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Gould Electronics Inc. v. Livingston Cty. Road Comm'n

United States District Court, E.D. Michigan, Southern Division

June 27, 2019

GOULD ELECTRONICS, INC., Plaintiff,
v.
LIVINGSTON CTY. ROAD COMM'N, Defendant.

          OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO AMEND ANSWER AND TO FILE COUNTER-COMPLAINT (DKT. 44) AND GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S JURY DEMAND AND NEW AFFIRMATIVE DEFENSES (DKT. 45)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         This matter is currently before the Court on competing motions from the parties regarding the scope of the claims in this case. Defendant Livingston County Road Commission (“LCRC”) has filed a motion for leave to amend its answer and to file a counter-complaint (Dkt. 44), and Plaintiff Gould Electronics, Inc. (“Gould”) seeks to strike LCRC's jury demand and many of LCRC's affirmative defenses (Dkt. 45). The motions have been fully briefed, and a hearing was held on June 20, 2019. For the reasons that follow, the Court (1) grants in part and denies in part LCRC's motion, and (2) grants Gould's motion. The pleadings in this case shall be limited to those claims and defenses raised in the prior action, as explained further below.

         I. BACKGROUND

         Gould initiated a lawsuit against LCRC, Gould Electronics, Inc. v. Livingston Cty. Rd. Cmm'n, No. 4:09-cv-12633 (E.D. Mich.), on July 6, 2009 (the “Prior Action”). In short, the dispute in the Prior Action concerned the “determination of responsibility for costs associated with the cleanup and remediation of trichloroethylene (TCE) contamination on two adjacent parcels of real property and the surrounding area, ” located in Howell, Michigan. Gould Electronics, Inc. v. Livingston Cty. Rd. Cmm'n, No. 09-12633, 2012 WL 5817937, at *1 (E.D. Mich. May 25, 2012). One parcel is owned by LCRC (the “LCRC Property”); the other is owned by a third party, but Gould is indisputably responsible for liabilities arising from the property (the “Gould Property”). Id. Gould alleges that LCRC shares responsibility for the contamination; LCRC contends that Gould is fully responsible. Id.

         On May 29, 2012, the parties stipulated to an order of dismissal without prejudice, in accordance with a tolling agreement entered into by the parties on May 21, 2012 (the “Tolling Agreement”). See Stip. Order of Dismissal, Ex. A to Am. Compl. (Dkt. 22-2). The order of dismissal contained the following provisions relevant to the instant dispute:

2. Either party may revive pursuit of the surviving claims existing in this lawsuit immediately prior to the entry of this dismissal order in a new case in accordance with the terms of the Tolling Agreement by filing a complaint for a new case (the “New Case”) in the United States District Court for the Eastern District of Michigan . . . .
4. If a New Case is filed, the current record, pleadings, Joint Final Pretrial Order, discovery, expert reports, legal positions of the parties, etc. in this lawsuit shall be preserved as applicable and binding in the New Case as they currently are in this lawsuit. The New Case shall proceed to trial on an expedited basis, with any new discovery limited to new data gathered regarding the soil and groundwater contamination at issue and related analyses conducted thereon after July 6, 2009.

Id. at PageID.274-275.

         Gould initiated the instant case, a New Case within the meaning of the order, on April 11, 2017. LCRC sought to dismiss the action, arguing that it was time-barred; the Court denied LCRC's motion. Gould Electronics, Inc. v. Livingston Cty. Road Comm'n, No. 17-11130, 2018 WL 1035714 (E.D. Mich. Feb. 23, 2018). Gould then filed an amended complaint on March 9, 2018, where it alleges violations of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607(a) (“CERCLA”); Michigan's Natural Resources and Environmental Protection Act, Mich. Comp. Laws §§ 324.20126 and 324.20126a (“NREPA”); and claims that it should be granted access to LCRC's property to conduct reasonable response activities. See generally Am. Compl. (Dkt. 22). LCRC subsequently filed another motion to dismiss, which the Court also denied. Gould Electronics, Inc. v. Livingston Cty. Road Comm'n, No. 17-11130, 2019 WL 1002442 (E.D. Mich. Mar. 1, 2019).

         LCRC filed its answer on March 14, 2019 (Dkt. 36), and an amended answer on April 4, 2019 (Dkt. 39). On May 7, 2019, LCRC filed a motion to amend/correct its answer (Dkt. 44). LCRC seeks to “streamline” its defenses, Def. Br. at 5, as well as to file a counter-complaint asserting claims under CERCLA and NREPA. Gould then filed its own motion (Dkt. 45), seeking to strike LCRC's jury demand (Dkt. 38) and any affirmative defenses raised in LCRC's answer that were not raised in the Prior Action.

         II. STANDARD OF REVIEW

         The Federal Rules of Civil Procedure provide that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given.'” Foman v. Davis, 371 U.S. 178, 182 (1962).

         III. ANALYSIS

         The parties' disagreement essentially centers around the impact of the Tolling Agreement and the JFPO on the current proceeding. As Gould points out, the parties agreed that the JFPO and legal positions of the parties “shall be preserved as applicable and binding” in this litigation. Order of ...


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