ELR Citation: ELR 21279
No(s). s. 1:89-CV-0958, -1189 (W.D. Mich. Apr 29, 1991)

The court holds that a school district, which purchased land for a vocational school from a manufacturer that had polluted the groundwater, may bring a cost recovery action under the Comprehensive Environmental Response, Compensation, and Recovery Act (CERCLA) against the now dissolved manufacturer, provided that not all corporate assets have been distributed. Defendant manufacturer moved to dismiss the school district's suit pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(6). The court holds that CERCLA supersedes FRCP 17(b) because Congress intended CERCLA to be construed liberally and §107(a) specifically supersedes rules of law to the contrary. CERCLA actions against dissolved corporations thus must be permitted to proceed. However, although the scope of CERCLA liability must not turn on the collectibility of judgments, the court requests discovery on whether the dissolved manufacturer still holds assets, since a nonexistent corporation is not a "person" under CERCLA. If discovery reveals that the dissolved manufacturer holds no assets, then it no longer exists and is not a "person" subject to a lawsuit under CERCLA.

Counsel for Plaintiff
Haskell H. Shelton Jr.
Shelton & Pirnie
215 E. Buttles, Midland MI 48640
(517)835-6196

Counsel for Defendants
Joseph C. Basta, David L. Tripp, Grant P. Gilezan
Dykema Gossett
400 Renaissance Ctr., 35th Fl., Detroit, MI 48243
(313)568-6800