United States District Court, S.D. New York
EARTHRIGHTS INTERNATIONAL, Richard Herz, Marco Simons, LAW OFFICES OF CURTIS V. TRINKO, LLP, Curtis V. Trinko, LAW OFFICES OF H. RAJAN SHARMA, ESQ., H. Rajan Sharma, for Plaintiffs.
KELLEY, DRYE & WARREN, LLP, William A. Krohley, William C. Heck, for DefendantUnion Carbide Corporation.
OPINION & ORDER
JOHN F. KEENAN, District Judge.
Three motions are presently before the Court. First, Defendant Union Carbide Corp. ("UCC") has moved for summary judgment on all of Plaintiffs' claims against it. Second, Plaintiffs move under Rule 56(d) for a "continuation" of UCC's summary judgment motion to allow them to take the deposition of Lucas John Couvaras, a former employee of UCC and of its former affiliate, Union Carbide India Limited ("UCIL"). Third, Plaintiffs also move under Rules 26(d) and 30(a) to take an early deposition of Couvaras.
For the reasons that follow, UCC's motion for summary judgment is granted. Plaintiffs' Rule 56(d) motion is denied, as is their motion made under Rules 26(d) and 30(a).
A. Procedural History
This action, which will be referred to as Sahu II, and its predecessors arise out of the leak of hazardous chemicals originating from a chemical manufacturing facility in Bhopal, India (the "Bhopal Plant") that was operated from 1969 to 1984 by UCIL, of which Defendant UCC was then a majority owner. Prior to the filing of this case, Plaintiffs were absent class members of a putative class in another action before this Court, Bano v. Union Carbide Corp., No. 99 Civ. 11329 (S.D.N.Y.). I ultimately dismissed that action, in part because the statute of limitations had expired. See id., 2003 WL 1344884 (S.D.N.Y. Mar. 18, 2003), aff'd in part, 361 F.3d 696 (2d Cir. 2004).
Some of the Plaintiffs in the instant case were also plaintiffs in a similar action, Sahu v. Union Carbide Corp., No. 04 Civ. 8825 ("Sahu I"), which asserted personal injury claims and sought damages and injunctive relief. In that action, I granted summary judgment for UCC on June 26, 2012. See id., 2012 WL 2422757 (S.D.N.Y. June 26, 2012). I concluded, based on the voluminous evidence in the record, that there was no genuine dispute of material fact that would allow a reasonable juror to find UCC either directly or indirectly liable for any of the injuries alleged. The Second Circuit affirmed that decision in full. See 528 F.Appx. 96 (2d Cir. 2013). In its June 27, 2013 summary order, the panel stated: "Sahu and many others living near the Bhopal plant may well have suffered terrible and lasting injuries from a wholly preventable disaster for which someone is responsible. After nine years of contentious litigation and discovery, however, all that the evidence in this case demonstrates is that UCC is not that entity." Id. at 104.
In 2007, Plaintiffs filed the instant case to toll the running of the statute of limitations on their property damage claims while Sahu I was before the Second Circuit on an earlier appeal. Immediately after filing this action, Plaintiffs moved for a stay pending the resolution of the Sahu I appeal. As Plaintiffs then observed,
The facts at issue in [Sahu I] parallel those at issue in this action. In both cases, plaintiffs allege that Defendants caused massive contamination of the soils and drinking water supply of many residential communities in the vicinity of the former UCIL plant with toxic and carcinogenic chemicals emanating and spreading through a common groundwater aquifer from the land and premises of the former UCIL plant. Whether the District Court was correct to grant summary judgment to Defendants on the issue of their potential liability, which is now on appeal, will bear upon the litigation of the instant action.... [T]he Second Circuit's decision will soon provide this Court with invaluable guidance and clarification of this issue.
(ECF. No. 3 at 3-4.) I granted Plaintiffs' motion and stayed this action on April 3, 2007. It remained stayed while the parties litigated Sahu I upon its remand by the Second Circuit for further discovery.
On June 26, 2012, after again entering summary judgment in favor of Defendants in Sahu I, I directed the parties to address the effect of that ruling on the instant action, Sahu II. Counsel for the Sahu II Plaintiffs urged that the stay should continue pending their appeal of my Sahu I decision, again because "the forthcoming decision of the Second Circuit in [Sahu I] will likely provide guidance to the Court and the parties" in Sahu II. (July 31, 2012 Gambhir Ltr. at 3.) I agreed with Plaintiffs that a Second Circuit ruling in Sahu I would aid the consideration of this matter, and left the stay in place. (ECF No. 21.)
The Second Circuit affirmed my entry of summary judgment in Sahu I on June 27, 2013. See 528 F.Appx. 96. It denied the Sahu I plaintiffs' petition for rehearing on July 25, 2013, and the mandate issued on August 1, 2013. Thereafter, UCC informed the Court that it intended to move for summary judgment in Sahu II "for the same reasons, and on the same record, as in Sahu I because the factual allegations, legal theories and relevant evidence are the same in both cases." (Aug. 26, 2013 Heck Ltr. at 1.) Plaintiffs then advised the Court that they wished to amend their complaint prior to the litigation of UCC's contemplated motion. I granted leave to both sides and set a briefing schedule. Plaintiffs later sought and obtained additional leave to make the motion under Rules 26(d) and 30(a) for an early deposition of Couvaras.
B. Plaintiffs' Amended Complaint and Summary Judgment Facts
Plaintiffs filed their amended complaint on November 6, 2013, asserting claims for damage to their property. At the outset, the Court observes that the amended complaint removes Warren Anderson, UCC's former Chief Executive Officer, who was a defendant in the original complaint. The amended complaint adds the state of Madhya Pradesh, which owns the site of the former Bhopal Plant. The only relief Plaintiffs seek against the state is an injunction directing it to cooperate in any court-ordered clean-up of the site. The state has not appeared in this action.
The following facts are undisputed. UCIL was incorporated in India in 1934. In 1969, the Bhopal Plant began operations as a pesticide formulations plant on land leased from the state of Madhya Pradesh. As a formulations plant, UCIL imported the chemical components of pesticide products and mixed the final product, such as the "Sevin" pesticide, in India. During this period, UCC owned 60 percent of UCIL.
In the 1970s, the Government of India implemented new restrictions designed to strengthen domestic production and control of industry. For example, India required "that local manufacture replace imports as soon as feasible." (Heck Aff. Ex. H at A-105.) Consequently, the Bhopal Plant was back-integrated into a facility capable of manufacturing pesticides. Moreover, the Government of India mandated that "all possible work in engineering and construction will be done in India." (Id. at A-97.) Because Indian legislation also required "a dilution of foreign held equity whenever new capital expenditures are made, " UCC's ownership interest in UCIL was reduced to 50.9 percent. (Pl. Oppo. Br. at 3-4; Heck Aff. Ex. H. at A-1606.)
The Bhopal Plant operated as a manufacturing facility for several years. In the normal course of operations, the plant generated wastes. Generally, solid wastes were disposed of in onsite tanks and pits, while wastewater was treated and then pumped to three solar evaporation ponds lined with black polyethylene sheets. Plaintiffs allege that chemicals seeped into a ground aquifer, polluting the soil and drinking water in residential communities near the Bhopal Plant site. In 1984, after a catastrophic gas leak, the Indian Government closed the Bhopal Plant. In 1994, UCC sold its stake in UCIL; UCIL's name was later changed to Eveready Industries India Limited ("EEIL"). In 1998, EIIL terminated its lease of the Bhopal Plant site and surrendered the property to the government of Madhya Pradesh.
Plaintiffs bring negligence, public and private nuisance, strict liability, and trespass claims against UCC. They seek compensatory and punitive damages, as well as injunctive relief to remedy the complained-of property damage.
C. The Instant Motions
Relying in large part upon the record developed in Bano and Sahu I, UCC moves for summary judgment as to all theories of liability. Plaintiffs counter that there is evidence in this case, not present in Sahu I, establishing genuine issues of material fact. This evidence includes a declaration by Couvaras, which Plaintiffs have submitted not only in opposition to UCC's summary judgment motion, but also in support of their two motions seeking leave to take Couvaras's deposition.
II. Relevant Legal Standards
A. The Scope of this Court's Review
In view of the complex procedural history of this action and its predecessors, it is appropriate to clarify how the Court has approached the resolution of these motions. This action involves many, but not all, of the same parties and attorneys as Sahu I. It is well settled that collateral estoppel generally may not apply against a plaintiff who did not appear in the earlier action. See, e.g., Hansberry v. Lee , 311 U.S. 21, 40 (1940) ("It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process."); see also Taylor v. Sturgell , 553 U.S. 880, 891-95 (2008) (discussing the limited exceptions to this principle). Although Plaintiffs' counsel acknowledged at oral argument that collateral estoppel might apply to those Plaintiffs who were parties in Sahu I, I believe the simpler and more prudent course is to evaluate the claims of all Plaintiffs on the merits.
As will be discussed, the evidentiary record contains several new documents, but is otherwise composed of the same materials as were analyzed by this Court and the Second Circuit in Sahu I. At oral argument, Plaintiffs' counsel conceded that I may rely on my previous readings of individual documents that were in the Sahu I record, and acknowledged the general persuasive value of Sahu I. (Oral Arg. Tr. at 12.) However, with respect to the evidentiary record as a whole - i.e., the Sahu I record combined with new documents submitted to "fill the gaps" in the Sahu I plaintiffs' proof - and whether that record shows that UCC is entitled to summary judgment, I emphasize that I am starting fresh.
B. Summary Judgment Standard
A moving party is entitled to summary judgment when the evidence, viewed in the light most favorable to the non-movant, shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a); Vacold LLC v. Cerami , 545 F.3d 114, 121 (2d Cir. 2010). The movant bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). If the moving party meets that burden, the opposing party must then come forward with specific evidence demonstrating the existence of a genuine dispute of material fact. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). "Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case." Scott v. Coughlin , 344 F.3d 282, 287 (2d Cir. 2003). "The mere existence of a scintilla of evidence in support of the non-movant's position will be insufficient; there must be evidence on which the jury could reasonably find for the non-movant." Hayut v. State Univ. of N.Y. , 352 F.3d 733, 743 (2d Cir. 2003) (alterations omitted). If it is clear that no rational jury "could find in favor of the nonmoving party because the evidence to support its case is so slight, " summary judgment should be granted. F.D.I.C. v. Great Am. Ins. Co. , 607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P'ship , 22 F.3d 1219, 1224 (2d Cir. 1994)).
The Second Circuit has cautioned that "an expert's report is not a talisman against summary judgment." Raskin v. Wyatt Co. , 125 F.3d 55, 66 (2d Cir. 1997) (citing Viterbo v. Dow Chem. Co. , 826 F.2d 420, 422 (5th Cir. 1987) (summary judgment not impossible "whenever a party has produced an expert to support its position")). Generally, a court should not make credibility determinations about an expert when deciding a summary judgment motion, because "credibility issues are normally resolved by a jury based on the in-court testimony." City of N.Y. v. Golden Feather Smoke Shop, Inc., No. 08 Civ. 3966, 2013 WL 3187049, at *18 (E.D.N.Y. June 20, 2013) (citing Jeffreys v. City of New York , 426 F.3d 549, 551 (2d Cir. 2005)); see also Scanner Techs. Corp. v. Icos Vision Sys. Corp. , 253 F.Supp.2d 624, 634 (S.D.N.Y. 2003). But if, after construing the expert reports in the non-movant's favor, the court concludes that an admissible report is "insufficient to permit a rational juror to find in favor of the plaintiff, the court remains free to... grant summary judgment for defendant." Amorgianos v. Nat'l R.R. Passenger Corp. , 303 F.3d 256, 267 (2d Cir. 2002).
Finally, Rule 56(d) (formerly Rule 56(f)) allows a court to grant additional time for discovery if the non-movant cannot present facts justifying its opposition to summary judgment. However, "a plaintiff cannot defeat a motion for summary judgment by merely restating the conclusory allegations contained in his complaint, and amplifying them only with speculation about what discovery might uncover." Contemporary Mission, Inc. v. U.S. Postal Serv. , 648 F.2d 97, 107 (2d Cir. 1981). Accordingly, the court may properly deny Rule 56(d) relief "if it deems the request to be based on speculation as to what potentially could be discovered." Paddington Partners v. Bouchard , 34 F.3d 1132, 1138 (2d Cir. 1994).
C. Early Discovery Standard
Plaintiffs also move to take Couvaras's deposition under Rule 26(d) and Rule 30. Rule 26(d)(1) states that discovery should not occur before Rule 26(d) conference unless authorized by the Federal Rules of Civil Procedure, by stipulation, or by court order. "Although the rule does not say so, it is implicit that some showing of good cause should be made to justify such an order, and courts presented with requests for immediate discovery have frequently treated the question whether to authorize early discovery as governed by a good cause standard." 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2046.1 (3d ed. 2010); see also Pearson Educ., Inc. v. Doe, No. 12 Civ. 4786, 2012 WL 4832816, at *3-4 (S.D.N.Y. Oct. 1, 2012) (collecting cases). Rule 30 likewise states that a party must obtain leave of court to take an early deposition. See Fed.R.Civ.P. 30(a)(2)(A). As always, the court "plainly has discretion to reject a request for ...