United States v. Shaner

No. 85-1372 (E.D. Pa. June 12, 1992)

The court holds that contribution actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113 are legal in nature and thus create a Seventh Amendment right to jury trial. A right to jury trial exists in a statutorily created action only where the action is legal in nature. The court holds that as opposed to equitable actions seeking remedies in restitution, actions for contribution are legal because they arise out of a tort, and are the legal right of the party who paid more than its share. In addition, the court holds that a right to jury trial in third-party and fourth-party contribution actions may exist even where the right does not exist in the principal action.

Counsel for Plaintiff

Katherine Votaw, Ass't U.S. Attorney
U.S. Attorney's Office
615 Chestnut St., Ste. 1250, Philadelphia PA 19106
(215) 451-5303

Counsel for Defendant
Edward E. Kopko
111 E. Norwegian St., Pottsville PA 17901
(717) 621-3300

Huyett, J.

[23 ELR 20236]

Huyett, J.:

Memorandum & Order

This action arises under Sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9607, 9613. Third-party defendant M. Glosser & Sons, Inc. moves for a jury trial in the CERCLA § 113 third-party and fourth-party contribution actions of this case. For the reasons stated below, the Court will grant third-party defendant M. Glosser & Sons, Inc.'s motion for a jury trial in the contribution actions: the third-party and fourth-party actions in this case.

I. Introduction

Plaintiff United States of America commenced this action on March 14, 1985 to recover costs it has incurred in cleaning up Brown's Battery Breaking Site in Berks County, Pennsylvania ("this site"). In United States v. Shaner et al., No. 85-1372, (E.D. Pa. June 25, 1990) (slip op.) ("Shaner"), 1990 WL 115085, the Court held that plaintiff was entitled to partial summary judgment against defendants Shaner and General Battery Corporation ("General Battery") on the issue of liability. Accordingly, the Court held defendants Shaner and General Battery liable for costs incurred by the United States during the clean-up of Brown's Battery Breaking Site "not inconsistent with the National Contingency Plan ("NCP")." Shaner at 29.

Defendant General Battery commenced a third-party action on August 19, 1985 against fifteen (15) third-party defendants, including Levene's Son, Inc. ("Levene's"), American Scrap Company ("American"), M. Glosser & Sons, Inc. ("Glosser"), Harry Tiderman ("Tiderman"), and Minkin Industries ("Minkin"). By Order entered on June 25, 1991, the Court granted third-party defendant Glosser leave to join by fourth-party complaint eighteen (18) fourth-party defendants to this litigation.

Glosser now moves pursuant to Fed. R. Civ. P.38 and the Seventh Amendment to the United States Constitution for a jury trial in the third-party and fourth-party contribution actions in this case. Defendant General Battery opposes Glosser's motion arguing that a right to jury trial exists in the third-party and fourth-party contribution actions only if a right to jury trial exists in the direct action between the plaintiff United States and defendants Shaner and General Battery.

II. Discussion

The Seventh Amendment to the United States Constitution provides that: "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." U.S. Const. Amend. VII. In determining whether a right to jury trial exists in a statutorily created action, a court must determine whether the action is legal or equitable in nature because the Seventh Amendment right to jury trial embraces "'all suits which are not of equity and admiralty jurisdiction. . . .'" In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 998 [19 ELR 21198] (D. Mass. 1989), quoting Parsons v. Bedford, 28 U.S. 433, 447 (1830) (Story, J.). "The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action." Ross v. Bernhard, 396 U.S. 531, 538 (1970). As Tull v. United States, 481 U.S. 412 [17 ELR 20667] (1987) teaches, this inquiry requires historical analysis by the Court as to whether the civil penalty at issue was traditionally a legal or equitable remedy. Id. at 417.

Third-party defendant Glosser contends that a contribution action under CERCLA § 113 is legal in nature and accordingly moves for a jury trial in the third-party and fourth-party actions.¹ Defendant General Battery Corporation opposes Glosser's motion and argues that the nature of the relief sought in the third-party action is the same as the relief sought in the direct action. Based upon this position, defendant General Battery asserts that a right to jury trial in the third-party and fourth-party contribution actions exists only to the extent that a right to jury trial exists in the direct action between plaintiff United States and defendant General Battery. The Court accepts the argument forwarded by third-party defendant Glosser and rejects the position asserted by defendant General Battery.

It is established that the defendant in a CERCLA cost recovery action brought pursuant [sic] 42 U.S.C. § 9607 possesses no right to jury trial because a CERCLA cost recovery action constitutes an action for restitution which lies in equity. See, e.g., United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726, 749 [17 ELR 20603] (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1390 (E.D. Cal. 1991); In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1001 [19 ELR 21198] (D. Mass. 1989); United States v. Northernaire Plating Co., 685 F. Supp. 1410, 1413 [18 ELR 21338] (W.D. Mich. 1988), aff'd sub nom. United States v. R.W. Meyer, Inc., 889 F.2d 1497 [20 ELR 20319] (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990); United States v. Moore, 703 F. Supp. 460, 463 (E.D. Va. 1988); Dublin Scarboro Improvement Association v. Harford County, 678 F. Supp. 129, 132 (D. Md. 1988); Wehner v. Syntex Corp., 682 F. Supp. 39, 40 (N.D. Cal. 1987); United States v. Dickerson, 640 F. Supp. 448, 453 [16 ELR 20970] (D. Md. 1986); United States v. Conservation Chemical Co., 619 F. Supp. 162, 205 [16 ELR 20193] (W.D. Mo. 1985); United States v. Mottolo, 605 F. Supp. 898, 912-13 [15 ELR 20444] (D.N.H. 1985); United States v. Ward, 618 F. Supp. 884, 913 [16 ELR 20127] (E.D.N.C. 1985); United States v. Georgeoff, 22 Env't Rep. Cas. (BNA) 1601, 1602-03 (N.D. Ohio 1984); United States v. Union Gas Co., 22 Env't Rep. Cas. (BNA) 1603, 1603 (E.D. Pa. 1984). Glosser provides persuasive arguments in support of the conclusion, however, that CERCLA contribution actions are legal in nature and thus create a Seventh Amendment right to jury trial. See, e.g., Tull v. United States, 481 U.S. 412, 417 [17 ELR 20667] (1987); Curtis v. Loether, 415 U.S. 189 (1974).

As Glosser acknowledges, the Third Circuit has characterized contribution as a common-law equitable doctrine. Pacific Indemnity Co. v. Linn, 766 F.2d 754, 769 (3d Cir. 1985) (interpreting Pennsylvania law regarding contribution).² The Court concludes, however, that Globig v. Greene & Gust Co., 184 F. Supp. 530, 534 (E.D. Wis. 1960) (addressing a contribution action against the United States under the Federal Tort Claims Act ("FTCA")) provides clear and persuasive support for the conclusion that actions for contribution are legal in nature. The Globig court specifically stated:

[i]t is plain that the obligation of a joint tort-feasor to contribute arises out of the tort and the fact that one seeking contribution has paid more than his fair and just share. The word "equitable" as mentioned in the decisions does not mean a matter for chancery. It does not mean [23 ELR 20237] "equity" as opposed to "law." It is founded upon natural justice, and when words "equitable" or "equity" are used, reference is made to an attempt to do right and to deal fairly between the parties. Nonetheless, it is a legal right enforced in actions at law where the parties have a right to a jury trial.

Id. at 534.

CERCLA § 113 creates the statutory right to bring actions for contribution and states in relevant part: "[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1). The Court discerns no material difference between the federal tort contribution action considered in Globig and the CERCLA contribution action forming the basis of the instant third-party and fourth-party actions. The conclusion that contribution actions are legal in nature is further supported by the Ninth Circuit's decision in Palmer v. United States, 652 F.2d 893 (9th Cir. 1981), overruled on other grounds, White v. McGinnis, 903 F.2d 699 (9th Cir. 1990). Under the reasoning of Globig, the Court concludes that CERCLA § 113 contribution actions are legal in nature and thus create an implicit right to jury trial. Ross v. Bernhard, 396 U.S. 531, 538 (1970).³

The conclusion that there is a constitutional right to a jury trial in contribution actions under CERCLA is also supported by In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1001 [19 ELR 21198] (D. Mass. 1989). In the Acushnet River case, the District of Massachusetts distinguished CERCLA natural resource recovery actions brought pursuant to CERCLA § 107(a)(4)(C) from cost recovery actions under CERCLA § 107(a)(4)(A) and concluded that a constitutional right to jury trial exists in natural resource recovery actions despite the fact that no right to jury trial exists in cost recovery actions. Id. at 999-1000. The Acushnet River court concluded that while cost recovery actions seek remedies in restitution which lie in equity, natural resource damage actions are grounded in tort and thus are legal in nature. As contribution was available as a common law tort remedy prior to CERCLA's enactment and actions for contribution under § 113 seek remedy in the form of liquidated damages,⁴ the Acushnet River decision supports the conclusion that CERCLA contribution actions create a constitutional right to jury trial.

III. Conclusion

For the reasons stated above, the Court will grant third-party defendant M. Glosser & Sons, Inc.'s motion for a jury trial in the contribution actions: the third-party and fourth-party actions in this case.

An appropriate order follows.

Memorandum & Order

Upon consideration of third-party defendant M. Glosser & Sons, Inc.'s motion for a jury trial in the contribution actions: the third-party and fourth-party actions in this case, defendant General Battery Corporation's response and for the reasons stated in the accompanying memorandum:

1. Third-party defendant M. Glosser & Sons, Inc.'s motion for a jury trial in the contribution actions is GRANTED.

2. A jury trial shall accordingly be conducted in the third-party and fourth-party actions.

IT IS SO ORDERED.

1. The Court agrees with Glosser's contention that Glosser's jury demand extends to all contribution claims asserted by and against Glosser. See, e.g., YJR Enterprises, Inc. v. Twin County Grocers, Inc., 709 F. Supp. 499 (S.D.N.Y. 1989).

2. The Court notes that under Pennsylvania law, prior to the merger of law and equity, the doctrine of contribution was applied by both courts of law and equity. See Armstrong County v. Clarion County, 66 Pa. 218 (1870); Friedman v. Maltinsky, 260 Pa. 312 (1918).

3. The Court notes that the dicta of Chemical Waste Management, Inc. v. Armstrong World Industries, Inc., 669 F. Supp. 1285 [18 ELR 20191] (E.D. Pa. 1987) (Cahn, J.) also provides support for the conclusion that a right to jury trial exists in a CERCLA contribution action. Id. at 1292, n.11.

4. The Court agrees with Glosser's assertion that damages sought in contribution more closely resemble damages sought in natural resource recovery actions than in cost recovery cases. See Glosser's Memorandum of Law at 10-13.