ELR Citation: ELR 20138
No(s). 92-77214 (E.D. Mich. Sep 16, 1993)

The court holds that §107(a)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts Michigan State law that limits the liability of dissolved corporations. The court first holds that a corporate officer defendant was properly served within the court-extended deadline and that good cause was shown for granting the extension. Next, the court holds that §107(a)(2) preempts a Michigan law that shields from suit a corporation that has wound up its affairs and distributed its assets. Case law shows a clear trend toward construing CERCLA both to supersede Federal Rules of Civil Procedure 17(b), which provides that state law governs in determining the capacity of a corporation to be sued, and to preempt state law. Moreover, Congress intended that CERCLA provide for broad liability and to supersede other laws or rules that might limit that liability. The court notes, however, that a dissolved corporation may have ceased to exist such that CERCLA liability would not attach. Plaintiffs must be given the chance to determine through discovery whether a dissolved corporation retains control of any reasonably discrete and identifiable assets that would subject it to CERCLA liability.

Counsel for Plaintiffs
Timothy H. Howlett, Gregory J. Parry
Dickson, Wright, Moon, Van Dusen & Freeman
One Detroit Ctr., 500 Woodward Ave., Ste. 4000, Detroit MI 48226
(313) 223-3500

Counsel for Defendants
John H. Fildew
Fildew, Hinks, Gilbride, Miller & Todd
3600 Penobscot Bldg., Detroit MI 48226
(313) 961-9700