UNITED STATES OF AMERICA v. PECHINEY PLASTICS PACKAGING, INC.,

Filing 83

MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/2/2013. (gxh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,

Civil Action No. 09-5692 (PGS)

Plaintiff,
v.

MEMORANDUM OPINION

PECHINEY PLASTIC PACKAGING,
INC.,
Defendant.

BONGIOVANNI, Magistrate Judge
This matter comes before the Court upon Defendant Pechiney Plastic Packaging, Inc.’s
(“PPPI”) motion to stay consideration of the United States’ Motion for Leave to Amend and
Supplement its Complaint pending the Court’s resolution of PPPI’s Motion for Summary
Judgment (“Motion to Stay”). The Court has fully reviewed and considered all of the arguments
submitted in support of and in opposition to PPPI’s Motion, and considers same without oral
argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below, PPPI’s
motion to stay is DENIED.
I.

Factual Background
On November 6, 2009, the United States of America (“United States”) filed this 42

U.S.C. § 9607(a) action seeking to recover costs incurred or to be incurred responding to the
release or threatened release of hazardous substances at the Pohatcong Valley Groundwater
Superfund Site (the “Site”). In the late 1970s, the New Jersey Department of Environmental
Protection (“NJDEP”) found elevated levels of trichloroethylene (“TCE”) and
tetrachloroethylene also known as perchloroethylene (“PCE”) at the site, which includes portions
of Washington Borough, Washington Township, Franklin Township, and Greenwich Township

in Warren County. Between 1985 and 1989, NJDEP installed water lines to provide a municipal
water supply in Washington and Franklin townships.
Beginning in 1988, the United States Environmental Protection Agency (“EPA”)
undertook investigative measures to identify the existence and scope of the release or threat of
release of hazardous substances at the Site that imposes a threat of danger to the public health
and the environment. As part of EPA’s overall study and investigation of the site, EPA
conducted a remedial investigation and a feasibility study of three study areas known as
Operable Units (“OUs”).
On February 22, 2013, the United States filed a Motion to Amend and Supplement its
Complaint (“Motion to Amend”) seeking to add six new defendants to this suit as well as in rem
claims against real estate located in Washington, New Jersey. On March 18, 2013, PPPI filed its
Opposition to the United States’ Motion to Amend as well as its Motion for Summary Judgment.
In addition, PPPI moved to stay the United States’ Motion to Amend, pending the Court’s
resolution of PPPI’s Motion for Summary Judgment. The Court addresses PPPI’s Motion to
Stay herein.
II.

Arguments
PPPI argues that the United States’ Motion to Amend should be stayed pending the

resolution of PPPI’s Motion for Summary Judgment. In this respect, PPPI argues that this matter
should be stayed for the purposes of preserving judicial economy and avoiding unnecessary
litigation costs because of the “potentially dispositive nature” of PPPI’s Motion for Summary
Judgment. (PPPI Br. at 2). PPPI argues that in determining whether to grant a stay, the
appropriate inquiry for the Court is not whether the “motion for summary judgment is likely to

2

succeed or that it will dispose of all claims asserted by the Government,” but rather “whether the
pending dispositive motion is ‘potentially dispositive’ of the litigation” or has the potential to
narrow the issues in the case. (PPPI Reply Br. at 1 (quoting Santos v. Bledsoe, Civ. No. 3:10CV-1599, 2011 WL 3739311, at *2 (M.D.Pa. Aug. 23, 2011)). Since PPPI claims that’s its
motion for summary judgment undoubtedly “has some ‘potential to narrow’ this case,” PPPI
argues that a stay pending its resolution is warranted. (Id. at 2).
PPPI also argues that the United States will not be prejudiced by such a stay because the
United States tacitly chose to delay in seeking to amend its Complaint even though it was aware
of the additional parties and claims it seeks to add since 2009. (PPPI Br. at 2). Further, PPPI
contends that the United States failed to respond to any clear evidence regarding its knowledge
of the claims and parties it only now seeks through its proposed amended pleading because the
United States is seeking to “hide behind the discovery process as an excuse for its belated
request.” (PPPI Reply Br. at 9). Thus, PPPI asserts that the United States failed to demonstrate
any concrete evidence that it would be prejudiced as a result of the stay. (Id. at 9-10).
Further, PPPI claims that allowing the United States to amend its Complaint before a
decision on the summary judgment motion will result in an inefficient use of judicial resources,
and will not only burden PPPI, but will also unnecessarily burden the proposed new defendants
to the suit. (PPPI Br. at 5). Specifically, PPPI asserts that the addition of the proposed new
defendants will require additional motion practice and discovery. PPPI emphasizes that if its
Motion for Summary Judgment is successful then consideration of the United States’ Motion to
Amend will result in “significant resources and time be[ing] unnecessarily expended by all
parties to address claims found to be barred by CERCLA.” (Id.) Further, PPPI disagrees with the

3

United States’ assessment that if the United States was to bring a separate civil action against the
potentially new defendants, such a case would be considered “a related case to the instant
dispute” or that the Court would therefore likely be inclined to consolidate the two matters.
(PPPI Reply Br. at 10). Accordingly, PPPI argues that the interests of the parties and the
proposed new defendants as well as the policy of preserving judicial resources militate in favor
of granting a stay.
PPPI also contends that the public interest has not been served by the conservative
actions undertaken by the United States to remedy the hazardous substances at the Site. (PPPI
Reply Br. at 11). Specifically, PPPI argues that the United States’ contention that its proposed
amendment enhances the public interest in expedient cost recovery is undermined because the
United States has failed to take affirmative and efficient measures to initiate any cost recovery
effort. (Id.) Indeed, PPPI notes that the United States waited over 20 years before pursuing this
cost recovery matter. (Id.).
In addition, PPPI takes issue with the United States’ efforts to undermine the potentially
dispositive nature of PPPI’s Motion for Summary Judgment. For example, in response to the
United States’ argument that PPPI’s Motion for Summary Judgment has “nothing to do with the
statue of limitations applicable to operating unit 2 (“OU2”) or operating unit 3 (“OU3”), which
each have an independent statute of limitations trigger” (United States Opp. Br. at 4), PPPI
claims that such an argument is not only contrary to the applicable case law, but it also opposes
the Congressional intent in drafting CERCLA’s statute of limitations provision. (PPPI Reply Br.
at 4-5). Instead, PPPI contends that the application of a “single statute of limitations…serves
CERCLA’s two primary purposes because it avoids piecemeal litigation… or threatened release

4

of hazardous substances, and promotes the concept of strict liability which CERCLA
incorporates.” (PPPI Reply Br. at 7). Because its Motion for Summary Judgment “cannot be
divided by OU,” PPPI argues that a grant of summary judgment will preclude the United States
from recovering any damages under CERCLA. (Id at 8).
In contrast, the United States contends that PPPI has failed to meet its burden to establish
that this proceeding should be stayed. In this regard, the United States contends that it will be
prejudiced if the requested stay is granted. (United States Opp. Br. at 3). The United States
argues that delaying its Motion to Amend is prejudicial because it interferes with the United
States’ interest and the public interest in expeditious cost recovery, an interest which the United
States notes is consistent with the statutory intent of CERCLA “to hold polluting parties
accountable for the costs of clean-up.” (Id.) Since the outset of this case, the United States
asserts that it has diligently pursued discovery, which has provided the United States with the
basis for adding these new proposed defendants and claims. In addition, the United States argues
that because the claims in the Amended Complaint “seek to ensure that the polluting parties,
rather than the taxpayer, pay response costs at the Site[,] [d]elaying a ruling on the Motion to
Amend prejudices the United States’ interest in expeditious cost recovery.” (Id.).
Further, the United States argues that PPPI has not established that it will suffer any
hardship or inequity if the Court considers the United States’ Motion to Amend prior to a
decision on PPPI’s Motion for Summary Judgment. The United States claims that PPPI will not
be “burdened by motion practice and additional discovery” if its Motion to Amend is considered
now because the issues raised therein will “arise regardless of the outcome of PPPI’s Motion for
Summary Judgment.” (Id.). Specifically, the United States contends that PPPI’s Motion for

5

Summary Judgment only considers the statute of limitations regarding the United States’ claim
for recovery of unreimbursed past and future operating unit 1 (“OU1”) costs, and therefore has
no effect on “the statutes of limitations applicable to OU2 or OU3, which each have an
independent statute of limitations trigger.” (Id. at 3-4 n.2). As such, the United States claims that
the burdens associated with the additional motion practice and discovery raised by PPPI are
undermined because this case will “proceed regardless of the outcome of the Motion for
Summary Judgment.” (Id. at 4).
Similarly, the United States argues that granting PPPI’s Motion to Stay fails to promote
judicial efficiency because the case will not be resolved regardless of the outcome of PPPI’s
Motion for Summary Judgment. (Id.). In addition, if the Court was to grant the stay, the United
States claims that the interests of the proposed new defendants would be prejudiced because of
the numerous manners in which the proposed new defendants are exposed to claims for liability
at the Site, including “(1) by the United States in a separate civil action, (2) by [] PPPI in a
contribution action pursuant to CERCLA Section 113…, or (3) by the United States via the
proposed Amended Complaint.” (Id. at 5). Thus, the United States contends that it is in the
proposed new defendants’ best interests to be named as additional defendants in this suit because
it provides “a procedural path for expeditiously resolving all of these claims in an orderly
fashion, in a single venue.” (Id.). Given the fact that PPPI has not established a pressing need for
the stay requested, the United States argues that it would be an abuse of discretion for the Court
to enter same.

6

III.

Analysis
“[T]he power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed.
153 (1936). In determining whether a stay should be granted, the Court “must weigh competing
interests and maintain an even balance.” Id. at 254-55. As such, the Court considers whether the
proposed stay would prejudice the non-moving party, whether the proponent of the stay would
suffer a hardship or inequity if forced to proceed and whether granting the stay would further the
interest of judicial economy. See Id.; Ford Motor Credit Co. v. Chiorazzo, 529 F.Supp.2d 535,
542 (D.N.J. 2008).
Further, in deciding whether a matter should be stayed, the Court is ever-mindful of the
fact that “[t]he stay of a civil proceeding is an extraordinary remedy.” S.Freedman and Co. Inc.
v. Raab, Civil No. 06-3723 (RBK), 2008 WL 4534069, *2 (D.N.J. Oct. 6, 2008). It is the party
seeking the stay that bears the burden of proof. Thus, “the supplicant for a stay must make out a
clear case of hardship or inequity in being required to go forward[.]” Landis, 299 U.S. at 255.
Indeed, the proponent of the stay “must state a clear countervailing interest to abridge a party’s
right to litigate.” CTF Hotel Holdings, Inc. v. Marriott Int’l, Inc., 381 F.3d 131, 139 (D.N.J.
2004). Moreover, when the stay requested is of an “indefinite duration[,]” the party seeking
same must establish a “pressing need” for the stay. Landis, 299 U.S. at 255.
In this instance, the Court denies PPPI’s Motion to Stay because it is (1) based on
speculative premises, (2) the prejudice to the United States and the proposed new defendants
outweighs the prejudice to PPPI, and (3) the stay is contrary to the public interest.

7

PPPI vigorously argues that there is a strong likelihood that its Motion for Summary
Judgment will dispose of this entire case because a majority of courts have rejected the
proposition that CERCLA’s text demonstrates response costs at a site are not divisible by OUs.
While the Court agrees that a grant of summary judgment in PPPI’s favor may be dispositive of
the entire case, the Court finds that the likelihood of said outcome is too speculative to warrant
staying the Court’s consideration of the United States’ Motion to Amend for that reason. See
Maher Terminals, LLC v. Port Auth., Civ. A. No. 12-6090, 2013 U.S. Dist. LEXIS 72719, at *8
(D.N.J. May 22, 2013) (“[I]t is clear to this Court upon its review of the motion to dismiss that
the motion does not dictate a clear and unmistakable result for either party; consequently, this
Court cannot justify granting a stay of discovery.”) (internal citations omitted). This is
particularly true in light of the fact that this Court has found that CERCLA’s statute of
limitations should be liberally construed in favor of the United States “in order to achieve its
remedial purposes.” United States v. Manzo, 182 F. Supp. 2d 185, 401 (D.N.J. 2001). Given the
speculative nature of the risk that this Court and the parties will needlessly spend resources
litigating issues that may become moot if PPPI’s Motion for Summary Judgment is granted, the
Court finds that PPPI has failed to establish that it will suffer a clear hardship absent the
requested stay. See S. Freedman and Co., 2008 WL 4534069, at *2 (“These contingencies are
too speculative on which to base the extraordinary remedy of granting a stay.”).
Additionally, the Court disagrees with PPPI’s contention that the United States will not
be prejudiced if the stay is granted. Instead, the Court finds that because the United States’
primary objective in bringing this suit is to hold polluting parties accountable for the costs of
clean-up, a delay in pursing expeditious cost recovery against such polluting parties prejudices

8

both the United States’ interest and the public interest. See 42 U.S.C. § 9607(a); see also Manzo,
182 F. Supp. 2d at 403 (“By permitting the United States to bring cost recovery actions based on
the timing of each ROD and operable unit, the Court would be honoring CERCLA's two
principal goals of facilitating the cleanup of potentially dangerous hazardous waste sites and
requiring polluters to pay the costs of their pollution.”).
Further, while PPPI asserts that it will suffer a clear hardship if it is forced to spend
considerable time and money engaging in additional motion practice and discovery if the United
States is permitted to amend its Complaint given the dispositive nature of its Motion for
Summary Judgment, the Court does not find this argument to be compelling. Nor is the Court
convinced that staying a decision on the United States’ Motion to Amend pending a
determination on PPPI’s Motion for Summary Judgment represents the most efficient way to
manage this case.
As noted above, it is entirely unclear that the parties will in fact waste significant time
and valuable resources pursuing additional motion practice and discovery if this matter is not
stayed. Indeed, the Court has already determined that PPPI’s arguments in this regard are too
remote to support a stay of these proceedings pending the resolution of PPPI’s Motion for
Summary Judgment. See Coyle v. Hornell Brewing Co., Civ. No. 08-2797 (JBS), 2009 U.S. Dist.
LEXIS 49109, at *10 (D.N.J. June 9, 2009) (“The party seeking a stay must make out a clear
case of hardship or inequity in being required to go forward, if there is even a fair possibility that
the stay . . . will work damage to some one else.”) (internal citation and quotation marks
omitted). In reaching this conclusion, the Court has not only taken into consideration the
likelihood that the issues to be litigated will be narrowed through PPPI’s Motion for Summary

9

Judgment. Instead, the Court is also mindful of the fact that the United States’ Motion to Amend
is already fully briefed and therefore there will be little to no cost/time savings for the parties if
the Court were to consider that motion now.
In addition, if the Court denies the United States’ Motion to Amend, PPPI’s request for a
stay will be moot. Moreover, even if the Motion to Amend is granted, the parties will not
immediately be in danger of wasting resources litigating issues that may potentially be resolved
by PPPI’s Motion for Summary Judgment. Instead, if the Motion to Amend is granted there will
be a necessary delay before any additional costs are incurred because of the need for the United
States to serve the Amended Complaint and for the proposed new defendants to answer same.
Indeed, discovery related to the proposed new defendants and new claims will not be automatic.
Moreover, to the extent the parties are ever faced with having to expend significant time, money
or other costs litigating issues raised in Plaintiff’s proposed Amended Complaint while PPPI’s
Motion for Summary Judgment remains outstanding, the Court can cross that proverbial bridge
when the parties reach it. Finally, moving forward with the United States’ Motion to Amend
now, means that if PPPI’s Motion for Summary Judgment is denied and if the United States’
Motion to Amend is granted, at least this case, which has been pending for almost 6 years, will
have continued to move forward and the 6 new proposed defendants will have had the
opportunity to have been served with the Amended Complaint and to have answered same so
that this matter can move as expeditiously as possible toward trial, which the District Court has
indicated will occur in the early summer of 2014. For these reasons, the Court finds that PPPI
has failed to establish that it will be unfairly burdened by the Court’s consideration of the United
States’ Motion to Amend now.

10

As a result, the Court finds that the prejudice affecting the United States’ interest and the
public interest in efficient cost recovery in CERCLA cases if this matter is stayed outweigh any
potential prejudice to PPPI if it is not. In reaching this conclusion, the Court notes that the
burden here falls squarely on PPPI. PPPI must establish that the extraordinary remedy of a stay
is warranted in this matter. Landis, 299 U.S. at 255. The Court finds that PPPI has not carried
its burden. In light of the significant efforts that the parties and the Court have already put into
the litigation of this matter, the Court is not convinced that the interest of judicial economy will
be best served by staying this case. Similarly, the Court finds that the risk that the parties will
unnecessarily expend additional time and money as a result of undertaking further motion
practice and discovery as to the proposed new defendants is too remote to support PPPI’s claim
that it, along with the United States, and the proposed new defendants will suffer a hardship or
inequity if required to proceed with this litigation before PPPI’s Motion for Summary Judgment
is resolved. Thus, the Court declines to exercise its discretion to enter a stay in this matter.
IV.

Conclusion
For the reasons set forth above, PPPI’s motion to stay is DENIED. An appropriate Order

follows.
Dated: July 2, 2013
s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

11