Opinion
Case No. 03-CV-079.
September 24, 2004
OPINION ORDER
I. INTRODUCTION
This matter is before the Court on the Motion to Dismiss filed by Third-Party Defendant, Gould Electronics, Inc. ("Gould"). For the following reasons, Gould's Motion is DENIED.
II. FACTS
In the underlying action, Plaintiffs, Suzanne and Gerald Bentley (the "Bentleys") and Recinda and William Bowshier (the "Bowshiers"), filed a class action against Defendant/Third-Party Plaintiff, Honeywell International, Inc. ("Honeywell"), and Siemens Energy Automation, Inc. ("Siemens"), alleging that Honeywell and Siemens released toxic chemicals at their Urbana, Ohio facilities that have contaminated Plaintiffs' properties and water supplies. Specifically, Plaintiffs allege that Honeywell and Siemens, for many years, spilled and released industrial solvents containing the volatile organic compounds ("VOCs"), trichloroethene ("TCE") and tetrachloroethene ("PCE"). These releases, Plaintiffs claim, have merged together to form a single commingled "plume" of groundwater contamination (depicted by the map at Exhibit 1 to Plaintiffs' Amended Complaint) underlying a substantial portion of the City of Urbana. This commingled plume, Plaintiffs aver, has contaminated private wells and two public wells that provide drinking water to the entire city of Urbana. Honeywell and Siemens' releases, it is alleged, have impacted and contaminated the municipal water supply, too.Accordingly, in the underlying action, Plaintiffs brought claims on behalf of themselves and two subclasses under: the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a), for cost recovery; and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), for injunctive relief. Plaintiffs also brought state law claims against Honeywell and Siemens for: negligence; private nuisance; trespass; willful and wanton misconduct; and public nuisance.
(a) own or reside in residential property in the area of contamination caused by Defendants of certain chemicals (the "Plume Class"); and/or
(b) own or reside in residential property which derives its water from the City of Urbana municipal water system, which itself is contaminated by Defendants' releases of hazardous chemicals (the "Municipal Water Class").
Honeywell and Siemens answered, both of them denying Plaintiffs' material allegations and claims of injuries. Honeywell thereafter filed a Third-Party Complaint against four Third-Party Defendants: Gould; Q3 JMC, Inc.; Johnson Welded Products, Inc.; International Truck Engine Corporation and its parent company Navistar International Corporation; and CV Materials, Ltd. (collectively the Third-Party Defendants). In its Second Amended Third-Party Complaint, Honeywell alleges that if Plaintiffs have been injured, the acts and omissions of the Third-Party Defendants caused or contributed to the injuries.
Honeywell's (first) Amended Third-Party Complaint stated claims for: 1) contribution under the Ohio Contribution Statute, Ohio Revised Code ("O.R.C.") § 2307 et seq.; 2) contribution cost recovery under CERCLA, 42 U.S.C. § 9613(f); and 3) implied indemnity. After Navistar sought dismissal of the implied indemnity claim, along with Gould's Motion to Dismiss seeking, inter alia, dismissal of the implied indemnity claim, Honeywell sought leave to file a second Amended Third-Party Complaint and volunteered to dismiss the implied indemnity claim. By Order on May 19, 2004, Magistrate King granted Honeywell leave to amend, based upon the express conditions that: 1) Gould's Motion to Dismiss the Amended Third-Party Complaint would be deemed applicable to the Second Amended Third-Party Complaint; and 2) Honeywell's implied indemnity claim would be dismissed with prejudice. Therefore, the only claims remaining and the only arguments by Gould that will be considered in ruling on its Motion to Dismiss are those pertaining to Honeywell's contribution claims under Ohio's statute and CERLCA.
As to Gould, Honeywell alleges that it owned the Dellinger Road facility now occupied by Siemens from 1956 to 1983; and, during that time, Gould used solvents, primarily TCE, in its manufacturing processes. Honeywell contends that in using TCE, Gould released it into the environment; and, if Plaintiffs were injured as alleged in their complaint, then Gould's sole or concurrent negligence and fault caused or contributed to those injuries. Accordingly, if Honeywell is found liable to Plaintiffs, in its Second Amended Third-Party Complaint, it seeks contribution from Gould and the other Third-Party Defendants.
III. STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides the mechanism for dismissing cases that fail to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, all factual allegations made by the plaintiff are deemed admitted, and ambiguous allegations are construed in the plaintiff's favor. Murphy v. Sofamor Danek Group, Inc. (In re Sofamor Danek Group, Inc.), 123 F.3d 394, 400 (6th Cir. 1997). A complaint should not be dismissed "unless it appears beyond doubt that the [p]laintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the complaint need not specify every detail of a plaintiff's claim, it must give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). Though liberal, this standard does require more than the bare assertion of legal conclusions. Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). A complaint must contain either direct or inferential allegations with respect to all of the material elements necessary to sustain recovery under some viable legal theory. Id.As a threshold matter, the Court must determine which documents it may consider in deciding Gould's Motion to Dismiss. Generally, matters outside the pleadings may not be considered in ruling on a Rule 12(b)(6) motion to dismiss unless it is converted into one for summary judgment under Rule 56. Weiner v. Klais Co., 108 F.3d 86, 88-89 (6th Cir. 1997). There are, however, exceptions to this general rule. Courts may consider public records, matters of which a court may take judicial notice, and letter decisions of government agencies. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); see also Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (public records); Lovalace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996) (judicial notice); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993) (letter decisions of governmental agencies).
In addition, even though they technically are outside of the pleadings, "ample authority exists which recognizes that matters of public record, including court records in related or underlying cases which have a direct relation to the matters at issue, may be looked to when ruling on a 12(b)(6) motion to dismiss." In re American Continental Corporation/Lincoln Sav. Loan Securities Litigation, 102 F.3d 1524, 1537 (9th Cir. 1996) (emphasis added), rev'd on other grounds by 523 U.S. 1227 (1998); Jackson, 67 F. Supp. 2d at 853 ("Courts may also consider public records, including court records in related cases."). Finally, courts may consider documents attached to the motion to dismiss, but only if they are part of the pleadings because they were "referred to in the plaintiff's complaint and are central to the plaintiff's claim." Jackson, 194 F. 3d at 745; Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999); Weiner, 108 F.3d at 89; see also Jackson, 67 F. Supp. 2d at 853 (court may consider undisputedly authentic document attached to motion to dismiss, if plaintiff's claims are based on document), aff'd in part and rev'd in part by 194 F.3d 737 (6th Cir. 1999).
Here, in arguing for dismissal of Honeywell's Second Amended Third-Party Complaint, Gould relies on expert reports used by Honeywell in opposing Plaintiffs' Motion for Class Certification. Although Gould attached exerted portions of one of Honeywell's expert reports to its Motion to Dismiss, Honeywell does not rely upon or refer to the reports in its Second Amended Third-Party Complaint. In fact, those expert reports, although central to the merits of the claims in the underlying action between Plaintiffs and Honeywell, have no relation to the matters at issue between Honeywell and the Third-Party Defendants — at least not at this point in the litigation. Consequently, the Court will not consider those reports and Gould's arguments in reliance on them, in deciding this Motion to Dismiss.
Gould attaches 3, barely readable maps, which it labels as "Plates 11-13," from Honeywell's October 25, 2002 "Phase III Groundwater Plume Delineation Report, Grimes Aerospace — North Russell Street Facility, Urbana, Ohio" by Cox-Colvin Associates, Inc (attached to Honeywell's Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification as Exhibit 8). Even if it were not improper for this Court to rely upon Honeywell's expert reports for the other reasons discussed above, the Court still would have difficulty finding them persuasive, given their piecemeal, exerted fashion, and as interpreted by Gould, because none of the expert's opinions and/or interpretations of the "Plates" were attached to Gould's Motion to Dismiss.
IV. ANALYSIS A. State Law Contribution Claim
Under the relevant provision of Ohio's contribution statute, O.R.C. § 2307 et seq., if two or more parties are jointly and severally liable in tort for the same injury or loss to any person or property, there is a right of contribution among them even though judgment has not been recovered against any or all of them. See Nevins v. Ohio Dept. of Transp., 724 N.E.2d 433, 447 (Ohio Ct.App. 1998) (holding, "[t]he right to contribution is the right to recover from another who is also liable for the proportionate share of that joint tortfeasor's liability."). In its Motion, Gould essentially concedes that it could be jointly and severally liable with Honeywell if the alleged tortious acts of Gould and Honeywell were found proximately to have caused a single, indivisible injury.
Thus, one of Gould's arguments for dismissal of Honeywell's state law contribution claim is that Honeywell cannot establish a single, indivisible injury. In making this argument, Gould inappropriately relies upon the expert reports used by Honeywell in opposition to Plaintiffs' Motion for Class Certification. One of the expert's findings is that there are two distinct plumes emanating from the Honeywell and Siemen/Gould facilities. Therefore, Gould argues, Honeywell, in pleading in the underlying action, has admitted that it cannot prove a single, indivisible injury.
Honeywell's plume consists primarily of PCE, and Siemen's/Gould's plume consists primarily of TCE, according to the expert report.
In addition to the fact that this Court already has ruled that it will not consider Gould's arguments in reliance on Honeywell's expert reports, this Court also rejects Gould's argument because Gould seeks a merits-based, factual determination in the underlying action. As this Court recognized in its Opinion Order granting class certification, Plaintiffs' theory is that Honeywell's and Siemens' releases jointly created a single, commingled groundwater plume. In other words, Plaintiffs' theory is that there, in fact, is a single, indivisible injury. Accepting Gould's argument here would require this Court to discredit Plaintiffs' theory in the underlying action, based upon one of Honeywell's expert reports, which is but one piece of evidence on this disputed issue of fact.
That factual issue, along with who is responsible for the commingled plume if Plaintiffs are able to prove such, remains to be determined. Moreover, those determinations, should the underlying action proceed to trial, will be made by a jury, not this Court. Thus, Gould's argument for dismissal seeking a factual determination by this Court in the underlying action is not well-taken.
Gould's other argument for dismissing the state law contribution claim is that it cannot be liable to the named Plaintiffs for their tort claims in the underlying action because the Bentleys and Bowshiers took possession of their properties after Gould transferred the Dellinger Road facility to Siemens. Gould contends that because it could not be even severally liable to the named Plaintiffs, it cannot be liable to them jointly and severally with Honeywell.
This argument fails, however, because the Court recently granted Plaintiffs' Motion for Class Certification. Gould has not alleged, and it probably could not, that none of the 3,000-12,000 class members, had possession of their properties during 1956 to 1983, when Honeywell alleges that Gould released TCE from the Dellinger Road facility. Thus, Gould's other argument, likewise, provides no basis for dismissal of Honeywell's state law contribution claim.
B. CERCLA Contribution Claim
For its CERCLA contribution claim against the Third-Party Defendants, Honeywell alleges that in responding to Plaintiffs' CERCLA action against it and Siemens, Honeywell has incurred and will continue to incur "response costs." CERCLA authorizes a party who has incurred response costs to bring an action against other parties that are found to be "potentially responsible persons" ("PRPs"). CERCLA Section 113(f), 42 U.S.C. § 9613(f).
These are environmental cleanup costs, as defined by CERCLA, 42 U.S.C. §§ 9601(23)-(25). Typically, they include costs such as those alleged by Honeywell in its Second Amended Third-Party Complaint, including: costs associated with developing a water treatment system for the City of Urbana; providing bottled water to certain property owners; negotiating with regulatory agencies; and investigating and testing for alleged groundwater and soil contamination, and remediation.
Gould's only argument for dismissal of this claim is that Honeywell failed to allege its response costs with sufficient specificity in its (first) Amended Third-Party Complaint. According to Gould, Honeywell did not meet even the "relatively low threshold" required by Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a) requires that pleadings include "a short and plain statement of a claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a).
In response to Gould's argument, Honeywell sought leave to amend and thereafter filed its Second Amended Third-Party Complaint, in which it alleged, specifically, that it incurred response costs, including: costs associated with developing a water treatment system for the City of Urbana; providing bottled water to certain property owners; negotiating with regulatory agencies; and investigating and testing for alleged groundwater and soil contamination, and remediation.
Since the Second Amended Third-Party Complaint was filed, Gould has not alleged other, additional grounds for dismissal of the CERCLA contribution claim nor sought to reassert its claim that Honeywell did not meet the requirements of Rule 8(a). The Court finds that Honeywell has satisfied the notice pleading requirements of Rule 8(a). Gould is on fair notice of the types of response costs for which it might be liable if Plaintiffs prove the underlying claim against Honeywell and Siemens, and Honeywell then proves its CERCLA cost recovery claim against Gould and/or the other Third-Party Defendants.
V. CONCLUSION
For the foregoing reasons, Gould's Motion to Dismiss is DENIED.
IT IS SO ORDERED.