ELR Citation: ELR 20959
No(s). 83-CV-1401C (W.D.N.Y. Jan 31, 1995)

The court denies a third-party defendant's motion to dismiss amended third-party complaints in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action regarding a contaminated site in Niagara Falls, New York. The third-party complaints allege, in part, that the third-party defendant owned, operated, dominated, and controlled a company that conducted hazardous waste operations at the site as a tenant from 1980 to 1984. The defendant argues that this allegation is unsupported by facts sufficient to sustain a claim of parental liability under CERCLA, under either a theory of operator liability or an ownership theory based on piercing the corporate veil. The court finds that the third-party plaintiffs' allegations are sufficient under the liberal pleading standards of Fed. R. Civ. P. 8(a) to give fair notice to the defendant of their claims of corporate parent liability under CERCLA, under either an actual exercise of control theory or an authority to control theory. The general nature of the claims is clear enough. Because the defendant may currently have exclusive possession of specific information needed to establish the extent of the defendant's control of the tenant and its activities, the third-party plaintiffs cannot be expected to plead, at this time, facts sufficient to delineate the extent to which the defendant controlled the tenant. The court holds that because the amended third-party complaints sufficiently allege CERCLA operator liability claims, they cannot be dismissed under Fed. R. Civ. P. 1203)(6). Therefore, there is no need for the cotin to decide yet whether or not the third-party plaintiffs sufficiently allege claims under an ownership liability theory based on piercing the corporate veil or whether they must state such claims with the particularity Fed. R. Civ. P. 9(b)) requires.

The court next rejects the defendant's claim that the third-party plaintiffs have failed to demonstrate any good-faith, factual basis for their claims. Under Fed. R. Civ. P. 11(b), an attorney's submission of a pleading constitutes a certification that to the best of the attorney's knowledge, the allegations made in the pleadings have, or are likely to have, evidentiary support. There are no reasons to preclude the court from relying on the attorney's certifications here. The defendant has not denied the allegation that it owned or otherwise was responsible for the tenant, provided the court with evidence that the allegation is not well-founded, or given the court any reason to think that it was not made in good faith. The court next upholds its decision to grant the third-party plaintiffs leave to implead the defendant under Fed. R. Civ. P. 14(a). The court finds that the benefits of impleader clearly outweigh the potential for prejudice to the defendant. Considering the third-party claims against the defendant in the same action as numerous other claims concerning the site will serve judicial efficiency, none of the parties already in the case has opposed impleading of this defendant, and although the claims against this defendant were brought more than 10 years after the original filing of the lawsuit, discovery is still far from complete and the case is not yet ready to come to trial. The court holds that Fed. R. Civ. P. 15(a), involving amendments to pleadings, provides no basis to grant the defendant's motion to dismiss the third-party complaint.

Counsel not available at this printing.