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COOPER INDUS. v. AGWAY

November 14, 1997

COOPER INDUSTRIES, INC.; KEYSTONE CONSOLIDATED INDUSTRIES, INC.; THE MONARCH MACHINE TOOL CO.; NIAGARA MOHAWK POWER CORPORATION; OVERHEAD DOOR CORPORATION, Plaintiffs, against AGWAY, INC.; BMC INDUSTRIES, INC.; BORG-WARNER CORPORATION; ELF ATOCHEM NORTH AMERICA, INC.; MACK TRUCKS, INC.; MOTOR TRANSPORTATION SERVICES, INC.; PALL TRINITY MICRO CORPORATION; THE RAYMOND CORPORATION; REDDING-HUNTER, INC.; ROTELCOM, INC.; SOLA BASIC INDUSTRIES, INC.; WILSON SPORTING GOODS, INC.; PHILIP A. ROSEN; HARVEY M. ROSEN; CITY OF CORTLAND; and NEW YORK STATE ELECTRIC AND GAS CORPORATION, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 A. Procedural History

 This is a CERCLA case. Presently before the Court are three motions. First, defendant Paul Trinity Micro Corp. ("PTM") moves, pursuant to 28 U.S.C. § 1292(b), to certify for appeal this Court's Memorandum-Decision & Orders of February 27, 1997 and April 17, 1997. Specifically, PTM argues that these Orders raise controlling issues of law arising from the Court's refusal to consider two affidavits submitted by PTM in support of its summary judgment motion. PTM also desires to address on immediate appeal the issue of whether a potentially responsible party may bring cost recovery actions under CERCLA § 107.

 Second, plaintiffs move for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, against defendant The Raymond Corporation ("Raymond") on the issue of liability for response costs at the so-called Rosen site. Raymond, in turn, opposes the motion, arguing that genuine issues of material fact preclude the granting of summary judgment on the issue of liability.

 Third, Raymond cross-moves to dismiss plaintiffs' CERCLA claims and state law claims.

 For the reasons stated below, the Court hereby certifies for appeal its Memorandum-Decision & Orders of February 27, 1997 and April 17, 1997. Furthermore, plaintiffs' motion for summary judgment against Raymond on the issue of liability is GRANTED. Lastly, Raymond's cross-motion to dismiss the plaintiffs' CERCLA claims is DENIED in its entirety, and further, Raymond's motion to dismiss plaintiffs' state law claims is GRANTED IN PART and DENIED IN PART, to the extent stated herein.

 B. Facts

 1. Plaintiffs' Motion for Summary Judgment and Raymonds' Cross-Motion to Dismiss

 The facts of this case are well-known to the parties and the Court, and are set forth in the relevant sections of the decision below.

 By way of an overview, the plaintiffs have been and currently are paying the costs of removal and the costs of the remedial investigation at the Rosen Superfund Site, pursuant to a number of Administrative Orders on Consent issued by the EPA. The costs to date exceed $ 1.9 million.

 The Court has previously found that (1) the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site; (2) the response costs are consistent with the National Contingency Plan; (3) the Rosen site is a "facility" within the meaning of CERCLA; and (4) hazardous substances were released at the Rosen site. See Memorandum-Decision and Order of this Court, dated August 25, 1995. Thus, the remaining issue to be determined with respect to plaintiffs' motion for summary judgment against Raymond on the issue of liability is whether Raymond is a "responsible party" under CERCLA.

 To that end, plaintiffs claim that Raymond arranged for the disposal of the steel scrap and aluminum scrap with the Rosen Brothers. Plaintiffs also claim that the waste, which allegedly contains CERCLA hazardous materials, was disposed of at the Rosen site, and that the hazardous substances of the sort contained in Raymond's waste were found at the Rosen site.

 Raymond disputes all of these assertions, responding that: (1) plaintiffs' expert affidavit should be excluded because it lacks a proper foundation for its conclusions and opinions; (2) it did not dispose of steel at the Rosen site; (3) its steel is not a hazardous substance from which there was a release; and alternatively, (4) it is not liable for releases of any substances from scrap metal because its share of divisible harm is zero.

 Raymond also contests the sufficiency of the Complaint, arguing that: (1) plaintiffs fail to state a claim under CERCLA § 107 because private responsible parties cannot bring cost recovery actions pursuant to § 107; (2) CERCLA cannot be applied retroactively; (3) CERCLA is unconstitutional under the Commerce Clause; and (4) plaintiffs' state law claims should be dismissed.

 2. PTM's Motion for Interlocutory Appeal

 The following facts are relevant for purposes of deciding PTM's motion for interlocutory appeal.

 On November 13, 1996, PTM's attorney, Reed Neuman, telephoned plaintiffs' attorney, Alan Pope, to request additional time to serve PTM's reply papers in connection with its motion for summary judgment. A conference call was then placed to the Court by Neuman and Pope. The parties discussed PTM's request for a time extension with my law clerk. PTM requested the time extension because of problems associated with the preparation of its expert affidavits.

 During that telephone conference, the Court granted PTM leave to file the identified expert affidavits and Memorandum of Law one-week late. The parties also agreed that the existing motion package as briefed would be filed with the Court immediately, with a cover letter specifically identifying the papers PTM would be filing one-week later. Importantly, the Court did not grant PTM leave to file any supporting document it wished as part of its late reply. Rather, leave was granted only in regard to the late filing of the expert affidavits and Memorandum of Law.

 According to PTM, however, the Court granted PTM a one-week extension to file any supporting materials with its reply papers. Further, PTM contends that the Court did not condition the PTM filing extension upon PTM specifically identifying the papers to be filed in the cover letter filed with the existing motion package.

 On November 15, 1996, Pope prepared a cover letter to the Court setting forth the documents being filed, which also identified the specific documents that PTM would be separately filing one-week later. Prior to preparing the cover letter, Pope spoke with Neuman over the telephone concerning the documents PTM would be filing. Neuman informed Pope that he would be filing several expert affidavits. At no time was the subject of any other supporting materials discussed.

 After receiving a copy of the cover letter filed with the Court, Neuman telephoned Pope, but Pope was not available. According to Neuman, he left Pope a voice mail message expressing his concern that because Pope's cover letter listed only the three expert affidavits, it suggested that PTM would not be submitting additional materials to the Court. Neuman's message also stated that he believed PTM could file whatever additional materials it deemed appropriate in addition to the three expert affidavits listed for filing in the cover letter. *fn1"

 On November 22, 1996, PTM filed its reply papers within the one-week extension granted by the Court. The papers included a cover letter listing all the materials filed by PTM, including the affidavits of Rosen and Scott. Thereafter, plaintiffs' filed a letter with the Court requesting that the Rosen and Scott affidavits be rejected. Plaintiffs argued that, because PTM had not been granted permission to file these two affidavits, and that because the affidavits had not been identified by PTM for inclusion in the cover letter filed with the motion package, the affidavits should not be considered.

 In a letter to the Court dated December 2, 1996, PTM responded by arguing that the Court had granted it permission to file its entire reply package late (not just the expert affidavits), and that PTM had not been required by the Court to specifically identify the supporting papers to be filed for inclusion in the cover letter filed with the motion package.

 This letter by Neuman was followed by a telephone conversation between Neuman and the Court on December 4, 1996. According to Neuman, Benisson stated that the Court "would accept the papers as filed." Thus, Neuman contends that it was his understanding that the Court would consider all the supporting papers filed with PTM's reply.

 However, as stated by this Court in its Memorandum-Decision and Order of April 17, 1997, the Court did not tell Neuman that it "would accept the papers as filed." To the contrary, the Court told Neuman that "it would permit the filing of all papers in relation to PTM's reply, but would determine if the additional papers would be considered when the Court reviewed the file for decision."

 When the Court reviewed the file for decision, the Court decided not to accept the Scott and Rosen affidavits, because PTM had not previously identified these affidavits to the Court, and thus the affidavits were untimely under Local Rule 7.1(b)(3).

 The Court now turns to address the issues presented.

 II. DISCUSSION

 A. PTM's Motion For Certification

 This provision was designed as an exception to the general policy against piecemeal appellate review embodied in the final judgment rule, and is reserved for cases where the decision of appeal might avoid protracted and expensive litigation. See, e.g., Koehler v. The Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (stating that "it is a basic tenet of federal law to delay appellate review until a final judgment has been entered"). Accordingly, district courts should "exercise great care in making a § 1292(b) certification." Westwood Pharmaceuticals, Inc. v. National Fuel Gas Dist. Corp., 964 F.2d 85, 89 (2d Cir. 1992).

 In the present case, PTM argues that there are three controlling questions of law arising from the Court's Memorandum-Decision & Orders of February 27, 1997 and April 17, 1997, sufficient to warrant certification for immediate appeal. According to PTM, these issues are:

 
(1) whether the requirements of Northern District Local Rule 7.1(b) and Rule 56 of the Federal Rules of Civil Procedure permit a District Judge to refuse to consider affidavits in support of a pleading on summary judgment as untimely filed, without first providing the party against whom the refusal is directed the opportunity to demonstrate the existence of good cause why the affidavits should be considered;
 
(2) whether a District Judge, in permitting the late filing of a summary judgment pleading, has the authority under General Order 41 and Rule 56, Fed. R. Civ. P., to issue a directive that only certain supporting affidavits will be permitted, even if all the affidavits independently comply with the requirements of Rule 56(e); and
 
(3) whether potentially responsible parties may bring cost recovery actions under CERCLA § 107.

 1. Questions 1 and 2 are Both Unsuitable for Immediate Appeal

 Turning to the first issue raised by PTM--whether a district court must give a party the opportunity to demonstrate good cause before rejecting untimely papers--the Court finds this issue to be unsuitable for immediate appeal.

 Local Rule 7.1(b)(3) states:

 
Any papers required under this Rule that are not timely filed or are otherwise not in compliance with this Rule shall, unless for good cause shown, not be considered. Failure to file or serve any papers as required by this Rule shall, unless for good cause shown, be deemed by the court as a consent to the granting or denial of the motion as the case may be.

 By its terms, Local Rule 7.1(b)(3) places the onus on a party filing untimely papers to show good cause for their consideration. If a party fails to show good cause, Local Rule 7.1(b)(3) requires that the papers not be considered. The rationale for rules like Local Rule 7.1(b)(3) is plain: "If the rule were otherwise, enlargements of time would be idle ceremony, and the lawyers, not the judge, ...


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