Opinion
CASE NO.: 97-CV-72874-DT
August 10, 2001
OPINION
Plaintiffs are before this Court seeking contribution from Defendants under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f), for costs associated with the remediation of two waste disposal sites in Macomb Township, Michigan. This matter is currently before the Court on Plaintiffs' motion for summary judgment regarding liability, and for reasonable attorney fees pursuant to Rule 37 of the Federal Rules of Civil Procedure based upon Defendants' alleged failure to admit facts that, according to Plaintiffs, should have been admitted. Oral argument regarding Plaintiffs' motion was heard on April 16, 2001. Since oral argument the Court received various other pleadings from the parties regarding Plaintiff's motion for summary judgment. The Court has considered the following motions and pleadings, along with the numerous exhibits filed in this case:
Plaintiffs' Motion for Summary Judgment (Oct. 31, 2000)
Plaintiffs' Supplemental Expert Report and Allocation Recommendation of Expert John L. Tatum, Esq. (Nov. 3, 2000)
Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Sanctions (Nov. 21, 2000)
Plaintiffs' Reply Brief to Defendants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment and for Sanctions (Nov. 28, 2000)
Motion to Supplement Plaintiffs' Motion for Summary Judgment as to Liability Pursuant to FRCP 56 and Motion for Reasonable Attorney's Fees and Expenses Pursuant to FRCP 37 (Apr. 12, 2001)
Defendants' Supplemental Response Brief (Apr. 23, 2001)
Defendants' Ex-Parte Motion to Withdraw Portions of Their Supplemental Response Brief and Ex-Parte Motion to File Supplemental Brief Pursuant to L.R. 7.10 (Apr. 25, 2001)
Plaintiff's Motion to Strike Defendants' Ex-Parte Motion for Leave to File Supplemental Brief Pursuant to L.R. 7.1(f), or in the Alternative, Motion for Dissolution of Order Granting Enlargement (Apr. 30, 2001)
Plaintiffs' Reply to Defendants' Supplemental Response Brief (Apr. 30, 2001)
Defendants' Opposition to Plaintiffs' Motion to Strike Ex-Parte Motion for Leave to File Supplemental Brief (May 8, 2001)
Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion to Strike Ex-Parte Motion For Leave to File Supplemental Brief (May 10, 2001)
Plaintiffs' Ex-Parte Motion Pursuant to L.R. 7.1(f) for Leave to File Supplemental Brief in Support of Plaintiffs' Motion for Summary Judgment as to Liability Pursuant to FRCP 56 and Motion for Reasonable Attorneys' Fees and Expenses Pursuant to FRCP 37 (June 13, 2001)
Plaintiffs' motions to supplement filed April 12, 2001, and June 13, 2001, shall be granted.
Defendants' April 25, 2001, motion to withdraw portions of their supplemental response brief (specifically Section II regarding standing and Section III regarding Daubert) shall be granted. It is clear from the hearing transcript that Defendants were only granted leave to file a supplemental brief in reply to Plaintiffs' April 12, 2001 supplemental brief containing the deposition of counsel for Defendants, Roger K. Timm. (Aug. 16, 2001 Hr'g Tr. at 17).
Defendants' request that the Court allow additional briefing on standing and Daubert, however, shall be denied. Though they had plenty of time, they did not raise such issues prior to either the October 31, 2000, motion cut-off date, or the April 16, 2001 hearing. Defendants deposed Plaintiffs' expert witness on September 20, 2000. Despite their knowledge that Plaintiffs were relying on Dr. Pomaville's expert report, Defendants did not raise a Daubert challenge until the hearing on April 16, 2001. For these reasons, and the reasons discussed below, Defendants' request for additional briefing on these subjects shall be denied.
Furthermore, for the reasons stated below, Plaintiffs' motion for summary judgment as to liability shall be granted, but Plaintiffs' motion for reasonable attorney fees pursuant to Rule 37 shall be denied.
Background
During the early 1970's, the South Macomb Disposal Authority ("SMDA") owned and operated two landfills, sites 9 and 9A, located in Macomb Township. In 1983, a group of residents in Macomb Township filed suit against the SMDA and various state and local governmental agencies for damages resulting from the contamination of the groundwater at sites 9 and 9A ("the Bielat action"). After the State of Michigan settled with the private plaintiffs in the Bielat action, it realigned as a plaintiff against the SMDA.
In 1986, the SMDA was ordered to remediate sites 9 and 9A. Since 1986, the State of Michigan and the SMDA have been involved in draffing a settlement agreement regarding the remediation of these sites. As a result of its liability in the Bielat action, the SMDA filed suit against various insurance companies with which it was insured, including Plaintiffs, seeking insurance coverage for the costs associated with the remediation of sites 9 and 9A ("the Westchester action").
In 1997, facing the threat of potential liability to the SMDA in the Westchester action, Plaintiffs filed the instant action "in the name of the [SMDA]" pursuant to the authority granted it under its insurance contracts. In this action, Plaintiffs assert SMDA's right to contribution under CERCLA against Defendants as arrangers, generators, and transporters of waste deposited in sites 9 and 9A. It is undisputed that under their contracts with the SMDA, each of the Defendants deposited municipal waste collected from their residents in waste disposal sites owned by the SMDA, including sites 9 and 9A. Defendants, however, dispute Plaintiffs' assertion that the waste deposited by them in sites 9 and 9A contained any hazardous materials under CERCLA.
Discussion
Plaintiffs have filed a motion for summary judgment with respect to liability only. Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir. 2000); see also FED. R. Civ. P. 56(c). There is no genuine issue of material fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could "return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct 2505, 91 L.Ed.2d 202 (1986); Bobby v. Dean, 821 F.2d 346, 349 (6th Cir. 1987). Therefore, "[t]he proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the [non-moving party]." Hunter, 220 F.3d at 709 (citing Anderson, 477 U.S. at 252, 106 S.Ct. at 2512).
On a motion for summary judgment, the moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Potters Med. Ctr. v. City Hosp. Ass'n, 800 F.2d 568, 572 (6th Cir. 1986). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "[T]he district court is not to make credibility determinations or weigh the evidence" upon a motion for summary judgment. Adams v. Metiva, 31 F.3d 375, 384 (6th Cir. 1994) (citing Anderson, 477 U.S. at 255, 106 S.Ct. at 2513).
Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994). The nonmoving party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). It after adequate time for discovery, the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53.
CERCLA specifically permits contribution actions among potentially responsible parties ("PRPs"). See 42 U.S.C. § 9613(f)(1). PRPs are defined as:
(1) [T]he current owner or operator of a waste facility; (2) any previous owner or operator during any time in which hazardous substances were disposed at a waste facility; (3) any person who arranged for disposal or treatment of hazardous substances at the waste facility; and (4) any person who transported hazardous substances to a waste facility.Centerior Serv. Co. v. Acme Scrap Iron Metal Corp., 153 F.3d 344, 347-48 (6th Cir. 1998) (citing 42 U.S.C. § 9607(a)(1)-(4)); see also Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 652-53 (6th Cir. 2000). To establish a claim of contribution under CERCLA, a plaintiff must prove four elements: "(1) the site is a `facility'; (2) a release or threatened release of hazardous substance has occurred; (3) the release has caused the plaintiff to incur `necessary costs of response'; and (4) the defendant falls within one of the four categories of PRPs." Kalamazoo River Study Group, 228 F.3d at 653 (citing Centerior Serv. Co. 153 F.3d at 347-48). Although direct liability under § 9607 of CERCLA "is generally joint and several on any defendant regardless of fault," liability for contribution under § 9613(f) is several only, granting the district court discretion to allocate response costs among liable parties. Id. at 653-55.
A plaintiff seeking contribution is "not required to show that a particular defendant caused either the release or the incurrence of response costs in order to prove liability." Id. at 655-56 (citing United States v. Township of Brighton, 153 F.3d 307, 329 (6th Cir. 1998) (Moore, J., concurring in result)). "[C]onsideration of causation is proper only in allocating response costs, not in determining liability." Id. Liability as a PRP under CERCLA is strict requiring only that the plaintiff establish (1) that the defendant deposited hazardous substances at the site, (2) that there was a release at the site, and (3) that the release caused the incurrence of response costs. See id. at 655-58.
It is undisputed that there was a release at sites 9 and 9A, and that the release has caused the incurrence of response costs, as is evidenced by the Bielat action. Furthermore, Defendants admit in their answer to Plaintiffs' complaint that "about 85% of the waste in Sites 9 9A constitutes municipal solid waste generated by residents of each of them, which was collected and transported to the Sites by or on behalf of each Defendant." (Answer ¶¶ 41, 43). Each of the Defendants also admitted in their second set of admissions that "during the period from approximately September 1968 through late 1974 or early 1975, it collected or had collected on its behalf, refuse from its residents, and transported such refuse or had such refuse transported to Site 9 and Site 9A for disposal by SMDA, which was the owner and operator of the Sites." (Pls.' Mot., Ex. C2; see also Pls.' Mot., Lx. U; Pl.'s Reply, Ex. F at 4-6, Ex. H at 4-6). Because Defendants admit that they deposited municipal solid waste in sites 9 and 9A, that there was a release at sites 9 and 9A, and that the release caused the incurrence of response costs, the only remaining issue as to Defendants' liability as PRPs is whether the "municipal solid waste" deposited by or on behalf of Defendants at sites 9 and 9A contained any "hazardous" material as defined by CERCLA.
1. Plaintiffs' Evidence that Defendants' Municipal Solid Waste Deposited in Sites 9 and 9A Contained CERCLA Hazardous Materials
Plaintiffs have submitted expert testimony from Rena M. Pomaville, Ph.D., that each of the Defendants have at some time or another deposited at least one CERCLA hazardous substance in sites 9 and 9A. (Pomaville Supp. Rep. at 2-3; see also 40 C.F.R. § 302.4). Dr. Pomaville's methodology for reaching this conclusion was rather simple. Plaintiffs collected over 100 depositions from various residents and employees of each of the Defendant Cities, as well as 75 statements taken from residents, employees, and elected officials, as to the type of materials they had deposited, or seen in the Cities' municipal solid waste, over the years relevant to this case. (Pomaville Aff ¶ 3; Pomaville Supp. Rep. at 1-2 Table 1; Pl's Reply, Exs. J-M). Dr. Pomaville reviewed all of the depositions and statements to determine whether any of the materials deposited by these residents were known to contain a hazardous substance under CERCLA.
Dr. Pomaville then created a number of tables organizing the information contained in the residents' depositions and statements. Table 1 is an evaluation of deposition testimony identifying every resident, the household waste the resident discarded, a household hazardous waste reference, the generally accepted hazardous components of the discarded waste, the type of component that was found at sites 9 and 9A, whether the deponent dumped the waste as a resident or employee of the Defendant City, and the resident's city. For example, the first name and item in Table 1 reveals that Kay Adams, a resident of the City of Warren, discarded aluminum foil, which, according to the National Toxicology Program ("NTP"), contains the generally accepted hazardous component of aluminum, which was one of the hazardous materials found in the leachate at sites 9 and 9A. (Pomaville Supp. Rep., Table 1 at 1). Similarly the last name and item in Table 1 reveals that Deponent Zielinski, a resident of the City of Centerline, discarded empty laundry detergent boxes, which according to a number of sources, including the EPA's glossary of hazardous products and compounds, contains a number of generally accepted hazardous components including methylene chloride, tetrachloroethylene, and sodium, which were also found in the leachate at sites 9 and 9A.
The term "Household Hazardous Waste Reference" refers to the six articles/tables Dr. Pomaville used to determine whether a particular discarded item contained a hazardous substance. For example, reference 6 refers to the EPA's Glossary of Hazardous Products Compounds: A to Z, found at www.epa.gov/grtlakes/seahouse;housewaste/house/products.htm.
Table 2 contains the same information for the residents' statements. The data was also organized by City, with Tables 3 and 4 representing City of Centerline residents and employees, respectively; Tables 5, 6, 7, and 8 representing City of Eastpointe residents, employee residents, elected officials, and employees, respectively; Tables 9, 10, 11, and 12 representing City of Roseville residents, employee residents, elected officials, and employees, respectively; Tables 13, 14, 15, and 16 representing the same for the City of St. Clair Shores; and Tables 17, 18, and 19 representing City of Warren residents and elected officials. In Dr. Pomaville's opinion, almost every deponent had, in the past, thrown away a material that contained a hazardous substance that was found in Sites 9 and 9A.
Dr. Pomaville did not make any projections as to whether every citizen had deposited the identified materials in their garbage in the past. To prove liability under CERCLA, however, Plaintiffs need only prove that the Defendant Cities deposited the slightest amount of hazardous material in sites 9 and 9A. See Kalamazoo River Study Group, 228 at 660 n. 7 ("However, one discharge is sufficient to support liability; there is no requirement that the generator typically discharge waste to the site."). In this Court's opinion, Dr. Pomaville has more than satisfied this burden. Even counsel for Defendants has acknowledged that the Defendant Cities are "generators" under CERCLA. When asked how the State or the EPA could come after the Cities directly, counsel for Defendants stated: "They're generators under CERCLA." (Pl.'s Mot. to Supplement, Ex. A at 158). Counsel for Defendants also admitted that once a party is designated a "generator" under CERCLA, "[y]ou have no defenses." ( Id. at 160).
Defendants contend that counsel's statements should not be considered by the Court because such statements are hearsay, counsel was not representing the Defendant Cities at the time of the deposition, and such statements have been taken out of context. Reviewing counsel's deposition testimony, it appears that such statements are not hearsay, but rather, counsel's own opinion as to the Defendant Cities' status under CERCLA. Furthermore, the Court does not agree that such statements have been taken out of context. Counsel's statements were made in direct response as to how the EPA and the State could come after the Defendant Cities directly. Although such statements may not constitute an admission on behalf of the Defendant Cities, the Court does find such statements to be persuasive as to the Defendant Cities' status under CERCLA.
Although some of the residents stated that containers, such as paint cans and laundry detergent boxes, were empty when they were discarded, Dr. Pomaville explains:
There are several ways to consider materials that were deposited in SMDA landfills. Number one, there are certain containers that are really, never truly empty, such as aerosol cans. The consumer has used everything that they can in the can, but there is still residual liquids. Also motor oil filters, unless they have been drained and crushed, they still do contain motor oil. Flourescent light bulbs, incandescent light bulbs, those — hazardous materials are contained within the fixture and so will be deposited.
(Pomaville Dep. at 33-34). Dr. Pomaville also explained that a study she conducted in Palm Beach, Florida, where she actually looked through waste in order to classify various containers as "percent full," revealed that "there were very few that were zero percent full." ( Id. at 34).
Dr. Pomaville admitted during her deposition that she did not attempt to determine the quantity of hazardous waste deposited by each of the Defendant Cities. (Pomaville Dep. at 61, 66, 67, 69). Rather, Dr. Pomaville's task was to determine if any hazardous waste was deposited by the Defendant Cities. As Dr. Pomaville stated, "Whether that was two percent or 98 percent, my conclusion would still be that they had deposited hazardous materials or hazardous substances." ( Id. at 67).
As further evidence that Defendants are liable under CERCLA, Plaintiffs have submitted a copy of an Administrative Consent Order from the United States Environmental Protection Agency alleging that Defendants were identified as having contributed hazardous substances to sites 9 and 9A. (Pls.' Mot., Ex. B at 2). As the Order states, however, Defendants agreed not to contest the jurisdiction of the EPA and Defendants' participation in the Consent Order did not constitute an admission of liability. ( Id., Ex. B at 15). Therefore, the Administrative Consent Order is of no persuasive value.
Plaintiffs have also submitted a report by John L. Tatum, Esq. Tatum's report, however, regards allocation, not liability.
Defendants contend that the Court should strike Dr. Pomaville's report because she refused to provide them with a copy of her internal drafts of the final report. The Court finds Defendants' argument to be without merit. During her deposition, Dr. Pomaville indicated that she had prepared other "internal drafts" of her report. Nothing stated in the deposition indicates that these "internal drafts" were ever disclosed to counsel for Plaintiffs, or that these "internal drafts" constituted her preliminary conclusions. In this Court's opinion, Dr. Pomaville was referring only to her own "internal drafts" prepared during the editing process. The Court is satisfied that Dr. Pomaville's failure to produce such "drafts" does not mandate that her report be stricken.
Next, Defendants contend that even if Dr. Pomaville's report is considered, genuine issues of material fact exist regarding their liability and therefore, summary judgment on this issue is inappropriate. The Court finds Defendants' reliance on GH Landfill PRP Group v. American Premier Underwriters, Inc., No. 96-CV-72947-DT (E.D. Mich. Jan. 29, 1999), to be unpersuasive in this case. Unlike the plaintiffs in GH Landfill, who presented no evidence that the municipal refuse dumped by the defendant contained CERCLA hazardous material, Plaintiffs have provided ample evidence, through the expert report of Dr. Pomaville and the related depositions, that the municipal solid waste collected by the Defendant Cities and deposited in sites 9 and 9A contained CERCLA hazardous materials.
Dr. Pomaville reviewed numerous depositions and statements from residents regarding the types of waste that were disposed of during the relevant time period, as well as the chemical composition of such waste, to draw a specific nexus between hazardous substances appearing in the leachate at sites 9 and 9A and the municipal waste collected from Defendants' residents and deposited in sites 9 and 9A. See Anderson v. City of Minnetonka, NO. CV-3-90-312, 1993 WL 95361 (D. Minn. Jan. 27, 1993) (accepting evidence where plaintiff's expert had studied deposition testimony containing personal observations of the use of the old dump and the kind of waste generated by the city).
Defendants also assert that Dr. Pomaville's analysis "is flawed and fails to consider a number of factors that go into determining whether hazardous substances were contained in discarded household products." (Defs.' Br. Opp. at 8). As support for their assertion, Defendants have presented the Court with six pages from their expert Dr. James Dragun's deposition. ( Id., Ex. 4). According to Dr. Dragun, whether certain CERCLA hazardous substances are found in common household products, and whether such substances were ultimately deposited in sites 9 and 9A, depends on a number of factors, including the precise chemical composition of the product, exactly how the product's container was treated prior to disposal, and the product's time in the landfill. (Dragun Dep. at 59-60, 91-93).
In this Court's opinion, nothing in Dr. Dragun's deposition testimony directly refutes Dr. Pomaville's conclusions that each of the Defendant Cities deposited CERCLA hazardous substances in sites 9 and 9A. Although, in this Court's opinion, Dr. Dragun's testimony may be relevant to the amount of hazardous substance deposited by each of the Defendant Cities and therefore, the proportion of the response costs that should ultimately be allocated to each of the Defendants, the issue of allocation is not currently before the Court.
Furthermore, Dr. Dragun testified during the Bielat action that a wide range of household products contained benzene, toluene, ethylbenzene, and xylene, all of which were found in the leachate at sites 9 and 9A. (Pls.' Mot., Ex. H). As Dr. Dragun testified regarding the procedure he used in determining whether there were any household products that contained the hazardous chemicals found at sites 9 and 9A:
Well, I took information that was supplied to me by Doctor Jay Goodman. . . . It lists chemicals which are commonly found in various household products, and I took that information and put together this list. So, for example, . . ., I have petroleum distillates listed, and petroleum distillates commonly contain benzene, ethylbenzene, toluene and xylene. So, any type of household product that has a petroleum distillate as part of its chemical composition is a product which is going to contain benzene, ethylbeuzene, toluene and xylene.
So, for example, . . ., adhesives contain 35 percent petroleum distillates. Insecticides — insecticides in general are used as a solvent. Chemicals such as xylene, toluene, petroleum distillates, basically petroleumproducts are used to dissolve pesticides, and then it's a mixture of the petroleum distillate and pesticide which is applied.
So, for example, here we have got a listing for insecticide — an insecticide product that's a fogger, . . ., foggers can contain 81 percent petroleum distillates. House and garden insecticides, again, 82 percent petroleum distillates.
* * *
In my experience, petroleum distillates can contain anywhere from, oh, less than a half percent to about one to two percent benzene. So, if the product, for example, contains 82 percent petroleum distillates, say a house and garden insecticide that had 82 percent petroleum distillates, I would expect to see benzene somewhere in the range of maybe a half to one percent of the volume of the product.
* * *
. . . As you can see, there's just a wide, wide variety of household type products which contain petroleum distillates, benzene, toluene, ethylbenzene, xylene.
(Pls.' Mot., Ex. H at 53-55). As counsel for Defendant explained the purpose of Dr. Dragun's testimony in the Bielat action, "[T]he specific purpose is to show that these are the kinds of products or chemicals that are around virtually every residence in the country in substantial quantities." ( Id. at 58). Although counsel for Defendants used Dr. Dragun's testimony in the Bielat action to show that the hazardous substances found at sites 9 and 9A may have come from the septic systems surrounding the sites, it nonetheless supports Plaintiffs' assertion that a wide variety of household products commonly discarded by residents of the Defendant Cities contained CERCLA hazardous materials. In fact, Dr. Dragun confirmed that many household products such as paint removers, degreasers, aerosols, soaps, scouring compounds such as AJAX and Comet Cleanser, and pesticides contain hazardous materials found in the leachate at sites 9 and 9A. (Pl.'s Reply, Ex. I at 80-88).
As for Dr. Dragun's opinion that there is no scientific method for determining whether the chemicals causing response costs at sites 9 and 9A originated from waste generated by the Defendant Cities, (Dragun Rep. at 2), the Court reiterates that CERCLA imposes strict liability under which Plaintiffs are not required to prove that any particular city "caused" the need for response costs. See Kalamazoo River Study Group, 228 F.3d at 655-56. With respect to Dr. Dragun's conclusion that there is no valid scientific basis for calculating the amount of hazardous substance deposited by each of the Defendant Cities, the Court notes that Plaintiff's motion for summary judgment relates to liability only. Therefore, any evidence as to allocation is irrelevant at this point.
The Court is satisfied that there remains no genuine issue of material fact as to whether the Defendant Cities deposited any hazardous materials under CERCLA in sites 9 and 9A. Plaintiffs have set forth ample evidence that the Defendant Cities deposited CERCLA hazardous materials in sites 9 and 9A. In this Courts opinion, no reasonable jury, considering the depositions and statements of various residents and employees of the Defendant Cities, as well as Dr. Pomaville's report, could conclude otherwise. Accordingly, Plaintiffs' motion for summary judgment as to liability shall be granted.
2. Plaintiffs' Motion for Attorney Fees and Costs
Plaintiffs have also moved for reasonable attorney fees and costs under Rule 37 of the Federal Rules of Civil Procedure based upon Defendants' repeated refusal to admit that during the relevant time period, their residents discarded common household products that contained CERCLA hazardous substances. Plaintiffs seek to recover reasonable attorney fees and expenses associated with: 136 depositions, subpoenas and witnesses fees, court reporters, 75 witness statements, retention of expert witnesses, expert witness depositions, a process server, investigators, mileage and parking, photocopying, and related office expenses. (Pl.'s Mot., ¶ 17).
In pertinent part, Rule 37 states:
If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proot including reasonable attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) there was other good reason for the failure to admit.
FED. R. Civ. P. 37(c)(2). According to Plaintiffs, Defendants' unwarranted obstinance caused them to engage in time-consuming and expensive discovery, including a number of depositions, that could have been avoided.
In response, Defendants first assert that Plaintiffs' motion is premature, citing the advisory committee notes accompanying Rule 37. Nothing in the advisory committee notes, however, convinces this Court that Plaintiffs' motion is premature.
Defendants next contend that they made their initial responses to Plaintiffs' requests to admit in good faith based upon the information they possessed at the time. Plaintiffs' first set of requests for admission appear to contain no request regarding the type of material collected and deposited by the Defendant Cities. (Pl.'s Mot., Ex. C-1). Plaintiffs' second set of requests for admission asked Defendants to admit that they accepted municipal solid waste for disposal at the SMDA and that such waste contained "one or more hazardous substances." (PL's Mot., Ex. C-2). The same requests asked Defendants to admit that the municipal solid waste disposed of by Defendants at the SMDA contained various items, such as waste from construction and demolition projects, hot water heaters, electronic devices, aerosol containers, paint remover containers, automotive parts, detergent containers, etc. ( See id.).
Defendants answered Plaintiffs' second requests for admission with one general answer in which they stated that they had "no records which contain any information concerning the composition of or the chemical constituents in the [municipal solid waste] [they] collected," that during the time period in question there was no requirement that Defendants determine such information, and that CERCLA was not enacted until 1979 and therefore, there was no list of CERCLA hazardous substances from 1968 through 1975 when they were using sites 9 and 9A. (See id.). In summary, Defendants stated that "despite reasonable inquiry, [they did] not have sufficient information to enable [them] either to admit or deny the Request." (See id.).
Plaintiffs' third set of requests for admission generally asked Defendants to admit that they did no screening of their municipal solid waste at any time to exclude the same items mentioned in Plaintiffs second set of requests for admission, such as hot water heaters, aerosol containers, etc. (Pl.'s Mot., Ex. C-3). Defendants answered that "[d]uring the period from 1968 through 1974 or early 1975, when its [municipal solid waste] was being collected and taken to sites 9 9A for disposal by SMDA, there was no requirement that the Cit[ies] "screens the [municipal solid waste] or make any attempt to determine the composition of or chemical constituents in the [municipal solid waste they] collected." ( See id.).
Plaintiffs fourth set of requests for admissions asked Defendants to admit that the municipal solid waste they disposed of at the SMDA included certain products containing specific hazardous substances, such as "any type of battery containing Antimony and/or Cadmium and/or Lead Dioxide and/or Nickel and/or Manganese," "kitchen utensils, including but not limited to silverware, containing Aluminum and/or Silver," "bullets containing Antimony," etc. (Pl.'s Mot., Ex. C-4). Again, Defendants answered that they had no records concerning the composition of or chemical constituents of their municipal solid waste collected during the relevant time period and that they were not required to do so at that time. (See id.).
Plaintiffs' fifth and last set of requests for admissions again asked Defendants to admit that they did no screening to exclude the specified items from their municipal solid waste disposed of at the SMDA. (Pl.'s Mot., Ex. C-5). Again, Defendants answered that they were not required to screen their municipal solid waste during the relevant time period.
All of the Defendants' responses are dated December 16, 1999. Plaintiffs have set forth no evidence that Defendants' original responses were not truthful based upon the information Defendants had before them at the time. In fact, according to counsel for Plaintiffs' correspondence, Plaintiffs had taken no depositions or witness statements at that time and had prepared no expert report regarding whether the municipal solid waste collected by Defendants contained hazardous substances. (Pl.'s Mot. at 16 Ex. K).
In early 2000, Plaintiffs took twenty-four depositions to obtain factual evidence regarding the type of material discarded by the residents of each of the Defendant Cities during the relevant time period. After the first round of depositions, Plaintiffs again requested that Defendants amend their responses to the requests to admit. On April 21, 2000, Defendants refused to amend their responses, stating that the twenty-four depositions were insufficient considering that over 300,000 people lived in the Defendant Cities during the relevant time period.
Plaintiffs assert that Defendants' refusal to amend their responses resulted in them having to retain Dr. Alan Knappenberger to provide an expert opinion regarding the statistical validity of their conclusions, as well as Dr. Pomaville to provide an expert report as to whether the municipal solid waste discarded by the deponents was known to contain any CERCLA hazardous substances. According to Plaintiffs, Defendants' refusal to amend their responses also necessitated the taking of 115 additional depositions and 75 witness statements.
In this Court's opinion, once Plaintiffs had deposition testimony from these residents regarding the substances that they had deposited in their waste, Plaintiffs did not need Defendants to admit that they collected these specific products from their residents. Defendants had already admitted that they collected the waste from their residents during the relevant time period and deposited it at the SMDA.
Furthermore, Plaintiffs did not rely upon Dr. Knappenberger's report in their motion for summary judgment. With respect to Dr. Pomaville, this Court is convinced that the issue of whether the products cited by Plaintiffs actually contained CERCLA hazardous substances required an expert's opinion. Most importantly, it as Plaintiffs contend, the original twenty-four depositions were clearly sufficient to prove that the municipal solid waste collected by Defendants contained CERCLA hazardous substances, there should have been no need to conduct further depositions. The fact that Defendants would not amend their responses had no bearing on the sufficiency of Plaintiffs' evidence.
In summary, the Court is not convinced that Plaintiffs are entitled to reasonable costs and attorney fees pursuant to Rule 37. Accordingly, Plaintiffs' motion shall be denied.
Conclusion
For the reasons stated above, Plaintiffs' motion for summary judgment as to liability shall be granted, but Plaintiffs' motion for reasonable attorney fees and expenses under Rule 37 shall be denied.
An Order consistent with this Opinion shall issue forthwith.