Free Status Report - District Court of Connecticut - Connecticut

Case 3:03-cv-00945-CFD Document 187 Filed 11/06/2006 Page 1 of 4
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November 6, 2006
Honorable Christopher F. Droney
United States District Court
405 Main Street
1~1artt`ord, CT 06103
Re: Collins v. Olin Corporation, et al., _
Civil Action No. 3-03-945 (CFB)
Dear Judge Droney:
At the Court’s request, we write to address two points: 1) the status of Olin’s
inoti.ons to dismiss; and 2) the scheduling of further proceedings in the case.
Oiin’s Motions to Dismiss
It is ciear from the Conrt’s docket and its comments at the status conference on
October 26, 2006, that the Conrt denied al}. of Olin’s motion to dismiss. Olin appears to
be making a motion for reconsideration long after the time allowed. by the rules to do so,
and asking the Court to redo what it has already done.
The docket in the case makes ciear that the Court acted on all of Ol.in’s motions to
dismiss, denying them. Olin originally Bled its motions to dismiss the claims against it as
separate motions, which were docketed as documents nos. 72, 73, 74, 75, 76 and 77 in
August 2003. By Ord.er dated March 31, 2005 (document no. 139 - attached), the Court
denied without prejudice the motions to dismiss set forth in. documents nos. 73, 74, 75,
76, and 77 and stated that “[t]he Court will consider the arguments in those motions
within the context of the first filer! motion to dismiss, document #72. ” (emphasis added)
Thns, the only motion to dismiss pending before the Court after March 31, 2005 was
document 130.72. By Order dated September 2, 2006, the Court denied document no. 72,
thus denying ali of O1in’s motions.
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Case 3:03-cv-00945-CFD Document 187 Filed 11/06/2006 Page 2 of 4
Mclloberts, Roberts & Rainer, .L.L.?.
Honorable Christopher F. Droney
November 6, 2006
Page 2 of 3
The different facts and law pertaining to plaintiffs’ claims against Olin justify a
different result on Olin’s motions to dismiss from the Ruling entered by the Court on _
February 28, 2006 with respect to the Town of Haindeifs motions (document no. 163)}
For example, the Court denied the plaintiffs’ claims for pu.blic nuisance against
the Town solely on the basis of two additional elements that are required in order to plead
such a claim against a municipality. See February 28, 2006 Ruling, at 29 ("Plaintiffs
have failed to allege that lelaindeii permitted the dumping of industrial waste for the
purpose of causing a nuisance or with the knowledge or substantial certainty that one
would result from its conduct.”) T hose requirements plainly do not apply to the
plaintiffs claims against Olin, which is not a municipality. Contrary to the suggestion in
the November 2 letter from Olin’s counsel, there h.as never been a requirement t.h.at a
puhlic nuisance enianate from a nearby property. Unlike a private nuisance, a puhlic
nuisance is “‘an obstruction to public rights, that is, the rights enjoyed. by citizens as part
ofthe public? Gorzlm v. Smith & Wesson Corp., 780 A.2d 98, l3i.—l.32 (Conn. 200l).
Because it interferes with public health and safety (and not just a nearby private
property), pollution is the paradigm of publ.ic nuisance, whether it is on, next to, or under
a plaintiff` s property. lo'., citing Nolan v. New .Br·ltrllrz, 69 Conn. 668, 678 (1897), see
also Restatement (Second) Torts, § 82lB(2).
As another example, the Court dismissed the plaintiffs’ claims for infliction of
emotional distress against the Town, finding that the Town could not have known that the
dumping of waste in the Newhail section was likely to lead to the plaintiffs emotional.
distress and was not "extreine and outrageous? February 28, 2006 Ruling, at 3485. The
same was not and is not true for Olin. The contaminated waste in question originated
with Olin, not the Town. Amended Complaint $23, 24, 102. Because the waste was
Olin’s, Olin, unlike the Town, tlitl have reason to know that toxins like lead and arsenic
were in th.e waste, and that dumping such waste on property that was being developed
could jeopardize future property owners. [tl. jl25, 26, 38.
These are just two examples of why it was proper to treat differently the Town’s
and Olin’s motions to dismiss, and why the Court properly denied Olin’s motions. Had
Olin wished reconsideration ofthe September l, 2006 ruling, Local Rule 7(c) gave it l0
days (until September ll, 2006) to seek that relief. instead, it is trying to do so now,
almost two months iate.
i Indeed, in footnote 8 ofthe Ruling of February 28, 2006, the Court stated expressly that
it was entering a "se-parate ruling" on Olin’s motions to dismiss.

Case 3:03-cv-00945-CFD Document 187 Filed 11/06/2006 Page 3 of 4
Mclloberts, Roberts & Rainer, L.L.P.
Honorable Christopher F. Droney
November 6, 2006
Page 3 of 3
As the Court observed at the October 26, 2006 status conference, this case needs
to move forward. To further that goal, the plaintiffs are preparing their Second Amended
Complaint and the parties have scheduled a mediation with Magistrate fudge Smith.
However, to the extent that the Court is inclined to allow an extremely late motion for
reconsideration, the plaintiffs respectfully request the opportunity to file a brief to
substantively address the issues, and to bring to the Court’s attention recently decided
decisions which support the Court’s ruling on Oiin’s motion to dismiss.
Scheduling of Further Proceedings
The plaintiffs join the defendants in requesting that the Court enter the proposed
Scheduling Order that was submitted by Olin’s counsel on November 2, 2006, which was
the product of further discussions between the parties.
The plaintiffs specifically request that the Court set the date for the class _
certihcation hearing now, for a particular date in September 2007, in order to ensure that
the date is on everyone°s schedules and thus to avoid the scheduling conflicts that will
inevitably arise if the hearing is not scheduled until after all the briefs are filed.
The plaintiffs also specifically request that the hearing on class certihcation be
presumed to be a non—evidentiary hearing, as is the practice in the large majority of class
actions. See Conte & Newberg, Newberg on Class Actions §7.9 (‘“By and large,
evidentiary hearings, in contrast to oral argument, are rarely required or desirable in
connection with initial class certifications?) Given that all of the named plaintiffs will
have been deposed by the time ofthe briefing on class certification and that the parties
have agreed on the deposition of all expert witnesses on class ce1tiiicati.on issues, there is
no reason to expect that an evidentiary hearing will be needed. An evidentiary hearing
will, in the plaintiffs’ view, serve only to drive up the costs ofthe motion and slow its
_ resolution.
Sin er y,
cc: All counsel of record
(through the electronic filing system)

Case 3:03-cv-00945-CFD Document 187 Filed 11/06/2006 Page 4 of 4
Case 3:03-cv-00945-CFD Document E39 Filed 03/31/2005 Page 1 oft
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CLARENCE R. COLLINS, IR.,et al., :
Plaintiffs, :
v. Civil Action No.
; 3:03 CV 945 (CPD)
OLIN CORPORATION, et al. :
Defendants. :
PARTIAL RULING ON MOTION S TO DISMISS
AND ORDER FOR A HEARING
The plaintiffs, certain property owners in Hamden, Connecticut, have brought a seventeen
count complaint against the defendants, the town of Hamden and Olin Corporation ("Olin").
Both defendants filed motions to dismiss. More specifically, Olin filed seven separate motions to
dismiss, addressing different counts of the compiaint. As it appears to the Court that these
separate motions should have been consoiidated into one motion to dismiss, documents tttt 73, 74
75, 76, 77, are DENIED without prejudice. The Court wit]. consider the arguments made in
those motions within the context of the first filed motion to dismiss, document #72.
In addition to the pending motions to dismiss, both defendants have tiled motions for
summary judgment. The Court will hear oral argument arguments hom the parties on May 6,
2005 at 10:00 a.m. on the pending motions for summary judgment. At that time, the parties may
also present supplemental arguments on the motions to dismiss.
SO ORDERED this 31st "‘ day of March 2005, at Hartford, Connecticut.
fsf CFD
CHRISTOPHER F. DRONI-EY
UNITED STATES DISTRICT JUDGE
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