the actual supervisory/control relationship between HDR and OHM, as indicated by the HDR report materials attached to the complaint. (See Footnote 2, supra.)
HDR's third argument is also unpersuasive. This court stands by its earlier conclusion in Opinion II, and concludes that accepting HDR's position would result in the standard of performance clause being made meaningless.
As to HDR's second argument, Quadion seems to have requested the same damages it did in its first contract claim, which this court held passed muster. What damages Quadion will be able to prove up is not a matter to be decided at this stage of the proceeding. Quadion's contract claim is adequately plead.
E. Attorney's Fees Under CERCLA
As the parties have noted, the federal courts are deadlocked on this issue. The Seventh Circuit has not addressed the issue, and the district courts have reached conflicting results. BTR Dunlop, Inc. v. Rockwell International Corp., No. 90 C 7414, 1993 U.S. Dist. LEXIS 1720 (N.D. Ill. Feb. 16, 1993) (J. Gottschall holding such fees are recoverable); U.S. Steel Supply, Inc. v. Alco Standard Corp., No. 89 C 20241, 1992 U.S. Dist. LEXIS 13722 (N.D. Ill. Sept. 9, 1992) (J. Rozkowski holding such fees are not recoverable); Amcast Industrial Corp. v. Detrex Corp., 822 F. Supp. 545 (N.D. Ind. 1992) (J. Miller holding such fees are recoverable); Evco Associates, Inc. v. C.J. Saporito, 1993 U.S. Dist. LEXIS 12423, No. 92 C 2038, (N.D. Ill. Sept. 7, 1993) (J. Leinenweber reserving the question).
The circuit courts are similarly split. In the most recent decision, Stanton Road Associates v. Lohrey Enterprises, 984 F.2d 1015, 1017-1020 (9th Cir. 1993), the Ninth Circuit held attorney's fees were not recoverable response costs under CERCLA, explicitly rejecting the Eight Circuit's differing view in General Elec. Co. v. Litton Indus. Automation Sys. Inc., 920 F.2d 1415 (8th Cir. 1990) cert. den 499 U.S. 937, 113 L. Ed. 2d 446, 111 S. Ct. 1390 (1991).
Given the conflicting state of the law, and the very limited arguments made by the parties, this court will reserve this issue pending further development of the record and more thorough briefing of the issue by the parties.
F. Protective Order
HDR requested a protective order delaying discovery pending the resolution of pending motions, in particular HDR's motion to dismiss. Given this court's decision regarding HDR's motion to dismiss, HDR's protective order also must be denied.
For the reasons stated above, HDR's motion for a protective order is DENIED, HDR's motion to dismiss is GRANTED IN PART AND DENIED IN PART, OHM's motion to dismiss is GRANTED IN PART AND DENIED IN PART. The parties are strongly urged to discuss settlement of the cases. The case is set for further status on October 21, 1993 at 10:00 a.m.
JAMES F. HOLDERMAN
United States District Judge
DATED: September 27, 1993