Hobart Corporation et al v. The Dayton Power and Light Company et al

Filing 774

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS' MOTION TO DISMISS COUNTERCLAIMS TO FIFTH AMENDED COMPLAINT (DOC. #473 ); SUSTAININGPLAINTIFFS' MOTION TO DISMISS FLOWSERVE'S PROTECTIVE AND CONTINGENT COUNTERCLAIM TO PLAINTIFFS' FIFTH AMENDED COMPLAINT (DOC. #535 )- For the reasons set forth above, the Court SUSTAINS Plaintiffs' Motion to Dismiss Flowserve's Protective and Contingent Counterclaim to Plaintiffs' FifthAmended Complaint. Doc. #535 . The Court SUSTAINS IN PART and OVERRULES IN PART Plaintiffs' Motion to Dismiss Counterclaims to Plaintiffs' Fifth Amended Complaint. Doc. #473 . To the extent that Defendants seek contribution from Plaintiffs for the cost of identifying other PRPs, the Court will allow the counterclaims to proceed. However, to the extent that Defendants seek contribution from Plaintiffs for any future response costs for which Defendants may be held liable, the Court finds that the counterclaims are premature and must be dismissed without prejudice to refiling in a subsequent lawsuit.To the extent that DP&L and Valley Asphalt seek to recover response costsincurred as a result of releases or threatened releases from the Site onto their own properties, the Court finds that these Defendants' factual allegations are insufficient to state a claim upon which relief can be granted. Nevertheless, DP&L and Valley Asphalt may seek leave to amend the counterclaims within 30 days of the date of this Decision and Entry.Signed by Judge Walter H. Rice on 8/29/17. (kma)