ELR Citation: ELR 21503
No(s). 91-36170 (9th Cir. Sep 23, 1993)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(g)'s statute of limitations does not preempt a state of Washington statute terminating a dissolved corporation's capacity to be sued two years after dissolution. A party liable as a generator of slag that contaminated sites in Washington State moved to amend a third-party complaint to include a claim against the dissolved parent corporation of the corporation that had purchased the slag from the generator. The court first holds that CERCLA §113(g)'s statute of limitations, which limits imposition of liability, does not preempt a state law limiting capacity to be sued. Under Federal Rules of Civil Procedure 17(b), a corporation's capacity to be sued is governed by the law of its state of incorporation. The court next holds that the district court did not abuse its discretion in denying the generator's motion to file an amended third-party complaint that would relate back to the date the original third-party complaint was filed (when the dissolved corporation still had capacity to be sued). The generator's failure to include the dissolved parent in its earlier complaint was not caused by a mistake of identity.

[A related decision in this action is published at 23 ELR 21505. A prior decision is published at 20 ELR 21452.]

Counsel for Plaintiffs-Appellees
Jeffrey K. Leppo, Karen McGaffey
Bogle & Gates
Two Union Sq., 601 Union St., Seattle WA 98101
(206) 682-5151

Counsel for Defendant-Appellant
Peter A. Wald, M. Laurence Popofsky
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000

Counsel for Amicus Curiae
Timothy J. Dowling
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright and Kleinfeld, JJ.