Emhart Industries, Inc. v. United States Department of the Air Force et al
Filing
27
OPINION AND ORDER terminating 9 Motion to Dismiss; granting in part and denying in part 16 Motion to Dismiss. So Ordered by Judge William E. Smith on 10/31/11. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
________________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES DEPARTMENT OF THE AIR
)
FORCE; UNITED STATES DEPARTMENT OF THE )
NAVY; UNITED STATES DEPARTMENT OF
)
DEFENSE; MICHAEL B. DONLEY, in his
)
official capacity as Secretary of the
)
United States Department of the Air
)
Force; RAY MABUS, in his official
)
capacity as Secretary of the United
)
States Department of the Navy; ROBERT M.)
GATES, in his official capacity as
)
Secretary of the United States
)
Department of Defense; and THE UNITED
)
STATES OF AMERICA,
)
)
Defendants.
)
________________________________________)
EMHART INDUSTRIES, INC.,
C.A. No. 11-023 S
OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before the Court is a motion to dismiss four out of the
five counts in the amended complaint (the “Complaint”) in this
case.
For the reasons set forth below, the motion is granted in
part and denied in part.
I.
Background
Plaintiff Emhart Industries, Inc. (“Plaintiff” or “Emhart”)
brought this suit against various branches of the United States
military (the “Defendants” or the “government”), including the
Air
Force
and
the
Navy,
seeking
damages
and
a
declaratory
judgment with respect to dioxin contamination alleged to be the
responsibility, in whole or in part, of Emhart at the Centredale
Manor
Superfund
“Site”).
Site
in
North
Providence,
Rhode
Island
(the
More specifically, Emhart’s complaint sets forth the
following five counts: (1) cost recovery under section 107(a) of
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability Act (“CERCLA”); (2) contribution under section 113(f)
of
CERCLA;
(3)
divisibility,
a
declaration
that
the
contamination at the Site is divisible and Emhart is responsible
for no more than its divisible share; (4) equitable indemnity;
and (5) declaratory judgment.
Defendants have moved to dismiss all but the contribution
claim.
II.
Discussion
In ruling on a motion to dismiss, the Court accepts all
well-pleaded facts on the face of the complaint as true and
draws
all
party.
A.
reasonable
in
favor
of
the
non-moving
McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006).
107(a) Cost Recovery
Defendants
107(a)
inferences
claim
contend
for
that
cost
Emhart
recovery
2
cannot
bring
because,
a
section
pursuant
to
administrative
Environmental
settlements
Protection
it
has
Agency
(the
entered
“EPA”),
into
with
section
the
113(f)
contribution is now Plaintiff’s exclusive remedy.
In United States v. Atlantic Research Corp., the Supreme
Court observed that there is a potential for overlap between the
two remedies: “We do not suggest that §§ 107(a)(4)(B) and 113(f)
have no overlap at all. . . .
[A]t a minimum, neither remedy
swallows the other, contrary to the Government’s argument.”
551
U.S. 128, 139 n.6 (2007); see also Agere Sys., Inc. v. Advanced
Envtl. Tech. Corp., 602 F.3d 204, 227 (3d Cir. 2010); Solutia,
Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1338 (N.D. Ala.
2010).
The Supreme Court did not further expound on the nature
or scope of that “overlap.”
At this stage of the litigation, and with an EPA Record of
Decision for the Site still to come, the Court cannot foreclose
the possibility that the overlap contemplated by the Supreme
Court in Atlantic Research could apply to Emhart.
Emhart has
made it clear to the Court that, at a minimum, it pleads in the
alternative to ensure that it will be able to recover for its
cleanup efforts at the Site, and it is entitled to do so.
Fed. R. Civ. P. 8(a)(3).
to
dismiss
as
to
the
See
Accordingly, the government’s motion
section
107(a)
denied.
3
cost
recovery
claim
is
B.
Divisibility
Defendants contend that divisibility is a defense to joint
and
several
liability,
that
Emhart
cannot
assert
it
affirmatively against the Government, and that an affirmative
divisibility
precludes
claim
would
be
pre-enforcement
barred
review
by
of
section
EPA
113(h),
response
which
actions.
During the hearing on the government’s motion, Emhart stated
that it asserted a divisibility claim because it plans to seek,
if appropriate, a geographic apportionment of responsibility at
the Site.
The Court is satisfied that such an apportionment
could be accomplished at trial, in consideration of Emhart’s
other
CERCLA
granted
as
dismissed
claims.
to
the
without
The
government’s
divisibility
prejudice
to
claim,
motion
and
Emhart’s
is
therefore
that
right
claim
to
is
assert
divisibility at some future date as it may be appropriate.
C.
Equitable Indemnity
Defendants argue that equitable indemnity sounds in tort
and that Plaintiff failed to comply with the Federal Tort Claims
Act (“FTCA”) and in the alternative that, if equitable indemnity
sounds in contract, Plaintiff has failed to establish a waiver
of sovereign immunity.
Emhart
bears
the
burden
of
proving
this
Court’s
jurisdiction to entertain its equitable indemnity claim.
4
See
Murphy
v.
United
(“[T]he
party
carries
the
quotation
States,
invoking
burden
marks
and
45
the
of
F.3d
520,
522
jurisdiction
proving
citation
its
of
(1st
a
Cir.
1995)
federal
court
existence.”
omitted));
see also
(internal
Skwira
v.
United States, 344 F.3d 64, 71 (1st Cir. 2003).
Since Emhart
argues
it
that
its
claim
does
not
sound
in
tort,
contend that it has complied with the FTCA.
that
Emhart
is
correct
that
equitable
does
not
Assuming arguendo
indemnity
sounds
in
contract, the claim is most properly characterized as one based
on contract implied by law.
See A and B Constr., Inc. v. Atlas
Roofing & Skylight Co., 867 F. Supp. 100, 105 (D.R.I. 1994)
(“Although indemnity implied-in-law is based on quasi-contract,
. . . indemnity is an obligation conceived independently of an
underlying tort and, therefore, follows contract principles.”);
see also 55 Motor Ave. Co. v. Liberty Indus. Finishing Corp.,
885
F.
Supp.
410,
415
n.1
(E.D.N.Y.
1994)
(“The
government
includes the claim for equitable indemnity as a tort, however,
it is more appropriately deemed a contract implied by law.”).
As such, Emhart would still need to show a waiver of sovereign
immunity.
In
both
its
Complaint
and
in
its
response
to
the
government’s motion to dismiss, Emhart points only to 42 U.S.C.
§ 9620(a)(1) as the basis for waiver.
5
While that provision
expressly provides a waiver of sovereign immunity for CERCLA
claims, Emhart has marshaled no authority for the proposition
that it also provides a waiver for related common law claims.
See
42
U.S.C.
§
9620(a)(1)
(“Each
department,
agency,
and
instrumentality of the United States . . . shall be subject to,
and comply with, this chapter . . . .”) (emphasis added); see
also
Murphy,
45
F.3d
at
522
(“In
general,
statutes
waiving
sovereign immunity should be strictly construed in favor of the
United States.”).
Without more, Emhart fails to meet its burden
of proving this Court’s jurisdiction. See Murphy, 45 F.3d at
522.
The government’s motion to dismiss as to the equitable
indemnity
claim
is
granted;
the
claim
is
dismissed
without
prejudice.
D.
Declaratory Judgment
Defendants
argue
that
Emhart’s
claim
for
declaratory
judgment should be dismissed to the extent that its other claims
are dismissed and that CERCLA does not provide for declaratory
judgment with respect to a section 113(f) contribution claim.
Even
though
CERCLA’s
declaratory
judgment
provision,
42
U.S.C. § 9613(g)(2), does not expressly provide for declaratory
relief for a contribution action, the First Circuit has held
that the provision applies to contribution claims for both past
and future response costs.
United States v. Davis, 261 F.3d 1,
6
47 (1st Cir. 2001) (“[W]e find that § 9613(g)(2) applies to
§ 9613(f) contribution actions for both past and future response
costs. . . .”).
as
to
the
Accordingly, the motion to dismiss is granted
declaratory
judgment
claims
corresponding
to
the
divisibility and equitable indemnity claims, but it is denied as
to
the
declaratory
judgment
claims
with
respect
to
Emhart’s
107(a) cost recovery claim and contribution claim.
III. Conclusion
For the foregoing reasons, the motion to dismiss is GRANTED
in part and DENIED in part.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: October 31, 2011
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