Gibson v. American Cyanamid Co et al

Filing 134

ORDER signed by Judge Rudolph T Randa on 08/02/2010 denying 112 Motion for Judgment; denying 121 Motion for Reconsideration. (cc: all counsel) (Koll, J)

Gibson v. American Cyanamid Co et al

Doc. 134

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

E R N E S T GIBSON, Minor, by his g u a r d ia n ad litem, SUSAN M. GRAMLING, P l a in tif f , C a s e No. 07-C-864 -vsA M E R I C A N CYANAMID Co., A R M S T R O N G CONTAINERS, Inc., E .I . Du PONT de NEMOURS and Co., M I L L E N I U M HOLDINGS LLC, N L INDUSTRIES, Inc., A T L A N T I C RICHFIELD Co., T H E SHERWIN WILLIAMS Co., and M I L W A U K E E COUNTY DEPARTMENT OF H E A L T H AND SERVICES, Defendants.

D E C IS IO N AND ORDER

O n June 15, the Court granted summary judgment for one of the defendants, Atlantic R ic h f ie ld Company ("ARCO"). The Court held that the imposition of liability under the " ris k contribution" rule adopted by the Wisconsin Supreme Court in Thomas ex rel. G ra m lin g v. Mallett, 701 N.W.2d 523 (Wis. 2005) would violate ARCO's substantive due p roc ess rights. ARCO moves for entry of judgment. Fed. R. Civ. P. 54(b). In stead of responding to the motion for entry of judgment, the plaintiff, Ernest Gibson, m o v e d for reconsideration. Gibson also filed a renewed motion to consolidate this case with C a s e Nos. 07-C-303, 07-C-441, 07-C-865, and 10-C-75 before Judge Adelman. Previously,

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th is Court deferred ruling on ARCO's motion for summary judgment until Judge Adelman d e c id e d the plaintiffs' initial motion to consolidate, a motion he denied without prejudice. C iv i l L.R. 42(a) (E.D. Wis.) (motion to consolidate decided by the judge to whom the lowest ca se number is assigned). The circumstances now are obviously quite different. The Court is s u e d a dispositive ruling in favor of one of the defendants, and matters are proceeding thro u g h discovery and towards dispositive motions and trial both here and in the cases before J u d g e Adelman. The Court sees no reason why it should wait until Judge Adelman resolves th e newly-filed motion to consolidate before deciding the pending motions in this case. R u l e 54(b) provides that when an action "presents more than one claim for relief ­ w h e th e r as a claim, counterclaim, crossclaim, or third-party claim ­ or when multiple parties a re involved, the court may direct entry of a final judgment as to one or more, but fewer than a ll, claims or parties only if the court expressly determines that there is no just reason for d e l a y. " When deciding such a motion, the function of the district court is to act as a " `d isp a tch e r' . . . to determine the `appropriate time' when each final decision in a multiple c la im s action is ready for appeal." Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1 9 8 0 ). Rule 54(b) judgments are generally disfavored because they allow piecemeal a p p e lla te litigation. Cont'l Cas. Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 5 1 8 (7th Cir. 1999). "Courts may not accommodate attorneys just because they want to a p p e al immediately; a separate judgment under Rule 54(b) multiplies the costs of litigation f o r opposing parties and for the appellate court, and these interests deserve thoughtful c o n sid e ra tio n ." Horn v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir. 1990).

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T h e district court has the power to enter a Rule 54(b) judgment if there is a final a d ju d ic a tio n on a specific claim or with respect to a specific party. Credit Francais Int'l, S .A . v. Bio-Vita, Ltd., 78 F.3d 698, 706 (1st Cir. 1996). Here, the Court's summary judgment ru lin g is a final adjudication of all of ARCO's rights and liabilities in this case. Fed. R. Civ. P . 54(b) ("court may direct entry of a final judgment as to one or more, but fewer than all, c la im s or parties") (emphasis added); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 5 8 0 (1st Cir. 1994) ("ruling underlying the proposed judgment must itself be final in the s e n s e that it disposes completely either of all claims against a given defendant or of some d iscrete substantive claim or set of claims against the defendants generally"). O n c e that initial determination is made, the Court can allow an appeal to proceed if it determines that there is no just reason for delay. In making this inquiry, the Court must c o n sid e r whether the claims to be appealed are "separate from the others remaining to be a d ju d ic a te d " and whether "the nature of the claims already determined" are such that "no ap p ellat e court would have to decide the same issues more than once even if there were s u b s e q u e n t appeals." Curtiss-Wright, 446 U.S. at 8. The Court should also consider "the e q u itie s involved," Id., but certification should be granted only if there exists some danger o f hardship or injustice through delay which would be alleviated by immediate appeal. M c A d a m s v. McCord, 533 F.3d 924, 928 (8th Cir. 2008). It is the moving party's burden to d e m o n stra te that it will "suffer unjust harm from the normal delay pending resolution of all c la im s in the case." Wright v. Kosciusko Med. Clinic, Inc., 791 F. Supp. 1327, 1334 (N.D. In d . 1992). As a general matter, "judicial administrative interests" are given priority over

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e q u ita b le concerns. Curtiss-Wright at 10 ("the court of appeals must, of course, scrutinize t h e district court's evaluation of such factors as the interrelationship of the claims so as to p re v e n t piecemeal appeals in cases which should be reviewed only as single units"); 10 J AMES WM. MOORE ET AL., MOORE'S FED. PRACTICE ¶ 54.23[1][a] (3d ed. 2010). T h e remaining defendants in this case recently stated that they "believe that they are a ls o entitled to summary judgment under the constitutional principles recognized by Judge R a n d a ' s decision, and intend to file motions for that relief promptly." D. 117, Defendants' O p p o s itio n to Plaintiffs' Renewed Motion to Partially Consolidate.1 One of those

d e f e n d a n ts, Sherwin-Williams, moved for summary judgment on June 26, arguing that it is e n titled to judgment for "the same reasons that this Court granted defendant Atlantic R ic h f ie ld Company's motion for summary judgment, and because the risk contribution th e o ry also violates Sherwin-Williams' right to procedural due process, effects an u n c o n stitu tio n a l taking of Sherwin-Williams' property, and discriminates against interstate c o m m e rc e . . ." Therefore, the issues remaining for adjudication are the same as or closely re la te d to those that would be appealed if the Court entered judgment for ARCO now, s e p a ra te from the remaining defendants. Courts should not enter judgment under such c irc u m s ta n c e s . Cf. Gerardi v. Pelullo, 16 F.3d 1363, 1372 (3d Cir. 1994) (courts "should be p a rtic u la rly cautious in certifying as final a judgment on a claim which is not truly distinct f ro m the claims on remaining issues, for even if the certified judgment is inherently final, the f a cts underlying the claim resulting in that judgment may be intertwined with the remaining
One of the defendants, Millenium Holdings, did not join in this statement, but they are not participating in this c a s e because they are in Chapter 11. D. 75, ARCO's Summary Judgment Brief at 37.
1

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iss u e s" ); Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir.), cert. denied, 483 U.S. 1021 (1 9 8 7 ) (overruled on other grounds) ("In the multiple party situation where the complaint is d is m is s e d as to one defendant but not others, the court should not, as a general matter, direct th e entry of a final judgment pursuant to Rule 54(b) if the same or closely related issues rem ain to be litigated against the undismissed defendants"). A R C O argues that the Court should enter judgment as soon as possible because a final ju d g m e n t would likely be appealed and, if affirmed, dispositive to the claims in the risk c o n trib u tio n cases currently pending before Judge Adelman. Even assuming that the a d m in istra tiv e interests regarding piecemeal appeals are not controlling here, ARCO fails to m e e t its burden of demonstrating that it will suffer undue prejudice if it has to wait for final ju d g m e n t until the conclusion of this case. ARCO's hope for a favorable Seventh Circuit ru lin g is not enough to justify the premature entry of judgment. Cf. Spiegel v. Trustees of T u fts College, 843 F.2d 38, 46 (1st Cir. 1988) ("To entertain an early appeal just because re v e rsa l of a ruling made by the district court might transpire and might expedite a particular a p p e lla n t's case would defoliate Rule 54(b)'s protective copse. This would leave the way c le a r for the four horsemen of too easily available piecemeal appellate review: congestion, d u p lic a tio n , delay, and added expenses. The path, we think, should not be so unobstructed") (em p h asis added). O f course, ARCO's wait for a final judgment is complicated by the plaintiffs' co n tin u in g efforts to consolidate this case with the cases pending before Judge Adelman. If Ju d g e Adelman consolidates before judgment is entered, he would be under no obligation to

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f o llo w this Court's ruling, except pursuant to the law of the case. HK Systems, Inc. v. Eaton C o r p ., 553 F.3d 1086, 1089 (7th Cir. 2009) (law of the case doctrine has greater force when th e re is a change of judges during the litigation). While it is not for this Court to decide, p la in tif f s' attempt to consolidate four months after Judge Adelman denied consolidation, and o n ly fifteen days after an unfavorable dispositive ruling, seems like a transparent judgesh o p p in g strategy. If pre-trial consolidation was inappropriate in March, when ARCO's id e n tica l motion for summary judgment was fully briefed in all of these cases, it is hard to u n d e rs ta n d why pre-trial consolidation would be appropriate just a few months later. M o re o v e r, without pre-judging the merits of the pending and forthcoming dispositive m o tio n s , the logic of this Court's ruling should apply with equal force to all of the d e f en d a n ts . Accordingly, it is extremely unlikely that consolidation will occur prior to the e n try of final judgment in this case. Even if pre-judgment consolidation was a likely sc e n a rio , the Court cannot enter judgment prematurely just to avoid the possible c o n se q u e n c e s when the inevitable result would be duplicate appellate effort. F in a lly, Gibson moves for reconsideration of the Court's summary judgment ruling b a se d on an intervening change in controlling law.2 Gibson argues that Stop the Beach R e n o u ris h m e n t, Inc. v. Florida Dep't of Envtl. Prot., -- U.S. --, 130 S. Ct. 2592 (2010), d e c id e d two days after the Court granted ARCO's motion for summary judgment, mandates re c o n sid e ra tio n . In Stop the Beach, the Supreme Court held that a decision issued by the

Gibson's motion can be considered under Rule 54(b), which provides that "any order or other decision, h o w e v e r designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does n o t end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment a d j u d i c a t i n g all the claims and all the parties' rights and liabilities."

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F lo rid a Supreme Court was not an unconstitutional taking. The plurality in Stop the Beach h e ld that the Takings Clause applies to the judiciary. Stop the Beach at 2601 ("It would be a b su rd to allow a State to do by judicial decree what the Takings Clause forbids it to do by le g is la tiv e fiat"). Concurring in the judgment, Justice Kennedy (joined by Justice

S o to m a yo r) agreed that there was no unconstitutional taking, but found that it was u n n e c e ss a ry to adopt a "judicial takings" doctrine. Instead, Justice Kennedy, much like his c o n c u rrin g opinion in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), reasoned that such a case should be analyzed under the Due Process Clause. Stop the Beach at 2615 (Kennedy, J ., concurring) (Court "would be on strong footing in ruling that a judicial decision that e lim in a tes or substantially changes established property rights, which are a legitimate ex p ec ta tio n of the owner, is `arbitrary or irrational' under the Due Process Clause"). T h e re f o re , Stop the Beach actually supports the Court's conclusion that the judicial d e v e lo p m e n t of the common law, just like a legislative enactment, can violate the c o n stitu tio n . G ib so n 's argument under Stop the Beach focuses on the concurring opinion of Justice B r e ye r . Justice Breyer refused to join the plurality opinion for fear it would "invite a host o f federal takings claims without the mature consideration of potential procedural or su b sta n tiv e legal principles that might limit federal interference in matters that are primarily th e subject of state law." Id. at 2618-19 (Breyer, J., concurring). Justice Breyer criticized th e plurality for finding it "`irrelevant' that the `particular state actor' that takes private p ro p e rty (or unconstitutionally re-defines state property law) is the judicial branch, rather

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th a n the executive or legislative branch." Id. at 2618. "Hence, the approach the plurality w o u ld take today threatens to open the federal court doors to constitutional review of many, p e rh a p s large numbers of, state-law cases in an area of law familiar to state, but not federal, ju d g e s." Id. at 2619. F r o m Justice Breyer's reasoning in Stop the Beach (joined by Justice Ginsburg), G ib s o n extrapolates that those two justices cannot be counted in favor of the rule "conjured" b y the Court from Eastern Enterprises because of their expressed reluctance to "interfere" w ith matters of state law developed by the judiciary. Remember that in Eastern Enterprises, J u s tic e Breyer and Justice Ginsburg were among the four justices who dissented from the o u tc o m e and the rationale that retroactive liability under the Coal Act violated the Takings C la u se . The only significance of the dissenting opinions in Eastern Enterprises was that re tro a c tiv e liability should be analyzed under the Due Process Clause, not the Takings C la u s e . Gibson v. Am. Cyanamid Co., -- F. Supp. 2d --, 2010 WL 2465498, at *13 (E.D. W is . June 15, 2010) ("a case involving the imposition of retroactive liability should not be a n a lyz e d as a taking because of the five to four alignment of the justices in Eastern [ E n t er p r is e s]. The obvious corollary is that five of the justices perceived the problem of re tro a c tiv e liability as a substantive due process issue") (internal citations omitted). Justice B r e ye r's reasoning in Stop the Beach does not undermine this conclusion. Nor does it u n d e rm in e Eastern Enterprises or the separate authorities which demonstrate that retroactive liab ility pursuant to the judicial development of the common law is unconstitutional.

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G ib s o n also argues that the Court should reconsider in light of a subsequent decision i s s u e d by the Wisconsin Supreme Court. Society Ins. v. LIRC, -- N.W.2d --, 2010 WL 2 6 8 0 5 2 2 (Wis. July 8, 2010). A state court decision is not controlling in this context. See 5 2 0 South Michigan Ave. Assoc. v. Shannon, 549 F.3d 1119, 1124 (7th Cir. 2008) (federal co u rt owes no deference to state court's interpretation of the federal constitution). N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. 2. A R C O ' s motion for judgment [D. 112] is DENIED; and G ib s o n ' s motion for reconsideration [D. 121] is DENIED.

D a te d at Milwaukee, Wisconsin, this 2nd day of August, 2010. S O ORDERED,

s / Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge

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