United States v. Wade

No. 79-1426 (E.D. Pa. April 27, 1984)

The court holds that defendants' motion for a ruling that plaintiff may not recover costs from third-party defendant generators is not ripe. The court first rejects defendants' unsupported argument that plaintiff is estopped from seeking recovery from the third-party defendants. The court then rules that it cannot address defendants' argument that government recovery from thirdparty defendants would be double recovery until plaintiff files an action against the third-party defendants making clear what recovery it seeks. To attempt to rule on the motion under the circumstances also would be unfair to third-party defendants.

[Related decisions are published at 12 ELR 21051, 13 ELR 20815, 14 ELR 20096, 14 ELR 20435, 14 ELR 20436, 14 ELR 20437, 14 ELR 20439, and 14 ELR 20440 — Ed.]

Counsel are listed at 14 ELR 20096.

[14 ELR 20441]

Newcomer, J.:

Memorandum

The generator defendants in this action were permitted to file a third party complaint against certain other generators that the plaintiffs chose not to sue. Plaintiffs now apparently seek in settlement negotiations to recover certain monies they admit they cannot recover from the generator defendants, but which plaintiffs claim they could recover from the third party defendants were they to sue the third parties directly. To facilitate settlement negotiations the generator defendants seek a ruling that plaintiffs have foregone any right to recover costs incurred at the site from the third party defendants. For reasons discussed below the motion is denied.

The generators' argument in support of their motion is threefold. First, they argue that plaintiffs are estopped from asserting any claims against the third-party defendants by virtue of the [14 ELR 20442] plaintiffs' initial decision not to sue this group of defendants and their steadfast opposition to the generators' motion to file a thirdparty complaint. No authority is offered in support of this proposition.

The generators' second argument is based on the premise that plaintiffs seek in this action to recover "all of their costs incurred and to be incurred" in connection with the Wade site. Thus, any future claim for costs incurred at the site against the third parties, and presumably anyone else for that matter, would be barred by the rule prohibiting double recovery for the same injury. Finally, the generators contend that any claim brought pursuant to § 107(a) of CERCLA would be barred by the statute of limitations. 42 U.S.C. § 9612(d).

One of the fundamental principles of our legal system is that judicial power may be exercised only when presented with a "case or controversy." U.S. CONST. Art. 111, § 2. Thus, federal courts are not permitted to issue advisory opinions or rule on abstract, hypothetical, or contingent questions:

To be cognizable in a federal court, a suit "must be definite and concrete, touching the legal relations of parties having adverse legal interests . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."

North Carolina v. Rice, 404 U.S. 244, 246 (1971) quoting Aetna Life Insurance v. Haworth, 300 U.S. 227, 240-241 (1937). While in many senses I am presented with a "definite and concrete" controversy between "parties having adverse legal interests," the present motion does not present me with a case or controversy within the purview of Article III.

The fact that the issue raised by the generators is not ripe for decision is underscored by many facts. First, the plaintiffs have not yet filed a complaint directly against the third party defendants and as best I can tell plaintiffs have not so much as stated an intention to do so. Furthermore, whether such future claim would be under CERCLA or some other as yet unenacted statute is unknown. The factual basis for the claim(s) is likewise unknown. Plaintiffs appear to argue that releases occurring after a final judgment is entered in this matter would not constitute injuries for which recovery has already been permitted and furthermore that the limitations period would begin to run anew with each new release. I simply cannot rule on these issues in the absence of a clear factual record.

My conclusion that the issue is not ripe for decision is reinforced by the third-parties' own reluctance and indeed inability to address the merits. The third parties undoubtedly have a substantial interest in any ruling on their amenability to a direct suit by plaintiffs. To require them to address the merits of this issue in the absence of a factual record is clearly fundamentally unfair, and for me to address the merits without giving the third parties an adequate opportunity to do so would be equally improper.

Order

AND NOW, this 27th day of April, 1984, upon consideration of the generator defendants' motion for a ruling that plaintiffs have foregone any right to recover costs incurred at the Wade site from the third party defendants, it is hereby Ordered that the motion is DENIED.

AND IT IS SO ORDERED.