ELR Citation: ELR 20114
No(s). 91-C-1020-S (W.D. Wis. Jun 2, 1992)

The court holds that it has personal jurisdiction in a private response cost recovery action under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CER-CLA) over corporations succeeding to the assets and liabilities of a tire company that operated a plastics manufacturing plant in Wisconsin, and denies motions by two successor corporations to dismiss the complaint of plaintiff waste management company for failure to state a claim. The court holds that it has personal jurisdiction over the successor corporations under Wisconsin's long-arm statute, because this action claims injury to property within Wisconsin, arising out of an act or omission within Wisconsin by the successor corporations. The successor corporations assumed all responsibility for the liabilities incurred by the tire company for generating and disposing of materials containing hazardous substances that were released into the environment at the two hazardous waste sites cleaned up by the waste management company. Further, the transfer of assets, merger, and reorganization between the tire company and the successor corporations infers responsibility for those liabilities incurred in Wisconsin. This also appears to be an action that arises out of a claim to recover any benefit derived by a successor defendant through its use, ownership, control, or possession of the tire company's tangible property situated within Wisconsin either at the time of the first use, ownership, control, or possession or at the time the action is commenced. Or, it is an action that arises out of a claim that the successor corporations return, restore, or account to the waste management company for any asset or thing of value that was within the state at the time the successor corporations acquired possession or control over it.

The court further holds that the successor corporations have sufficient contacts within Wisconsin to satisfy the due process requirements of the Fourteenth Amendment. The cause of action arose from the successor corporations' contacts within Wisconsin, where the tire company, as far back as 1955, generated liquid waste products. Also, the successor corporations through an intricate system of mergers, organizations, and reorganizations acceded to the assets and liabilities of the tire company, based on conduct that included Wisconsin contacts. It does not offend traditional notions of fair play and substantial justice to bring the successor corporations into this forum where they properly availed themselves of the privilege of conducting business, since they could reasonably anticipate being haled into court in Wisconsin.

The court holds that a successor corporation that filed a certificate of dissolution and is having its affairs wound up may be sued in this action, because allowing dissolved corporations to escape liability would be inconsistent with the retroactivity of CERCLA where their affairs remain pending. The court holds that another successor corporation, which has been dissolved and had all its assets distributed, also may be sued.

Counsel for Plaintiff Robin R. Lunn
Keck, Mahin & Cate
8300 SearsTower, 233 S. Wacker Dr., Chicago, IL 60606
(312) 876-3400

Counsel for Defendants
Gary M. Young
Stafford, Rosenbaum, Rieser & Hansen
Three S. Pinckney St., Ste. 1000
P.O. Box 1784, Madison, WI 53701
(608) 256-0226