United States District Court, S.D. Ohio, Western Division, Dayton
District Judge Walter H. Rice
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
present CERCLA case explores which former owners and
operators are responsible for the costs of cleanup efforts
undertaken by Plaintiffs Garrett Day LLC and the Ohio
Developmental Services Agency at the site of a century-old
paper mill in Dayton, Ohio (the Site). Plaintiffs have allegedly
spent in the neighborhood of $1.7 million cleaning hazardous
substances-trichloroethylene, asbestos, bleaching agents,
PCBs (polychlorinated biphenyls), etc.-from the Site. They
bring this case against the Site's former owners and
operators asserting claims under (1) Section 107 of CERCLA,
42 U.S.C. §§ 9607(a); (2) Ohio's Voluntary
Action Program, Ohio Revised Code § 3746.23(A); and (3)
common law nuisance.
the many Defendants are Harrison Holdings, L.P.; HPM
Investors, Inc.; and HHP, Inc. (the HPP Defendants). They
presently seek dismissal of Plaintiffs' First Amended
Complaint under Fed. Civ. P. 12(b)(2) for lack of personal
jurisdiction. They also seek judgment on the pleadings in
their favor under Fed.R.Civ.P. 12(c). The HPP Defendants
contend, in the main, that dismissal of Plaintiffs'
claims is warranted because the HPP Defendants no longer
exist and are, in fact (albeit metaphorically), “dead
and buried.” This means to the HPP Defendants that they
lack the capacity to sue or be sued and are not
“persons” within the meaning of CERCLA.
oppose dismissal for reasons to be explored. But first, more
needs to be said about the HPP Defendants.
Plaintiffs' allegations as true, see E.E.O.C. v. J.H.
Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001),
reveals the following.
1972, St. Regis Paper Company sold the Site and related
assets to Howard Paper Mills, Inc. II. This entity-Howard Paper
Mills, Inc. II-is also known as Defendant HPM Investors.
(Doc. #144, PageID #1232).
1989, Howard Paper Group acquired Howard Paper Mills II.
Plaintiffs understand, upon information and belief, that
Defendant HPP was one of the general partners of Howard Paper
Group. Id. at 1233.
Harrison Holdings, L.P.
Harrison Holdings is formerly known as Howard Paper Group.
Plaintiffs allege that in June 1991, the Howard Paper Group
sold its business (including its right to its trade name) to
several Fox River Paper entities (Fox River Paper) through a
purported asset purchase agreement. Id. Plaintiffs
assert, “While the Fox River Paper purchase agreement
was labeled an asset purchase agreement, Fox River Paper took
over Howard Paper Mills, Inc.'s entire business. Put
another way, the transaction represented a complete
acquisition of Howard Paper Group's operations and
business by Fox River Paper.” Id.
the transaction, Howard Paper Group no longer operated in any
capacity….” (with 2 minor exceptions).
Id. According to Plaintiffs, “Howard Paper
Group signed a noncompetition agreement, effectively
preventing Howard Paper from continuing its business.”
maintain, upon information and belief, “the most
material aspect of the Howard Paper Group that was
purportedly not transferred to Fox River Paper was Howard
Paper Group's environmental liabilities (which were
almost certainly known to the parties at the time). Put
simply, Fox River Paper and Howard Paper Group amounted to a
de facto merger or consolidation.”
Id. at 1234.
table attached the HPP Defendants' pending Motion
summarizes their description of themselves ...