Liebhart, William et al v. SPX Corporation et al

Filing 252

OPINION and ORDER denying 239 Motion to Amend Complaint; granting in part and denying in part 236 Request for Deadlines Based on New Evidence of Widespread Dangerous PCB Levels, 243 Motion to Limit the Issues Addressed on Remand and to Sch edule Briefing. The parties may have until June 3, 2019, to file opening briefs addressing the question whether defendants are entitled to summary judgment under the standard articulated by the court of appeals. The parties may have until June 27, 2019, to file response briefs. Signed by District Judge James D. Peterson on 5/20/2019. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM LIEBHART and NANCY LIEBHART,
Plaintiffs,
v.

OPINION and ORDER

SPX CORPORATION, TRC ENVIRONMENTAL
CORPORATION, and APOLLO DISMANTLING
SERVICES, INC.,

16-cv-700-jdp

Defendants.
Plaintiffs William and Nancy Liebhart sued defendants SPX Corporation, Apollo
Dismantling Services, Inc., and TRC Environmental Corporation under the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, and state law for alleged
PCB contamination of their property. After this court granted summary judgment to
defendants, the court of appeals vacated the judgment and remanded the case for
reconsideration of “whether a substantial and imminent endangerment to health exists in this
case under the standards [the court of appeals] outlined.” Liebhart v. SPX Corp., 917 F.3d 952,
966 (7th Cir. 2019).
The question before the court now is what steps need to be taken to comply with the
mandate and bring this case to a resolution. Both sides have filed multiple briefs on the issue.
See Dkts. 236, 240, 244, 246–47, and 251.
The court concludes that the appropriate course of action is to allow the parties to
reargue their summary judgment positions in supplemental briefs, applying the guidance
provided by the court of appeals to the current record. Plaintiffs seek leave to amend their
complaint to add multiple new claims. They also ask for a schedule that allows for new

discovery, new expert reports, and new motions for summary judgment. But the court of
appeals did not direct this court to start over, reopen discovery, or otherwise expand the scope
of the case. Rather, the court of appeals concluded that this court applied the wrong legal
standard to plaintiffs’ federal claims. Liebhart, 917 F.3d at 954 (“[T]he court set the bar
unnecessarily high for the plaintiffs to show a violation of the applicable federal statutes.”). So
the proper remedy is to allow plaintiffs to reargue their case under the standard articulated by
the court of appeals, not to hit the reset button.
The court of appeals affirmed this court’s decision to deny plaintiffs’ motion for leave
to amend their complaint on the ground that doing so would be unduly prejudicial to
defendants, id. at 964–66, which supports this court’s conclusion not to expand the scope of
the case now. Plaintiffs point to the court of appeals’ statement that “the district court may
permit an amendment on remand if the interests of justice so require,” id. at 966, but plaintiffs
haven’t pointed to any new facts that would require a different conclusion. If anything,
plaintiffs’ proposed amendments would be more prejudicial now. Plaintiffs are essentially asking
for an opportunity to relitigate their entire case. But the case is already nearly three years old;
the parties have engaged in extensive discovery, prepared multiple expert reports on both sides,
and generated 250 docket entrees. Starting over now would create significant delay and
additional expense on both sides.
Throughout their briefs, plaintiffs state repeatedly that justice requires the court to
grant all of their requests. But missing from their briefs is any justification for failing to raise
their new claims earlier. The court of appeals clarified the legal standard for plaintiffs’ existing
claims, but it didn’t create any new causes of action. Under the Federal Rules of Civil
Procedure, parties are entitled to one full and fair opportunity to litigate their claims. They are

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not entitled to reinvent their case three years after filing their lawsuit because they conclude
that their original claims are insufficient.
Plaintiffs accuse defendants of concealing evidence related to the alleged burial of PCBs,
which is one of the new claims they wish to assert. But both this court and the court of appeals
concluded that, by their own admission, plaintiffs waited four months to move for leave to
amend after learning about the burial. Dkt. 204, at 15; Liebhart, 917 F.3d at 966. So plaintiffs
cannot prevail on an argument that defendants’ alleged conduct entitles them to assert new
claims now.
The court will deny plaintiffs’ motion for leave to amend their complaint. Instead, the
court will set a schedule for filing supplemental briefs to allow the parties to apply the guidance
provided by the court of appeals.

ORDER
IT IS ORDERED that:
1. Plaintiffs’ motion for leave to amend their complaint, Dkt. 239, is DENIED.
2. The parties’ motions to set a schedule, Dkt. 236 and Dkt. 243, are GRANTED in
part and DENIED in part as described above. The parties may have until June 3,
2019, to file opening briefs addressing the question whether defendants are entitled
to summary judgment under the standard articulated by the court of appeals. The
parties may have until June 27, 2019, to file response briefs.

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3. If necessary, the court will set the remainder of the schedule after resolving the issues
raised in the parties’ supplemental briefs.
Entered May 20, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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