Free Order on Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:01-cv-01807-MSK-MJW

Document 484

Filed 08/09/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 01-cv-01807-MSK-MJW BANK ONE, N.A. (successor to Bank One, Colorado, N.A.), and BANK ONE TRUST COMPANY, N.A., as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, and JOHNNY ON THE SPOT, INC., Defendants.

BOULDER CLEANERS, INC., and JOHN'S CLEANERS, INC., Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant.

C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Counterclaimant, v. BANK ONE, N.A. (Successor to Bank One, Colorado, N.A.) and BANK ONE TRUST COMPANY, N.A., as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Counterclaim Defendants.

Case 1:01-cv-01807-MSK-MJW

Document 484

Filed 08/09/2007

Page 2 of 4

ORDER DENYING MOTION FOR RECONSIDERATION

THIS MATTER comes before the Court on a Motion for Reconsideration (#474) filed by the Defendants, C.V.Y. Corporation and Johnny on the Spot, Inc. (referred to herein as "CVY and JOS"), to which the Plaintiffs' responded (#479), and CVY and JOS replied (#480). Having considered the same, the Court FINDS and CONCLUDES that: This case has been litigated for approximately six years. During that time, a number of Defendants have settled with the Plaintiffs and case law has evolved, provoking the parties to repeatedly request determination and then reconsideration of whether the remaining Defendants CVY and JOS can be liable to the Plaintiffs for more than their proportionate share of the environmental harm to the property. The Court has repeatedly ruled that CVY and JOS cannot be liable to the Plaintiffs for more than their proportionate share of the fault for a number of reasons, including the estoppel created by the settlements in this litigation. In its most recent Order (#458) denying CVY's and JOS' request to amend the pleadings to assert a CERCLA § 113 counterclaim and a contractual indemnification counterclaim, the Court stated: Regardless of what claims, counterclaims, or cross-claims have been pled in this case, there are limited, discrete factual issues to be tried. If necessary and appropriate, the pleadings can be amended to conform with the evidence. See Fed. R. Civ. P. 15(b); Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1280-81 (10th Cir. 2004).

2

Case 1:01-cv-01807-MSK-MJW

Document 484

Filed 08/09/2007

Page 3 of 4

CVY and JOS are unhappy with this solution and ask the Court to allow them to assert a CERCLA § 113 counterclaim against both Plaintiffs Bank One, N.A., and Bank One Trust, and a contractual indemnity counterclaim against Bank One, N.A. In support of this request, they cite to the United States Supreme Court's recent decision in United States v. Atlantic Research Corp., _ U.S. _, 127 S. Ct. 2331 (2007), which they claim "holds that . . . a defendant should be permitted to file a CERCLA § 113 counterclaim in response to a CERCLA § 107 claim so that equitable apportionment is triggered." The Supreme Court "held" no such thing. What the Supreme Court held was that potentially responsible parties can assert a cost recovery claim under CERCLA § 107 against other potentially responsible parties. The Supreme Court merely noted, in dicta, that a potentially responsible party "may trigger equitable apportionment by filing a § 113(f) counterclaim." Id., 127 S. Ct. at 2339. The Court understands that CVY and JOS would like to formally assert a § 113(f) counterclaim before commencement of trial in order to preserve their right to request equitable apportionment. The Court has informed them that formal amendment of the pleadings is not required to preserve any such right. Indeed, equitable apportionment is a matter within the exclusive province of the Court. If the evidence at trial demonstrates the need for equitable apportionment, the Court will consider it. As for the contractual indemnity counterclaim, CVY previously asserted such claim, but the Court dismissed it more than three years ago because CVY could only be liable for its own actions (and not the actions of anyone else), and the contract did not allow CVY to seek indemnification for its own actions. Thus, the claim was, and continues to be, unnecessary. 3

Case 1:01-cv-01807-MSK-MJW

Document 484

Filed 08/09/2007

Page 4 of 4

Should that change during the course of the trial, the Court will entertain any motions as may be appropriate. IT IS THEREFORE ORDERED that the Motion for Reconsideration (#474) is DENIED. Dated this 9th day of August, 2007 BY THE COURT:

Marcia S. Krieger United States District Judge

4