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Nl Industries, Inc v. Acf Industries LLC

October 19, 2011


The opinion of the court was delivered by: Hon. Hugh B. Scott


The instant matter before the Court are a series of motions regarding joinder of new parties in this case and the schedule for this action. This Order considers first plaintiff's motion for leave to file a Fourth Amended Complaint (Docket No. 113*fn1 ) merely to add a new defendant; next, the Court considers the schedule for briefing defendant Gould Electronics' motion to dismiss the Third Amended Complaint (Docket No. 81) in light of the proposed Fourth Amended Complaint; finally, the Court considers the Halliburton*fn2 defendants' motion to reconsider vacating the Scheduling Order previously entered in this action (Docket Nos. 118, 122). These motions were argued on October 3, 2011, and the Court reserved decision on them (Docket No. 133).


This case arises under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., for plaintiff NL Industries' cost recovery and/or contribution from defendants for contamination at the Buffalo Plant Superfund Site in Depew, New York (see Docket No. 114, Pl. Atty. Decl. ¶ 3). The current Third Amended Complaint names as defendants the Halliburton defendants, ACF Industries, Inc., Gould Electronics Inc., Fairbanks Morse Engine Company, and Exide Technologies (Docket No. 68). Plaintiff now seeks leave to amend the Complaint once again to add American Premier Underwriters, Inc., as a defendant, affirming that the amendment does not assert any new claims against existing defendants but only adds a successor of a former industrial operation on the Buffalo Plant Superfund Site as a defendant (Docket No. 114, Pl. Atty. Decl. ¶¶ 4, 12). Plaintiff also notes that newer defendants ACF Industries answered the Third Amended Complaint (id. ¶ 6; Docket No. 79); Halliburton defendants also answered this version of the Complaint (Docket No. 69), while the parties stipulated to extend the time for Fairbanks Morse Engine to answer (Docket Nos. 72, 73, 108, 109) and one defendant, Exide Technologies, has yet to appear.

Meanwhile, Gould Electronics moved to dismiss the Third Amended Complaint (Docket No. 81), with briefing to be completed by October 26, 2011 (see Docket No. 105; see also Docket Nos. 83, 96 (previous briefing schedules), 117 (plaintiff's response)) and oral argument scheduled for November 1, 2011 (Docket No. 105).

During this process, the Court entered an Amended Scheduling Order (Docket No. 106) in which plaintiff's expert disclosure was due by September 6, 2011, Halliburton defendants' expert disclosure was due by October 21, 2011, and discovery was to be completed by October 30, 2011 (Docket No. 84). In light of the recent addition of defendants and the potential addition of more, plaintiff moved to vacate this Scheduling Order (Docket No. 112). That motion was granted (Docket No. 116) with the schedule of this case to be discussed at an October 3, 2011, conference (Docket No. 116). The Halliburton defendants then moved for reconsideration of vacating the Scheduling Order (Docket No. 118*fn3 ) arguing that discovery between them and plaintiff should proceed as scheduled regardless of the other defendants or new parties that may join this action.


I. Motion for Leave to Amend the Complaint Under Federal Rule of Civil Procedure 15(a) amendment of pleadings after the time to do so as of right requires either consent of all parties or by leave of the Court. Under Rule 15(a) motions for leave to amend the complaint are to be freely given when justice requires. Granting such leave is within the sound discretion of the Court. Foman v. Davis, 371 U.S. 178, 182 (1962); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971).

In light of the lack of opposition by existing parties (see Docket No. 133), plaintiff's motion is granted upon the parties' consent. Plaintiff is to serve and file its Fourth Amended Complaint within ten (10) days of entry of this Order.

II. Effect of Amended Complaint on Pending Motion to Dismiss

Ordinarily, the amendment of a pleading would render moot a motion to dismiss the original pleading. The amended pleading supercedes the original pleading that is the subject of the pending dismissal motion, see Washer v. Bullitt, 110 U.S. 558, 562 (1884); Express Cos., Inc. v. Lifeguard Med. Solutions, LLC, No. 10CV78, 2010 U.S. Dist. LEXIS 64104 (S.D. Cal. June 24, 2010), and would render moot the pending motion to dismiss the prior pleading, see, e.g., Sanchez v. GMAC Mortgage, LLC, No. 2:09CV3341, 2010 U.S. Dist. LEXIS 12358, at *2 (E.D. Cal. 2010); Banks v. Realty Mgmt. Serv., Inc., No. 1:10CV14, 2010 U.S. Dist. LEXIS 7501, at *4-5 (E.D. Va. Jan. 29, 2010)..

Here, plaintiff states that the Fourth Amended Complaint merely adds a new defendant without changing the allegations against Gould Electronics or altering them in light of Gould Electronics' pending motion to dismiss. For judicial efficiency and to avoid additional, needless motion practice, and given that the allegations in the Third and Fourth Amended Complaint as against Gould Electronics remain unchanged, the Court deems Gould Electronics' motion to address plaintiff's current pleading, that is the Fourth Amended Complaint once Gould Electronics is served with that pleading. If Gould Electronics, following service, wishes to supplement its motion to address new or changed allegations in the Fourth Amended Complaint, it may do so by November 21, 2011. If so supplemented, the Court will give plaintiff may response to the supplemented motion by December 2, 2011. Any reply by Gould Electronics to this motion (supplement or not) now shall be due by December 9, 2011, and argument of this motion shall be held on Tuesday, December 13, 2011, at 11 am, at the U.S. Courthouse,

2 Niagara Square, Buffalo, New York, before the undersigned.

III. Halliburton Defendants' Motion to Reconsider Vacating the Scheduling Order The Halliburton defendants argue that they would be prejudiced by an extension of time for discovery. During oral argument, they contented that plaintiff, if granted this extension, would enhance its "weak" expert disclosure report. Since eight and a half months of discovery has been conducted by plaintiff and the Halliburton defendants, the Halliburton defendants conclude that no further extension should be granted. Plaintiff sought this extension because new parties were joined or shortly will join this action. Responding co-defendants also note their need for additional time to conduct discovery and that discovery ...

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