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United States v. New Castle County

ELR Citation: 16 ELR 21013
Nos. No. 80-489 LON, 111 F.R.D. 628/24 ERC 1720/(D. Del., 07/17/1986) Motion to dismiss contribution action

The court holds that third-party complaints for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) should not be dismissed for late joinder. The court first holds that the filing of the third-party complaints did not prejudice the plaintiff since the government supports joinder of all potentially responsible parties, nor will it create inefficiencies at trial because the court has not set a trial date or established a plan for trying the case. The court next holds that any prejudice to the third-party defendants does not justify dismissal of the contribution claims. The third-party defendants would incur the burdens of reviewing the extensive discovery material amassed by the third-party plaintiffs and conducting their own investigation in a separate action. The third-party defendants' claims of prejudice from unavailable or unretentive witnesses also fails. They have not identified a single absent witness or an example of prejudice caused by a witness" loss of memory of events, now over 15 years in the past, due to the marginal delay of an additional year.

The court holds that the third-party plaintiffs' delay in filing their complaints after being sued by the government is excusable. The one-year delay by one third-party plaintiff, during which it reviewed the extensive record and pursued its own investigation, was excusable given the factual and technical complexity of CERCLA actions. The two-and-one-half-year delay by two other third-party plaintiffs was also excusable. Although the government filed its original complaint against these third-party plaintiffs in October 1980, the complaint, brought pursuant to RCRA for dumping at an abandoned landfill, could not have alerted these third-party plaintiffs of the need to implead third-party defendants. The government's addition of CERCLA §106 claims for injunctive relief that would have required third-party plaintiffs to finance cleanup activities at the site also failed to notify them of the need for impleader, since the precedents in the Third Circuit at the time indicated that such compelled expenditures could not be awarded in an equitable action. However, the court holds that the third-party plaintiffs should have been alerted that the government's amended complaint could compel them to finance cleanup actions, and thus of the need for impleader, in September 1982. At that time, the Third Circuit ruled in a RCRA case that equitable relief is not necessarily foreclosed if an injunction requires the expenditure of money. The court holds that the two-and-one-half-year delay from the time when these third-party plaintiffs should have become aware of the need for impleader and the filing of their third-party complaints was excusable. Finally, the court holds that the goals of Federal Rule of Civil Procedure 14 of avoiding circuity of actions and multiplicity of suits also supports the third-party complaints. The presence of third-party defendants has fostered the formation of various committees and has enabled the court to simultaneously address problems affecting numerous parties. Moreover, since third-party defendants must contest their liability at some point given the availability of contribution under CERCLA, it is more efficient to do so in one action in which the chances of settlement are greater.

Counsel are listed at 16 ELR 21007.