The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
)
United States of America, et al., )
) CASE NO. 4:23CV517
)
)
Plaintiff(s), ) JUDGE JOHN R. ADAMS
)
vs. )
)
)
Norfolk Southern Co., et al., ) ORDER
)
)
Defendant(s). )
Pending before the Court is the United States’ motion to strike affirmative defenses raised
by Defendants Norfolk South Corporation and Norfolk Southern Railway Company (collectively,
“Norfolk Southern”). Doc. 34. Norfolk Southern has apposed the motion (Doc. 54) and the
Government has replied in support. Doc. 62. Upon review, the motion is GRANTED IN PART
and DENIED IN PART as detailed below.
Fed.R.Civ.P. 12(f) allows a court to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Motions to strike are viewed with
disfavor and are not frequently granted. Brown & Williamson Tobacco Corp. v. United States, 201
F.2d 819, 822 (6th Cir.1953); Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977). The
function of the motion is to “avoid the expenditure of time and money that must arise from litigating
sp urious issues by dispensing with” them early in the case. Kennedy v. City of Cleveland, 797 F.2d
297, 305 (6th Cir.1986) (quoting Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th
Cir.1983)). A motion to strike should be granted if “it appears to a certainty that plaintiffs would
succeed despite any state of the facts which could be proved in support of the defense and are
inferable from the pleadings.” Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir.1991)
(citations and internal quotation marks omitted).
The Government contends that the following affirmative defenses pled by Norfolk
Southern should be stricken.
Seventh Affirmative Defense (No Cost Recovery for Ineffective Costs)
8. Defendants are not liable for any response costs incurred by Plaintiff, if any, for
removal or remedial actions that were not and are not “cost-effective” pursuant to
CERCLA Section 121, 42 U.S.C. § 9621.
Eighth Affirmative Defense (No Cost Recovery for De Micromis Material)
9. Defendants are not liable for any response costs incurred by Plaintiff, if any, that
are de micromis as defined in CERCLA Section 107(o), 42 U.S.C. § 9607(o).
Twelfth Affirmative Defense (Failure to Mitigate)
13. Plaintiff failed to exercise reasonable care and diligence to avoid loss and to
minimize its damages, if any, and this failure to mitigate damages alone caused,
contributed to, or aggravated any damages or injuries to Plaintiff, if any, and
therefore precludes or reduces any recovery against Defendants.
Fourteenth Affirmative Defense (Limitation of Damages)
15. Defendants are entitled to all applicable limitation of damages and
apportionment of liability to unnamed parties available under Ohio Revised Code
Sections 2307.22, 2307.23 and 2307.28.
Fifteenth Affirmative Defense (Preclusion under the FRSA)
16. Certain of Plaintiff’s claims and claims are precluded by the Federal Railway
Safety Act (FRSA), which is intended to ensure national uniformity in the
application of federal safety regulation in all areas of railroad operations. The FRSA
contains an express preclusion clause stating that “laws, regulations, and orders
related to railroad safety shall be nationally uniform to the extent practicable.” 49
U.S.C. § 20106(a).
Sixteenth Affirmative Defense (Preclusion under the ICCTA)
17. Certain of Plaintiff’s claims are precluded by the Interstate Commerce
Commission Termination Act (ICCTA), 49 U.S.C. § 10501, which gives the federal
Surface Transportation Board (“STB”) exclusive jurisdiction to regulate rail
transportation and precludes any remedies that would intrude on the STB’s
authority. The ICCTA grants to the STB exclusive jurisdiction over the
construction, acquisition, operation, abandonment or discontinuance of spur,
industrial team, switching or side tracks, or facilities, even if the tracks are located
or intended to be located entirely in one state. Because the STB has exclusive
jurisdiction over railroad operations, Plaintiff’s claims are precluded by the ICCTA.
Seventeenth Affirmative Defense (Preclusion under the HMTA).
18. Plaintiff’s claims regarding Norfolk Southern’s handing and transportation of
any hazardous materials are precluded by the Hazardous Materials Transportation
Act (HMTA).
Doc. 28. The Government correctly notes that Norfolk Southern has not challenged its motion
with respect to its eighth and fourteenth affirmative defenses. Accordingly, Norfolk Southern has
effectively abandoned those defenses, and they are hereby stricken from the answer.
The Government next contends that this is a removal action and that it therefore has no
obligation to consider the cost effectiveness of its cleanup options. As a colleague on this Court
has noted, “[w]hile the [national contingency] Plan requires that remedial action measures be cost
effective, there is no similar cost effective requirement for removal actions like the one before the
Court.” United States v. Chrysler Corp., 168 F. Supp. 2d 754, 765 (N.D. Ohio 2001).
Accordingly, the Government’s motion to strike this affirmative defense is well taken.1
Next, the Government asserts that affirmative defense number twelve should be stricken
because it has no independent obligation to mitigate damages. In support, the Government argues:
Multiple courts have recognized that there is no duty on the United States
1 If Norfolk Southern believes that at some point in the future that the Government’s action has morphed into a
remedial action, it may seek leave to restate this affirmative defense.
Government to mitigate its damages or response costs. See e.g., United States v.
Iron Mountain Mines, Inc., 812 F. Supp. 1528, 1542–43 (E.D. Cal. 1992); United
States v. Kramer, 757 F. Supp. 397, 420 (D.N.J. 1991); Kelley v. Thomas Solvent
Co., 714 F. Supp. 1439, 1451 (W.D. Mich. 1989); United States v. Marisol, Inc.,
725 F. Supp. 833 (M.D. Pa. 1989).
Doc. 34-1 at 12. Norfolk Southern has offered no legal authority that suggests that the
Government has a duty to mitigate. Instead, Norfolk Southern relies upon the fact that the
Government’s response must be consistent with the national contingency plan. As the Court is
required to enforce that provision of CERCLA, there is no need for an independent affirmative
defense regarding mitigation. Accordingly, it is hereby stricken.
The final three defenses at issue relate to Norfolk Southern’s contention that CERCLA may
be preempted by other federal statutes that govern the rail industry. Specifically, Norfolk
Southern contends that the Federal Railway Safety Act, the Interstate Commerce Commission
Termination Act, and the Hazardous Materials Transportation Act may act to preclude claims made
by the Government. The Court finds that the parties’ briefing is insufficient to resolve this issue
at this stage of the proceedings. While it appears highly unlikely that Norfolk Southern will
succeed on its claims of preclusion, the Court believes that a more developed record is necessary
before deciding the issue of preclusion. Accordingly, the Court will allow those defenses to
remain.
Based upon the above, the Government’s motion to strike is GRANTED IN PART and
DENIED IN PART.
IT IS SO ORDERED.
Date: April 10, 2024 /s/John R. Adams
John R. Adams
U.S. District Judge