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Conocophillips Pipe Line Company v. Rogers Cartage Company

April 12, 2012


The opinion of the court was delivered by: Wilkerson, Magistrate Judge:


Now pending before the Court is a Motion to Strike Insufficient Affirmative Defenses filed by Plaintiff ConocoPhillips Company (Doc. 28). The motion is GRANTED in part and DENIED in part.


Plaintiff, Conoco Phillips Pipe Line Company (CPPL), owns a 360-acre pipeline terminal property in Cahokia, Illinois. Defendant, Rogers Cartage leased a five-acre tract on the southern portion of the property sometime between the 1950s and 1970s (hereinafter "the site"). CPPL alleges that the site was not used or occupied by anyone since Defendant left the property. CPPL also claims that during the time Defendant leased the site and after, Defendant washed out trucks used for hauling hazardous substances (including polycholinated biphenyl (PCB) waste) at the site. CPPL claims that washwater was discharged into impoundments and drainage features adjacent to the washout area. Plaintiff investigated the site and found PCBs to be present in soil at a quantity above the standards required by 40 C.F.R. § 761, creating a risk of groundwater or surface water contamination. CPPL incurred "necessary costs of response" to complete an investigation to assess the extent of PCB contamination and asked the court to enter judgment on its behalf requiring the Defendant to pay, in whole or in part, the costs of response, with interest and costs of suit, compensatory damages, and enter a declaratory judgment requiring Defendant to compensate CPPL for all costs to be incurred at the site and to bind the judgment on any subsequent action or actions to recover further response costs or damages. CPPL also asks for the Court to compel Defendant to abate the contamination it caused at the site, impose civil penalties for Defendant's willful failure and refusal to clean up the site, and, finally, award interest, attorney's fees, and other costs of litigation.

Defendant responded to CPPL's complaint with an answer asserting forty-one affirmative defenses and a counterclaim for contribution to Plaintiff's first count: cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). In response, Plaintiff filed the pending Motion to Strike Insufficient Affirmative Defenses (Doc. 28). In summary, CPPL askes the Court to strike the majority of Defendant's affirmative defenses, listing them as "irrelevant, unavailable, redundant, and inadequately pleaded." Defendant responded in opposition to Plaintiff's motion, stating that none of Defendant's affirmative defenses should be stricken, especially prior to discovery.


Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." If an affirmative defense presents substantial questions of law or fact, the motion to strike cannot be granted. U.S. v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975). The defense should be stricken if the insufficiency of the defense is clearly apparent on the face of the pleadings and cannot be reasonably inferred from any statement of facts in the pleadings. Id. The standard is narrow in order "to provide a party the opportunity to prove his allegations if there is a possibility that his defense or defenses may succeed after a full hearing on the merits." Id. Generally, a motion to strike a defense as insufficient is "not favored by the courts because of its potential as a dilatory tactic;" however, it is nonetheless "a useful and appropriate tool for weighing the legal implications to be drawn from uncontroverted facts." Id. Where motions to strike serve to "remove unnecessary clutter from the case, they serve to expedite, not delay." Heller Financial Inc., v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Before a motion to strike should be granted, however, the court must "be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed." Lirtzman v. Spiegel, Inc., 493 F.Supp. 1029, 1031 (N.D. Ill. 1980).

Determining the sufficiency of affirmative defenses under Rule 12(f) is intertwined with provisions of Fed. R. Civ. P. 8(c), which allow a responding party to raise "any avoidance or affirmative defense." The purpose of the rule "is to avoid surprise and undue prejudice to the plaintiff by providing her notice and the opportunity to demonstrate why the defense should not prevail." Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997).

While the Federal Rules of Civil Procedure continue to apply, the statute at issue here, 42 U.S.C. §9607 (the liability section of CERCLA), limits the defenses a defendant may raise to the following:

There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by-

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) ...

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