Opinion
Civil Action No. DKC 2002-1622
February 10, 2004
MEMORANDUM OPINION
Presently pending and ready for resolution in this environmental contamination case filed under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., is the motion by Plaintiff 1325 "G" Street Associates, LP to dismiss the counterclaim against it for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the court will grant Plaintiff's motion to dismiss the counterclaim.
I. Background
On May 6, 2002, Plaintiff 1325 "G" Street Associates, LP initially filed a complaint in this court against Defendant Rockwood Pigments NA, Inc. under various provisions of CERCLA, regarding certain tracts of land. In particular, Plaintiff sought (1) recovery for all costs of response incurred by Plaintiff, pursuant to 42 U.S.C. § 9607 (CERCLA § 107) and (2) contribution for an equitable share of all costs of response incurred by Plaintiff, pursuant to 42 U.S.C. § 9613 (CERCLA § 113). Defendant filed a motion to dismiss the complaint for failure to state a claim. On December 20, 2002, the court denied Defendant's motion. See 1325 "G" Street Assoc., LP v. Rockwood Pigments NA, Inc., 235 F. Supp.2d 458 (D.Md. 2002).
On April 7, 2003, Defendant filed a counterclaim against Plaintiff, alleging that Plaintiff is liable to Defendant "for contribution of its fair share of response costs under 42 U.S.C. § 9607(a) and § 9613(f)." Paper 26 at ¶ 22. Plaintiff subsequently filed a motion to dismiss Plaintiff's counterclaim, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim.
At the same time, Defendant also filed a third-party complaint against Third-Party Defendants Percontee, Inc. and Contee Resources, Inc.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Accordingly, a 12(b)(6) motion ought not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Except in certain specified cases, a plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
In its determination, the court must consider all well-pled allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court must disregard the contrary allegations of the opposing party. See A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). The court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Fire fighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis
CERCLA provides strict liability for cleanup costs among potentially responsible parties. See 42 U.S.C. § 9607(a) ("necessary costs of response"); Westfarm Assoc. Ltd. P'ship v. Washington Suburban Sanitary Comm'n, 66 F.3d 669, 677 (4th Cir. 1995), cert. denied, 517 U.S. 1103 (1996). However, the statute permits a few "narrow defenses" under CERCLA § 107(b) as exceptions to strict liability. Westfarm Assoc., 66 F.3d at 677. In its complaint, Plaintiff relied on one of those defenses, the "innocent landowner" defense (§ 107(b)(3)), in seeking recovery from Defendant for all costs of response incurred by Plaintiff. This court, in denying Defendant's motion to dismiss, had determined that Plaintiff sufficiently alleged the elements of the "innocent landowner" defense and "that Plaintif could be entitled to an innocent party exception." 1325 "G" Street Assoc., 235 F. Supp.2d at 462-63. Cf. Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 191 F.3d 409, 416 (4th Cir. 1999) (party not entitled to "innocent landowner" defense where party "has not even attempted to allege or prove its entitlement to any statutory defense"). Thus, Plaintiff may proceed in its claim for full recovery of "necessary costs of response" under CERCLA § 107(a) or, in the alternative, for contribution under CERCLA § 113(f).
The party claiming the "innocent landowner" defense must prove each of the following by a preponderance of the evidence:
(1) that another party was the "sole cause" of the release of hazardous substances and the damages caused thereby; (2) that the other, responsible party did not cause the release in connection with a contractual, employment, or agency relationship with the defendant; and (3) that the defendant exercised due care and guarded against the foreseeable acts or omissions of the responsible party.Westfarm Assoc., 66 F.3d at 682 (emphasis in original) (citing 42 U.S.C. § 9607(b)(3)).
Defendant now alleges in its counterclaim that Plaintiff is not an innocent landowner and therefore is not entitled to assert that defense as an exception to strict liability. To that end, Defendant claims that if the court adjudges Defendant liable to Plaintiff, then Plaintiff "is also liable for contribution of its fair share of response costs under 42 U.S.C. § 9607 (a) and § 9613(f)." Paper 26 at ¶ 22. In response, Plaintiff contends that dismissal of Defendant's counterclaim is proper on two alternate grounds: (1) if the court determines Plaintiff is entitled to assert the "innocent landowner" defense, Plaintiff cannot be liable for response costs under CERCLA § 107(a), or (2) if Plaintiff is not permitted to assert this defense, Defendant can be liable to Plaintiff only for Defendant's equitable share of response costs under CERCLA § 113(f). The court agrees with Plaintiff.
The Fourth Circuit has made clear that only a party subject to the exceptions of CERCLA § 107(b), such as the "innocent landowner" defense, may bring an action for response costs under CERCLA § 107(a) — potentially responsible parties "must seek contribution" under CERCLA § 113(f). Pneumo Abex Corp. v. High Point, Thomasville and Denton R.R. Co., 142 F.3d 769, 776 (4th Cir.) (CERCLA § 113 "must be used by parties who are themselves potentially responsible parties"), cert. denied, 525 U.S. 963 (1998). See also Axel Johnson, 191 F.3d at 415 ("any claim for damages made by a potentially responsible person — even a claim ostensibly made under § 107 — is considered a contribution claim under § 113"); Minyard Enters., Inc. v. Southeastern Chem Solvent Co., 184 F.3d 373, 385 (4th Cir. 1999) ("a responsible party cannot recover Response Costs under § 107(a) of CERCLA from another responsible party"). If the court ultimately permits Plaintiff to assert the "innocent landowner" defense in its claim against Defendant, CERCLA § 107(b) is explicit that "[t]here shall be no liability" under § 107(a). 42 U.S.C. § 9607(b). Thus, because Plaintiff would be shielded from liability, Defendant could not sustain its counterclaim under CERCLA § 107(a).
Defendant expresses concerns about its liability "were the court to find [Plaintiff] is not an innocent purchaser, and still allow the § 107 claim to proceed." Paper 33 at 2. Defendant's concerns are unfounded. As established in the foregoing discussion, Plaintiff may proceed under CERCLA § 107 only if the court determines Plaintiff is entitled to assert the "innocent landowner" defense.
Alternatively, if the court declines to recognize the "innocent landowner" defense, Plaintiff must resort to recovery from Defendant in the form of contribution under CERCLA § 113(f), which authorizes the district court to use "such equitable factors" as it deems appropriate in resolving the claim. 42 U.S.C. § 9613(f). Here, Plaintiff bears the burden of proving both Defendant's liability as a responsible party under CERCLA § 107(a) and Defendant's "equitable share of costs." Minyard Enters., 184 F.3d at 385; see also Pneumo Abex Corp., 142 F.3d at 776 n. 4 (CERCLA § 113 party "need only present equitable considerations to guide the allocation of liability"). The court has "considerable discretion as to what and how many equitable factors it will consider" in assigning response costs among the responsible parties. Minyard Enters., 184 F.3d at 385. Moreover, liability under CERCLA § 113(f) "is several only, as opposed to joint and several under § 107(a)." Id. Thus, as Plaintiff correctly argues, Plaintiff and Defendant each would be responsible only for its equitable share of response costs as contribution under CERCLA § 113(f). Defendant's counterclaim for contribution is therefore unnecessary.
IV. Conclusion
For the foregoing reasons, the court will grant Plaintiff's motion to dismiss Defendant's counterclaim. A separate Order will follow.