United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) GRANTING PLAINTIFF’S
MOTION TO COMPEL DEFENDANT’S COMPLIANCE WITH PREVIOUS
COURT ORDER (DKT. 60); (2) GRANTING DEFENDANT’S MOTION
TO COMPEL PLAINTIFF’S COMPLIANCE WITH PREVIOUS COURT
ORDER (DKT. 62); AND (3) DENYING DEFENDANT’S MOTION TO
COMPEL ANSWERS TO DISCOVERY (DKT. 67)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
second time, this matter is before the Court on competing
motions from the parties regarding the scope of the claims in
this case. Plaintiff Gould Electronics, Inc.
(“Gould”) seeks to compel Defendant Livingston
County Road Commission’s (“LCRC”)
compliance with the Court’s previous order limiting the
permissible scope of LCRC’s answer to Gould’s
60). LCRC, in turn, seeks to compel Gould’s compliance
with the Court’s previous order limiting the
permissible scope of Gould’s amended complaint (Dkt.
62). Finally, LCRC seeks to compel Gould’s answers to
discovery requests (Dkt. 67). Because oral argument will not
aid the decisional process, the motions will be decided based
on the parties’ briefing. See E.D. Mich. LR
7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons that follow,
the Court grants both parties’ motions to compel
compliance and denies LCRC’s motion to compel answers
factual background has been set forth in the Court’s
previous opinions and need not be repeated here. In brief
summary, Gould initiated a lawsuit against LCRC on July 6,
2009 (the “Prior Action”), Gould Elec., Inc.
v. Livingston Cty. Rd. Cmm’n, No. 09-12633 (E.D.
Mich. 2009), and, on May 29, 2012, the parties stipulated to
dismiss the action without prejudice in accordance with a
tolling agreement (the “Tolling Agreement”),
see Stip. Order of Dismissal, Ex. A to Am. Compl.
(Dkt. 22-2). As permitted under the Tolling Agreement, Gould
initiated a new case on April 11, 2017, alleging violations
of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9607(a)
(“CERCLA”); and Michigan’s Natural
Resources and Environmental Protection Act, Mich. Comp. Laws
§§ 324.20126, 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).
opinion and order entered on June 27, 2019 (the “June
27 Opinion”), this Court confronted the parties’
disputes regarding the scope of the current proceedings as
set forth in the pleadings. See 6/27/19 Op. at 4
(Dkt. 56). Given the parties’ stipulation in the
Tolling Agreement to be bound by the record of the Prior
Action, the Court held that their respective pleadings
impermissibly expanded the current proceedings beyond the
scope of the Prior Action. Id. at 4. Accordingly,
the Court ordered the parties to file amended pleadings
consistent with its opinion. Id. at 7. Gould filed
its second amended complaint on July 8, 2019 (Dkt. 57), and
LCRC filed its amended answer and counter-complaint on July
15, 2019 (Dkt. 58). In the present set of motions, the
parties again raise the same objections regarding the scope
of the proceedings, arguing that their respective
opponent’s amended pleadings fail to conform to the
rulings set forth in the June 27 Opinion.
Motions to Compel Compliance
argues that LCRC’s amended answer asserting nineteen
affirmative defenses runs afoul of the June 27 Opinion, which
limited LCRC to the six defenses raised in the joint final
pretrial order (“JFPO”) in the Prior Action. Pl.
Mot. to Compel Compliance at 2 (Dkt. 60). Gould is correct.
In its June 27 Opinion, the Court denied LCRC’s motion
to amend its answer to assert eighteen affirmative defenses
when it had asserted only six defenses in the JFPO. 6/27/19
Op. at 6. The Court ordered LCRC to file an amended answer
and counter-complaint “asserting only the defenses and
counter-claims, respectively, that are set forth in the
JFPO.” Id. However, LCRC’s amended
answer, filed on July 15, 2019, raises nineteen affirmative
defenses, including the same eighteen defenses previously
limited by the June 27 Opinion and the additional defense
that Gould’s second amended complaint violates the June
27 Opinion. Compare Answer to 2d Am. Compl. (Dkt.
58) with Proposed 2d Am. Answer, Ex. B to Def. Mot.
to Amend (Dkt. 44-2). LCRC’s amended answer, therefore,
fails to comply with the Court’s June 27 Opinion.
in turn, contends that Gould’s second amended complaint
exceeds the scope of the Prior Action. Def. Mot. to Compel
Compliance at 4 (Dkt. 62). The Court agrees. In the June 27
Opinion, the Court rejected Gould’s attempt to expand
the pleadings by referencing salt contamination when
trichloroethylene (“TCE”) contamination was
“the sole identified contamination referenced in
Gould’s complaint in the Prior Action.” 6/27/19
Op. at 5. The Court ordered Gould to file a second amended
complaint, with the caution that “[a]ny allegation in
the Amended Complaint that is inconsistent with the JFPO or
goes beyond the relief previously sought – such as
Gould’s current effort to seek relief regarding salt
contamination – is deemed inoperative.”
Id. at 6-7. However, the general factual allegations
set forth in the second amended complaint, filed on July 8,
2019, define “LCRC Contamination” as LCRC’s
release of “hazardous substances and other
contaminants, including but not limited to
TCE.” 2d Am. Compl. ¶ 12 (Dkt. 57) (emphasis
added). Although Gould contends that its complaint in the
Prior Action similarly alleged that “LCRC released
hazardous substances, including TCE, ” Compl.
at ¶ 24, Ex. E to Pl. Resp. (Dkt. 65-6) (emphasis
added), TCE is the only contaminant identified in the JFPO
– a document memorializing the parties’ agreement
as to the issues to be presented at trial in the Prior
Action, see JFPO, Gould Elec. v. Livingston Cty.
Rd. Comm’n, No. 09-12633 (E.D. Mich. May 25,
2012), at 2-14 (Dkt. 147). Therefore, the allegations in
Gould’s second amended complaint suggesting possible
contamination by substances other than TCE fail to comply
with the June 27 Opinion.
LCRC contends that by alleging LCRC’s liability for
“response costs, ” Count II of Gould’s
second amended complaint not only asserts an NREPA
contribution claim under Mich. Comp. Laws § 324.20129
but also adds an NREPA cost recovery claim under Mich. Comp.
Laws § 324.20126a. Def. Mot. to Compel Compliance at 8
(quoting 2d Am. Compl. ¶ 44). The June 27 Opinion made
clear that because Gould asserted only an NREPA contribution
claim and not a cost recovery claim in the Prior Action,
Gould is likewise limited to stating an NREPA contribution
claim in the current proceedings. 6/27/19 Op. at 5, 7. Gould
concedes that Count II of its complaint “asserts a[n]
NREPA contribution claim, expressly alleging that [LCRC] is
liable under Mich. Comp. Laws § 324.20129.” Pl.
Resp. at 6 (Dkt. 65). However, to the extent that
Gould’s second amended complaint purports to state an
NREPA cost recovery claim under Mich. Comp. Laws §
324.20126a, this pleading fails to comply with the June 27
that both parties have filed pleadings that fail to comply
with the Court’s June 27 Opinion, they are to file
amended pleadings consistent with this Opinion and Order and
with the June 27 Opinion. Specifically, LCRC is ordered to
file an amended answer limiting its affirmative defenses to
those set forth in the JFPO. Gould is ordered to file an
amended complaint (1) eliminating allegations suggesting
possible contamination by substances other than TCE and (2)
expressly limiting Count II to an NREPA contribution claim
under Mich. Comp. Laws § 324.20129. Any allegations in
the parties’ pleadings that fail to conform to the
Court’s directives will be deemed inoperative, and
further noncompliance will result in sanctions, including the
award of reasonable attorney fees incurred by a party forced
to compel the opposing party’s compliance.
Motion to Compel Discovery Answers
in its motion to compel discovery answers, LCRC argues that
Gould failed to respond to interrogatories or produce
documents regarding the timeframe prior to July 6, 2009. Many
of LCRC’s discovery requests concern information
predating July 6, 2009. For example, LCRC’s
interrogatories include the following inquiries: (1) whether
Gould used TCE on its property; (2) from whom Gould purchased
TCE; and (3) how much TCE Gould used on a weekly basis from
1961 through 1976. Pl. Resp. to Def. Disc. Reqs. at 5-7, Ex.
B to Def. Mot. to Compel Disc. (Dkt. 67-3). Gould responded
that because its predecessor ceased operations on the
property in 1976, the requests exceeded the scope of
discovery – limited under the Tolling Agreement to data