Courtland Co. v. Union Carbide Corp., Civil Action No. 2:18-cv-01230

THE COURTLAND COMPANY, INC., a West Virginia Business Corporation, Plaintiff, v. UNION CARBIDE CORPORATION, a New York Corporation, Defendant.

Civil Action No. 2:18-cv-01230

Civil Action No. 2:19-cv-00894

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

December 8, 2020

MEMORANDUM OPINION & ORDER

Pending in these related cases are the plaintiff's motion to strike the defendant's notice regarding potential nonparty fault and supplemental notice regarding potential nonparty fault, filed in Courtland Co. Inc. v. Union Carbide Corp. ("Courtland I"), 2:18-cv-01230 (S.D.W. Va.) on June 19, 2020 (ECF No. 140), and the plaintiff's response to and motion to strike the defendant's notice regarding potential nonparty fault, filed in Courtland Co. Inc. v. Union Carbide Corp. ("Courtland II"), 2:19-cv-00894 (S.D.W. Va.) on June 16, 2020 (ECF No. 55).

I. Background

The plaintiff and the defendant are corporations that own parcels of real property near Davis Creek in Kanawha County, West Virginia. See Courtland I, ECF No. 1 ¶¶ 4-5, 14; ECF No. 21 ¶¶ 4-5, 14; see also Courtland II, ECF No. 1 ¶¶ 5-6, 15, 25; ECF No. 82 ¶¶ 5-6, 15, 25. In Courtland I, the plaintiff alleges that the defendant has used one of its properties adjacent to the plaintiff's property to store hazardous and toxic materials, which have been released into the nearby environment including the plaintiff's property. See Courtland I, ECF No. 1 ¶¶ 1, 14-46. In Courtland II, the plaintiff alleges that the defendant has used two other properties, also adjacent to the plaintiff's property, to likewise store hazardous and toxic materials that have been released into the nearby environment including the plaintiff's property. See Courtland II, ECF No. 1 ¶¶ 1, 14-57.

Based on these allegations, the plaintiff initiated suit against the defendant in Courtland I by filing a complaint on August 15, 2018, and effected service of process on thedefendant on August 21, 2018. See Courtland I, ECF No. 1; ECF No. 7. In Courtland II, the plaintiff initiated suit against the defendant by filing a complaint on December 13, 2019, and effected service of process on the defendant on December 17, 2019. See Courtland II, ECF No. 1; ECF No. 4.

In both its complaints, the plaintiff asserts three federal causes of action: Count I seeks recovery of response costs and declaratory relief under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9607(a), 9613(g); Count II seeks citizen-suit relief for violations of § 7002(a)(1)(A) of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6972(a)(1)(A), and the West Virginia Hazardous Waste Management Act; and Count III seeks citizen-suit relief for judicial abatement of an imminent and substantial endangerment under § 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B). See Courtland I, ECF No. 1 ¶¶ 47-73; Courtland II, ECF No. 1 ¶¶ 58-88. Both complaints also assert state-law cause of action, including judicial abatement of a public nuisance; judicial abatement of a public nuisance per se; private nuisance; negligence; gross negligence; and strict liability.¹ SeeCourtland I, ECF No. 1 ¶¶ 74-108; Courtland II, ECF No. 1 ¶¶ 89-134.²

On February 15, 2019, the defendant filed, within the 180-day period prescribed by state statute, a notice of designation of at-fault nonparties in Courtland I, pursuant to W. Va. Code § 55-7-13d(a). See Courtland I, ECF No. 37. Therein, the defendant provided notice on information and belief that an unknown number of unnamed nonparties may be wholly or partially at fault for the claims brought by the plaintiff. See id. at 1. The defendant explained that, because discovery was in a nascent stage, it had not yet identified the nonparties but requested that the court direct the factfinder in this matter to consider the fault of all nonparties and proportionally reduce the plaintiff's recovery against the defendant for the fault chargeable to the nonparties, pursuant to § 55-7-13d. See id. at 1-2.

On June 10, 2020, nearly four months beyond the 180-day period, the defendant filed a supplemental notice ofdesignation of at-fault nonparties in Courtland I. See id., ECF No. 139. In this supplemental notice, based largely on the deposition testimony of the plaintiff's Fed. R. Civ. P. 30(b)(6) designee, the defendant identifies three nonparty entities it asserts may be wholly or partially at fault for the claims alleged in the complaint. See id. at 1-3. Specifically, the defendant identifies (1) Westvaco as a former owner of the plaintiff's property that stored coal there prior to the plaintiff's purchase of the property; (2) Raynes & Sons, Raynes and Company, CB Shop Company, and Parsons Contracting as lessees of a portion of the plaintiff's property that has been used by them to store concrete, dirt, millings, asphalt chunks, barriers, rebar or steel materials, fill dirt, and heavy equipment including a diesel fuel tank, a crusher, and a screener; and (3) CSX Transportation, which maintained an active rail line along the southern boundary of the plaintiff's property and may have stacked or dumped materials on the property. See id. The defendant further asserts on information and belief that an unknown number of additional unnamed nonparties may be at fault and requests that the court direct the factfinder to consider the fault of the nonparties and reduce any recovery against the defendant in proportion to the nonparties' fault, pursuant to § 55-7-13d. See id. at 3.

Also, on June 10, 2020, in Courtland II, the defendant filed, within the 180-day period, a notice regarding potential nonparty fault pursuant to § 55-7-13d(a). See Courtland II, ECF No. 55. Therein, again based on the plaintiff's Rule 30(b)(6) designee's testimony, the defendant identifies the same nonparty entities as in Courtland I as wholly or partly at fault for the plaintiff's claims and asserts on information and belief that an unknown number of additional unnamed nonparties may be likewise at fault. See id. at 1-3. As in Courtland I, the defendant requests that the court direct the factfinder to consider the fault of the nonparties and proportionally reduce the amount of recovery against the defendant pursuant to § 55-7-13d. See id. at 3.

In both cases, the plaintiff filed motions to strike the defendant's notices regarding potential at-fault nonparties. See Courtland I, ECF No. 140; Courtland II, ECF No. 55. The motions have been fully briefed and are ripe for disposition.

II. Legal Standard

The parties do not discuss the legal standard that should guide the court's consideration of the plaintiff's motions to strike. Traditionally, a motion to strike is a "procedural mechanism by which a party challenge[s] the sufficiency of a pleading or of evidence, with a goal towardremoving the pleading . . . or [evidence] from the record, so that it [i]s not considered by a judge or jury." Kelly v. FedEx Ground Package Sys., Inc., No. 3:10-cv-01265, 2011 WL 1584764, at *2 (S.D.W. Va. Apr. 26, 2011); see also Strike, Black's Law Dictionary (11th ed. 2019) (defining "strike" to mean "expunge, as from a record").

The Federal Rules of Civil Procedure expressly provide procedures for striking pleadings from the record. See Fed. R. Civ. P. 12(f), 14(a)(4), 37(b)(2)(A)(iii). Rule 12(f) allows the court to strike pleadings of "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Rule 12(f) motions to strike "are generally viewed with disfavor 'because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.'" Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A Charles Alan Wright et al., Federal Practice and Procedure § 1380, 647 (2d ed. 1990)). A decision from this district adequately sets forth the standards for considering a Rule 12(f) motion:

the standard by which courts judge Rule 12(f) motions imposes a sizable burden on the movant. . . . Before granting a motion to strike, a court must be convinced there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed. It is difficult to establish a defense is clearly insufficient. Even where technically appropriate andwell-founded, motions to strike defenses as insufficient are often denied in absence of a showing of prejudice to the moving party.

Clark v. Milam, 152 F.R.D. 66, 70 (S.D.W. Va. 1993) (internal quotation marks and citations omitted).³

Beyond Rule 12(f), federal courts also have inherent authority to strike a document when the party submitting it has not complied with the rules or the court's orders for doing so. See Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 150 (quoting United States v. Moussaoui, 483 F.3d 220, 236 (4th Cir. 2007)) (citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)). However, "'[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.'" Anusie-Howard v. Todd, 920 F. Supp. 2d 623, 627-28 (D. Md. 2013) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)).

Ultimately, the court need not determine which legal standard should apply to the plaintiff's motions to strike because, as set forth below, the defendant has agreed that § 55-7-13d is inapplicable to certain claims and the plaintiff'sarguments are not sustainable with respect to the remaining claims.

III. Discussion

The plaintiff argues that the defendant's notices should be stricken for two reasons. The court addresses the arguments in turn.

A. Applicability of Comparative Fault Statute

The plaintiff argues that West Virginia's comparative fault statute, W. Va. Code §§ 55-7-13a to -13d, pursuant to which a defendant may seek to reduce the recovery against it based on the fault of nonparties, see W. Va. Code §...