United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. JUDGE
consolidated case, there are two Plaintiffs: Garrison
Southfield Park, LLC ("Garrison") and Olymbec USA
LLC ("Olymbec") (together, "Plaintiffs").
Plaintiffs brought an action against several defendants for
allegedly contributing to the environmental contamination of
two warehouses owned by Garrison located at 1655 and 1675
Watkins Road, Columbus, Ohio 43207 (together, the
"Properties"). The defendants then filed several
counterclaims against Plaintiffs. The counterclaims were
filed in three separate periods which caused Plaintiffs to
file three joint motions to dismiss (together
"Plaintiffs' Joint Motions to Dismiss
initial counterclaims were filed by the following defendants:
(1) American Retroworks, Inc. (ECF No. 302); (2) Complete
Recycling Solutions, LLC (ECF No. 299); (3) the entity
referred to in its Answer as "Dynamic Lifecycle
Innovations, Inc., ia DYNAMIC RECYCLING, INC., f/k/a DYNAMIC
LIFESTYLE INNOVATIONS, INC." (ECF No. 275); (4)
Environmental Coordination Services & Recycling, Inc.
(ECF No. 303); (5) F&F Environmental, Inc. d/b/a
Quicksilver Recycling Services (ECF No. 307); (6) Green Wave
Computer Recycling, LLC (ECF No. 280); (7) IMS Electronics
Recycling, Inc. (ECF No. 283); (8) Kuusakoski, Inc. (ECF No.
282); (9) Kuusakoski Glass Recycling LLC (ECF No. 282); (10)
Kuusakoski US, LLC (ECF No. 282); (11) Vintage Tech, LLC
a/k/a Vintage Tech Kuusakoski, LLC (ECF No. 282); (12) RMG
Enterprise, LLC (ECF No. 298); (13) Rochester Computer
Recycling & Recovery, LLC d/b/a EWaste (ECF No. 251);
(14) Sunnking, Inc. (ECF No. 304); (15) and Waste Commission
of Scott County, Iowa (ECF No. 278). Plaintiffs responded by
filing their first joint motion seeking dismissal of the
defendants' counterclaims for attorney's fees and
costs. (ECF No. 366).
thereafter, another counterclaim was filed by Defendant
eCycleSecure, LLC. (ECF No. 370). Plaintiffs then filed their
second joint motion seeking to dismiss Defendant
eCycleSecure, LLC's counterclaim for attorney's fees
and costs. (ECF No. 407). A final counterclaim was filed by
Defendant Great Lakes Electronics Corporation. (ECF No. 413).
And Plaintiffs filed their third and final joint motion
seeking to dismiss Defendant Great Lakes Electronics
Corporation's counterclaim for attorney's fees and
costs. (ECF No. 418).
reasons that follow, this Court GRANTS
Plaintiffs' joint Motion to Dismiss. (ECF Nos. 366, 407
case arises from an environmental remediation dispute between
Plaintiffs and Defendants. On March 20, 2019, in case
2:19-cv-1041, Olymbec filed its Complaint against Defendants.
(ECF No. 1). Olymbec's Complaint included five causes of
action: (1) declaratory judgment pursuant to 28 U.S.C. §
2201-2202; (2) cost recovery pursuant to Section 107(a) of
the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA") (42 U.S.C. §
9607(a)); (3) recovery of preliminary investigative cost
pursuant to Section 107(a) of CERCLA (42 U.S.C. §
9607(a)); (4) common law negligence and negligence per se;
and (5) private nuisance. (Id. ¶ 503-556).
days later, on March 29, 2019, in case 2:17-cv-783, Garrison
filed its Amended Complaint against Defendants. (ECF No. 85).
Garrison's Amended Complaint mimicked the same five
causes of action in Olymbec's Complaint. (Id.
¶ 802-858). On April 17, 2019, this Court found the
cases to be related. (ECF No. 91). And on May 29, 2019, this
Court consolidated the two cases for fact discovery. (ECF No.
their Complaints, Plaintiffs bring this cost recovery action
against Defendants, alleging Defendants contributed to the
contamination of the Properties. (ECF No. 85 ¶ 1).
Plaintiffs maintain that they have incurred expenses for the
remediation of the Properties, and their cost recovery action
is an attempt to recoup those expenses. (Id. ¶
argue that Defendants' counterclaims for attorney's
fees and costs must fail according to Rule 12(b)(6). (ECF No.
366). Federal Rule of Civil Procedure 12(b)(6) authorizes
dismissal of a complaint for "failure to state a claim
upon which relief can be granted." To survive a Rule
12(b)(6) challenge, a complaint must contain sufficient
factual matter, accepted as true, to "state a claim for
relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (clarifying the
plausibility standard articulated in Twombly).
is plausible when the factual content "allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678. The factual allegations of a pleading "must be
enough to raise a right to relief above the speculative
level.. . ." Twombly, 550 U.S. at 555.. In
making this determination, a court "must construe the
complaint in the light most favorable to the non-moving
party, accept all factual allegations as true, and make
reasonable inferences in favor of the non-moving party."
City of Lancaster v. Flagstar Bank, FSB, 789
F.Supp.2d 873, 877 (S.D. Ohio 2011) (citing Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross &
Blue Shield,552 F.3d 430, 434 (6th Cir. 2008);
Murphy v. Sofamor Danek Gp., Inc.,123 F.3d 394, 400
(6th Cir. 1997)). ...