Kitchin et al v. Bridgeton Landfill, LLC

Filing 156

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Cotter Corporation, N.S.L.s Motion to Dismiss Third-Party Complaint 93 is DENIED AS MOOT. Signed by District Judge Catherine D. Perry on 02/13/2023. (KRZ)

Case: 4:18-cv-00672-CDP Doc. #: 156 Filed: 02/13/23 Page: 1 of 3 PageID #: 1869

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN C. KITCHIN, JR., et al.,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
BRIDGETON LANDFILL, LLC,
et al.,
Defendants.

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No. 4:18 CV 672 CDP

MEMORANDUM AND ORDER
Plaintiffs bring this putative class action seeking damages and injunctive
relief for radioactive contamination of their respective properties allegedly caused
by neighboring West Lake Landfill, located in North St. Louis County, Missouri.
Pending before the Court is third-party defendant Cotter Corporation, N.S.L.’s
motion to dismiss defendant Bridgeton Landfill, LLC’s third-party complaint.
Because plaintiffs’ recently filed second amended complaint renders Cotter
Corporation’s motion to dismiss moot, I will deny the motion as moot.
In their original and amended complaints, plaintiffs named Bridgeton
Landfill, LLC, Allied Services, Inc., Republic Services, Inc., and Rock Road
Industries, Inc., as defendants. On October 4, 2021, with leave of Court, defendant
Bridgeton Landfill filed a third-party complaint against Cotter Corporation,

Case: 4:18-cv-00672-CDP Doc. #: 156 Filed: 02/13/23 Page: 2 of 3 PageID #: 1870

seeking contribution from Cotter Corporation if Bridgeton Landfill was found
liable on plaintiffs’ claims. On April 11, 2022, Cotter Corporation moved to
dismiss the third-party complaint, arguing that plaintiffs could not recover against
the defendants on the allegations raised in the amended complaint and thus that
Bridgeton Landfill had no claim for contribution against Cotter Corporation. As
one of the bases in support of its argument, Cotter Corporation averred that
plaintiffs’ amended complaint did not attribute any alleged offending conduct to
Cotter Corporation or identify Cotter Corporation as a relevant actor in the
occurrences at issue.
On February 9, 2023, with leave of Court, plaintiffs filed a second amended
complaint that again named Bridgeton Landfill, Allied Services, and Republic
Services as defendants. Rock Road Industries is no longer a defendant to the
action. Notably, the second amended complaint added Cotter Corporation as a
defendant, alleging that it engaged in conduct giving rise to plaintiffs’ injuries. As
the second amended complaint makes direct claims of liability against Cotter
Corporation and attributes offending conduct to it, the arguments upon which
Cotter Corporation based its motion to dismiss the third-party complaint have been
rendered moot. I will therefore deny the motion as moot. See Samsung Elecs.
Am., Inc. v. Yang Kun Chung, No. 3:15-CV-4108-L, 2020 WL 730522, at *4 (N.D.
Tex. Feb. 13, 2020).

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Case: 4:18-cv-00672-CDP Doc. #: 156 Filed: 02/13/23 Page: 3 of 3 PageID #: 1871

Accordingly,
IT IS HEREBY ORDERED that Cotter Corporation, N.S.L.’s Motion to
Dismiss Third-Party Complaint [93] is DENIED AS MOOT.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 13th day of February, 2023.

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