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13 ELR 20992 | Environmental Law Reporter | copyright © 1983 | All rights reserved United States v. Northeastern Pharmaceutical and Chemical Co.No. 80-5066-CV-SW-4 (W.D. Mo. March 24, 1983)The court declines to rule that defendants in an imminent hazard abatement and response cost recovery action under the Resource Conservation and Recovery Act (RCRA) and Comprehensive Environmental Response, Compensation, and Liability Act are entitled to a jury trial but agrees to hear their case before a jury. Initially, the court rules that both sides are entitled to discovery concerning the other's expert witnesses, but that defendants are not entitled to discovery concerning plaintiff's own handling of dioxin wastes. The court also orders plaintiff to respond to defendants' interrogatories concerning the details of the items of expense for which reimbursement is sought, since the business records submitted by plaintiff do not explain the expenses. Turning to defendants' request for a jury trial, the court concludes that it is a close question whether the action is legal, and thus appropriate for a jury trial, or equitable; but the court avoids deciding the question by calling for an advisory jury under Rule 39(c) of the Federal Rules of Civil Procedure.The court rules that even though the trial will involve a jury, defendants are not entitled to a change of venue to Connecticut, since RCRA § 7002 confers jurisdiction only in the district in which the imminent hazard exists, but the court does shift the trial to a different division within the district. Finally the court rejects defendants' request for an extension of time for discovery. Counsel for Plaintiff David O. Ledbetter Dan Shiel Counsel for Defendants Milton Turkel Howard Holtzmann John C. Noonan Clark, J.: This case concerns the timely subject of dioxin contaminated waste disposal and pends on a myriad of motions filed by both parties. Plaintiff filed this action in August of 1980 seeking monetary [13 ELR 20993] damages against the defendants for costs plaintiff incurred in responding to an imminent health hazard allegedly caused by defendants. Plaintiff also seeks an abatement of the health hazard, if the evidence shows that the health hazard is ongoing. 42 U.S.C. §§ 6973, 9604-9607. Jurisdiction is based on 42 U.S.C. § 6972(a). Each of the parties' motions will be addressed in turn because of the numerous filings and complexity of the case. The Court turns first to the discovery fight concerning answers to interrogatories. Plaintiff and defendants have filed cross motions to compel each other to identify those expert witnesses to be used at trial. Under Rule 26(e), both parties have an ongoing duty to seasonably supplement the identity of each person expected to be called as an expert witness at trial, the subject matter on which they are expected to testify, and the substance of their testimony. In this regard, both the plaintiff and the defendants' motions to compel will be granted in that both parties will be required to fully comply with Rule 26(e) on or before April 15, 1983. Each party is prohibited from identifying greater then three expert witnesses on any given subject. All depositions of experts shall be completed on or before May 27, 1983. Defendants have also moved to compel the plaintiff to answer interrogatories concerning the plaintiff's use and disposal of Agent Orange and dioxin. Unfortunately, the plaintiff's handling of dioxin is not an issue in this lawsuit and is therefore irrelevant under Rule 26(b). Defendants' motion to compel the plaintiff to answer defendants' second set of interrogatories Nos. 17, 18 and 19 will accordingly be denied. Defendants have also moved to compel the plaintiff to answer interrogatories No. 3 and 4 of defendants' third set of interrogatories which request the plaintiff to identify each item of expense incurred by the United States for which it is seeking monetary recovery. Plaintiff responded to that interrogatory by exercising plaintiff's option under Rule 33(c) to produce the business records rather than answering the interrogatory. Defendants contend that they have inspected those documents but cannot ascertain what types of activity were performed which gave rise to the expense and how those activities are connected with this litigation. Since plaintiff must compile this damage information in order to be prepared for the trial of this case in four months, the defendants' motion to compel the plaintiff to answer No. 3 and 4 of defendants' third set of interrogatories will be granted. Defendants are entitled to know what expenses allegedly comprise the plaintiff's damage. Defendants next request a severance and a change of venue pursuant to 28 U.S.C. § 1404 because of pretrial publicity. Opposing the defendants' motion, plaintiff has moved to strike defendants' demand for a jury trial contending that this is an equitable action which must be tried to the Court. Before proceeding to the question of whether the defendants are entitled to a severance and/or change of venue, the issue of whether defendants are entitled to a jury trial must be addressed. The issue of whether a party has the right to a jury trial in 42 U.S.C. § 6972 actions appears to be one of first impression. Plaintiff contends that defendants have no right to a trial by jury because plaintiff seeks only equitable relief. Plaintiff specifically seeks a judgment for monetary damages consisting of the expenses incurred by plaintiff to rectify an imminent health hazard allegedly caused by the defendants. Thus, the issue is whether plaintiff is seeking legal monetary damages or equitable monetary relief. The crux of the plaintiff's argument is that a court of equity may, and often does, award monetary relief in the form of restitution in order to accomplish justice in a given case. Such relief was recognized by the Supreme Court in Porter v. Warner Holding Company, 328 U.S. 395 (1946), which involved an enforcement proceeding under the Emergency Price Control Act of 1942. Holding that the court in such a proceeding had power to order restitution of rents which had been collected in excess of the permissible maximum, the Supreme Court stated: A decree compelling one to disgorge profits, rents or property acquired in violation of the Emergency Price Control Act may properly be entered by a District Court once its equity jurisdiction has been invoked. An order for the recovery and restitution of illegal rents may be considered a proper "other order" on either of two theories: (1) it may be considered as an equitable adjunct to an injunction decree . . . . (2) it may be considered as an order appropriate and necessary to enforce compliance with the act. 328 U.S. at 398-400. It is clear, however, that the Supreme Court was addressing itself to the equitable remedy of restitution as distinguished from damages which are properly recoverable in an action at law. The distinction is that "[a] person obtains restitution when he is restored to the position he formerly occupied either by the return of something which he formerly had or by the receipt of its equivalent in money." RESTATEMENT OF RESTITUTION § 1, (1937). Damages, on the other hand, are determined by reference to the loss sustained by a victim as the result of wrongful conduct on the part of another. With this analysis in mind, it is questionable whether the defendants herein are entitled to a jury trial. The jurisdictional statute involved in this case, 42 U.S.C. § 6972, allows any person, not just the government, to commence a civil action against any other person or governmental agency "who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter." An action commenced pursuant to that statute by a private citizen sounds basically in tort — the statute merely defines new legal duties established by the Act and authorizes the district courts to compensate "any person" for an injury caused by the defendant's wrongful breach of those statutory duties. Such an action by a private citizen would be more analogous to a number of tort actions recognized at common law and clearly legal in nature. In the present case, however, the government is plaintiff and seeks abatement of the health hazard and reimbursement for clean-up costs expended. It is indeed a close question whether the government seeks equitable relief by being restored to the position it formerly occupied or as a legal remedy similar to a money judgment on a debt for services rendered. To be sure, the prudent course to follow when faced with a close question of first impression concerning the Seventh Amendment right of a party to a jury trial is to allow a trial by jury even when it is arguable that such a right does not exist. But fortunately, Rule 39(c) solves the dilemma. This Court deems it well advised and in the interest of judicial economy to proceed to trial with an advisory jury as allowed by that rule even if the Court subsequently decides that this action is equitable in nature. Thus, plaintiff's motion to strike defendants' demand for a jury trial is denied without prejudice. Having held that defendants are entitled to a trial by jury, legal or advisory, defendants' motion for a change of venue ripens. That motion, nevertheless, must be denied since the statute granting this Court subject matter jurisdiction, 42 U.S.C. § 6972, expressly provides that "[a]ny action respecting a violation under this chapter may be brought under this section only in the judicial district in which such alleged violation occurs." (emphasis supplied). In this case, the violations allegedly occurred in the Southwestern Division of the United States District Court for the Western District of Missouri. Thus, this Court cannot grant a change of venue to the United States District Court for the District of Connecticut because that court would lack subject matter jurisdiction. However, this Court will, out of an abundance of caution, transfer this case from the Southwestern Division to the Southern Division of the United States District Court for the Western District of Missouri so that it would be impossible to have any jurors at trial who reside in the same counties where the dioxin disposal sites are located. 28 U.S.C. § 1404(a).The Southern Division of this district would also be a more convenient forum for the witnesses, the parties, their attorneys, and the Court. Alameda Oil Co. v. Ideal Basic Industries, Inc., 313 F. Supp. 164, 168 (W.D. Mo. 1970). Finally, defendants request this Court to extend discovery for an additional 90 days because new counsel is undertaking the defense. Plaintiff's complaint was filed in August of 1980. On May 17, 1982 this Court extended discovery to August 11, 1982 and expressly cautioned the parties that no further extensions of discovery would be granted except upon a showing of extraordinary circumstances. On November 12, 1982 this Court again granted an extension of discovery to February 11, 1983 and once again cautioned the parties that no further extension of discovery would be granted. Defendants' change of attorney cannot control this Court's docket. Therefore, the defendants' motion for an extension [13 ELR 20994] of time within which to complete discovery will be denied except for the taking of expert depositions as previously stated. The Court expects all parties to fully comply with this Court's order dated November 12, 1982. This case is scheduled for a pretrial conference in Springfield, Missouri at 1:30 p.m. on Wednesday, June 1, 1983, and the parties can anticipate a trial setting for Monday, July 25, 1983. For the reasons stated above, it is hereby ORDERED that the defendants' motion to compel the plaintiff to answer defendants' second set of interrogatories No. 3, 4 and 5 is granted, and plaintiff shall comply with Rule 26(e) on or before April 15, 1983. Plaintiff shall not designate more than three expert witnesses per subject matter; and it is further ORDERED that the defendants' motion to compel the plaintiff to answer defendants' second set of interrogatories No. 17, 18 and 19 is denied; and it is further ORDERED that the plaintiff's motion to compel the defendants to answer interrogatories No. 4, 5 and 6 is granted, and defendants shall comply with Rule 26(e) on or before April 15, 1983. Defendants shall not designate more than three expert witnesses per subject matter; and it is further ORDERED that all depositions of experts shall be performed on or before May 27, 1983; and it is further ORDERED that the defendants' motion to compel the plaintiff to answer defendants' third set of interrogatores No. 3 and 4 is granted, and the plaintiff shall answer those interrogatories on or before April 15, 1983; and it is further ORDERED that the plaintiff's motion to strike the defendants' demand for a jury trial is denied without prejudice; and it is further ORDERED that the defendants' motion to sever is denied; and it is further ORDERED that the defendants' motion for a change of venue pursuant to 28 U.S.C. § 1404(a) is granted, and this case is transferred from the Southwestern Division to the Southern Division of this Court; and it is further ORDERED that the plaintiff's motion for leave to file out of time suggestions in opposition to the defendants' motion for severance and change of venue is granted; and it is further ORDERED that the parties are directed to fully comply with this Court's order dated November 12, 1982; and it is further ORDERED that the defendants' motion to extend the time for completion of discovery is denied except for depositions of expert witnesses; and it is further ORDERED that this case is set for a pretrial conference in Springfield, Missouri commencing at 1:30 p.m. on Wednesday, June 1, 1983; and it is further ORDERED that the parties may anticipate a trial setting for Monday, July 25, 1983. 13 ELR 20992 | Environmental Law Reporter | copyright © 1983 | All rights reserved |