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OHM REMEDIATION SERVS. CORP. v. HUGHES ENVTL. SYS.

January 18, 1997

OHM REMEDIATION SERVICES CORP., Plaintiff,
v.
HUGHES ENVIRONMENTAL SYSTEMS, INC., ERM NORTHEAST, INC., Defendants.



The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND AND FACTS

 This lawsuit arises out of a contract entered into on June 30, 1994, between the plaintiff, OHM Remedial Services, Inc. ("OHM"), a New Jersey Corporation, and co-defendant, Hughes Environmental Systems, Inc. ("Hughes"), a California Corporation. The contract concerned the environmental remediation of manufacturing facility located in Massena, New York ("the Massena Site").

 The specific parties to the contract at issue are OHM Remediation Services Corp. ("OHM"), the general contractor, and Hughes Environmental Systems, Inc. ("HESI"), General Motors' ("GM") supervisory contractor and express agent. HESI is a wholly owned subsidiary of Hughes Aircraft Company, which in turn is a wholly owned subsidiary of GM.

 The facts and procedural background relating to this case are set forth at length in this Court's Memorandum-Decision and Order filed on August 16, 1996, and need not be repeated herein.

 On January 11, 1996, GM filed an action against OHM in the United States District Court for the Eastern District of Michigan ("the Michigan action"). On January 19, 1996, OHM filed this action against Hughes and ERM ("the New York action"). On February 9, 1996, OHM filed a motion to transfer venue of the Michigan action to New York. The Michigan Court granted OHM's motion and venue was transferred to the Northern District of New York. General Motors Corp. v. OHM Remedial Services, Corp., 96-CV-70141 (E.D. Mich. 1996).

 On February 21, 1996, pursuant to 28 U.S.C. ยง 1404(a) and Local Rule 7.1, Hughes filed a motion to transfer venue of the New York action to the Eastern District of Michigan. Hughes also moved to stay further proceedings pending the decision of the motion to transfer venue. The Court, inter alia, denied these motions by the August Decision.

 Now before the Court are the motions by GM to (1) consolidate the GM v. OHM, 96-CV-1214 action with the OHM v. HESI and ERM, 96-CV-110 action; and (2) to dismiss OHM's third and fourth claims as duplicative of the breach of contract claim.

 II. DISCUSSION

 A. Motion to Consolidate

 GM's motion to consolidate is not opposed. Generally, when actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Id. "The trial court has broad discretion to determine whether consolidation is appropriate." Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.), cert. denied 498 U.S. 920, 112 L. Ed. 2d 250, 111 S. Ct. 297 (1990). In the Court's view, consolidation of the present case with OHM v. HESI and ERM, 96-CV-110 is appropriate to promote considerations of judicial economy, see Johnson, 899 F.2d at 1284, or possibly to avoid conflicting results, see Bank of Montreal v. Eagle Assoc., 117 F.R.D. 530, 533 (S.D.N.Y. 1987). Accordingly, GM's motion to consolidate is granted.

 A motion to dismiss for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claim. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991). The Court's role is not to assess whether a Plaintiff has raised questions of fact or demonstrated an entitlement to a judgment as a matter of law, as in motion pursuant to Fed. R. Civ. P. 56 for summary judgment, but whether the Plaintiff has alleged sufficiently in their Complaint all of the necessary legal elements to state a claim under the law. See Christopher v. Laidlaw Transit, Inc., 899 F. Supp. 1224, 1226 (S.D.N.Y. 1995), citing Ricciuti v. New York City Transit Authority, 941 F.2d 119, 124 (2d Cir.1991). "In considering Rule 12 motions to dismiss, the Court must accept the facts appearing on the face of the complaint as true, and consider them along with such reasonable inferences as may be drawn in ...


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