisance. Id., pp. 11-12. Consequently, for CP to establish
“wrongful conduct” based on the violation of a statute, it must show that Werner violated
a standard of care described in the statute without reasonable excuse or justification, or
that the statute provides for nuisance liability.
Id., pp. 12-13.
CP can do neither
because the RCRA is an enforcement statute that neither defines a standard of care nor
contains any provisions stating that a violation of the RCRA constitutes a nuisance. Id.,
p. 13. Additionally, RCRA’s citizen suit provision only allows for injunctive relief and
does not provide for money damages for past cleanups. Id., p. 14 (citing 42 U.S.C. §
6972). Werner maintained that CP should not be able to recover damages based on a
statute that does not permit damages for past clean-up costs. Id., pp. 14-15. In sum,
CP should not be permitted to circumvent the statutory scheme of the RCRA by recasting a RCRA claim as a nuisance claim. Id., p. 15.
In reply, CP again reiterated that it was not adding any new causes of action;
rather it was only “augmenting” the legal basis for its allegation that Werner had
engaged in wrongful conduct. Plaintiff’s Reply Memorandum in Support of Motion to
Amend the Complaint (“Pl. Reply”), p. 1 [Docket No. 68].
As for good cause under Rule 16, CP contended that its “‘good cause’ cup
brimeth over.” Id. CP explained:
The pendency of CP’s summary judgment motion drove
leave to amend request timing. While the parties waited
months for Judge Doty’s Rule 56 adjudication, for all
practical purposes this litigation was on hold. Until this Court
decided whether liability was a question of fact or law,
amending the complaint made little sense. Shortly after the
summary judgment denial, CP provided Werner with the
complaint that is the subject of this motion. (Brodin Aff. Ex.
3). Werner waited two weeks before declining to stipulate to
the amendment. (Id. Ex. 5). CP then obtained the first
13
available hearing date for this motion. Werner had the
amended complaint just eleven months after crashing into
CP‟s train. In a forum where lawsuits go on for years, that
notice was certainly prompt.
Id., pp. 1-2.
CP rejected Werner’s argument that it would be prejudiced by its inability to
conduct discovery on whether Werner “contributed to” the disposal by virtue of having
the “authority to control waste disposal.” Id., pp. 2-3. According to CP, the Eighth
Circuit has interpreted the words “contribute to” in the RCRA to mean “to have a share
in any act or effect,” which clearly Werner did. Id., p. 3 (citing United States v. Aceto
Ag. Chem. Corp., 872 F.2d 1373, 1383-84 (8th Cir. 1989)). Further, even if “authority to
control” was the standard, CP contended that no further discovery needed to be
conducted on that issue as “Werner knows as well as anyone what happened and why.”
Id. CP also scoffed at Werner’s contention that there could be a fact dispute for which
discovery was needed on whether 30,000 gallons of spilled aromatic concentrate—a
known carcinogen—represented “imminent and substantial endangerment.” Id., pp. 34. According to CP, “no amount of discovery can moot the obviousness of the imminent
hazard created by the collision.” Id., p. 4.
CP responded to Werner’s futility argument by insisting that the amendment did
not allege a statutory cause of action, and the RCRA did not preclude common law
claims of nuisance and trespass. Id., pp. 4-6. To the contrary, just as violations of other
statutes can be used to establish wrongful conduct to support a claim of nuisance or
trespass—even when these statutes provide no damages remedy—so too can the
RCRA. Id., pp. 6-7.
14
At the motion hearing, this Court asked CP’s counsel why CP did not add the
RCRA claims when CP first moved for leave to amend its Complaint on August 1, 2012.
Counsel responded that CP “should have.”
II.
LEGAL STANDARDS
A.
Rule 16 Modification of Scheduling Order
Federal Rule of Civil Procedure 16(b) governs the amendment of pleadings once
a scheduling order’s deadline for amendments has passed. Pursuant to Rule 16(b), a
schedule “may be modified only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4). Similarly, Local Rule 16.3(b) states that a party who moves to modify a
scheduling order must: (1) establish good cause for the proposed modification, and (2)
explain the proposed modification’s effect on any deadlines. 7
Scheduling orders
pursuant to Rule 16(b)(1) “assure[] that at some point both the parties and the pleadings
will be fixed, . . .” Rule 16(b), Federal Rules of Civil Procedure, advisory committee
notes—1983 Amendment; see also Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748,
759 (8th Cir. 2006) (“Adherence to [scheduling order] deadlines is critical to achieving
the primary goal of the judiciary: ‘to serve the just, speedy, and inexpensive
determination of every action.’”) (quoting Fed. R. Civ. P. 1).
“The primary measure of good cause is the movant’s diligence in attempting to
meet the order’s requirements.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717
(8th Cir. 2008) (quoting Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). “The
7
In addition to this requirement, a party moving to modify a scheduling order’s
discovery deadline must also: “(1) describe what discovery remains to be completed;
(2) describe the discovery that has been completed; (3) explain why not all discovery
has been completed; and (4) state how long it will take to complete discovery.” Local
Rule 16.3(c).
15
‘exacting’ standard set by Rule 16(b) requires that a moving party first make the
requisite good cause showing.
Shukh v. Seagate Tech., LLC, Civ. No. 10-404
(JRT/JJK), 2013 WL 53835 at *3 (D. Minn. Jan. 3, 2013) (citing E.E.O.C. v. Hibbing
Taconite, 266 F.R.D. 260, 265 (D. Minn. 2009)). While the prejudice to the nonmovant
resulting from modification of the scheduling order may also be a relevant factor,
generally, a court will not consider prejudice if the movant has not been diligent in
meeting the scheduling order’s deadlines. See Morrison Enter., LLC v. Dravo Corp.,
638 F.3d 594, 610 (8th Cir. 2011) (affirming district court’s denial of motion for leave to
amend on ground that a tactical choice not to pursue a claim earlier did not show
diligence); Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (concluding that
there was “no need to explore beyond the first criterion, [diligence,] because the record
clearly demonstrate[d] that Bradford made only minimal efforts to satisfy the
[scheduling] order.”)
In short, “Rule 16(b) focuses on “the diligence of the party seeking to modify a
Scheduling Order, as opposed to the litany of unpersuasive excuses, inclusive of
inadvertence and neglect, which commonly undergird an untimely Motion to Amend.”
Scheidecker v. Arvig Enters., 193 F.R.D. 630, 632 n. 1 (D. Minn. 2000) (citations
omitted). “It hardly bears mentioning. . . that carelessness is not compatible with a
finding of diligence and offers no reason for a grant for relief.” Hibbing Taconite, 266
F.R.D. at 265; see also C.H. Robinson Co. v. Zurich American Ins. Co., Civ. No. 024794 (PAM/RLE), 2004 WL 1765320 at *1 (D. Minn. Aug. 05, 2004) (“Carelessness
does not excuse dilatoriness and ‘offers no reason for a grant of relief.’”) (quoting North
Star Mut. Ins. Co. v. Zurich Ins. Co., 269 F. Supp.2d 1140, 1144 (D. Minn. 2003));
16
Rosati v. Cleveland-Cliffs, Inc., 259 F. Supp.2d 861, 875 (D. Minn. 2003)
(“‘[C]arelessness is not compatible with a finding of diligence and offers no reason for a
grant of relief.’”) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609
(9th Cir. 1992)); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340-41 (2nd Cir.
2000) (a party does not meet the good cause standard under Rule 16(b) if the relevant
information on which it based the amended claim was available to it earlier in the
litigation) (citation omitted).
B.
Rule 15 Motions for Leave to Amend
Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be
freely given when justice so requires.”
The court has the discretion to determine
whether to grant leave to amend. See e.g., Niagara of Wis. Paper Corp. v. Paper Indus.
Union Mgmt. Pension Fund, 800 F.2d 742, 749 (8th Cir. 1986) (citation omitted). In
construing this rule, the Supreme Court has observed:
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded to test his claim on the merits. In the absence of
any apparent or declared reasons—such as 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.—the leave should, as the rules require ‘be
freely given.’
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Thompson-El v. Jones, 876 F.2d
66, 67 (8th Cir. 1989). Delay is “undue” when “it places an unwarranted burden on the
Court or when the plaintiff has had previous opportunities to amend.” Estate of Olivia
ex. rel. McHugh v. New Jersey, 604 F.3d 788, 803 (3d Cir. 2010) (citation omitted).
17
“Denial of a motion for leave to amend on the basis of futility means the district
court has reached the legal conclusion that the amended complaint could not withstand
a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Accordingly, in reviewing a denial of leave to amend we ask whether the proposed
amended complaint states a cause of action under the Twombly pleading standard….”
See Zutz v. Nelson, 601 F.3d 842, 850-51 (8th Cir. 2010) (citation and marks omitted));
In re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007) (denying a
motion to amend on the basis of futility “means that the court reached a legal conclusion
that the amended complaint could not withstand a Rule 12 motion.”); United States ex.
rel. Gaudineer & Comito, L.L.P. v. Iowa, 269 F.3d 932, 936 (8th Cir. 2001) (“The denial
of leave to amend based on futility means that the court found that the amended
complaint failed to state a claim…”), cert. denied 536 U.S. 925 (2002); DeRoche v. All
American Bottling Co., 38 F. Supp.2d 1102, 1106 (D. Minn. 1998) (“Although we begin
with a presumption of liberality, an amendment to a pleading can be successfully
challenged on ground of futility if the claims created by the amendment would not
withstand a Motion to Dismiss for failure to state a claim on which relief can be
granted.”)
In considering a motion to dismiss under Rule 12(b)(6), the pleadings are
construed in the light most favorable to the non-moving party, and the facts alleged in
the complaint must be taken as true. Ashley County, Ark. V. Pfizer, Inc., 552 F.3d 659,
665 (8th Cir. 2009). In addition, “the court must resolve any ambiguities concerning the
sufficiency of the plaintiffs’ claims in favor of the plaintiffs, and give the plaintiffs the
benefit of every reasonable inference drawn from the well-pleaded facts and allegations
18
in their complaint.” Ossman v. Diana Corp., 825 F. Supp. 870, 880 (D. Minn. 1993)
(internal quotation marks and citations omitted).
With these standards in mind, the Court turns to CP’s motion for leave to amend
its FAC.
III.
DISCUSSION
A.
CP Has Not Established Good Cause Under Rule 16 and Local Rule
16.3 for its Belated Motion to Amend
CP’s attempt to evade the scheduling order’s August 1, 2012 deadline for
amendment of the pleadings by calling the amendments a “clarification” is sophistry.
Although CP does not seek relief under the RCRA, the amendments accuse Werner of
violating the RCRA (SAC, ¶¶47, 48, 53) and present Werner with new and unexpected
fronts on which it will have to defend the lawsuit. CP has presented a motion for leave
to amend the pleadings that was untimely. Therefore, the Court must determine if CP
should be excused for its untimeliness.
As noted, the primary consideration in determining if there is good cause to
modify a scheduling order is the diligence of the party seeking the modification in
meeting the requirements of the order. Sherman, 532 F.3d at 717. As counsel for CP
acknowledged at the hearing, CP had all of the facts necessary to assert a RCRA claim
at least as early as CP’s first motion to amend on August 1, 2012, and certainly long
before Judge Doty denied CP’s motion for summary judgment.
Therefore, CP’s
explanation that it was proper to delay bringing its motion to amend until after Judge
Doty ruled on its motion for summary judgment is rejected. CP’s late effort to amend
was not based on any newly discovery evidence (after all, it has maintained all along
that no discovery is needed from the inception of this case); instead it is apparent that
19
CP crafted the RCRA theory to overcome Judge Doty’s denial of its other statutory
arguments to support its nuisance and trespass claims.
Further, on February 22, 2013, this Court held an informal motion via telephone
with counsel to address modifying the scheduling order to allow for CP’s Rule 30(b)(6)
deposition of Werner after the fact discovery deadline of March 1, 2013, and to extend
the various deadlines for expert disclosures and completion of expert discovery.
[Docket No. 46].
Based on that informal conference, the Court issued the Second
Amended Scheduling Order, which extended fact and expert discovery deadlines. CP
did not seek at that time, as it clearly could have, to modify the scheduling order’s
August 1, 2012 deadline for motions to amend the pleadings or to permit its out-of-time
motion to amend the FAC.
On these facts, the Court concludes that CP was not diligent in attempting to
meet the requirements of the pretrial scheduling order, and the motion to amend is
denied on that basis.
B.
CP’s Motion to Amend Does Not Meet the Requirements of Rule 15
This Court also finds the motion must be denied because CP unduly delayed in
bringing the motion, Werner would be prejudiced by the amendment, and the
amendment is futile.
1.
CP Unduly Delayed in Seeking Leave to Amend
For the same reasons that the Court concluded that CP’s motion was untimely,
the Court also finds that CP unduly delayed in seeking leave to amend and the motion
should be denied for that reason as well. See Foman, 371 U.S. at 182. A cornerstone
of CP’s argument in favor of its motion was that Werner would not be prejudiced if the
20
motion was granted because “when the facts upon which the amendment is based are
known and available to the parties, amending the complaint causes no prejudice” and
Werner “cannot feign ignorance about federal environmental law. . . .” Pl. Mem., p. 10.
But if that is true for Werner, it is equally true for CP. As evidenced by the tanker of
hazardous liquid which Buzzell struck, CP’s business entails the transportation of highly
hazardous materials.
CP cannot declare (nor did it) that its lack of familiarity with
federal environmental law, including the RCRA, caused or contributed to its delay in
seeking leave to amend. 8 Nothing prevented CP from adding the RCRA claims when it
moved to amend the first time and CP had no justification for not doing so at that time.
For these reasons, the Court concludes that CP unduly delayed in seeking leave to
amend.
2.
Allowing the Amendment Would Prejudice Werner
This Court also concludes that allowing CP to amend its FAC at this late date
would prejudice Werner because Werner would be forced to prepare new defenses to
the suit—defenses that would inevitably involve additional fact and expert discovery.
Under the operative scheduling order, fact discovery closed on March 1, 2013 (except
for the Rule 30(b)(6) deposition of Werner which was permitted to be taken on or before
March 21, 2013); CP was required to disclose its experts’ reports by March 1, 2013;
Werner was required to disclose its experts’ reports by May 1, 2013; CP’s rebuttal
expert reports were to be disclosed by May 15, 2013; and all expert discovery regarding
8
The Court notes that CP’s lead counsel, Mr. Thornton, represented CP in two
cases involving the 2002 derailment of a CP freight train near Minot, North Dakota
during which 220,000 gallons of anhydrous ammonia were released. See Lundeen v.
Canadian Pacific Ry. Co., 447 F.3d 606 (8th Cir. 2006); Lundeen v. Canadian Pacific
Ry Co., 532 F.3d 682 (8th Cir. 2008).
21
liability closed June 1, 2013.
[Docket No. 48].
Despite Judge Doty’s decision on
January 28, 2013, and the March 1, 2013 deadline for fact discovery, CP did not
approach Werner about its proposed amendment until March 6, 2013, and did not file its
motion to amend until April 11, 2013, well after the end of fact discovery and shortly
before Werner’s expert reports on liability were due.
Nevertheless, at the motion
hearing, this Court asked Werner’s counsel about the additional discovery Werner
believed would be necessary if the Court allowed the amendments, as at first blush it
appeared to the Court that additional discovery, if any, would be taken from Werner
(which Werner could conduct internally), and not from CP. Werner’s counsel responded
that had it known about CP’s reliance on the RCRA to support its nuisance and trespass
claims, Werner would have conducted discovery on CP’s role in planning for and
responding to hazardous spills.
Further, because “imminent and substantial
endangerment” is a requisite to liability under the RCRA, Werner would have conducted
discovery on the fact question of whether the spill constituted an imminent danger,
particularly in light of the speed with which the cleanup was conducted. In this regard,
Werner pointed to a response work plan prepared by CP’s consultant within one week
of the incident. 9 The Response Action Workplan indicated that of the 27,000 gallons of
aromatic concentrate that spilled, 12,000 were recovered within the week. Therefore,
there was a fact question as to the “imminent” nature of the harm. In addition, although
CP chided Werner for not presenting any expert affidavits regarding the imminent
endangerment created by the spill, (Pl. Reply, p. 4), at the motion hearing, Werner’s
9
A copy of the Response Action Workplan was provided to the Court at the motion
hearing.
22
counsel stated that Werner had not done so because RCRA had never been a part of
the case.
To address Werner’s need for discovery, CP changed course at the hearing.
Instead of holding fast to the position it has taken since the inception of the case—no
fact discovery was needed on liability—CP’s counsel stated that if the Court allowed the
amendment, CP would agree to re-opening discovery.
There is no question that CP’s belated motion to amend—brought after the close
of fact discovery and shortly before Werner’s expert reports on liability are due—is
prejudicial to CP. It is true that prejudice to the non-moving party that results from
allowing a late amendment to the pleadings can be mitigated by re-opening discovery
and amending the pretrial scheduling order. On the other hand, the Court is mindful
that the parties are entitled to rely on the Court’s scheduling orders for certainty
regarding “the point [at which] both the parties and the pleadings will be fixed.” Fed. R.
Civ. P. 16(b) advisory committee note to 1983 amendment. See also Bradford, 249
F.3d at 809 (“As a vehicle to streamline the flow of litigation through our crowded
dockets, we do not take case management orders lightly, and will enforce them.”). Had
CP provided a reasonable explanation for its delay in asserting its new claim, this Court
might have been more receptive to CP’s offer of re-opening discovery. But, in light of
the facts and circumstances here, the Court concludes that it is not appropriate to reopen discovery to ameliorate the prejudice that will result from allowing the amendment,
particularly where CP has insisted from the get-go that no discovery was needed to
address liability in this case, and where it was CP’s own unjustifiable lack of diligence
and significant delay in bringing this motion that created the prejudice in the first place.
23
3.
The Proposed Amendments are Futile
a.
CP Failed to Plead Any Facts Supporting the Application of
the RCRA to the Accident
The RCRA provides, in relevant part:
Except as provided in subsection (b) or (c) of this section,
any person may commence a civil action on his own behalf(1)(A) against any person . . . who is alleged to be in
violation of any permit, standard, regulation, condition,
requirement, prohibition, or order which has become
effective pursuant to this chapter; or
(1)(B) against any person, including . . . any past or present
generator, past or present transporter, or past or present
owner or operator of a treatment, storage, or disposal facility,
who has contributed or who is contributing to the past or
present handling, storage, treatment, transportation, or
disposal of any solid or hazardous waste which may present
an imminent and substantial endangerment to health or the
environment....
42 U.S.C. § 6972(a)(1)(A) and (B).
“‘RCRA is a comprehensive environmental statute that governs the treatment,
storage, and disposal of solid and hazardous waste.’” Abreu v. United States, 468 F.3d
20, 29 (1st Cir. 2006) (quoting Meghrig v. KFC Western, Inc., 516 U.S. 479, 483
(1996)). The RCRA was enacted to address “the overriding concern of . . . the effect on
the population and the environment of the disposal of discarded hazardous wastes—
those which by virtue of their composition or longevity are harmful, toxic or lethal.” H.R.
Rep. No. 94-1491, pt. 1 at 3 (1976), see also Ecological Rights Found. v. Pacific Gas &
Elec. Co., 713 F.3d 502, 515 (9th Cir. 2013) (“Congress enacted RCRA to ‘eliminate[ ]
the last remaining loophole in environmental law’ by regulating the 'disposal of
discarded materials and hazardous wastes.’ H.R. Rep. No. 94–1491(I), at 4 (1976),
24
reprinted in 1976 U.S.C.C.A.N. 6238, 6241.
address the ‘waste disposal problem,’
RCRA was specifically designed to
Am. Mining Cong. [v. United States
Environmental Protection Agency], 824 F.2d at 1186, which was, at base, the high
‘volume of waste being generated and the capacity to dispose of that waste in the
traditional manner,’ H.R. Rep. No. 94–1491(I), at 9. Accordingly, RCRA covers ‘waste
by-products of the nation's manufacturing processes,’ as well as manufactured products
‘themselves once they have served their intended purposes and are no longer wanted
by the consumer. For these reasons the term discarded materials is used to identify
collectively those substances often referred to as industrial, municipal or post-consumer
waste; refuse, trash, garbage and sludge.’ Id. at 2”).
As a threshold matter, CP has completely failed to allege any facts to support
that the accident and release or duty for clean-up comes within the RCRA’s purview.
The RCRA is not a “catch all” statute governing spills of hazardous substances. The
RCRA was enacted to address the problems associated with the disposal of hazardous
or solid waste products. But CP did not allege in the SAC that Werner failed to clean up
hazardous or solid wastes. To the contrary, the SAC is replete with references to the
liquid which spilled out from the rail tanker as a “hazardous substance.” Brodin Aff. Ex.
2, SAC ¶¶14, 18, 47, 53.
CP’s motion for summary judgment called the aromatic
concentrate a “hazardous liquid.” CP Sum. J. Mem., p. 4. In fact, in its motion to
amend, CP argued that the RCRA governs “hazardous substances,” although later
acknowledging that the statute itself refers to “hazardous waste.” Pl. Mem., pp. 5-6.
“Hazardous substances are distinct from hazardous wastes . . .
Hazardous
wastes are defined in regulations promulgated pursuant to [RCRA] as either specific
25
listed wastes or wastes that contain hazardous substances at certain concentrations.”
Diverse Real Estate Holdings Ltd. P’ship. v. International Mineral & Chem. Corp., Civ.
No. 91-8090, 1995 WL 110138 at *9, fn. 1 (N.D. Ill Mar. 13, 1995). The statutory
definition of “hazardous waste” references “solid waste.” 42 U.S.C. §6903(5) (“The term
‘hazardous waste’ means ‘solid waste’”). Hazardous waste is a subset of “solid waste.”
The term “solid waste” is defined as “any discarded material that is not excluded under
[other regulations].
40 CFR §261.2. A “discarded material” is any material that is
abandoned, recycled, considered inherently waste-like or a military munition. 40 CFR
§(a)(2)(i) (A-D). The regulation goes on to state that materials are solid waste if they
are abandoned by being disposed of, burned or incinerated or accumulated, stored or
treated before or in lieu of being abandoned by being disposed of, burned or
incinerated. 40 CFR §261.2(a)(2)(i)(B); see also 42 U.S.C. §6901(a)(2) (referring to
“scrap, discarded and waste materials”). “The plain meaning of ‘discard’ is to ‘cast
aside; reject; abandon; give up.”
Ecological Rights Found., 713 F.3d at 515
(interpreting “discarded” within the meaning of RCRA). RCRA defines “disposal” as the
“discharge, deposit, injection, dumping, spilling, leaking or leaking, or placing any solid
waste or hazardous waste into or on any land or water. . . .”
42 U.S.C. 6903(3)
(emphasis added).
In connection with its Reply Memorandum, CP submitted the affidavit of John
Giebenhain, an environmental engineer at CP.
Affidavit of John Giebenhain
(“Giebenhain Aff.”) [Docket No. 69]. According to Giebenhain, the MPCA designated
the soil and liquid affected by the spill to be a “characteristic hazardous waste” requiring
CP to follow RCRA guidelines for its cleanup. Id., Ex. B (MPCA Office Memorandum
26
dated April 6, 2012). [Docket No. 69-1]. But the MPCA Memorandum does not once
reference the RCRA or its corresponding regulations. Id. The toxicity and ignitability of
the spill was considered under Minn. Rules pt. 7045.0131, subpts. 2-7. Id. Further, the
MPCA stated “the soil and water will not be considered a hazardous waste if treated on
site to remove the characteristics and properly managed in accordance with the MCPA
approved remediation plan.” Id. (emphasis added). In other words, the Giebenhain
Affidavit and exhibit do not actually state that the material is hazardous waste within the
meaning of the RCRA. Likewise, that the cleanup was being conducted in accordance
with RCRA standards does not clarify the application of RCRA to this incident.
In summary, by referencing hazardous substances and making no mention of
wastes, much less hazardous waste products or solids, the SAC does not invoke the
RCRA and accordingly, is futile.
b.
CP Failed to Plead a Cognizable Claim Under the RCRA
Citizen Suit Provision 10
Congress delegated to the Environmental Protection Agency primary authority to
implement and enforce the RCRA. City of Chicago v. Environmental Def. Fund, 511
U.S. 328, 331 (1994) (citing 42 U.S.C. §§ 6921-6934). Additionally, the RCRA allows a
citizen to bring a suit pursuant to 42 U.S.C. § 6972(a)(1)(B). The RCRA’s citizen suit
10
It is true that CP has not alleged in the SAC a separate count alleging that
Werner violated the RCRA. But this may be nothing more than semantics. Within its
nuisance claim, CP alleged “Werner’s violation of RCRA by causing or contributing to
the improper disposal of hazardous substances, and unjustified and illegal refusal to
abate the imminent and substantial threat to health and the environment, created a
nuisance on CP’s property and the neighboring land.” SAC, ¶47 (emphasis added).
Further, CP alleges “Werner’s violation of RCRA, refusal to comply with RCRA
obligations, and failure to discharge RCRA liability were wrongful and constituted a
nuisance.” SAC, ¶48 (emphasis added). Therefore, without seeking a remedy under
the RCRA in a separate count, CP has, in fact, alleged that Werner violated the RCRA.
27
provision authorizes a civil action to enforce a regulation or permit that a person or
entity is violating; restrain a person who has contributed to the transportation or
handling of hazardous waste, or require a person to take remediation action. 42 U.S.C.
§ 6972(a) (emphasis added). Only prospective relief is available under this provision.
Tyco Thermal Controls LLC v. Redwood Indus., Civ. No. 06-7164, 2010 WL 3211926 at
*19 (N.D. Cal. Aug. 12, 2010). The RCRA does not allow for the recovery of present
and future costs associated with established remediation activities “that are in place and
taking place, because those costs can only be characterized as damages that are not
recoverable under [RCRA].”
Keller Transport, Inc. v. Wagner Enter., LLC, 873 F.
Supp.2d 1342, 1352 (D. Mont. 2012). The Act “undisputedly does not provide a remedy
for recovery of damages and cleanup costs.” Id.; Meghrig, 516 U.S. at 488 (“Section
6972(a) does not contemplate the award of past cleanup costs.”). In sum, the citizen
suit provision was “designed to provide a remedy that ameliorates present or obviates
the risk of future ‘imminent’ harms, not a remedy that compensates for past cleanup
efforts.” Id. at 486.
To invoke the framework contemplated by the RCRA, “[a] plaintiff must establish
three things . . . : (1) the defendant has been or is a generator or transporter of solid or
hazardous waste, or is or has been an operator of a solid or hazardous waste
treatment, storage or disposal facility; 11 (2) the defendant has “contributed” or “is
contributing to” the handling, storage, treatment, transportation, or disposal of solid or
11
The Court questions how Werner, whose employee crashed into a rail car owned
by another and filled with allegedly hazardous liquid, could ever be deemed to be “a
generator or transporter of solid or hazardous waste, or is or has been an operator of a
solid or hazardous waste treatment, storage or disposal facility,” but this is not an
argument that was made to the Court.
28
hazardous waste; and, (3) the solid or hazardous waste in question may present an
imminent and substantial endangerment to health or the environment.
Ecological
Rights Found., 713 F.3d at 514 (citing 42 U.S.C. § 6972(a)(1)(B)) and Prisco v. A & D
Carting Corp., 168 F.3d 593, 608 (2d Cir.1999)); see also, Keller Transport, Inc., 873 F.
Supp.2d at 1351 (finding the claimant must plead that the hazardous waste disposal
presents on ongoing and imminent and substantial threat to health or the environment
and that the defendant is obligated to clean-up the spill pursuant to RCRA); Northern
Calif. River Watch v. Honeywell Aerospace, 830 F.Supp. 2d 760, 769-771 (N. D. Cal.
2011) (plaintiff alleged sufficient facts to state a claim for relief under the citizen suit
provision of the RCRA by alleging that defendants were responsible for the discharge of
hazardous waste into soils, groundwater and surface waters that remain high above
allowable limits and a public danger was created by the discharge. Plaintiffs pled facts
to support that danger was current because high levels of toxins remained in the soils
and water); Murtaugh v. New York, 810 F. Supp.2d 446, 475 (N.D.N.Y. 2011)
(complaint that states summarily that defendants “have contributed or are contributing to
the handling, storage, treatment, transportation or disposal of solid or hazardous waste”
insufficient under Rule 12(b)(6)).
At the motion hearing, CP argued that pursuant to Aceto, the concept of
“contributed to” the disposal of hazardous waste under the RCRA is quite broad and
encompasses Buzzell’s actions when he smashed into CP’s tanker. Aceto, 872 F.2d at
1383 (“The relevant legislative history [of RCRA] supports a broad, rather than a
narrow, construction of the phrase ‘contributed to’” and rejecting district court’s finding
that RCRA requires an explicit allegation that the defendants had authority to control
29
waste disposal).
But even assuming that Werner “contributed to” the disposal, the
RCRA is more exacting in its requirement. A plaintiff must show that the defendant has
“contributed to” or is “contributing to” the handling, storage, treatment, transportation or
disposal of solid or hazardous waste. Ecological Rights Found., 713 F.3d at 514. Even
assuming CP had pled facts to support the requirement of “disposal” of a “solid or
hazardous waste,” which as discussed above, it did not, no specific facts were pled in
the SAC regarding the “imminent and substantial danger” posed by the “disposal” as
required by the RCRA. Instead, the SAC states summarily that the disposal “presented
an imminent and substantial endangerment to health and the environment.” SAC, ¶¶14,
18, 47, 53. In connection with its motion, CP presented evidence of the toxicity of the
benzene-laden aromatic concentrate. Affidavit of Matthew Brodin (“Brodin Aff. II”), Ex. 6
(Expert Report of Ron Frehner and Mark Murphy; Rebuttal to Ken Haberman Expert
Report), p. 4 [Docket No. 70-1].
But determining whether there is “imminent and
substantial harm” within the meaning of the RCRA is far more complex than stating that
the “waste” is hazardous. Rather, a claimant must plead that endangerment threatens
to occur immediately or in the future and excludes waste that that no longer presents a
danger. Meghrig, 516 U.S. at 485-486 (“this language ‘implies that there must be a
threat which is present now, although the impact of the threat may not be felt until
later.’”) (citing Price v. United States Navy, 39 F.3d 1011, 1019 (1994)).
“An
endangerment can only be ‘imminent’ if it ‘threaten[s] to occur immediately,’ Webster's
New International Dictionary of English Language 1245 (2d ed.1934), and the reference
to waste which ‘may present’ imminent harm quite clearly excludes waste that no longer
presents such a danger.” Id. at 486. No facts were alleged in the SAC to support a
30
claim that the disposal presented an “imminent and substantial endangerment” at the
time the suit was commenced, now or in the future.
Again, as pled the proposed
amendments are futile.
Finally, even if CP could overcome the pleading deficiencies described above,
this Court agrees with Werner that CP cannot circumvent the RCRA’s express limitation
on remedies to injunctive relief by using the RCRA as a springboard to obtain damages
via common law claims of nuisance or trespass.
In the motion hearing, Werner’s
counsel provided the Court with citations to two cases that supported Werner’s position
that the RCRA cannot be used to prop up other causes of action—Abreu v. United
States, 468 F.3d 20 (1st Cir. 2006) and 325-343 E. 56th St. Corp. v. Mobil Oil Corp.,
906 F. Supp. 669 (D.D.C. 1995). The Court allowed CP to respond with a letter brief to
these late citations.
In Abreu, the residents of Vieques Island, Puerto Rico sued under the Federal
Tort Claims Act (“FTCA”) for damages resulting from the United States Navy’s operation
of a weapons training facility on the island. Id. at 22. The plaintiffs relied on the RCRA
to argue that the Navy violated a mandatory RCRA requirement by operating an open
burning and open detonation facility without a valid RCRA permit. Id. at 29. The First
Circuit affirmed the district court’s dismissal of the entire action for lack of subject matter
jurisdiction, noting:
If an action based on the FTCA were allowed here, the
district court would effectively be enforcing RCRA under the
guise of a FTCA claim. We think that allowing the recovery
of damages in a FTCA suit, based on the violation of a
mandatory permitting requirement under RCRA, would
undermine the intent of Congress to preclude compensatory
damages awards for RCRA violations.
31
There is, moreover, reason to be concerned that the FTCA
suit here was specifically designed to achieve an end run
around the strict limitations placed by Congress on private
damages actions under RCRA.
Id. at 31.
CP sought to distinguish its case from Abreu, noting that the First Circuit was
rejecting plaintiffs’ efforts to extract compensatory damages from the government based
only on their allegations of the government violated the RCRA, whereas here, CP was
merely asserting well-established common law claims of nuisance and trespass. In
support, CP cited footnote 10 in Abreu, in which the court observed that the Supreme
Court in Meghrig held that the RCRA savings clause “merely preserves causes of action
under state law and does not authorize a new substantive RCRA cause of action for
damages.” 12 Abreu, 468 F.3d at 31, n. 10 (citing Meghrig, 516 U.S. at 487). This Court
disagrees. CP’s proposed amendment is exactly the “new substantive cause of action”
the First Circuit referenced and rejected in Abreu. CP, like the plaintiffs in Abreu, is
alleging that Werner’s violation of the RCRA constitutes the “wrongful conduct” needed
to support its common law claims—claims for which CP is seeking money damages.
That was never the intent of the RCRA and in this Court’s view, is exactly the “end run”
the First Circuit referenced and rejected.
12
The RCRA savings clause referenced by the court in Abreu states in relevant
part:
Nothing in this section shall restrict any right which any
person (or class of persons) may have under any statute or
common law to seek enforcement of any standard or
requirement relating to the management of solid waste or
hazardous waste, or to seek any other relief . . . .
42 U.S.C. §6972(f).
32
In 325-343 E. 56th Street, plaintiff alleged that the defendants' violations of
various provisions of the RCRA regulations constituted negligence per se and entitled it
to seek damages for the costs of remediation for petroleum contamination from leaking
underground storage tanks (“USTs”) on land it had purchased. After analyzing and
rejecting a similar claim of negligence per se based on the D.C. Uniform Storage Tank
Act (“UST Act”), the court found that a negligence per se claim could not proceed based
on the RCRA because it, like the UST Act, was designed to protect the public, rather
than any individuals or particular class of people, and “the principle of negligence per se
should not apply to situations in which the harm suffered by the plaintiff differs from the
harm sought to be protected by the statute.” 906 F. Supp. at 687. “[The RCRA] was
enacted to protect the public from soil and water contamination, not to protect a certain
class of persons seeking to recover monetary damages. None of the RCRA provisions
indicate that the class of persons to be protected is any less broad than the entire
population of the United States. Therefore, allowing Plaintiff to proceed with its
negligence per se claim would be improper.” Id. at 688.
At the same time, the court recognized that whether or not a plaintiff could assert
a negligence per se claim was “an issue akin to the question of whether a private cause
of action exists under a statute.”
Id. (citations omitted).
“In adopting a statutory
standard of conduct [in connection with a negligence per se claim], courts are trying to
further the underlying policy that the statute seeks to promote.” Id. (citations omitted).
Explaining that it “found no express or implied private cause of action for money
damages under RCRA, and finding a Congressional intent that the RCRA citizen suit
provisions serve only to allow private plaintiffs to act as ‘private attorney generals’,” the
33
court dismissed plaintiff’s negligence per se claim for violations for the RCRA
regulations. Id.
CP correctly pointed out that 325-343 E. 56th Street involved a negligence per se
claim based on a RCRA violation, and not, as here, nuisance and trespass claims.
Based on this difference, CP contended:
Unlike a negligence per se claim, the breach of a duty to a
class of persons is not a prerequisite to the commission
wrongful conduct. Christiansen & Sons, 31 N.W.2d at 275
(violation of federal statute enacted to protect navigable
water rights constituted nuisance and trespass wrongful
conduct). As Christiansen recognized regarding nuisance
and trespass, “violation of the statute gives the right of
action. Nothing more is necessary if damage accrues. * * *
Simple disobedience to the statute brings liability without the
existence of other wrongdoing.” Id. (citation omitted).
Letter to Court dated May 8, 2013.
Nonetheless, this Court finds that the plaintiffs in 325-343 E. 56th Street were
attempting to obtain the same result CP is attempting to achieve here with its claims of
nuisance and trespass—using an alleged violation of the RCRA to satisfy the
requirement of wrongful conduct as a matter of law to recover a form of relief specifically
prohibited by the citizen suit provision of the RCRA. While the court in 325-343 E. 56th
Street analyzed the plaintiffs’ claims under the negligence per se standard, at the end of
the day, it was the court’s conviction that it would be improper to allow a claim for
money damages to proceed when the RCRA’s citizen suit provision expressly prohibited
such actions.
This Court reaches the same conclusion. Through its proposed amendments CP
seeks to assert that Werner’s violations of the RCRA establish as a matter of law
trespass and nuisance and entitles CP to monetary damages for these violations. The
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RCRA does not permit monetary damages to private citizens for violations of the RCRA.
Where Congress has expressly foreclosed the use by private citizens of the RCRA to
obtain monetary damages for violations of the RCRA, this Court will not permit CP to
evade that proscription.
C.
Conclusion
This Court finds that CP is attempting to amend the FAC to include new claims
under the RCRA and rejects CP’s effort to characterize the claims as “clarifications.”
CP’s motion is untimely; CP was not diligent in seeking to leave to amend; CP unduly
delayed in pursuing the motion; and Werner would be extremely prejudiced by allowing
the amendment at this late date. Finally, CP’s attempt to insert the RCRA into this suit
to establish its nuisance and trespass claims is futile. For all of the foregoing reasons,
CP’s motion is denied.
J.S.M.
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