United States District Court, S.D. Ohio, Western Division
AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART
PLAINTIFFS' MOTION TO DISMISS COUNTERCLAIMS TO FIFTH
AMENDED COMPLAINT (DOC. #473); SUSTAINING PLAINTIFFS'
MOTION TO DISMISS FLOWSERVE'S PROTECTIVE AND CONTINGENT
COUNTERCLAIM TO PLAINTIFFS' FIFTH AMENDED COMPLAINT (DOC.
H. RICE UNITED STATES DISTRICT JUDGE.
matter is currently before the Court on Plaintiffs'
Motion to Dismiss Counterclaims to Fifth Amended Complaint
(Doc. #473), and on Plaintiffs' Motion to Dismiss
Flowserve's Protective and Contingent Counterclaim to
Plaintiffs' Fifth Amended Complaint (Doc. #535).
Background and Procedural History
Hobart Corporation, Kelsey-Hayes Company and NCR Corporation,
filed suit under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"),
as amended, 42 U.S.C. §§ 9601 et seq.,
against numerous defendants, seeking contribution for
response costs incurred in connection with the South Dayton
Dump and Landfill Site ("the Site"). Many of those
defendants filed counterclaims against Plaintiffs, and some
defendants also filed crossclaims against each other.
Defendants alleged that, if they are found liable for cleanup
costs at the Site, they are entitled to contribution from
Plaintiffs and from each other under 42 U.S.C. §
October 16, 2014, the Court issued a Decision and Entry
Sustaining Plaintiffs' Motion to Dismiss All
Counterclaims. Doc. #277. It found that Plaintiffs were
entitled to contribution protection for response costs
arising from the 2013 Administrative Settlement and Order on
Consent ("2013 ASAOC") between Plaintiffs and the
United States Environmental Protection Agency
("EPA"). In addition, the Court found that,
although Plaintiffs might be entitled to a declaratory
judgment concerning Defendants' liability for future
response costs for other contamination at the Site,
see 42 U.S.C. § 9613(g)(2), Plaintiffs could not
actually recover those future response costs in the
context of this lawsuit. Therefore, Defendants'
counterclaims for contribution with respect to future
response costs outside the scope of the 2013 ASAOC were
premature. The Court dismissed them without prejudice to
refiling in a subsequent suit. Doc. #277, PageID#2976.
respect to Plaintiffs' claim of unjust enrichment,
seeking contribution for costs incurred in identifying other
potentially responsible parties ("PRPs"), the Court
concluded that, because the Court is required, under 42
U.S.C. § 9613(f)(1), to equitably allocate response
costs among all liable parties, Defendants' interests
were already adequately protected, rendering the
counterclaims superfluous. Id. at PageID##2977-78.
The Court also dismissed the counterclaims for
indemnification, finding that Defendants had failed to
adequately plead the existence of an express or implied
contract. Id. at PageID#2979.
April 11, 2016, the Court issued an Omnibus Scheduling Order,
Doc. #373, in which it rejected Defendant Dayton Power and
Light Co.'s ("DP&L") request that each
defendant be deemed to have asserted a cross-claim against
all other defendants. The Court noted that, "because
Defendants have incurred no response costs at the Site, they
have no valid crossclaims against each other."
Id. at PageID#5562 n.4. This footnote prompted
several Defendants to file motions to dismiss the crossclaims
that had been filed against them. Docs. ##398, 400, 401, 404,
those motions were pending, Plaintiffs filed a Fifth Amended
Complaint, seeking additional contribution for response costs
arising out of a new ASAOC ("the 2016 ASAOC"). Doc.
#414. Thereafter, several Defendants reasserted counterclaims
and crossclaims in their Answers to the Fifth Amended
Complaint. See Docs. ##427, 430, 433, 434, 436, 437,
443, 446, 449, 452.
Defendants acknowledged the Court's earlier ruling
dismissing the counterclaims, they reasserted them to
preserve the issue for appeal. They again alleged that, if
they are found liable for response costs at the Site, they
are entitled to contribution and/or indemnification from
Plaintiffs. Id. In addition, Defendants DP&L and
Valley Asphalt alleged that, because they had
themselves incurred response costs, they are
entitled to contribution and/or indemnification from
Plaintiffs. Docs. ##437, 443.
September 26, 2016, the Court issued a Decision and Entry
Overruling Defendants' motions to dismiss the
crossclaims. Doc. #477. The Court noted that Federal Rule of
Civil Procedure 13(g) specifically provides for contingent
crossclaims: "The crossclaim may include a claim that
the coparty is or may be liable to the
cross-claimant for all or part of a claim asserted in the
action against the cross-claimant." Fed.R.Civ.P. 13(g)
(emphasis added). The Court reiterated its view that
"the equitable allocation scheme of §113 largely
eliminates the need for counterclaims and crossclaims, "
but found that, to the extent that the parties disagreed with
the Court's allocation, contingent crossclaims were
permissible to preserve Defendants' right to seek
contribution from others. Doc. #477, PageID##6825-26.
Court also amended the Omnibus Scheduling Order to allow
Defendants who had not already filed a cross-claim to do so
no later than November 1, 2016. Doc. #477, PageID#6826.
Several did. Defendant Flowserve Corporation, which had not
previously filed crossclaims or counterclaims, filed
a "Protective and Contingent Counterclaim against
Plaintiffs, and Protective and Contingent Crossclaim against
Certain Defendants." Doc. #503.
to Federal Rule of Civil Procedure 12(b)(6), Plaintiffs have
filed a Motion to Dismiss Counterclaims to Plaintiffs'
Fifth Amended Complaint, Doc. #473. They have also filed a
Motion to Dismiss Flowserve's Protective and Contingent
Counterclaim to Plaintiffs' Fifth Amended Complaint, Doc.
Rule I2(b)(6) Standard of Review
Rule of Civil Procedure 8(a) provides that a complaint must
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." The
complaint must provide the defendant with "fair notice
of what the . . . claim is and the grounds upon which it
rests." Bell Atlantic Corp, v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)).
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a complaint on the basis that it "fail[s]
to state a claim upon which relief can be granted." The
moving party bears the burden of showing that the opposing
party has failed to adequately state a claim for relief.
Direc TV, Inc. v. Treesh, 487 F.3d 471, 476 (6th
Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451,
454-55 (6th Cir. 1991)). In ruling on a 12(b)(6) motion, a
court must "construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the
plaintiff." Handy-Clay v. City of Memphis, 695
F.3d 531, 538 (6th Cir. 2012) (quoting Treesh, 487
F.3d at 476).
to survive a motion to dismiss under Rule 12(b)(6), the
complaint must contain "enough facts to state a claim to
relief that is plausible on its face." Twombly,
550 U.S. at 570. Unless the facts alleged show that the
plaintiff's claim crosses "the line from conceivable
to plausible, [the] complaint must be dismissed."
Id. Although this standard does not require
"detailed factual allegations, " it does require
more than "labels and conclusions" or "a
formulaic recitation of the elements of a cause of
action." Id. at 555. "Rule 8 . . . does
not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions." Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Legal conclusions
"must be supported by factual allegations" that
give rise to an inference that the defendant is, in fact,
liable for the misconduct alleged, id. at 679.
Plaintiffs' Motion to Dismiss Flowserve's Protective
and Contingent Counterclaim to Plaintiffs' Fifth Amended
Complaint (Doc. #535)
previously noted, Defendant Flowserve Corporation did not
include a counterclaim or crossclaims in its Answer to the
Fifth Amended Complaint. Doc. #429. However, after the Court
amended the Omnibus Scheduling Order and gave the parties
leave to file crossclaims, Flowserve asserted crossclaims
and a counterclaim. Doc. #503.
argue that Flowserve's belated, free-standing
counterclaim must be dismissed because it was filed without
leave of Court, and is not permitted by the Federal Rules of
Civil Procedure. As a general rule, a counterclaim must be
asserted as part of a recognized pleading. See Allied
Med. Care Assocs. v. State Farm Mut. Auto. Ins. Co., No.
08-2434, 2009 WL 839063, at *2 (E.D. Pa. Mar. 26, 2009)
(dismissing free-standing counterclaim as a "procedural
nullity"); Bernstein v. IDT Corp., 582 F.Supp.
1079, 1089 (D. Del. 1984) (striking freestanding
argues that it would have asserted the counterclaim earlier
"but for the Court's Omnibus Scheduling Order that
prohibited such counterclaims." Doc. #615, PageID#7762.
Nothing in that Scheduling Order, however, prohibited a party
from filing a counterclaim to a subsequently-filed amended
Complaint. See Doc. #373, PageID#5562. In fact, ten
other Defendants did f\\e counterclaims along with
their Answers to the Fifth Amended Complaint. See
Docs. ##427, 430, 433, 434, 436, 437, 443, 446, 449, 452.
Flowserve's free-standing counterclaim was filed without
leave of Court and is not permitted by the Rules, the Court
SUSTAINS Plaintiffs' Motion to Dismiss Flowserve's
Protective and Contingent Counterclaim. Doc. #535.
Plaintiffs' Motion to Dismiss Counterclaims to
Plaintiffs' Fifth Amended Complaint (Doc. #473)
Fifth Amended Complaint, Plaintiffs seek contribution for
response costs incurred in performance of the work required
by the 2013 and 2016 ASAOCs. All parties are in agreement
that, under 42 U.S.C. § 9613(f)(2), Plaintiffs are
entitled to contribution protection for these response costs.
Plaintiffs also seek contribution for response costs falling
outside the scope of the 2013 and 2016 ASAOCS. More
specifically, they seek contribution for the cost of
identifying other potentially responsible parties
("PRPs"). In addition, Plaintiffs seek a
declaratory judgment concerning Defendants' ...