Avila, et al v. CNH America et al

Filing 382

MEMORANDUM AND ORDER - The plaintiffs' requests that Cargill's motions for summary judgment be denied or continued pending additional discovery, pursuant to Federal Rule of Civil Procedure 56(f), are denied. Cargill's motions for summa ry judgment (Case No. 4:04CV3384, filing 329 ; Case No. 4:07CV3170, filing 59) are granted, and the plaintiffs' claims are dismissed with prejudice. Judgment shall be entered by a separate document filed in each case. With respect to Case No. 4:04CV3384, the court expressly finds that there is no just reason for delay, and directs that a final judgment shall be entered dismissing Cargill from the action pursuant to Federal Rule of Civil Procedure 54(b). Ordered by Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

CINDY AVILA, et al., Plaintiffs, v. CNH AMERICA LLC, et al., Defendants. _______________________________ JOAN SCHWAN, et al., Plaintiffs, v. CARGILL, INCORPORATED, Defendant.

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Case No. 4:04CV3384

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Case No. 4:07CV3170

MEMORANDUM AND ORDER These related "toxic tort" cases are before the court on motions for summary judgment filed by Cargill, Incorporated ("Cargill"). (Case No. 4:04CV3384, filing 329; Case No. 4:07CV3170, filing 59.) Because there is no evidence that Cargill caused or permitted the release of chlorinated solvents on property that it owned between 1981 and 2000, or that Cargill knew or should have known of subsurface contamination that was caused by the previous owner's manufacturing operations between 1973 and 1980, the motions will be granted. The plaintiffs' requests for additional time to conduct discovery under Federal Rule of Civil Procedure 56(f), in the hope of finding some evidence of Cargill's culpability, will be denied.

I. BACKGROUND Case No. 4:04CV3384 ("Avila") was commenced on December 16, 2004, but Cargill was not named as a defendant in the action until June 15, 2007, when a fourth amended complaint was filed. The other seven defendants1 in Avila are owners and former owners of an industrial tract located at 3445 West Stolley Park Road, Grand Island, Nebraska (the "CNH Plant"), that is alleged to be a source of groundwater contamination (designated as the "northern plume") affecting the nearby residential subdivisions of Stolley Park and Parkview (collectively, the "Parkview Community"). Cargill is a former owner of a commercial property located at 3304 Engleman Road South, Grand Island, Nebraska (the "Engleman Road Facility"), that is also alleged to be a source of groundwater contamination (designated as the "southern plume") affecting the Parkview Community. The plaintiffs in Avila at the present time are 65 residents and former residents of the Parkview Community, next friends of 17 minors who reside or resided in the Parkview Community, and personal representatives of the estates of 9 deceased Parkview Community residents, who assert claims under Nebraska common law for personal injury, wrongful death, and property damage.2 The southern plume also crosses the Grand Island subdivisions of Mary Lane, Castle Estates, and Kentish Hills (collectively, the "Mary Lane Community") before commingling with the northern plume under the Parkview Community. The Avila case originally included numerous plaintiffs from the Mary Lane Community, but they were dismissed from the action on April 11, 2007, when the court granted a

The other Avila defendants are (1) CNH America LLC, (2) Fiatallis North America, Inc., (3) Case New Holland, Inc., (4) CNH Global, N.V., (5) Unisys Corporation, (6) Fiat S.p.A., and (7) Fiatallis North America, LLC. Two additional defendants named in the original complaint, New Holland, Inc., and Ford Motor Company, have been dismissed from the action. Eighteen of these 91 plaintiffs in Avila assert claims only against the CNH Plant owners. The remainder assert claims against all defendants. 2
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motion for partial summary judgment in favor of the defendants.3 (Avila filing 204.) The dismissed plaintiffs had failed to disclose evidence in response to a Lone Pine case management order4 and had stated through their attorney that they "no longer contend that hazardous substances from the Case New Holland facility have caused their injuries or damage." (Avila filing 185, p. 2 ¶ 5.) The court thereafter granted leave to the remaining plaintiffs to add Cargill as a defendant, but directed that the dismissed plaintiffs and any other persons who were not asserting claims against the CNH Plant owners would need to file a separate action. (Avila filing 221.) A separate action, Case No. 4:07CV3170 ("Schwan"), was filed on June 26, 2007. The Schwan plaintiffs currently consist of 157 adult residents and former residents of the Mary Lane Community, next friends of 39 minors, and 1 personal representative. Cargill is the only named defendant in Schwan. Cargill used the Engleman Road Facility as a warehouse for its Seed Division. The previous owner, Heinzman Engineering, Inc. ("Heinzman"), used the property for a manufacturing operation until June 1980, and then as an equipment dealership for about two years. Cargill purchased the property in December 1981, but did not take full possession until June 1982. Cargill sold the property in November 2000. In late 2001, the City of Grand Island closed a municipal groundwater well after detecting increased concentrations of chlorinated solvents. Shortly thereafter, Originally, the first-named plaintiff in Avila was Joan Schwan, individually and as next friend of J.P.S., a minor. Ms. Schwan is now the first-named plaintiff in Case No. 4:07CV3170. On October 31, 2005, the court advised the parties that it was inclined to enter a case management order patterned after Lore v. Lone Pine Corp., No. L 33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div., Nov. 18, 1986), to "require the plaintiffs to define their injuries with precision and to produce some evidence of causation prior to any discovery taking place." (Avila filing 93, p. 8.) On motion of the defendants, a Lone Pine order was in fact entered on May 4, 2006. (Avila filing 135.) 3
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the Nebraska Department of Environmental Quality ("NDEQ") began investigating the source and extent of contamination. In 2003, the United States Environmental Protection Agency ("EPA") took over the investigation. Investigators initially concentrated on the CNH Plant, but in July 2006 it was determined by the EPA that the Engleman Road Facility was also a source of the groundwater contamination. By deposing several former Heinzman employees, Cargill has discovered that chlorinated solvents were regularly dumped on the ground before it purchased the Engleman Road Facility. There is no evidence that Cargill previously knew of this dumping activity, nor is there any evidence that solvents or other chemicals were improperly disposed of during the 19 years that Cargill owned the property. Cargill argues that it cannot be held liable under Nebraska law for Heinzman's dumping activities unless the pollution was "visible and apparent," which it was not. The plaintiffs argue that Cargill had a duty to investigate the condition of the property, and also speculate that discovery they intend to conduct in the future may disclose that Cargill contributed to the pollution. A. Statement of Material Facts Upon careful review of the parties' pleadings, evidence, and briefs, I find that the following facts are undisputed: Heinzman's Operations Heinzman was first incorporated in Nebraska in 1958. Heinzman operated at least two separate divisions: an irrigation division that manufactured irrigation pipe and sprinklers, and a John Deere division that sold and serviced industrial and construction equipment. Both divisions were originally based at a different Grand Island location on South Locust Street. (Avila filing 330, p. 7, ¶ 6; Schwan filing 60, p. 7, ¶ 5; Avila filing 340 & Schwan filing 71, p. 33, ¶ 6.)

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In 1973, Heinzman built the Engleman Road Facility for its irrigation division. The facility was built on former agricultural land. After construction was complete, Heinzman moved the irrigation division and its equipment over from South Locust Street. Heinzman employed between 50 to 60 workers at its new facility. (Avila filing 330, p. 7, ¶ 7; Schwan filing 60, p. 7, ¶ 6; Avila filing 340 & Schwan filing 71, p. 33, ¶ 7.) Heinzman's irrigation division operated two aluminum tube mills at the Engleman Road Facility. Aluminum entered the facility in large rolled coils that weighed several tons each. The aluminum was oily when it arrived. It was pulled off the coils and fed into a conveyor that bent the aluminum into a circular shape. The edges were then welded together to form the pipe. (Avila filing 330, pp. 7-8, ¶ 8; Schwan filing 60, p. 7, ¶ 7; Avila filing 340 & Schwan filing 71, p. 34, ¶ 8.) Before the welding occurred, the oil and other impurities were cleaned off the edges of the aluminum to ensure that the seam was properly welded. The edges of the aluminum passed over a trough filled with cleaning solvent, such as perchloroethylene (also known as tetrachloroethylene, perc, or PCE). A rotating brush continuously dipped into the solvent and cleaned the aluminum as it passed over the trough. (Avila filing 330, p. 8, ¶ 9; Schwan filing 60, pp. 7-8, ¶ 8; Avila filing 340 & Schwan filing 71, p. 34, ¶ 9.) Heinzman regularly removed used solvent from the troughs and dumped it on the ground outside the building. Heinzman used anywhere from two to twelve 55-gallon barrels of the solvent each year and dumped a small amount of used solvent on the ground every day. Heinzman's irrigation division began this disposal practice long before it moved to the Engleman Road Facility. It had engaged in similar dumping while its irrigation division used the same equipment and processes at the South Locust Street facility during the 1960's and early 1970's. Heinzman provided no other means for its employees to dispose of the used solvent. (Avila filing 330, p. 8, ¶ 10; Schwan filing 60, p. 8, ¶ 9; Avila filing 340 & Schwan filing 71, p. 34, ¶ 10.) 5

The tube mill operation continued at the Engleman Road Facility until the spring of 1980, when Heinzman closed its irrigation division as a result of difficult market conditions. On June 24, 1980, Heinzman sold its manufacturing equipment and irrigation inventory at public auction. (Avila filing 330, p. 8, ¶ 12; Schwan filing 60, p. 8, ¶ 11; Avila filing 340 & Schwan filing 71, p. 34, ¶ 12.) Around the same time, on June 3, 1980, a tornado destroyed Heinzman's South Locust Street facility, where its John Deere division had continued to operate during the 1970's. As a result, the dealership and service center moved to the Engleman Road Facility. (Avila filing 330, p. 9, ¶ 13; Schwan filing 60, p. 8, ¶ 12; Avila filing 340 & Schwan filing 71, p. 34, ¶ 13.) There is no evidence that Heinzman's John Deere division disposed of solvents or any other chemicals onsite. One former employee testified that, to his knowledge, during the time Heinzman operated its John Deere division at the Engleman Road facility a different type of solvent was used for parts washing, that the used solvent was picked up by a recycler, and that there was no dumping or disposal onto the ground of any chemicals by Heinzman. (Avila filing 330, p. 9, ¶ 14; Schwan filing 60, p. 9, ¶ 13; Avila filing 340 & Schwan filing 71, p. 34, ¶ 14; Avila filing 331-11 & Schwan filing 61-11, pp. 4-5 (Ivan Real deposition at 28:1-15, 54:8-15).) Also in 1980, while Heinzman continued to operate the facility, Congress passed new release reporting rules in the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Section 103(c) required that by June 9, 1981: any person who owns or operates or who at the time of disposal owned or operated . . . a facility at which hazardous substances . . . are or have been stored, treated, or disposed of shall . . . notify the [EPA] of the existence of such facility, specifying the amount and type of any hazardous substance to be found there, and any known, suspected, or likely releases of such substances from such facility. 6

42 U.S.C. § 9603(c). This one-time reporting requirement was intended "to assist EPA in developing an inventory of hazardous waste sites and to help facilitate the development of priorities for attention and possible response action[s]." 46 Fed. Reg. 22144, 22144 (Apr. 15, 1981). There is no record of Heinzman notifying the EPA or any other government agency of its past disposal practices at the Engleman Road Facility. (Avila filing 330, p. 9, ¶ 15; Schwan filing 60, p. 9, ¶ 14; Avila filing 340 & Schwan filing 71, p. 34, ¶ 15.) Cargill's Prior Operations and Purchase of the Facility Cargill's Seed Division previously operated a distribution warehouse at a different Grand Island location on Shady Bend Road. In 1978, NDEQ approached Cargill alleging that a discharge of wastewater containing Captan had impacted a nearby lake. Captan is a fungicide that Cargill applied to seeds to prevent decay. (Avila filing 330, pp. 9-10, ¶ 16; Schwan filing 60, p. 9, ¶ 15; Avila filing 340 & Schwan filing 71, p. 35, ¶ 16.) As a result of these allegations, in November 1978, Cargill issued a "pollution" directive within its Seed Division. The directive stated: In October, at our Grand Island warehouse, it was alleged by the Nebraska Department of Environmental Control that wash water from our treatment system was discharged without a National Pollutant Discharge Eliminations System Permit. In April, without consulting the Law Department, a statement was signed that stated we were aware that a National Pollutant Discharge Elimination Systems Permit is required if this water is to be still discharged. Cargill Seeds' prime concern is not to pollute either the air or the water, This means that any pollution problem must be corrected. However, if you do have contact by any environmental group (because you and your people may have missed a source of pollution)--federal, state, or local-notify [Cargill officials] immediately, so we can aid and advise you in getting the problem corrected. 7

Criminal charges can be brought against the company and its employees for pollution--particularly once the problem is brought to our attention and we continue to pollute. Our first rule is . . . Don't pollute! Check your operation . . . Is it clean? . . . What happens to your water waste and dust? Pollution and its enforcement is a serious business. Fines and criminal charges can be issued. Don't let it happen to us. Cargill Seeds wants to be a good citizen, so double check your potential pollution problems. Rule 1: DON'T POLLUTE!! The directive was reviewed by the employee with waste handling responsibility at the Grand Island facility. (Avila filing 330, p. 10, ¶ 17; Schwan filing 60, pp. 9-10, ¶ 16; Avila filing 340 & Schwan filing 71, p. 35, ¶ 17; Avila filing 331-13 & Schwan filing 61-13 (Cargill's Ex. 12).) By 1981, Cargill was in search of a larger building for its Grand Island distribution warehouse. Cargill learned that the Engleman Road Facility was for sale. As the real estate broker explained to Cargill, "[i]t is unusual to find this type of existing building available in our Central Nebraska area . . . in the condition this building is in." (Avila filing 330, p. 10, ¶ 18; Schwan filing 60, p. 10, ¶ 17; Avila filing 340 & Schwan filing 71, p. 35, ¶ 18; Avila filing 331-15 & Schwan filing 61-15 (Cargill's Ex. 14).) On June 9, 1981, the same day that Heinzman failed to meet the deadline for notifying the EPA of its past disposal practices, Cargill inspected the Engleman Road Facility. Inside the building, the inspectors noted a need to "[c]lean grease and oil off of [the] concrete floor." Outside, the inspectors recommended "[c]lean[ing] up the grounds ­ remove trash, cut grass and weeds and probably clean up drainage ways so as to insure that we do not get water coming in at floor level." There is no evidence that Heinzman disclosed its past disposal practices to Cargill. (Avila filing 330, p. 10,

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¶ 19; Schwan filing 60, p. 10, ¶ 18; Avila filing 340 & Schwan filing 71, pp. 35-36, ¶ 19; Avila filing 331-16 & Schwan filing 61-16 (Cargill's Ex. 15), p. 3.) On September 21, 1981, Cargill executed an agreement to buy the property for $420,000. The agreement provided that Heinzman could continue to occupy the facility, except for the north 100 feet of the warehouse structure, under a rent-free lease until May 31, 1982. The only potential environmental condition disclosed to Cargill in the agreement was the existence of underground gasoline storage tanks, which Heinzman retained the right to take with when it left. Cargill closed on the purchase of the property on December 15, 1981. (Avila filing 330, p. 11, ¶ 20; Schwan filing 60, pp. 10-11, ¶ 19; Avila filing 340 & Schwan filing 71, p. 36, ¶ 20; Avila filing 331-17 & Schwan filing 61-17 (Cargill's Ex. 16).) Cargill's Engleman Road Operations Cargill took full possession of the Engleman Road Facility in June 1982. As Cargill's inspection team recommended, Cargill cleaned up the grounds and cut the grass around the building. During that process, Cargill discovered a 4 x 6 foot area away from the building that was covered with about an inch of dried red paint. After notifying the City, Doug Taylor, Cargill's maintenance manager, scraped up the paint-stained soil with a loader that Cargill had previously rented from Heinzman and sent it to a landfill. (Avila filing 330, p. 11, ¶ 21; Schwan filing 60, p. 11, ¶ 20; Avila filing 340 & Schwan filing 71, p. 36, ¶ 21; Avila filing 339-4 & Schwan filing 70-7, p. 6 (Douglas Taylor deposition at 21:2-23:3) (Plaintiffs' Ex. C).) Cargill's post-sale inspections did not uncover any further areas of concern. According to Mr. Taylor, the area with red paint "was the only area where there wasn't grass and that growing, and that's what got our attention. . . . . You know, there was grass growing everywhere [else]." In later years, Cargill employees maintained a vegetable garden outside the building. (Avila filing 330, p. 11, ¶ 22; Schwan filing 60, p. 11, ¶ 21; Avila filing 340 & Schwan filing 71, p. 36, ¶ 22; Avila 9

filing 331-12 & Schwan filing 61-12, p. 6 (Douglas Taylor deposition at 26:14-27:2) (Cargill's Ex. 11).) Cargill's operations at the facility included: (a) receiving and storing bags of seed; (b) shipping bags of seed; and (c) during the first few years at the facility, conditioning some of the seed by coating it with a fungicide. These operations required four to five full-time employees. (Avila filing 330, pp. 11-12, ¶ 23; Schwan filing 60, p. 11, ¶ 22; Avila filing 340 & Schwan filing 71, p. 36, ¶ 23.) Cargill used solvent for occasional parts washing during forklift maintenance. Doug Taylor testified that "probably less than a few gallons of solvent [were] ever used . . . in that facility." There is no evidence that Cargill ever disposed of solvent outside on the ground. Cargill disposed of spent solvent by placing it in a 55-gallon drum that stored used oil. The drums of used oil were shipped offsite. (Avila filing 330, p. 12, ¶ 25; Schwan filing 60, p. 12, ¶ 24; Avila filing 340 & Schwan filing 71, p. 37, ¶ 25.) Cargill's Inspections In May 1998, Cargill commissioned an outside consultant, Conestoga-Rovers & Associates ("CRA"), to perform Environmental Assessments of all of its Seed Division facilities. The express purpose of the assessments was to identify any "recognized environmental conditions, as defined in ASTM Standard E1527-97, associated with prior or current activities conducted at the Site." As part of the assessments, CRA inspected the sites, searched regulatory databases, and interviewed individuals associated with the Seed Division facilities. (Avila filing 330, pp. 12-13, ¶¶ 27-29; Schwan filing 60, p. 12, ¶¶ 26-28; Avila filing 340 & Schwan filing 71, p. 38, ¶¶ 27-29; Avila filing 331-23 & Schwan filing 61-23, p. 4 (Cargill's Ex. 22).) At the Engleman Road Facility, CRA found "[n]o evidence of any significant spillage at the Site . . . with the exception of minor staining on concrete floors in the 10

shop area, which would not be expected to have impacted underlying soils." The only "recognized environmental condition" identified by CRA was the lack of closure documentation on a gasoline underground storage tank that Heinzman removed before it left. CRA did not recommend any further investigation. (Avila filing 330, p. 13, ¶ 30; Schwan filing 60, p. 13, ¶ 29; Avila filing 340 & Schwan filing 71, p. 38, ¶ 30; Avila filing 331-23 & Schwan filing 61-23, p. 17 (Cargill's Ex. 22).) In May 2000, Cargill again commissioned CRA to perform Environmental Assessments of its Seed Division facilities. At the Engleman Road Facility, CRA again found "[n]o evidence of potentially significant spills or releases." And, again, the only issue of potential concern to CRA was the lack of closure documentation on the gasoline underground storage tank. In both assessments, CRA noted that "chemicals stored and used on Site were limited to small quantities or herbicides, insecticides, gasoline, motor oil, and propane gas." CRA did not see any need for further investigation at the Engleman Road Facility. (Avila filing 330, pp. 13-14, ¶¶ 31-32; Schwan filing 60, p. 13, ¶¶ 30-31; Avila filing 340 & Schwan filing 71, pp. 3839, ¶¶ 31-32; Avila filing 331-23 & Schwan filing 61-23, pp. 16, 19 (Cargill's Ex. 22); Avila filing 331-25 & Schwan filing 61-25, p. 15 (Cargill's Ex. 24).) Cargill's Sale of Seed Division On September 13, 2000, Cargill executed a Purchase and Sale Agreement to sell its Seed Division, including the Engleman Road Facility, to Agrigentics, Inc. ("Agrigentics"). The agreement did not discuss or otherwise identify environmental conditions at the Engleman Road Facility. Instead, after referring to CRA's 1998 and 2000 environmental assessments, the agreement stated that "to the Knowledge of [Cargill], there are no Hazardous Materials present in, on, or beneath the Real Property which could be reasonably expected to result in a Cleanup." On November 1, 2000, Cargill transferred title to the Engleman Road Facility to Agrigentics. (Avila filing 330, p. 14, ¶¶ 33-35; Schwan filing 60, pp. 13-14, ¶¶ 32-34; Avila filing 340 &

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Schwan filing 71, p. 39, ¶¶ 33-35; Avila filing 331-26 & Schwan filing 61-26, p. 4, § 4.14 (Cargill's Ex. 25).) In 2001, Agrigentics (also known as Mycogen Seeds) commissioned its own outside consultant, URS, to conduct another Environmental Site Assessment of the facility. The Agrigentics/URS assessment also "revealed no evidence of recognized environmental conditions in connection with the site." (Avila filing 330, p. 14, ¶ 36; Schwan filing 60, p. 14, ¶ 35; Avila filing 340 & Schwan filing 71, pp. 39-40, ¶ 36; Avila filing 331-28 & Schwan filing 61-28, p. 27 (Cargill's Ex. 27).) Discovery of Solvent Contamination In July 2006, the EPA, through its contractor, Tetra Tech, issued its Final Remedial Investigation Report for the Southern Plume Study Area. The report was the result of a phased investigation that involved several years of sampling. The report concluded--as the plaintiffs note, "for the first time"--that a chlorinated solvent "plume originates on the 3304 Engleman Road S. property." (Avila filing 330, p. 14, ¶ 37; Schwan filing 60, p. 14, ¶ 36; Avila filing 340 & Schwan filing 71, p. 40, ¶ 37; Avila filing 331-29 & Schwan filing 61-29, p. 2 (Cargill's Ex. 28).) In September 2007, the EPA conducted a removal action "to excavate the most highly contaminated soils in the source area." The focus of the removal action was one of the areas where Heinzman's former employees admitted to dumping chlorinated solvents outside the building. (Avila filing 330, p. 15, ¶ 38; Schwan filing 60, p. 14, ¶ 37; Avila filing 340 & Schwan filing 71, p. 40, ¶ 38; Avila filing 331-30 & Schwan filing 61-30, p. 2 (Cargill's Ex. 29).) B. Theories of Liability The plaintiffs first allege that Cargill was negligent in (1) failing to take appropriate measures to ensure a safe method of disposal of its waste products; (2) 12

failing to prevent the migration of hazardous substances from the Engleman Road Facility; (3) failing to take steps necessary to remediate existing contamination at the Engleman Road Facility; (4) failing to take steps necessary to remediate hazardous substances in the plaintiffs' water, soil, and air that stemmed from the migration; (5) failing to advise the plaintiffs of the harmful effects of coming into contact with water, soil, and air affected by the migration of hazardous substances from the Engleman Road Facility; (6) failing to provide the plaintiffs with adequate alternative sources of water; and (7) failing to report accurately to the proper government agency or agencies all environmentally relevant information in accordance with local, state, and federal rules, statutes, or regulations. (Case No. 4:04CV3384, Fifth Amended Complaint, (Avila filing 282), pp. 34-35, ¶ 75; Case No. 4:07CV3170, Second Amended Complaint, (Schwan filing 36), pp. 18-19, ¶ 41.) In a second count, the plaintiffs allege that Cargill was negligent in failing to warn them about the discharge and migration of the hazardous substances, and, as previously alleged, in failing to advise them of the harmful effects of coming into contact with water, soil, and air affected by the hazardous substances. (Avila filing 282, p. 37, ¶ 87; Schwan filing 36, p. 20, ¶ 49.) Some of the plaintiffs also claim that Cargill is liable for negligent infliction of emotional distress because of injuries that they or family members have sustained. (Avila filing 282, p. 38, ¶¶ 95-97; Schwan filing 36, p. 21, ¶¶ 54-56.) The plaintiffs' fourth claim for relief in each action is for private nuisance. The plaintiffs allege in this regard that "Cargill's discharge of toxic and hazardous substances and wastes . . . is actionable under the rules controlling liability for negligence . . . [and also] under the rules controlling liability for abnormally dangerous conditions or activities." (Avila filing 282, pp. 39-40, ¶¶ 104-105; Schwan filing 36, p. 22, ¶¶ 60-61.) Finally, the personal representatives in each action assert wrongful death claims pursuant to Nebraska Revised Statute § 30-809. (Avila filing 282, p. 44, ¶ 128; Schwan filing 36, p. 24, ¶ 71.)

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II. DISCUSSION Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir. 1997). In order to withstand a motion for summary judgment, the nonmoving party must substantiate their allegations with "`sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). Essentially the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Rule 56(e) provides that, when a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324. A. Rule 56(f) Discovery The plaintiffs argue in their briefs that Cargill's motions for summary judgment should be denied as premature, or at least continued while the plaintiffs conduct discovery. Pursuant to Federal Rule of Civil Procedure 56(f),5 the plaintiffs have filed an affidavit by one of their attorneys which outlines the status the parties' discovery through the end of August 2008, and identifies additional discovery that the plaintiffs deem necessary regarding "what Cargill knew or should have known regarding the environmental contamination at its former property, whether Heinzman personnel disposed or otherwise released chlorinated solvents at the property during the 5-month period that Heinzman was a Cargill tenant at the facility, and whether during the following 18 years that Cargill had sole occupancy, its use of CVOCs [chlorinated volatile organic substances] as cleaning solvent or as ingredients in the pesticides that it applied or in other products that it used, contributed to the further contamination of the property." (Avila filing 338-3 & Schwan filing 70-3, p. 3, ¶ 5

"If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order." Fed.R.Civ.P. 56(f). 15

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(Declaration of Lemuel M. Srolovic in Opposition to Cargill, Incorporated's Motions for Summary Judgment).) Discovery does not need to be complete before a case is dismissed on summary judgment. Pony Computer, Inc. v. Equus Computer Systems of Missouri, Inc., 162 F.3d 991, 996 (8th Cir. 1998). However, summary judgment is only proper if the nonmovant has had adequate time for discovery. Id. (citing Celotex, 477 U.S. at 322). A party opposing summary judgment who believes that he has not had adequate opportunity to conduct discovery must seek relief pursuant to Federal Rule of Civil Procedure 56(f), which requires that party to show "what specific facts further discovery might unveil." United States ex rel. Bernard v. Casino Magic Corp., 293 F.3d 419, 426 (8th Cir. 2002) (quoting Stanback v. Best Diversified Products, Inc., 180 F.3d 903, 911 (8th Cir. 1999); Dulany v. Carnahan, 132 F.3d 1234, 1238 (8th Cir. 1997)). See also Bradford v. DANA Corp., 249 F.3d 807, 809-10 (8th Cir. 2001) ("Federal Rule of Civil Procedure 56(f) does permit a party opposing a summary judgment motion to seek additional discovery, but only upon a showing of facts that the party expects to uncover."); Roark v. City of Hazen, 189 F.3d 758, 762 (8th Cir. 1999). The court may then refuse to grant summary judgment, order a continuance to permit further discovery, or "such other order as is just." Casino Magic, 293 F.3d at 911 (quoting Fed.R.Civ.P. 56(f)). "The purpose of subdivision (f) is to provide an additional safeguard against an improvident or premature grant of summary judgment . . . and [the rule] should be applied with a spirit of liberality." Id. (quoting 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2740 (1998)). Rule 56(f) allows a party to request a delay in granting summary judgment if the party can make a good faith showing that postponement of the ruling would enable it to discover additional evidence which might rebut the movant's showing of the absence of a genuine issue of material fact. Robinson v. Terex Corp., 439 F.3d 465, 467 (8th Cir. 2006). The movant must show "good reason for being unable to present facts essential to its response." Elnashar v. Speedway SuperAmerica, LLC, 16

484 F.3d 1046, 1054 (8th Cir. 2007) (quoting Alexander v. Pathfinder, Inc., 189 F.3d 735, 744 (8th Cir. 1999)). A conclusory statement that some useful evidence could possibly be found is insufficient to preclude the termination of discovery. Casazza v. Kiser, 313 F.3d 414, 421 (8th Cir. 2002); National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 606 (8th Cir.1999). To request discovery under Rule 56(f), a party must file an affidavit describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant's efforts were unsuccessful. Johnson v. United States, 534 F.3d 958, 965 (8th Cir. 2008). In Avila, a case progression order was entered, and discovery was thereby authorized to commence, on January 24, 2008. (Avila filing 269.) Two weeks later, on February 7, 2008, a similar order was entered in Schwan. (Schwan filing 30.) The court's order in each case generally adopted the parties' planning conference report, prepared pursuant to Federal Rule of Civil Procedure 26(f), in which the parties "agreed to conduct discovery in phases, focusing first on the facts necessary to determine whether third-party defendants should be added to this case and on the facts necessary to determine the extent, if any, to which any substances disposed of at the property associated with the defendant (i.e., 3304 Engleman Road) impacted plaintiffs' groundwater." (Schwan filing 25, p. 6, ¶ 10a; Avila filing 266, p. 8, ¶ 10b.6) The parties stipulated that the first phase of discovery would "include, but not be limited to, the following discovery: (i) groundwater and soil sampling in multiple locations; (ii) all fact discovery from current and former defendants [sic] to this case related to the operation of the facility at 3304 Engleman Road, including the handling and disposal of all substances at issue in this case; (iii) all other fact discovery, including any soil or groundwater sampling (except for any continuing monitoring of existing wells), related to the origin, contents, scope, and duration of the Because of the additional defendants in Avila (i.e., the owners of 3345 West Stolley Park Road), the wording of the agreement in that case is slightly different. 17
6

substances which allegedly have emanated from 3304 Engleman Road and allegedly have impacted any plaintiff or plaintiff's property; and (iv) third-party fact discovery from the City of Grand Island for all purposes and from Heinzman and its former employees." (Id.) As proposed by the parties, the court ordered that such "phase 1" discovery be completed by March 31, 2009, and also established the following interim deadlines: (1) The plaintiffs were to provide Cargill with "a written request for information related to defendant's operation of, and conduct at, the facility located at 3304 Engleman Road" by February 1, 2008, in Avila, and by March 3, 2008, in Schwan. (2) Cargill was to respond such request by April 2, 2008, in Avila, and by April 3, 2008, in Schwan. (Avila filing 269, p. 3, ¶ 9a,b; Schwan filing 30, p. 2, ¶ 9a,b.) Cargill's responses were actually served in each case on April 9, 2008. (Avila filings 280, 288; Schwan filings 34, 37.) The Avila progression order also specified that mandatory disclosures under Federal Rule of Civil Procedure 26(a)(1) were to be served by February 29, 2008, and that the parties were to produce any documents identified in their Rule 26(a)(1) disclosures by April 2, 2008. (Avila filing 269, pp. 2, 3, ¶¶ 4, 9b.) Cargill served its Rule 26(a)(1) disclosures on February 29, 2008, and supplemented the same on April 21, 2008. (Avila filings 273, 296.) Plaintiffs' counsel states that "[a]lthough Cargill has produced documents regarding its acquisition of the Engleman Road property, I am not aware of any documents produced to date regarding any environmental investigation or assessment of the property at or about the time of its acquisition by Cargill. I am also not aware of any documents produced to date regarding the environmental audits of the Engleman Road facility performed by Cargill in 1988-89 and in 1994, as Cargill's former maintenance supervisor, Mr. Douglas Taylor, testified." (Avila filing 338-3 & Schwan filing 70-3, p. 6, ¶ 6.) Mr. Srolovic acknowledges that "the plaintiffs have not to date [August 29, 2008] requested any such documents from Cargill," but states that they "intend to do so." (Id.) The plaintiffs' first request for production of documents was not served on Cargill until September 9, 2008. (Avila filing 341; Schwan filing 72.) Cargill, after unsuccessfully moving for a protective order based

18

on the pendency of its motions for summary judgment,7 responded to the request for production of documents on November 17, 2008. (Avila filing 373; Schwan filing 84.) Following such response, the plaintiffs have not asked leave to supplement their showing in opposition to the motions for summary judgment. On September 11, 2008, the plaintiffs also served Cargill with a corporate deposition notice pursuant to Federal Rule of Civil Procedure 30(b)(6). (Avila filing 342; Schwan filing 73.) After denying Cargill's motion for a protective order on October 17, 2008, the court directed the plaintiffs to file a new notice for taking the deposition after a period of 30 days. (Avila filing 358; Schwan filing 83.) However, the record does not reflect that the Rule 30(b)(6) deposition has ever been re-noticed by the plaintiffs. Plaintiffs' counsel states in his affidavit that the proposed discovery directed at Cargill is expected to provide evidence that: (1) "[P]receding and during its tenure at Engleman Road[,] . . . Cargill developed a staff of environmental experts who advised management on environmental risk management." (2) "[A]t or about the time that Cargill was considering acquiring the Engleman Road facility, Cargill had recently developed an internal program to identify the hazardous waste disposal sites of which Cargill was required to notify the U. S. Environmental Protection Agency, and to file the required notices . . . under Section 103(c) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA)." (3) "Cargill's environmental risk management practices and procedures preceding and during its tenure at Engleman Road . . . were driven by enforcement and/or litigation." (4) "[P]receding and during its tenure at Engleman Road[,] . . . Cargill On October 17, 2008, Magistrate Judge Piester entered an order denying Cargill's motion for protective order. He stated: "While it is true that plaintiffs may have been dilatory in not propounding discovery requests before now, that fact does not constitute good cause for a protective order. It is rare that the filing of a summary judgment motion would stop the discovery process." (Avila filing 358 & Schwan filing 83, p. 1.) 19
7

utilized significant quantities of CVOCs itself and/or was knowledgeable concerning their use and disposal." (5) "The environmental audits of the Engleman Road facility performed by Cargill in 1988-89 and in 1994 . . . revealed environmental problems at the facility and/or were deficient." (6) "Records of Cargill's use at the Engleman Road facility of CVOCs or products that may have contained CVOCs" will show "[t]hat there was a substantial volume of CVOCs at the Engleman Road facility during Cargill's tenure there." 8 (7) "Records of waste disposal by Cargill from the Engleman Road facility" will show "[t]hat Cargill did not appropriately dispose of wastes that it generated at the Engleman Road facility." 9 (8) Cargill did not generate "the documentation required under Section 2.3 of its 1996 Environment, Health and Safety Corporate Procedure Manual in its divestiture of the Engleman Road facility." (9) "Cargill sought or facilitated the development of the deficient . . .1998 and 2000 Phase I environmental site assessments ("ESAs") performed by CRA." 10 (10) "The ingredients in the pesticides Cargill used at the Engleman Road facility" contain "the type of CVOCs found in site soils and groundwater, and in offsite groundwater." 11 (Avila filing 338-3 & Schwan filing 70-3, pp. 4-5.) The first four items of "anticipated evidence" listed above apparently are intended to demonstrate that "Cargill was a large, sophisticated company with substantial resources and environmental expertise" that "knew or should have known

Plaintiffs' counsel indicates that discovery related to this issue would also be directed at Agrigenetics and/or Industrial Services Corporation ("ISC"), the current owner of the Engleman Road facility. Plaintiffs' counsel indicates that discovery related to this issue would also be directed at Agrigenetics and/or ISC. Plaintiffs' counsel indicates that discovery related to this issue would also be directed at Conestoga-Rovers & Associates. Plaintiffs' counsel indicates that discovery related to this issue would also be directed at the Environmental Protection Agency. 20
11 10 9

8

based on its own businesses and experience" that "the use of the type of chlorinated solvents, also known as chlorinated volatile organic compounds ("CVOCs"), contaminating the Engleman Road property were commonly used during the 1970s in metal fabrication for purposes of degreasing and cleaning" and that "spent CVOCs and other industrial wastes were commonly disposed of in the 1970s by dumping them in or on the grounds of manufacturing facilities[.]" 12 (Avila filing 340 & Schwan filing 71, pp. 5-6 (Plaintiffs' Brief in Opposition to Cargill, Incorporated's Motions for Summary Judgment).) The plaintiffs argue that because of "Cargill's environmental sophistication and knowledge," Cargill should have investigated the condition of the Engleman Road Facility in 1981 when it was purchased, in order to have discovered the contamination at that time, but that "there is no evidence that Cargill conducted any environmental investigation of the property until 1988-89." (Id., p. 6 (emphasis in original).) As will be discussed later, however, this theory of liability is inconsistent with Nebraska law. Regarding the 1988-89 and 1994 environmental audits, the plaintiffs state that Cargill's former maintenance supervisor, Douglas Taylor, testified at his deposition "that Cargill performed two environmental audits during the period that it owned and operated the Engleman Road facility, the first in 1988 or 1989, the second in 1994[,]" and that he "believed that audit forms would have been completed in connection with the 1988-89 and 1994 audits." (Id., p. 19.) Although these audit forms were not produced by Cargill pursuant to Rule 26(a)(1), there is no reason to suppose that the audits "revealed environmental problems at the facility and/or were deficient," as plaintiffs' counsel speculates. In fact, Mr. Taylor testified that the audit in 1988 or 1989 dealt with "[j]ust basically the procedure of documenting everything that you

The plaintiffs also argue that Cargill knew or should have known that "[t]he improper removal of underground gasoline storage tanks, or a failure to properly inspect the tank pits for evidence of leaks, could create significant environmental problems on the property (Avila filing 340 & Schwan filing 71, p. 6), but there is no evidence that the underground gasoline storage tanks caused any problems. 21

12

did . . . [a]s far as any type of hazardous or chemical stuff that we handled at the plant," and that there was no "auditing of . . . any contamination . . . of the soil surrounding the building[.]" (Avila filing 339-4 & Schwan filing 70-7, p. 24 (Douglas Taylor deposition at 134:4-17) (Plaintiffs' Ex. C).) He testified that the 1994 environmental audit was "similar to the environmental audit that was conducted in the '88, '89 timeframe" and involved "just updates." (Id., at 135:9-12.) Mr. Taylor also testified that there was no sampling of groundwater in connection with either audit, but that starting in the mid-1990's Cargill annually delivered a water sample to the city health department. (Id., at 134:18-135:1, 135:13-21.) There also is no evidence to support the supposition by plaintiffs' counsel that Cargill has business records showing that "there was a substantial volume of CVOCs at the Engleman Road facility during Cargill's tenure there" or that "Cargill did not appropriately dispose of wastes that it generated at the Engleman Road facility." The existence of such records would contradict the sworn testimony of four former Cargill employees.13 Douglas Taylor, the maintenance manager for the entire operational period from 1981 through 2000, states in an affidavit dated January 23, 2008, that: During the period that the Seed Division operated the Engleman Road Facility, we had small amounts of solvents at the building that I used for occasional parts washing. At no time did the Seed Division operations at the facility use solvents as part of its regular seed-related operations. At no time did I or other Seed Division employees at the facility dispose of solvents on the floor or on the ground. I am not aware of anyone, after the Seed Division purchased the Engleman Road Facility, disposing of any waste or other material,

Cargill's warehouse operations at the facility between 1981 and 2000 only required 4 or 5 full-time employees. 22

13

including solvents, by burying it or otherwise dumping it on the ground or in the area of the Engleman Road Facility. (Avila filing 331-19 & Schwan filing 61-19, p.2, ¶¶ 9, 10 (Cargill's Ex. 18).) Mr. Taylor also testified to this effect at his deposition on June 24, 2008. (Avila filing 331-12 & Schwan filing 61-12, p.7, (Douglas Taylor deposition at 31:22-35:4) (Cargill's Ex. 11).) Robert Sliva, Cargill's warehouse foreman from 1981 through 2000, similarly states in an affidavit dated January 22, 2008, that: During the period that the Seed Division operated the Engleman Road Facility, we had small amounts of solvents at the building that Doug Taylor used for occasional parts washing. At no time did the Seed Division operations at the facility use solvents as part of its regular seed-related operations. At no time did I or other Seed Division employees at the facility dispose of solvents on the floor or on the ground. I am not aware of anyone, after the Seed Division purchased the Engleman Road Facility, disposing of any waste or other material, including solvents, by burying it or otherwise dumping it on the ground or in the area of the Engleman Road Facility. (Avila filing 331-22 & Schwan filing 61-22, p. 1, ¶¶ 5, 6 (Cargill's Ex. 21).) Mr. Sliva was deposed on June 25, 2008. (Avila filing 331-31 & Schwan filing 61-31 (Cargill's Ex. 30); Avila filing 339-9 & Schwan filing 70-12 (Plaintiffs' Ex. H).) Edward Beckler, a seasonal worker from 1982 through 2000, provides an identical statement in an affidavit dated January 24, 2008. (Avila filing 331-21 & Schwan filing 61-21, p. 1, ¶¶ 5, 6 (Cargill's Ex. 20).) Mr. Beckler was deposed on June 24, 2008. (Avila filing 339-13 & Schwan filing 70-16 (Plaintiffs' Ex. L).)

23

Marge Purdy, the Engleman Road Facility manager from 1981 through 1987,14 states in an affidavit dated January 22, 2008, that: From the time that the Seed Division moved into the Engleman Road Facility through the time that I retired, I am aware that the facility, through Doug Taylor, kept very small amounts of solvent on hand for the purpose of occasional parts cleaning. Solvents were not used as part of our daily operations. As manager of the Engleman Road Facility, I would have been aware of any plan or practice involving the disposal of solvents or other material on the grounds or in the area of the Facility. I am not aware of any disposal or dumping of solvents or any other material on the grounds of the facility or otherwise in the area of the facility. (Avila filing 331-20 & Schwan filing 61-20, p.2, ¶¶ 9, 10 (Cargill's Ex. 19).) Ms. Purdy confirmed these statements at her deposition on June 25, 2008. (Avila filing 331-32 & Schwan filing 61-32, p. 2 (Marge Purdy deposition at 14:6-16:11) (Cargill's Ex. 31).) The eighth item of "anticipated evidence" involves Cargill's failure to generate "the documentation required under Section 2.3 of its 1996 Environment, Health and Safety Corporate Procedure Manual in its divestiture of the Engleman Road facility." The plaintiffs argue that "the ESAs obtained by Cargill [in 1998 and 2000] appear not to meet the requirements of Cargill's own environmental policy in effect at that time for property divestitures, which required, `[u]nless otherwise directed by the Law Department,' a written summary of the preliminary evaluation and/or audit that included, among other things, a `[r]eview of findings and conclusions including: [a]ssessment of environmental risk; [a]ssessment of impact of past and present operations or conditions of the property on employees, customers, the community or the environment; [and] [a]ssessment of compliance with governmental and internal Cargill states that Ms. Purdy's immediate successor, Larry Wade, who managed the facility from 1987 through 1996, is deceased. 24
14

requirements.' (Opp. Exh. E [Avila filing 339-6; Schwan filing 70-9], at CAR0002603, § 2.3(1)(d).)" (Avila filing 340 & Schwan filing 71, p. 32 (Plaintiffs' Brief).) The ninth item of "anticipated evidence" is that Cargill sought or facilitated the development of the deficient ESAs. (Apart from the ESAs' alleged failure to satisfy Cargill's own requirements, the plaintiffs contend that the ESAs failed to meet the standards established by the American Society for Testing and Materials ("ASTM").) As with the first four items of "anticipated evidence", the eighth and ninth items concern a duty to investigate that simply does not exist under Nebraska tort law. The tenth item of "anticipated evidence" is that pesticides Cargill used at the Engleman Road Facility contained CVOCs. Even assuming this to be true,15 there is no evidence of any disposal or release of the pesticides into the ground. Cargill's former employees testified that an exterminating company, Presto-X, was hired to spray around the inside walls of the building for insects and to set rodent traps; that there was no spraying outside the building; that an aerosol system was used in a portion of the building to control moths, with the used canisters being removed by Presto-X; that about twice a year a portable fogger was also used to fumigate for moths; and that there was no dumping or other disposal of pesticides on the property. (Avila filing 339-3 & Schwan filing 70-6, p. 17 (Marge Purdy deposition at 105:7108:18) (Plaintiffs' Ex. B); Avila filing 339-4 & Schwan filing 70-7, pp. 21-22 (Douglas Taylor deposition at 123:18-127:2) (Plaintiffs' Ex. C); Avila filing 339-9

The request for information that the plaintiffs served on Cargill pursuant to the parties' Rule 26(f) report and the court's progression order contained a question regarding the quantity of pesticides that were used at the Engleman Road Facility, and of the identity and quantity of inert ingredients contained in the pesticides. In a response served on April 9, 2008, Cargill objected to this request as being unduly burdensome, and stated that all of its business records were transferred in the divestiture of the Seed Division in 2000. Cargill did, however, provide a copy of a February 26, 1999 "Hazardous Chemical Register", which included insecticide and rodenticides. (Avila filing 339-15 & Schwan filing 70-18, p. 3 (Plaintiffs' Ex. N).) 25

15

& Schwan filing 70-12, p. 4 (Robert Sliva deposition at 45:4-47:25) (Plaintiffs' Ex. H); Avila filing 339-13 & Schwan filing 70-16, p. 4 (Edward Beckler deposition at 27:14-28:25) (Plaintiffs' Ex. L).) These former employees also testified that Cargill treated seeds with a Captan fungicide for a few years after moving to the Engleman Road Facility. The plaintiffs state that inert ingredients in the fungicide "likely" contained a solvent. Again, however, even assuming this to be the case, there is no evidence that the fungicide was ever discharged into the ground at this location. Captan was improperly disposed of at the Shady Bend Road facility in 1978, which caused the NDEQ to become involved and Cargill to issue a "pollution" directive within its Seed Division. According to Doug Taylor, when the equipment that was used to treat the seed with the fungicide was cleaned periodically, the rinse water would drop through a floor drain and be discharged into a ditch; this practice was stopped after a fish kill in a nearby lake was reported to the NDEQ; thereafter, the rinse water was collected in a barrel and recycled by using it to dilute the Captan for the next treatment.16 (Avila filing 331-12 & Schwan filing 61-12, pp. 3, 10 (Douglas Taylor deposition at 11:1012:8, 65:2-68:17) (Cargill's Ex. 11).) There is no evidence that Cargill reverted to the old procedure after relocating to Engleman Road. Plaintiffs' counsel also states in his affidavit that he expects to discover from former Cargill employees, who are not otherwise identified, that "Cargill personnel knew or should have known of the disposal or release of CVOCs by Heinzman personnel" and that "CVOCs were disposed or released on-site during Cargill's tenure." (Avila filing 338-3, p. 6; Schwan filing 70-3, p. 6.) In like manner, counsel states that he anticipates discovering from unidentified former Heinzman employees that "Cargill personnel knew or should have known of the disposal or release of

Mr. Taylor testified that 1 gallon of the Captan fungicide was mixed with 50 gallons of water for seed treatment. (Avila filing 331-12 & Schwan filing 61-12, pp. 9, 10 (Douglas Taylor deposition at 9:22-11:1, 65:22-25) (Cargill's Ex. 11).) 26

16

CVOCs by Heinzman personnel during Heinzman's tenancy and before, and [of] other environmental risk factors from Heinzman's operations on the property. (Id.) At least 4 former Cargill employees and 3 former Heinzman employees, Ivan Real, Randy Kosmicki, and David Grimes, have already been deposed. A fourth former Heinzman employee, Esther Schase, has also provided an affidavit to Cargill. It is not known whether any other persons who worked at the Engleman Road Facility, either for Cargill or Heinzman, are available for questioning. All of the Heinzman employees testified that solvent used in the tube mill operation was routinely dumped on the ground. Two of the Cargill employees, Marge Purdy and Robert Sliva, testified that they saw no evidence of this dumping activity, however. (Avila filing 331-32 & Schwan filing 61-32, p. 2 (Marge Purdy deposition at 15:8-15) (Cargill's Ex. 31); Avila filing 331-30 & Schwan filing 61-31, p. 2 (Robert Sliva deposition at 9:16-20) (Cargill's Ex. 30).) Ivan Real continued working at the facility after Heinzman's irrigation division was sold and it became a John Deere equipment dealership. He states in his affidavit that "[f]rom the time that the irrigation division shut down in mid-1980 until I left Heinzman, I did not use or see either the solvent or coolant material we used in the tube mill process. Nor am I aware of anyone pouring, spilling solvents, the coolant material, paint or chemicals on the ground or elsewhere at the Engleman Rd. Facility after the irrigation division ceased operating." (Avila filing 331-6 & Schwan filing 61-6, p. 3, ¶ 16 (Cargill's Ex. 5).) Mr. Real also testified at his deposition on May 2, 2008, that he worked at the Engleman Road Facility "for the entire period of time that Hinzman [sic] operated their Deere business there[,]" and that, to his knowledge, "there was not . . . any dumping or disposal onto the ground of any chemicals by Hinzman [sic] during that period of time[.]" (Avila filing 331-11 & Schwan filing 6111, p. 4 (Real deposition at 28:7-15).) The portions of the deposition that have been placed in the record do not disclose whether Mr. Real was asked if he had any contact with Cargill employees while they were sharing the facility, or if he had told them about Heinzman's prior dumping activity. 27

It appears that the plaintiffs have had plenty of opportunity to question the former employees about Cargill's possible knowledge of Heinzman's dumping activities. It does not appear that further questioning of former employers would provide any evidence that Cargill knew or should have known about the dumping. Finally, plaintiffs' counsel states in his affidavit that physical inspection of a "dry well" structure at the Engleman Road facility will show that "the structure constituted an injection well subject to federal and Nebraska regulatory requirements under their Underground Injection Well Control programs." (Avila filing 338-3, p. 5; Schwan filing 70-3, p. 5.) The potential relevance of such a finding is explained in the plaintiffs' brief as follows: When Cargill took possession of the Engleman Road facility, there was an open, below-grade concrete "pit" at the northeastern end of the facility into which a truck could back for loading at grade-level. When it rained, the open pit would collect water, and although it had a dry well structure at the bottom, water would nevertheless collect in the pit. After using the truck loading pit for a short period of time, Cargill filled in the pit with dirt. If this dry well had been disclosed to the regulators, it probably would be classified as a Class V injection well under the EPA Underground Injection Control ("UIC") program, as well as the comparable NDEQ program. The main purpose of the UIC programs is to protect underground sources of potable water from contamination. Dry wells are vulnerable to spills or illicit discharges of hazardous substances. At a minimun [sic], Cargill should have notified NDEQ or EPA of the existence of the dry well to determine if it was subject to regulation under the State or federal UIC programs and how it was used by Heinzman. If this had occurred, the regulatory agencies would probably have considered potential groundwater contamination as a result of this dry well and the previous use of the site. Indeed, when the dry well was recently sampled by EPA, CVOCs were found in the well. If Heinzman Engineering contaminated the property with CVOCs and 28

Cargill did not, as Cargill asserts, Cargill's sampling of the well during its tenure as part of permitting or lawful closure under the UIC programs would have found the contamination that much earlier and prevented, at least in part, its migration to plaintiffs' homes. (Avila filing 340 & Schwan filing 71, pp. 27-28 (citations to record omitted).) The plaintiffs do not cite any statute or regulation that required Cargill to report the clogged drain to the EPA or the NDEQ before filling the pit with dirt, or afterwards. Their expert merely states that the "EPA originally promulgated UIC regulations on May 19, 1980, with subsequent new and amended regulations over the next 20-plus years[,]" and that "Cargill should have notified NDEQ and/or EPA of the existence of this dry well to determine whether it needed to be regulated under the federal or state UIC regulations." (Avila filing 338-2 & Schwan filing 70-2, p. 22, ¶¶ 72, 74 (Declaration of Charles R. Dutill, II, P.E., in Opposition to Cargill, Incorporated's Motion for Summary Judgment).)17 Without proof of such a reporting requirement, the violation of which could provide some evidence of negligence on the part of Cargill, there is no plausible need for a physical inspection of the property. In any event, the plaintiffs have not shown that they have taken any steps to obtain an inspection, such as serving a subpoena on the current property owner. The district court does not abuse its discretion in denying a continuance and further discovery where the nonmoving party is not deprived of a fair chance to

Mr. Dutill also conjectures that if Cargill had reported the dry well to the EPA or the NDEQ, then "one or both of these agencies could have conducted a site visit to evaluate the need for regulation of this drywell[,]" and "[o]nce onsite, the regulators could have considered previous uses of this site in light of the dry well, specifically that by Heinzman as a metal fabrication plant[,]" such that "further investigation could have been undertaken or required by one or both of the regulatory agencies" which then "could have resulted in the discovery of chlorinated solvent contamination of soil and groundwater associated with the site." (Avila filing 338-2 & Schwan filing 70-2, p. 22, ¶¶ 74, 75.) 29

17

respond to the summary judgment motion. Nord v. Kelly, 520 F.3d 848, 852 (8th Cir. 2008). Nor is it an abuse of discretion for a district court to grant summary judgment before the opposing party has conducted any discovery at all, even if that party has requested a continuance, if that party does not demonstrate how discovery will provide rebuttal to the movant's claims. Alexander, 189 F.3d at 744. "Rule 56(f) does not condone a fishing expedition" where a plaintiff merely hopes to uncover some possible evidence of the defendant's liability. See Duffy v. Wolle, 123 F.3d 1026, 1041 (8th Cir. 1997) (quoting Gardner v. Howard, 109 F.3d 427, 431 (8th Cir.1997). The plaintiffs contend that additional discovery will help them to oppose the motions for summary judgment "by showing that (i) Cargill knew or should have known of the environmental contamination at the Engleman Road facility, (ii) that Heinzman Engineering disposed [of] or otherwise released chlorinated solvents during the period that it was a tenant to Cargill and that Cargill personnel knew or had reason to know of that disposal, and (iii) that Cargill's subsequent use of CVOCs at the site contributed to the environmental contamination emanating from the property." (Avila filing 340 & Schwan filing 71, pp. 51-52.) As discussed above, there is no evidence (1) that Cargill had actual knowledge of the environmental contamination at the Engleman Road Facility, (2) that Heinzman disposed of or otherwise released CVOCs while it was Cargill's tenant, or (3) that Cargill itself contaminated the property. There also has been no showing by the plaintiffs that there is reason to believe that any such evidence may be found in undisclosed records or from individuals who have not already been deposed. The only remaining issue is whether Cargill had constructive knowledge of the contamination. While additional discovery might serve to reinforce the plaintiffs' position that Cargill had various opportunities to learn about the subsurface condition of the property, unless Cargill owed the plaintiffs a duty to investigate, there can be no liability for negligence or for failing to abate a nuisance. "Liability can only be predicated on a duty to inspect, as distinguished from opportunity to inspect." Belder 30

v. Omaha & Council Bluffs Street Ry. Co., 272 N.W. 220, 222 (Neb. 1937). Because I conclude that such a duty did not exist as a matter of law in this case, the plaintiffs' request that the motions for summary judgment be denied or continued pursuant to Rule 56(f) will be denied. B. Negligence Claims "The threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty. Actionable negligence cannot exist if there is no legal duty to protect the plaintiff from injury. Whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular case." Erickson v. U-Haul Int'l, Inc., 738 N.W.2d 453, 459-60 (Neb. 2007) (footnotes omitted). "When determining whether a legal duty exists for actionable negligence, a court considers (1) the magnitude of the risk, (2) the relationship of the parties, (3) the nature of the attendant risk, (4) the opportunity and ability to exercise care, (5) the foreseeability of the harm, and (6) the policy interest in the proposed solution." Id., at 460. In a premises liability case, the plaintiff must establish that the defendant created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. Herrera v. Fleming Companies, Inc., 655 N.W.2d 378, 383 (Neb. 2003). With respect to persons lawfully on the premises, the Nebraska Supreme Court has held that "[a] landowner should not be held liable for defects which an investigation might reveal unless the situation suggests an investigation, and the facts indicate to a reasonably prudent man the likelihood of existence of some hidden danger[.]" Kozloski v. Modern Litho, Inc., 154 N.W.2d 460, 463 (Neb. 1967); Maxwell v. Lewis, 186 N.W.2d 119, 122 (Neb. 1971). See also Cook v. Lowe, 141 N.W.2d 430, 431-32 (Neb. 1966) ("The possessor of land is subject to liability for bodily harm caused to a business invitee by a natural or artificial condition thereon if he knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk."). "One may not be said to be negligent because he fails to make 31

provision against an accident which he could not be reasonably expected to fores