United States District Court, N.D. Indiana, Fort Wayne Division
VALBRUNA SLATER STEEL CORPORATION and FORT WAYNE STEEL CORPORATION, Plaintiffs,
JOSLYN MANUFACTURING COMPANY, JOSLYN CORPORATION and JOSLYN MANUFACTURING COMPANY, LLC, Defendants.
OPINION AND ORDER
an action pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act
(“CERCLA”), 42 U.S.C. § 9601 et
seq. wherein plaintiffs Valbruna Slater Steel
Corporation and Fort Wayne Steel Corporation (collectively,
“plaintiffs”) filed a cost recovery claim against
defendants Joslyn Manufacturing Company, Joslyn Corporation,
and Joslyn Manufacturing Company, LLC (collectively,
“defendants” or “Joslyn entities”),
who then filed a contribution counterclaim.
than eight years have passed since this lawsuit began. As a
result, the procedural history of this litigation is
extensive and much of it has been set forth in prior orders.
To quickly summarize, the Court first resolved two motions
for summary judgment filed by defendants. After discovery
closed, the parties engaged in another round of summary
judgment motions- two filed by defendants and one filed by
plaintiffs. In ruling on these motions for summary judgment,
the Court determined that the defendants were jointly and
severally liable for the cost of remediating the contaminated
(thereby entitling plaintiffs to declaratory judgment and
payment of future costs). The Court deferred calculating
damages until it could be determined what remediation costs
were compensable and how those costs were to be equitably
allocated [DE 124]. The Court then held trial in two
phases-one for determining cost compensability and the other
for determining cost contribution. These bench trials
resulted in the issuance of extensive findings of fact and
conclusions of law [DE 175; DE 182]. In Phase I of trial, the
Court held that defendants were strictly liable to plaintiffs
for $2, 029, 871.09 in cleanup costs [DE 175]; and in Phase
II of trial, the Court determined that $1, 529, 871.09 of the
recoverable costs were to be allocated 75% to defendants and
25% to plaintiffs (with the same allocation percentages
applying to future costs deemed necessary and consistent with
the National Contingency Plan) [DE 182].
point, the only outstanding issues concern the following: the
assessment of remediation costs post-dating December 14, 2016
(“additional costs”); the amount of attorney fees
and expenses to be taxed; the proper prejudgment interest to
be assessed; and finally, whether or not certain Joslyn
entities can escape the entry of final judgment against them
in light of defense counsel's eleventh-hour argument that
Joslyn Manufacturing Company, LLC, is the only “proper
defendant” in this action. Those issues have been
briefed by the parties [DEs 185 - 191] and are ripe for the
the entire course of this protracted litigation, the
defendants have never once (until now) asked the Court to
distinguish between the Joslyn entities-that is, Joslyn
Manufacturing Company, Joslyn Corporation, and Joslyn
Manufacturing Company, LLC.
of history, the litigation began in 2010 with plaintiffs'
identification of all three Joslyn entities as defendants in
the complaint [DE 1]. Ever since the filing of the complaint,
the defendants have repeatedly been referred to by the
parties and the Court as Joslyn. Defendants then filed an
amended answer and counterclaim [DE 59]. When plaintiffs
moved for summary judgment on the complaint, plaintiffs
explicitly sought summary judgment against all of the
defendants [DE 102], and plaintiffs' “statement of
material facts not in dispute” identified the
relationship between each of the Joslyn entities (as derived
from the defense's response to
interrogatories). In opposing the entry of judgment in
plaintiffs' favor [DE 113], the defense argued solely
that the motion for summary judgment should be denied because
“Joslyn is not liable under § 107, ” and, to
the extent there exists compensable costs,
“Valbruna's equitable share is 100%” based on
the counterclaim for contribution. The defense did not assert
that plaintiffs failed to sue the proper party, nor did the
defense draw a distinction between the Joslyn entities for
purposes of liability. In issuing its summary judgment ruling
in December 2015, the Court decided the motion on exactly the
terms presented by the parties: it found that there was no
genuine dispute that the defendants were jointly and
severally liable for the costs (including future costs) of
remediating the contaminated site, while it deferred the
calculation of damages. Because the defendants did not
contend that a particular entity could not be held
responsible or that liability among the defendants differed,
the Court granted the motion for summary judgment in favor of
plaintiffs against all of the Joslyn entities named in the
years later, defense counsel now seeks to limit the effect of
that order. The defense contends that Joslyn Manufacturing
Company, LLC, is the only legal successor to the entity that
actually owned and operated the site from 1928 until 1981;
and therefore, only Joslyn Manufacturing Company, LLC, should
be subject to the judgment in this action. Essentially,
defense counsel wants to present its affirmative defense to
liability on the part of Joslyn Corporation,  notwithstanding
the fact that summary judgment as to liability has already
been granted on plaintiffs' complaint. In support of this
position, defense counsel contends that (1) defendants never
waived this argument because throughout the litigation only
Joslyn Manufacturing Company, LLC, has responded to discovery
and filed documents; and (2) plaintiffs failed to carry their
burden in providing evidence to show that Joslyn Corporation
is actually liable, given that this entity didn't own or
operate the contaminated site and was not in existence when
this lawsuit was filed.
defense's non-waiver argument is disingenuous at best.
Creatively docketing filings using the names of all (or some)
of the defendants, but then naming only Joslyn Manufacturing
Company, LLC, in the actual body of the documents hardly
constitutes raising an issue requiring the Court's
ruling. See, e.g., Fed.R.Civ.P. 7(b). Moreover, to
the extent that not all of the Joslyn entities participated
in answering the complaint, then this would support their
being defaulted, see Fed. R. Civ. P. 55, not support
some inference that they claimed to be improperly named in
the complaint. In addition, at least two courts of appeals
have held that this type of “proper party”
defense is indeed an affirmative defense that is waived
unless the court grants leave to amend the pleadings.
Jordan v. City of Baton Rouge, 192 F.3d 125, 1999 WL
683794 at *3 (5th Cir. 1999); Bokunewicz v. Purolator
Prods., Inc., 907 F.2d 1396, 1402 (3d Cir. 1990);
see also Grabianski v. Bally Total Fitness Holding
Corp., 169 F.Supp.3d 785, 791-92 (N.D. Ill. 2015).
Certainly, justice doesn't require allowing defendants to
amend their pleadings in this case, see Fed. R. Civ.
P. 15(a)(2), where for eight years defense counsel has
purposefully referred to his clients collectively as
“Joslyn, ” without explicitly differentiating
between the entities, and where the liability of all of the
defendants was determined over three years ago.
respect to the alleged lack of evidence proving each of the
Joslyn entities' liability, the contention has no merit.
Plaintiffs specifically moved for summary judgment on the
complaint against all of the defendants, and the Court
granted that motion without the defendants ever drawing a
distinction between themselves for purposes of liability.
Thus, back in December 2010, the Court determined that each
of the Joslyn entities was jointly and severally liable under
§ 107 of CERCLA. And this Court agrees with the various
other district courts in the circuit who have uniformly held
that failing to assert an affirmative defense to liability in
response to a motion for summary judgment constitutes
abandonment of the defense. E.g., Sunshine Imp
& Exp Corp. v. Luxury Car Concierge, Inc., No. 13 C
8925, 2015 WL 2193808 (N.D. Ill. May 7, 2015); Frerck v.
Pearson Educ., Inc., 63 F.Supp.3d 882 (N.D. Ill. 2014);
United Cent. Bank v. Wells St. Apartments, LLC, 957
F.Supp.2d 978 (E.D. Wis. 2013). Given that summary judgment
is the “put up or shut up” moment in a lawsuit,
Olendzki v. Rossi, 765 F.3d 742, 749 (7th Cir.
2014), it would have been incumbent on defense counsel to
raise this “proper party” defense in response to
the motion for summary judgment if it could have actually
precluded summary judgment against any one of the Joslyn
entities. See Grabianski, 169 F.Supp.3d at 791-92.
Questioning the Court's liability determination several
years later, without any legitimate basis for doing so, does
not warrant a revision of the decision. See Fed. R.
Civ. P. 54(b). Accordingly, the Court denies the
defense's untimely and unjustified request to limit its
previous liability determination by excluding Joslyn
Corporation from the final judgment.
Additional Costs Post-December 14, 2016
Court previously set forth the legal standard for recoverable
costs and expenses under CERCLA [DE 175 at 4], and
incorporates that standard herein. In short, to be
recoverable, expenses must be both necessary and consistent
with the National Contingency Plan. See id.
claim that they have incurred additional costs in the amount
of $240, 745.69 from December 14, 2016 through March 15, 2018
in responding to the environmental contamination at the site.
These additional costs are itemized and supported by their
respective invoices [DE 186-1, Third Affidavit of Jonathan P.
Hacker, ¶ 7]. Defendants only contend that $2, 174.20 of
that amount is not recoverable under CERCLA (“disputed
costs”)-thus, defendants do not dispute the other
$238, 571.49 in claimed costs [DE 188 at 1-2]. Defendants
argue that the disputed costs were incurred to ensure worker
safety in indoor spaces and are, therefore, not compensable.
Defendants equate the disputed costs to those expended to
install a vapor barrier-which the Court previously concluded
were not compensable because the costs did not address a
threat to human health or the environment; rather, the
evidence demonstrated that the vapor barrier only benefited
worker safety [DE 175 at 10-11].
to defendants' position, Mr. Hacker's affidavit
explains that once the site was entered into the Indiana
Department of Environmental Management's
(“IDEM”) Voluntary Remediation Program
(“VRP”), plaintiffs have continued to engage in
VRP work under IDEM's close supervision in order to
address threats posed at the site. Moreover, Mr. Hacker
indicates that the disputed costs were actually incurred
while conducting VRP work required and overseen by IDEM [DE
186-1, ¶¶ 4, 7]. In fact, plaintiffs confirm that
the VRP ...