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NORTH SHORE GAS CO. v. SALOMON

August 22, 1995

NORTH SHORE GAS COMPANY, Plaintiff,
v.
SALOMON, INC., Defendant.



The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 Plaintiff, North Shore Gas Company brings this action against defendant Salomon, Inc. pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, seeking a determination that it is not liable to defendant under CERCLA for response costs incurred and to be incurred in connection with remediating contamination from releases of hazardous substances at 1805 South Bannock Street, Denver, Colorado (the "Site"). This court has subject matter jurisdiction over this action pursuant to CERCLA, 42 U.S.C. §§ 9607(a) and 9613(b). Defendant has moved the court to: (1) decline to exercise jurisdiction over this case pursuant to 28 U.S.C. § 2201; (2) dismiss plaintiff's action pursuant to Fed.R.Civ.P. 12(b)(7) and 19, for failure to join an indispensable party; or, in the alternative, (3) transfer venue of this action to the District Court for the District of Colorado, pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, the court denies defendant's motion to dismiss and its motion to transfer.

 Background

 In 1983, the Site was included on the National Priorities List because both radioactive and nonradioactive hazardous substances were found there. In 1992, the United States Environmental Protection Agency found that the S.W. Shattuck Chemical Company, Inc. ("Shattuck") was responsible for cleaning-up the Site, and issued a CERCLA Section 106 Order (the "Order") compelling Shattuck to remediate the property. *fn1" Shattuck is a wholly owned subsidiary of defendant. In a guarantee dated September 1, 1993, defendant provided financial assurance for the performance of the remediation costs Shattuck will incur at the Site.

 John Faught ("Faught"), on behalf of Shattuck, sent plaintiff a letter dated January 31, 1994 (the "Faught Letter"), demanding reimbursement, indemnification, and contribution for Shattuck's CERCLA response costs. In the letter, Faught asserts that plaintiff is liable for the clean-up costs under a 1941 Plan of Reorganization (the "1941 Plan") that is filed with the Securities and Exchange Commission. Pursuant to the 1941 Plan, defendant alleges that plaintiff is the successor corporation to North Shore Coke. North Shore Coke allegedly owned and/or operated the Bannock Street Site at a time when hazardous substances were disposed of on the site. Within the demand letter, Faught quotes full paragraphs from the 1941 Plan. The Faught Letter also explains that Shattuck is a wholly owned subsidiary of Salomon, and that defendant has provided financial assurance for the remediation.

 After receiving the demand letter, plaintiff agreed to meet with Faught and defendant to discuss the issues raised in the Faught Letter. On April 27, 1994 and November 2, 1994, plaintiff met with Faught, Arnold Olshin, defendant's Corporate Secretary and in-house environmental law attorney, and Robert Oliver, Shattuck's Executive Vice President. While the parties dispute some of what occurred at these meetings, they agree that: (1) the parties did not resolve their dispute; (2) at the end of the November 2nd meeting there was no discussion of a date for further settlement talks; and, (3) plaintiff was told that if it did not agree to share in the clean-up costs it would be sued for contribution.

 On December 5, 1994, plaintiff filed the instant declaratory judgement action asking this court to declare whether plaintiff is liable to defendant under CERCLA for response costs incurred and to be incurred, or any other damages in connection with the Site.

 Declaratory Judgment Act

 Defendant asserts that this court should exercise its discretion and decline to hear plaintiff's declaratory judgment action. In assessing this request the court must determine "whether a declaratory judgment will settle the particular controversy and clarify the legal relations in issue." Nucor v. Aceros Y Maquilas De Occidente, S.A. De C.V., 28 F.3d 572, 579 (7th Cir. 1994); Tempco Electric Heater Corporation v. Omega Engineering, Inc., 819 F.2d 746, 749 (7th Cir. 1987) (declaratory judgments can also be used to "terminate and afford [a plaintiff] relief from the uncertainty, insecurity, and controversy" that gave rise to the action).

 Plaintiff asserts that defendant threatened to sue plaintiff for contribution if it did not concede liability for remediation costs incurred at the Site. *fn2" Defendant asserts that plaintiff is liable for contribution of the Site's cleanup costs pursuant to what plaintiff acquired, assumed or succeeded to under the 1941 Plan. Plaintiff's action to interpret the 1941 Plan will settle the controversy of whether plaintiff is a successor to North Shore Coke, or whether plaintiff assumed the liability for the Site's contamination. The court's findings will clarify plaintiff's legal responsibilities (if any) to contribute to defendant's response liability.

 Defendant alleges that following the settlement discussions on April 27 and November 2, a third settlement meeting was scheduled for December 19, 1994, the day after the instant complaint was filed. Further, defendant asserts that the court should infer that because this suit was filed just over a month after meeting with Shattuck, it was brought in anticipation of an action that plaintiff expected would be filed in Colorado by Shattuck. In an affidavit, plaintiff's attorney stated that at the end of the second settlement meeting on November 2, 1994, Arnold Olshin (Salomon's attorney) told him that litigation was unavoidable but did not say what company (Salomon, Shattuck, or both companies) would sue, when the suit would be filed, or where the suit would be filed. Defendant does not refute these statements. *fn3" Defendant's affiants support plaintiff's position that settlement talks had come to an impasse. *fn4"

 Plaintiff asserts that it was not trying to win a race to the courthouse or that it believed defendant would file any suit for contribution for the Site. *fn5" Rather than racing to the courthouse after receiving the demand letter in January 1994, plaintiff's representatives attended two settlement conferences, and analyzed defendant's claim. It was only after the settlement discussions came to an impasse that, rather than wait an indefinite time to be sued, plaintiff filed the instant action.

 Based on the evidence before it, the court finds that plaintiff has not improperly "raced" defendant to the courthouse in an attempt to usurp defendant's right to choose a forum. After eleven months of unsuccessful settlement talks with no evidence of any further negotiations, the court finds that plaintiff's actions are distinguishable from the cases defendant cites where the court has declined declaratory judgment jurisdiction. *fn6" Further, the court finds that the instant declaratory judgment action will ...


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