The Courtland Company, Inc. v. Union Carbide Corporation (Courtland II)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

THE COURTLAND COMPANY, INC.,

a West Virginia Business Corporation,

Plaintiff and

Counterdefendant,

v. Civil Action No. 2:19-cv-00894

UNION CARBIDE CORPORATION,

a New York Corporation,

Defendant and

Counterclaimant.

MEMORANDUM OPINION & ORDER

Pending is the plaintiff’s motion to dismiss the

defendant’s counterclaim and strike its affirmative defenses,

filed on September 30, 2020 (ECF No. 103).

I. Background

The plaintiff and the defendant are corporations that

own parcels of real property near Davis Creek in Kanawha County,

West Virginia. See ECF No. 1 ¶¶ 5–6, 15, 25; ECF No. 82 ¶¶ 5–6,

15, 25. The plaintiff initiated this action on December 13,

2019, by filing a complaint alleging that the defendant has used

two of its properties adjacent to the plaintiff’s property to

store hazardous and toxic materials, which have been released

into the nearby environment including the plaintiff’s property.

See ECF No. 1 ¶¶ 1, 14–57.

Based on these allegations, the plaintiff asserts

three federal causes of action: Count I seeks recovery of

response costs and declaratory relief under the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980

(“CERCLA”), 42 U.S.C. §§ 9607(a), 9613(g); Count II seeks

citizen-suit relief for violations of § 7002(a)(1)(A) of the

Resource Conservation and Recovery Act of 1976 (“RCRA”), 42

U.S.C. § 6972(a)(1)(A), and the West Virginia Hazardous Waste

Management Act; and Count III seeks citizen-suit relief for

judicial abatement of an imminent and substantial endangerment

under § 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B). See

ECF No. 1 ¶¶ 58-88. The plaintiff’s complaint also asserts

state-law causes of action for judicial abatement of a public

nuisance in Count IV, judicial abatement of a public nuisance

per se in Count V, private nuisance in Count VI, negligence in

Count VII, gross negligence in Count IX, and strict liability in

Count X. See id. ¶¶ 89–134.1

After the court ruled on the defendant’s motion to

dismiss the plaintiff’s complaint, see ECF No. 75, the defendant

1 The court has dismissed the plaintiff’s Count VIII claim for

negligence per se. See ECF No. 75 at 45–46, 55.

timely filed a responsive pleading that included an answer, 38

affirmative defenses, and a counterclaim, see ECF No. 82. In

its counterclaim, the defendant alleges that, in 1980, the

plaintiff became the owner or operator of its property, which it

or its lessees has used for “the storage and disposal of raw

coal, fly ash, diesel fuel, concrete, timber, and other

materials” and thus has “contributed to the release or

threatened release of [h]azardous [s]ubstances” from, in, or

onto the plaintiff’s property, which “have caused or will cause”

the defendant to incur necessary response costs, including

removal costs and costs incurred to monitor, assess, and

evaluate the release. Id. ¶¶ 7–11. Based on these allegations,

the defendant asserts a first cause of action under CERCLA, 42

U.S.C. §§ 9607 and 9613(f), for response costs and contribution;

a second cause of action under CERCLA, 42 U.S.C. § 9613(g), for

declaratory relief; a third state-law cause of action for

negligence; a fourth cause of action for declaratory relief

under W. Va. Code § 55-13-1; and a fifth state-law cause of

action for equitable indemnity. See id. ¶¶ 5–27.

The plaintiff thereafter filed the current motion,

which seeks to strike the defendant’s 38 affirmative defenses

and to dismiss the five causes of action in its counterclaim.

The motion has been fully briefed and is ready for disposition.

II. Discussion

In the current motion, the plaintiff asks the court to

strike the defendant’s affirmative defenses and to dismiss its

counterclaim. Although brought in the same motion under Fed. R.

Civ. P. 12, the court addresses each issue separately.

A. Motion to Strike

Rule 12(f) allows the court to strike pleadings of “an

insufficient defense or any redundant, immaterial, impertinent,

or scandalous matter.” Fed. R. Civ. P. 12(f). Rule 12(f)

motions to strike “are generally viewed with disfavor ‘because

striking a portion of a pleading is a drastic remedy and because

it is often sought by the movant simply as a dilatory tactic.’”

Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th

Cir. 2001) (quoting 5A Charles Alan Wright et al., Federal

Practice and Procedure § 1380, 647 (2d ed. 1990)). A decision

from this district adequately sets forth the standards for

considering a Rule 12(f) motion:

the standard by which courts judge Rule 12(f) motions

imposes a sizable burden on the movant. . . . Before

granting a motion to strike, a court must be convinced

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. It is

difficult to establish a defense is clearly

insufficient.

Clark v. Milam, 152 F.R.D. 66, 70 (S.D.W. Va. 1993) (internal

quotation marks and citations omitted). “[W]hen ruling on a

motion to strike, the court must view the pleading under attack

in a light most favorable to the pleader.” Id. at 71.

Further, “[e]ven where technically appropriate and

well-founded, motions to strike defenses as insufficient are

often denied in absence of a showing of prejudice to the moving

party.” Id. at 70 (internal quotation marks omitted); see also

5A Charles Alan Wright et al., Federal Practice and Procedure §§

1380-83 (3d ed. 2020). Prejudice may exist, “for instance,

where an ‘irrelevant affirmative defense results in increased

time and expense of trial, including the possibility of

extensive and burdensome discovery.’” Villa v. Ally Fin., Inc.,

No. 1:1CV953, 2014 WL 800450, at *1 (M.D.N.C. Feb. 28, 2014)

(internal quotation marks, brackets, and ellipsis omitted)

(quoting, ultimately, Canadian St. Regis Band of Mohawk Indians

ex rel. Francis v. New York, 278 F. Supp. 2d 313, 325 (N.D.N.Y

2003)). The movant bears the burden of demonstrating prejudice.

See United States v. Gwinn, No. 5:06-cv-00267, 2006 WL 3377636,

at *3 (S.D.W. Va. Nov. 30, 2006) (citing, inter alia, Clark, 152

F.R.D. at 70); see also 2 Moore’s Federal Practice § 12.37[3]

(2020) (“[T]he movant must clearly show . . . that [the

challenged matter’s] inclusion will prejudice the [movant].”).

The plaintiff raises six arguments challenging all 38

of the defendant’s affirmative defenses.2 The court addresses

each of these arguments separately.

(1) Reservation of affirmative defenses (No. 15)

In its fifteenth affirmative defense, the defendant

states that it

reserves the affirmative defenses of statute of

frauds, statute of limitations, laches, estoppel,

ratification, affirmation, doctrine of unclean hands,

waiver, failure to mitigate damages, all defenses

contemplated under Rules 8 and 12 of the Federal Rules

of Civil Procedure, and such other affirmative

defenses required by law to the Complaint or

additional defenses that may subsequently become

apparent as discovery proceeds in this matter.

ECF No. 82 at 34. The plaintiff argues that this affirmative

defense should be stricken because it attempts to reserve

potential future defenses.3 The plaintiff further argues that,

to the extent it attempts to incorporate all defenses available

2 The plaintiff raised a seventh argument challenging the

defendant’s thirty-second affirmative defense. See ECF No. 104

at 17–18. In response, the defendant has agreed to withdraw its

thirty-second affirmative defense. See ECF No. 123 at 13 n.4.

3 The plaintiff also challenged the defendant’s twenty-eighth

affirmative defense on similar grounds. See ECF No. 82 at 36;

ECF No. 104 at 13-14. In response, the defendant has agreed to

withdraw its twenty-eighth affirmative defense. See ECF No. 123

at 13 n.4.

under Rules 8 and 12, the defense should be stricken because it

fails to give fair notice of the nature of any defense asserted.

For support, the plaintiff cites Commerce & Industry

Insurance Co. v. Newhall Contracting, Inc., No. 2:13-cv-30260,

2014 WL 4161971 (S.D.W. Va. Aug. 19, 2014) (Johnston, J.). In

that case, the court faced affirmative defenses that purported

to assert all defenses listed in Kentucky Rule of Civil

Procedure 8.03 and to reserve all defenses that might arise from

additional discovery. See id. at *1. The court concluded that

the defenses should be stricken. See id. at 2-3. To the extent

the defendant asserted defenses set forth in the Kentucky Rule,

it was determined that such an incorporation by reference failed

to provide fair notice of the nature of the defenses asserted,

especially because the defenses listed in the Kentucky Rule

differed from those listed in the Federal Rules. See id. at 2

(citing Clem v. Corbeau, 98 F. App’x 197, 203 (4th Cir. 2004)).

More importantly for purposes of the current motion, to the

extent the defendant purported to reserve the right to add

defenses in the future, the court noted that courts consistently

strike such reservations on the ground that defendants may amend

their pleading to include additional defenses that emerge in

discovery. See Com. & Indus., 2014 WL 4161971, at *3

(collecting cases).

The court agrees with the decision in Commerce &

Industry and applies its reasoning in this case. In the

fifteenth affirmative defense, the defendant attempts not to

assert an affirmative defense but to reserve the right to raise

affirmative defenses at some indefinite time in the future. See

ECF No. 82 at 34, 36. A reservation of potential future

defenses is inappropriate primarily because it is not really an

assertion of any affirmative defense. See Long v. Welch &

Rushe, Inc., 28 F. Supp. 3d 446, 465 (D. Md. 2014); Racick v.

Dominion Law Assocs., 270 F.R.D. 228, 237 (E.D.N.C. 2010); see

also Mulvey Constr., Inc. v. Bituminous Cas. Corp., No. 1:07-

0634, 2011 WL 1231603, at *2 (S.D.W. Va. March 30, 2011) (“[A]

reservation of affirmative defenses is of no force and effect.”

(internal quotation marks omitted)). Additionally, because

defenses that emerge in subsequent litigation may be asserted

through amendment under Fed. R. Civ. P. 15, the right to later

assert them need not be “reserved” in a responsive pleading.

See Com. & Indus., 2014 WL 4161971, at *3. Furthermore, the

court concludes that permitting the defendant to reserve

defenses in this manner prejudices the plaintiff because doing

so risks litigation over defenses that the defendant might not

ultimately assert. See id. But see Francisco v. Verizon S.,

Inc., No. 3:09cv737, 2010 WL 2990159, at *9 (E.D. Va. July 29,

2010) (“[A]lthough a reservation of unpled defenses is not a

defense of any kind, much less an affirmative one, the Court

perceives no prejudice to [the plaintiff] resulting from this

pleading.” (internal quotation marks, citation, and brackets

omitted)).

For its part, the defendant argues that its fifteenth

affirmative defense is proper because, unlike the defenses at

issue in Commerce & Industry, it specifies which of the defenses

listed in Rule 8 it is reserving. See ECF No. 123 at 15-16. In

the court’s view, this argument is beside the point. As the

Commerce & Industry decision indicates, a defense, like the one

at issue here, that merely attempts to reserve unpled defenses

is deficient regardless if it specifies which unpled defenses

are being reserved. The use of a blanket affirmative defense

that fails to specify which defenses in Rule 8 are asserted

presents a separate and independent basis for striking.

Accordingly, the court concludes that the defendant’s

fifteenth affirmative defense will be stricken.4

4 The plaintiff acknowledges, and the court agrees, that, as the

case progresses, the defendant may amend its pleading consistent

with Rule 15 and Rule 16(b)(4) to assert the affirmative

defenses it sought to reserve in its fifteenth affirmative

defense. See ECF No. 104 at 14; see also Com. & Indus., 2014 WL

4161971, at *3.

(2) Necessary party defense (No. 12)

In its twelfth affirmative defense, the defendant,

citing Fed. R. Civ. P. 19, states that the plaintiff “has failed

to join feasible and necessary parties needed to afford a just

adjudication of the causes of action alleged in the

[p]laintiff’s Complaint and has also failed to allege the

reasons why such parties have not been joined in this action.”

ECF No. 82 at 33. The plaintiff argues that this defense is

improper because the failure to join a necessary party should be

raised in a Rule 19 motion rather than as an affirmative

defense. See ECF No. 104 at 16-17.

The court concludes that plaintiff’s motion should be

denied with respect to the twelfth affirmative defense. Even

assuming the defense is improper, the plaintiff has not met its

burden to demonstrate prejudice. Discovery in this matter will

necessarily include whether the plaintiff, the defendant, or

some third party caused the injuries underlying many of the

plaintiff’s causes of action. See, e.g., ECF No. 56; ECF No. 59

(litigating the adequacy of defendant’s notice regarding the

fault of third parties). Thus, the plaintiff’s argument that

this affirmative defense prejudices it by subjecting it to the

burdens of additional discovery regarding the fault of others is

not persuasive. See ECF No. 104 at 12-13.5

(3) At-fault nonparty defenses (Nos. 17 and 18)

In its seventeenth and eighteenth affirmative

defenses, the defendant asserts, pursuant to W. Va. Code § 55-7-

13d(s), that “a nonparty[] was wholly or partially at fault” for

the injuries alleged in the complaint, that the plaintiff’s

recovery “must therefore be reduced by the percentage of fault

chargeable to such nonparty[],” and that the plaintiff’s “claims

for joint and several liability are barred pursuant to [W. Va.]

Code § 55-7-13c(a).” ECF No. 82 at 34. The plaintiff argues

that the provisions of the West Virginia comparative fault

5 The only prejudice the plaintiff identifies in its opening

brief is the time and expense it would incur from additional

discovery arising from issues it would otherwise not have to

litigate. See ECF No. 104 at 12-13. In its reply brief,

however, the plaintiff argues, for the first time, that it would

also be prejudiced by litigating a joinder issue late in

discovery or even after discovery concludes. See ECF No. 128 at

11-12. The court notes that the plaintiff is not entitled to

consideration of its argument regarding prejudice first raised

in its reply brief. See Huskey v. Ethicon, Inc., 29 F. Supp. 3d

736, 745 n.4 (S.D.W. Va. 2014). In any event, the court is not

persuaded that the plaintiff is prejudiced in this way when,

even in the absence of such an affirmative defense, the

defendant may seek to join necessary parties even beyond the

date set for doing so in the scheduling order by meeting the

appropriate standards under Fed. R. Civ. P. 15 and 16. See City

of New Martinsville v. Pub. Serv. Comm’n of W. Va., No. 2:12-cv-

1809, 2013 WL 2244398, at *2 (S.D.W. Va. May 21, 2013).

statute defendant cites do not apply in this matter for the

reasons raised in its separate motion to strike the defendant’s

notice of at-fault nonparties. See ECF No. 104 at 18-19 (citing

ECF No. 55).6

The court concludes that the plaintiff’s motion should

be denied with respect to the seventeenth and eighteenth

affirmative defenses. In a previous memorandum opinion and

order denying the plaintiff’s motion to strike the defendant’s

notice, the court rejected the same arguments regarding the

statutory provisions at issue that the plaintiff raises in the

current motion. See ECF No. 155. Further, the plaintiff’s

argument that the defenses’ inclusion prejudices it by requiring

discovery into matters it would not otherwise engage in is not

persuasive: whether a third party, rather than the defendant, is

at fault for the plaintiff’s alleged injuries is necessarily a

subject of discovery concerning the plaintiff’s case-in-chief.

6 Both parties expressly state that they incorporate into their

briefing by reference their prior briefing regarding the

plaintiff’s motion to strike the defendant’s notice of at-fault

nonparties. See ECF No. 104 at 18; ECF No. 123 at 20; ECF No.

128 at 12. This court, like many others in this circuit, takes

a dim view of the practice of incorporating a prior brief by

reference into another brief, especially when the brief under

consideration has already reached the applicable page

limitation. See, e.g., South Carolina v. United States, 232 F.

Supp. 3d 785, 795–96 (D.S.C. 2017) (collecting cases).

(4) Denial-of-claims defenses (Nos. 8, 14, and 29)

In its eighth, fourteenth, and twenty-ninth

affirmative defenses, the defendant generally denies that it can

be held liable for certain claims alleged, or forms of relief

sought, in the plaintiff’s complaint. See ECF No. 82 at 32-33,

36. The plaintiff argues that these defenses are improper

because they are not defenses at all but, instead, merely

denials of liability or challenges to the plaintiff’s ability to

establish a prima facie case for liability. See Clark, 152

F.R.D. at 73 (explaining that “mere[] denials of liability and

assertions that Plaintiff cannot establish a prima facie case”

are not “avoidances or affirmative defenses within the meaning

of Rule 8(c)”).

The court concludes that the plaintiff’s motion should

be denied with respect to the eighth, fourteenth, and twenty-

ninth affirmative defenses. Even assuming the defenses amount

to improper denials, the court discerns no prejudice that might

arise from their inclusion in the pleadings. See W. Va. Hosp. &

Travel Ass’n, Inc. v. Southern, No. 2:16-cv-0184, 2019 WL

2387048, at *6 (S.D.W. Va. June 4, 2019) (denying motion to

strike defenses “more properly characterized as a denial of an

element of a claim” because they do not “vary in any meaningful

way from . . . the denials contained in the rest of the answer”

and thus do not “confuse[] or expand[]” discovery or the issues

in the case).7

(5) Redundant Defenses (Nos. 1, 2, 3, 6, 7, 13, 17, 19,

20, 21, 22, 23, 24, 30, 36, 37, and 38)

The plaintiff argues that seventeen of the defendant’s

affirmative defenses can be placed into four groups, that each

of the defenses is redundant of the other defenses within its

groups, and thus that the defenses are improper. See ECF No.

104 at 21-24. The plaintiff argues that all but one of the

defenses within each group, i.e., thirteen out of the seventeen,

should be stricken. See id.8

7 As the plaintiff points out, the court in Clark struck similar

defenses as “superfluous,” albeit after noting that they would

“not surprise the plaintiff” and that they would likely “have no

discernible effect on th[e] litigation.” 152 F.R.D. at 73

(internal quotation marks omitted). Yet, “[w]hile the court in

Clark chose to strike such ‘affirmative defenses,’ it also noted

that ‘even where technically appropriate and well-founded,

motions to strike defenses as insufficient are often denied in

absence of a showing of prejudice to the moving party.’”

Southern, 2019 WL 2387048, at * 6 (internal quotation marks and

brackets omitted) (quoting Clark, 152 F.R.D. at 70). Here,

although the court declines to take the “‘drastic remedy’” of

striking them, id. at *7, the court sees no reason to regard the

denials at issue as affirmative defenses.

8 The defendant also asserts, in a single sentence, that the

defenses in one of the groups – comprised of the second, twenty-

fourth, thirty-sixth, and thirty-eighth affirmative defenses –

are “legally insufficient” because they merely assert that the

defendant made a good-faith effort to comply with the law. ECF

The court concludes that the plaintiff’s motion should

be denied with respect to these affirmative defenses. Although

the use of redundant affirmative defenses might be improper, the

court again is not persuaded by the plaintiff’s assertion that

such redundancy will result in additional discovery. See

Southern, 2019 WL 2387048, at *6.

(6) Defenses as to CERCLA claim (Nos. 1 through 38)

The plaintiff argues that all of the defendant’s 38

affirmative defenses should be stricken as to its Count I claim

brought under CERCLA, 42 U.S.C. § 9607(a). The plaintiff points

out that courts in this circuit have held that a CERCLA claim

brought under § 9607(a) is subject to only the four enumerated

defenses provided in 42 U.S.C. § 9607(b). See, e.g., United

States v. Par Indus. Corp., No. 3:16-1703, 2016 WL 7175627, at

*2 (S.D.W. Va. Dec. 8, 2016).

The defendant agrees that the four enumerated defenses

in § 9607(b) are the exclusive affirmative defenses that apply

to a § 9607(a) CERCLA claim. See ECF No. 123 at 17. The

defendant further states that the only affirmative defenses it

asserts against the plaintiff’s CERCLA claim are its twenty-

No. 104 at 22. Because the plaintiff does not develop the

argument further, the court will not consider it.

ninth, thirtieth, and thirty-first defenses. Because the

defendant concedes that none of its other affirmative defenses

apply against the plaintiff’s CERCLA claim, the court will deny

the plaintiff’s motion insofar as it thereby seeks to strike any

defenses aside from the twenty-ninth, thirtieth, and thirty-

first defenses as to Count I.

With respect to the twenty-ninth defense, the court

has already determined that it does not actually plead a defense

but, instead, a denial of liability. And, because the plaintiff

suffers no prejudice from it, the court will not strike the

twenty-ninth defense.

With respect to the thirtieth defense, the defendant

asserts in it that “[a]ny CERCLA response costs incurred by

[the] [p]laintiff are the result of acts or omissions of third

parties within the meaning of 42 U.S.C. § 9607(b)(3) over whom

[the] [d]efendant had no control.” ECF No. 82 at 36. Although

conceding that the thirtieth defense attempts to assert the so-

called “innocent landowner” defense provided in § 9607(b)(3),9

9 Section 9607(b)(3) states:

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 . . . an act or omission of a third party other

than an employee or agent of the defendant, or than

the plaintiff argues that it is nonetheless insufficient because

it does not adequately plead each of the elements of a §

9607(b)(3) defense.

Although the Fourth Circuit has defined the elements a

defendant must prove to succeed on a § 9607(b)(3) defense, see

PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161,

179 (4th Cir. 2013), it has not addressed what a defendant must

allege to sufficiently assert the defense in a responsive

pleading. District courts in this circuit, including this

court, however, have ruled that a defendant asserting a §

9607(b)(3) defense must sufficiently conform its allegations so

as to satisfy certain elements of that defense. See United

States v. Godley, No. 3:19-cv-00202-RJC-DSC, 2020 WL 4507324, at

*2–3 (W.D.N.C. Aug. 5, 2020) (citing, inter alia, United States

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) he took precautions against

foreseeable acts or omissions of any such third party

and the consequences that could foreseeably result

from such acts or omissions[.]”

42 U.S.C. § 9607(b)(3).

v. Fairchild Indus., Inc., 766 F. Supp. 405, 411 (D. Md. 1991));

Southern, 2019 WL 2387048, at *4-5 (citing, inter alia,

Fairchild Indus., 766 F. Supp. at 411). Among other things, the

defendant must plead that third parties were the sole cause of

the alleged release or threatened release of hazardous

substances as well as the damages resulting therefrom. See

Godley, 2020 WL 4507324, at *2–3; Southern, 2019 WL 2387048, at

*4-5; Fairchild Indus., 766 F. Supp. at 411. When a defense

fails to sufficiently conform to the elements of a § 9607(b)(3)

defense, it has been stricken. See Godley, 2020 WL 4507324, at

*2–3; Southern, 2019 WL 2387048, at *4-5; Fairchild Indus., 766

F. Supp. at 411.

The defendant’s thirtieth affirmative defense fails to

state that third parties solely caused the releases alleged in

the complaint and damages resulting therefrom. Instead, the

defense states only that the plaintiff’s response costs were

caused by third parties and is ambiguous regarding whether the

response costs are solely attributable to the third parties.

See ECF No. 82 at 36. The defendant’s allegations are thus

insufficient to plead a § 9607(b)(3) defense. Further, there is

a substantial risk that the plaintiff will be prejudiced by

litigating an issue — whether, for purposes of the CERCLA claim,

a third-party partially caused the response costs the plaintiff

incurred – that it might not otherwise litigate if the defense

is stricken. Accordingly, the court will strike the defendant’s

thirtieth affirmative defense.10

With respect to the thirty-first defense, the

defendant asserts in it that “[a]ny CERCLA response costs

incurred by [the] [p]laintiff are capable of apportionment[,]

and [the] [d]efendant should not be apportioned any share of

such costs.” ECF No. 82 at 37. The defendant argues that this

defense is not directed at the plaintiff’s CERCLA claim brought

under § 9607(a) and thus is not “impact[ed]” by the exclusive

enumeration of § 9607(a) defenses provided in § 9607(b). ECF

No. 123 at 17. The defendant argues that the thirty-first

defense is instead “exclusively related to contribution claims

under [42 U.S.C. § 9613].” Id.

In its complaint, the plaintiff does cite § 9613 in

relation to its CERCLA claim in Count I. See ECF No. 1 at 1,

26–27, 47. However, the plaintiff does not bring a claim for

contribution under § 9613(f), but instead seeks declaratory

relief under § 9613(g)(2), which appears to be entirely

10 As has been done in other cases, the court notes that the

defendant may request leave to amend its pleading to assert a

defense that sufficiently conforms to § 9607(b)(3). See Godley,

2020 WL 4507324, at *2; Southern, 2019 WL 2387048, at *6;

Fairchild Indus., 766 F. Supp. at 411.

derivative of its § 9607(a) claim for response costs it alleges

it has incurred or will incur. See 42 U.S.C. § 9613(g)(2)

(providing that “the court shall enter a declaratory judgment on

liability for response costs or damages”); Cal. Dep’t of Toxic

Substances Control v. Jim Dobbas, Inc., No. 2:14-595 WBS EFB,

2014 WL 4627248, at *5, 8 (E.D. Cal. Sept. 16, 2014)

(explaining, in context of assessing affirmative defenses, that

claims for declaratory relief under § 9613(g)(2) are derivative

of claims under § 9607(a)); see also ECF No. 1 at 26, 47

(seeking under § 9613(g)(2) declaratory judgment that the

defendant is liable for response costs). Thus, the court cannot

agree with the defendant that its thirty-first defense is not

barred by the exclusivity provisions of § 9607 for claims

brought under § 9607(a) and § 9613(g)(2). See California ex rel.

Cal. Dep’t of Toxic Substances Control v. Neville Chem. Co., 358

F.3d 661, 672–73 (9th Cir. 2004) (applying § 9607’s limitation

of defenses to claims brought under both § 9607(a) and §

9613(g)(2)).

Further, the court concludes that there is a

substantial risk that the plaintiff will suffer the same

prejudice arising from the defendant’s thirtieth defense, if the

thirty-first defense is not stricken. Specifically, permitting

the defendant to assert that liability for response costs is

capable of being apportioned among third parties would allow it

to essentially plead something that resembles an innocent

landowner defense that nonetheless does not sufficiently conform

to § 9607(b)(3). Accordingly, the court will strike the

defendant’s thirty-first defense.

B. Motion to Dismiss Counterclaim

Although the plaintiff primarily argues, pursuant to

Fed. R. Civ. P. 12(b)(6), that the defendant’s counterclaim

fails to state a claim for which relief could be granted, it

also argues that the defendant’s counterclaim should be

dismissed for lack of subject-matter jurisdiction, see ECF No.

104 at 2–3, 7-9 & nn. 2-3, see also ECF No. 128 at 1-2, 7-10, a

matter which bears conceptual priority and is typically

addressed under Fed. R. Civ. P. 12(b)(1).

Federal district courts are courts of limited subject-

matter jurisdiction, possessing “only the jurisdiction

authorized them by the United States Constitution and by federal

statute.” United States ex rel. Vuyyuru v. Jadhav, 555 F.3d

337, 347 (4th Cir. 2008). As such, “there is no presumption

that the court has jurisdiction.” Pinkley, Inc. v. City of

Frederick, 191 F.3d 394, 399 (4th Cir. 1999). Indeed, when the

existence of subject matter jurisdiction is challenged under

Rule 12(b)(1), “[t]he [claimant] has the burden of proving that

subject matter jurisdiction exists.” Evans v. B.F. Perkins Co.,

166 F.3d 642, 647 (4th Cir. 1999); see also Richmond,

Fredericksburg, & Potomac R.R. Co. v. United States, 945 F.2d

765, 768 (4th Cir. 1991). If subject-matter jurisdiction is

lacking, the claim must be dismissed. See Arbaugh v. Y & H

Corp., 546 U.S. 500, 506 (2006).

Subject-matter jurisdiction may be attacked with

either a facial or a factual challenge. Kerns v. United States,

585 F.3d 188, 192 (4th Cir. 2009). In a facial challenge, like

the one brought here, the movant is asserting that the

allegations contained in the pleading fail to sufficiently

establish the existence of subject-matter jurisdiction. Id. In

a facial attack, the claimant is “afforded the same procedural

protection as [it] would receive under a Rule 12(b)(6)

consideration,” so that “facts alleged in the [pleading] are

taken as true,” and the movant’s motion “must be denied if the

[pleading] alleges sufficient facts to invoke subject matter

jurisdiction.” Id. (citation omitted).

(1) First cause of action under CERCLA

In its first cause of action under CERCLA, the

defendant asserts a § 9607 cost-recovery claim and a § 9613

contribution claim. See ECF No. 82 at 39-41. For a § 9607

cost-recovery claim, a private claimant must allege and prove

“that (1) the [party sued] is a potentially responsible person

(‘PRP’); (2) the site constitutes a ‘facility’; (3) a ‘release’

or a threatened release of hazardous substances exists at the

‘facility’; (4) the [claimant] has incurred costs responding to

the release or threatened release of hazardous substances

(‘response costs’); and (5) the response costs conform to the

National Contingency Plan.” PCS Nitrogen, 714 F.3d at 167-68.

Further, as many courts have held, a private claimant

bringing a § 9607 cost-recovery claim for response costs must

establish that the cost it incurred is a necessary cost of

response. See 42 U.S.C. § 9607(a)(4)(B) (making PRPs “liable

for . . . necessary costs of response by any [private] person”

(emphasis added)).11 Although the Fourth Circuit does not appear

11 Although the Fourth Circuit has not directly spoken on the

issue, it has, in setting forth the elements of private CERCLA

claims, stated that the claimant must prove it incurred

necessary response costs. See Crofton Ventures Ltd. P’ship v. H

& H P’ship, 258 F.3d 292, 297 (4th Cir. 2001) (setting forth

contribution claim elements); Westfarm Assocs. Ltd. P’ship v.

Wash. Suburban Sanitary Comm’n, 66 F.3d 669, 677 (4th Cir. 1995)

(setting forth cost-recovery claim elements). Other courts of

appeals have held that a private CERCLA claimant must establish

that the response costs it incurred are necessary. See e.g.,

Trinity Indus., Inc. v. Greenlease Holding Co., 903 F.3d 333,

352–53 (3d Cir. 2018); Reg’l Airport Auth. of Louisville v. LFG,

LLC, 460 F.3d 697, 703–04 (6th Cir. 2006) (citing, inter alia,

G.J. Leasing Co. v. Union Elec. Co., 54 F.3d 379, 386 (7th Cir.

1995); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972

to have addressed when response costs are necessary for purposes

of a § 9607 cost-recovery claim, other courts have developed two

requirements. First, “[i]t is generally agreed that [the

‘necessary’] standard requires that an actual and real threat to

human health or the environment exist before initiating a

response action.” Carson Harbor Vill., 270 F.3d at 871; accord

Reg’l Airport Auth., 460 F.3d at 703, 706; Ashley II of

Charleston, LLC v. PCS Nitrogen, Inc., 791 F. Supp. 2d 431, 480

(D.S.C. 2011). Second, relying on CERCLA’s definitional

language, courts have held that, for a response cost to be

considered “necessary,” there must be “some nexus” between the

alleged response cost and “an actual cleanup of hazardous

releases.” Young, 394 F.3d at 864 (emphasis in original); see

also Ellis v. Gallatin Steel Co., 390 F.3d 461, 482 (6th Cir.

2004); Gussack Realty Co. v. Xerox Co., 224 F.3d 85, 92 (2d Cir.

2000); Redland Soccer Club, Inc. v. Dep’t of Army, 55 F.3d 827,

850 (3d Cir. 1995); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664,

669-70 (5th Cir. 1989); Rhodes, 833 F. Supp. at 1182.12

F.2d 453, 459-60 (1st Cir. 1992)); Young v. United States, 394

F.3d 858, 863 (10th Cir. 2005); Carson Harbor Vill., Ltd. v.

Unocal Corp., 270 F.3d 863, 871 (9th Cir. 2001) (en banc).

District courts in this circuit have held the same. See, e.g.,

HRW Sys., Inc. v. Wash. Gas Light Co., 823 F. Supp. 318, 341 (D.

Md. 1993); Rhodes v. Cty. of Darlington, 833 F. Supp. 1163,

1179-80, 1188 (D.S.C. 1992) (Traxler, J.).

12 With respect to the second requirement, the Ninth Circuit has

said that its analysis “focus[es] . . . on . . . whether the

In the context of a § 9613 contribution claim, the

claimant is a liable PRP and must allege and prove that the

opposing party is also a liable PRP under § 9607 and therefore

must bear an equitable share of the recovery costs for which the

claimant is otherwise liable. See id. at 168 (citing Minyard

Enters., Inc. v. Se. Chem. & Solvent Co., 184, F.3d 373, 385

(4th Cir. 1999)). Here, then, with respect to its § 9613

contribution claim, the defendant must allege and prove

essentially the same elements it would be required to prove and

allege for its § 9607 cost-recovery claim. See Blasland, Bouck

& Lee, Inc. v. City of N. Miami, 283 F.3d 1286, 1302 (11th Cir.

2002) (“In either a section [9607] direct cost recovery action

or a section [9613] contribution action, the elements of the

plaintiff’s prima facie case are the same.”); N.J. Turnpike

Auth. v. PPG Indus., Inc., 197 F.3d 96, 104 (3d Cir. 1999)

response action is addressed to” a “threat to human health or

the environment.” Carson Harbor Vill., 270 F.3d at 872.

Although district courts in the Ninth Circuit have consistently

understood this requirement to mean that “‘[n]ecessary costs are

costs that are necessary to the containment and cleanup of

hazardous releases,’” City of Spokane v. Monsanto Co., 237 F.

Supp. 3d 1086, 1094 (E.D. Wash. 2017) (internal quotation marks

omitted) (quoting United States v. Iron Mountain Mines, Inc.,

987 F. Supp. 1263, 1271 (E.D. Cal. 1997)), in a more recent

opinion, the Ninth Circuit noted in dicta that it had “never

interpreted the term ‘necessary’ as requiring a nexus solely

between recoverable costs and on-site cleanup activities,”

Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 581 (9th

Cir. 2018).

(“[T]he elements for both claims are essentially the same.”);

Prisco v. A & D Carting Corp., 168 F.3d 593, 603 (2d Cir. 1999)

(“The elements of an action under § [9613] are the same as those

under § [9607].”).

With respect to its response costs, the defendant

alleges that:

1. the plaintiff’s or its lessees’ release of

hazardous substances onto the plaintiff’s

property “have caused or will cause [the

defendant] to incur necessary [r]esponse [c]osts,

as that term is defined in CERCLA,” ECF No. 82 at

39;

2. the plaintiff “has arranged for the disposal of

[h]azardous [s]ubstances which are now present at

the [plaintiff’s] [p]roperty and has caused or

will cause [the defendant] to incur [r]esponse

[c]osts,” id. at 40;

3. “[the plaintiff] is liable under . . . CERCLA . .

. for the [r]esponse [c]osts . . . that [the

defendant] has incurred or will incur related to

[h]azardous [s]ubstances, . . . which may be

present at the [plaintiff’s] [p]roperty,

including but not limited to investigatory,

remedial and removal expenses, attorney’s fees

and interest,” id.;

4. “[the defendant] has incurred necessary

[r]esponse [c]osts of the nature defined in

CERCLA, including ‘removal costs,’ to monitor,

assess, and evaluate the release or threat of

release of [h]azardous [s]ubstances which may be

present at the [plaintiff’s] [p]roperty and to

prevent, minimize, or mitigate damage to public

health or welfare or to the environment,” id.;

5. “[the defendant]’s [r]esponse [c]osts were

incurred to analyze and investigate the nature,

source, and extent of the contamination, enabling

[the defendant] to identify . . . []PRPs[], to

comment on the proposed remedy and to propose

alternative remedial measures that more

effectively address the releases and/or

threatened releases and migration of the

releases,” id.;

6. “[t]he work [the defendant]’s attorneys and

consultants have performed to identify PRPs is a

necessary cost of a response,” id.; and

7. “[a]ll [r]esponse [c]osts borne by [the

defendant] have been necessary,” id.

The plaintiff argues that the defendant lacks standing

to bring its first cause of action under CERCLA because the

defendant has failed to plausibly allege a cognizable injury in

fact. Although, as the defendant argues, it is unnecessary to

assert an independent jurisdictional basis to bring certain

counterclaims, see Painter v. Harvey, 863 F.2d 329, 331 (4th

Cir. 1988), a counterclaimant must still have the requisite

standing to bring each of its counterclaims, see Fifth Third

Bank v. Brooke Holdings, Inc., No. 10-2294-KHV/GLR, 2011 WL

1337093, at *1 n.3 (D. Kan. Apr. 7, 2011) (“Although compulsory

counterclaims need not allege an independent basis for subject

matter jurisdiction, the counterclaimant must have standing to

bring the claim.”); accord PTI Assocs., LLC v. Carolina Int’l

Sales Co., Inc., No. 3:10CV108-RJC-DSC, 2011 WL 940725, at *3

(W.D.N.C. Jan. 3, 2011).13

“The standing doctrine derives from ‘the

Constitution’s limitation on Article III courts’ power to

adjudicate cases and controversies’” and thus “implicates the

court’s subject matter jurisdiction.” South Carolina v. United

States, 912 F.3d 720, 726 (4th Cr. 2019) (quoting Frank Krasner

Enters. v. Montgomery Cty., 401 F.3d 230, 234 (4th Cir. 2005)).

“To establish Article III standing, ‘a [claimant] must show (1)

it has suffered an injury in fact . . . ; (2) the injury is

fairly traceable to the challenged action of the [counter-

]defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.’” Id. (quoting Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).

An injury in fact “refers to the invasion of some

‘legally protected interest’ arising from constitutional,

13 Courts have consistently addressed arguments regarding a

counterclaimant’s standing to bring a counterclaim without first

considering whether the counterclaim is of the kind that does

not require an independent jurisdictional basis. See, e.g.,

United States v. Vasquez, 145 F.3d 74, 80–81 (2d Cir. 1998);

Brooklyn Union Gas Co. v. Exxon Mobil Corp., ___ F. Supp. 3d

___, 2020 WL 5519188, at *8-10 (E.D.N.Y. Aug. 13, 2020);

Motsinger v. Nationwide Mut. Ins. Co., 920 F. Supp. 2d 637

(D.S.C. 2013); Gilbert v. Imported Hardwoods, Inc. v. Holland,

176 F. Supp. 2d 569, 573–76 (S.D.W. Va. 2001).

statutory, or common law.” Pender v. Bank of Am. Corp., 788

F.3d 354, 366 (4th Cir. 2015) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 559-60 (1992)). “Indeed, the [legally

protected] interest may exist ‘solely by virtue of statutes

creating legal rights, the invasion of which creates standing.’”

Id. (quoting Lujan, 504 U.S. at 578). “Thus, ‘standing is

gauged by the specific common-law, statutory[,] or

constitutional claims that a party presents.’” Id. (quoting

Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500

U.S. 72, 77 (1991)); see id. (“examin[ing] the principles that

underlie [the claimant]’s claim for [relief] under [a federal

statute] to discern whether there exists a legally protected

interest”).

In assessing standing at the pleading stage, the court

accepts as true allegations in the pleadings that are supported

by adequate factual matter to render them plausible on their

face. See Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017)

(citing Iqbal, 556 U.S. at 678). The same presumption of truth

does not apply to conclusory statements and legal conclusions

contained in the pleading. See id. (citing Iqbal, 556 U.S. at

678); see also David v. Alphin, 704 F.3d 327, 333 (4th Cir.

2013) (“When standing is challenged on the pleadings, . . .

[courts] do not . . . take account of allegations in the

[pleadings] labeled as fact but that constitute nothing more

than legal conclusions or naked assertions.” (internal quotation

marks omitted)). “A [claimant] has the burden to ‘demonstrate

standing for each claim [it] seeks to press’ and ‘for each form

of relief’ sought.” Outdoor Amusement Bus. Assoc., Inc. v.

Dep’t of Homeland Sec., 983 F.3d 671, 680 (4th Cir. 2020)

(quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734

(2008)).

Applying this standard here, the court agrees with the

plaintiff that the defendant has failed to adequately allege an

injury in fact to support the CERCLA claims asserted in its

first cause of action. Evaluating the counterclaim’s

allegations, the court notes that the only injury related to the

CERCLA claims the defendant alleges is that it incurred costs

responding to the alleged releases of hazardous substances on or

from the plaintiff’s property, as set forth in the seven

allegations listed above. See ECF No. 82 at 39-41.

Of the seven listed allegations relating to response

costs, the court notes that, on their face, the first, second,

third, sixth, and seventh allegations state nothing more than

naked assertions or legal conclusions. Likewise, the fourth

allegation merely states, in a conclusory fashion, that the

defendant incurred removal costs and then parrots CERCLA’s

definition of “removal.” Compare ECF No. 82 at 39, with 42

U.S.C. § 9601(23). The court need not accept these allegations

as fact and may set them aside for purposes of assessing the

defendant’s standing to bring its CERCLA claims. See Beck, 848

F.3d at 270; David, 704 F.3d at 333.

The only remaining allegation is the fifth one listed

above. As the defendant argues, that allegation states that it

“incurred [costs] to investigate the nature, source, and extent

of contamination to determine liability, remedies, and address

releases of substances.” ECF No. 123 at 8 (citing ECF No. 82 at

40). The court concludes, for the reasons set forth below, that

this allegation is insufficient to plausibly allege an injury

necessary to confer standing.

As the plaintiff correctly points out, the costs a

claimant incurs in unilaterally deciding to investigate the

potentially harmful or unlawful actions of another typically

cannot, by themselves, comprise a cognizable injury for purposes

of standing to bring suit. See Clapper v. Amnesty Int’l USA,

568 U.S. 398, 416 (2013) (explaining that, where “the harm [the

claimants] seeks to avoid is not certainly impending,” the

claimants’ “contention that they have standing because they

incurred certain costs as a reasonable reaction to a risk of

harm is unavailing”). If the rule were otherwise, claimants

could “manufacture standing” “simply by making an expenditure”

or “inflicting harm on themselves based on their fears of

hypothetical future harm that is not certainly impending.” Id.

Thus, the defendant’s allegation that it incurred costs

investigating the alleged release of hazardous substances on or

from the plaintiff’s property, without more, would not normally

suffice for purposes of alleging a cognizable injury.

However, Congress may create by statute a legally

protected interest, the invasion of which constitutes a legally

cognizable injury. See Pender, 788 F.3d at 366. A number of

courts have concluded that, under CERCLA, certain costs incurred

investigating the release of hazardous substances can constitute

recoverable response costs, so long as the costs are necessary.

See San Diego Unified Port Dist. v. Monsanto Co., 309 F. Supp.

3d 854, 865 (S.D. Cal. 2018) (“Investigation costs may support a

CERCLA cost recovery claim; however, these response costs must

be necessary to the cleanup of hazardous wastes.”); see also

Young, 394 F.3d at 863-64; Village of Milford v. K-H Holding

Corp., 390 F.3d 926, 933-34 (6th Cir. 2004); HRW Sys., 823 F.

Supp. at 342-43; Rhodes, 833 F. Supp. at 1192. Thus, for

purposes of standing, CERCLA may create a legally protected

interest that is invaded when a claimant incurs certain costs

investigating a release of hazardous substances. See City of

Spokane, 237 F. Supp. 3d at 1091 (concluding that the incurrence

of necessary response costs under CERCLA constitutes injury in

fact). Importantly, however, the contours of the interest

created by CERCLA require that the costs of investigation, like

all response costs, be necessary. See Pender, 788 F.3d at 366

(“[S]tanding is gauged by the specific . . . statutory . . .

claims that a party presents.” (internal quotation marks

omitted). As previously discussed, for the cost of an

investigation to qualify as necessary under CERCLA, there must

exist an actual and real threat to human health or the

environment and some nexus between the cost incurred and the

actual containment or cleanup of a release of hazardous

substances. See Reg’l Airport Auth., 460 F.3d at 703, 706;

Young, 394 F.3d at 864; Ellis, 390 F.3d at 482; Carson Harbor

Vill., 270 F.3d at 871; Gussack Realty Co., 224 F.3d at 92;

Redland Soccer Club, 55 F.3d at 850; Amoco Oil, 889 F.2d at 669-

70; PCS Nitrogen, 791 F. Supp. 2d at 480; Rhodes, 833 F. Supp.

at 1182.

The defendant has failed to plausibly allege that the

costs of investigation it incurred were necessary. Throughout

the counterclaim, the defendant alleges in a conclusory manner

that the costs it incurred were necessary, see ECF No. 82 at 39-

41, but the court need not accept these naked, legal assertions,

see Beck, 848 F.3d at 270; David, 704 F.3d at 333. Beyond

conclusory assertions, the defendant also alleges that it

has incurred necessary [r]esponse [c]osts of the

nature defined in CERCLA, including ‘removal costs,’

to monitor, assess, and evaluate the release or threat

of release of [h]azardous [s]ubstances which may be

present at the [plaintiff’s] [p]roperty and to

prevent, minimize, or mitigate damage to public health

or welfare or to the environment.

ECF No. 82 at 40. As the court has already explained, however,

this allegation amounts to little more than a legal conclusion

because it merely parrots the definition of “removal” costs

found in § 9601(23). In any event, although the allegation

refers to “damage to public health or welfare or to the

environment,” id., the defendant does not plausibly allege –

beyond this naked assertion – that there exists a real threat to

human health or the environment. Further, the defendant fails

to allege any facts from which the court could reasonably infer

some connection between the investigation costs the defendant

alleges it incurred and any effort to actually contain or clean

up a release of hazardous substances.

In sum, because the defendant has not plausibly

alleged that it incurred a response cost that is necessary, as

that term is used for purposes of CERCLA, it has failed to

plausibly assert a cognizable injury in fact necessary to confer

standing to bring the CERCLA claims in its first cause of

action. The court will therefore dismiss the first cause of

action for lack of subject-matter jurisdiction.

(2) Second cause of action for declaratory relief under

CERCLA

The defendant’s second cause of action seeks

declaratory relief pursuant to § 9613(g), which provides that,

“[i]n any” “action for recovery of the costs referred to in

section 9607,” “the court shall enter a declaratory judgment on

liability for response costs or damages that will be binding on

any subsequent action or actions to recover further response

costs or damages.” 42 U.S.C. § 9613(g)(2). Under this

provision, the defendant seeks a declaration that the plaintiff

is liable for the defendant’s future costs incurred responding

to the alleged release of hazardous substances on or from the

plaintiff’s property. See EFC No. 82 at 41.

As the plaintiff argues, “a [claimant] cannot obtain

declaratory relief pursuant to § 9613(g)(2) without having

incurred [necessary] response costs within the meaning of §

9607(a)(4)(B).” Trimble v. Asarco, Inc., 232 F.3d 946, 958 (8th

Cir. 2000), abrogated on other grounds by Exxon Mobil Corp v.

Allapattah Servs., Inc., 545 U.S. 546 (2005); see also City of

Colton v. Am. Promotional Events, Inc.-W., 614 F.3d 998, 1007

(9th Cir. 2010) (collecting cases); Mercury Mall Assocs., Inc.

v. Nick’s Market, Inc., 368 F. Supp. 513, 520 (E.D. Va. 2005)

(“Declaratory relief under § 9613(g)(2) is only available in

connection with an active cost recovery action.”). When the

claimant has not incurred necessary response costs sufficient to

sustain a cost-recovery action under § 9607, the court may lack

jurisdiction to entertain a claim for declaratory relief under §

9613(g)(2). See Trimble, 232 F.3d at 958-59 (citing Gopher Oil

Co. v. Bunker, 84 F.3d 1047, 1051 (8th Cir. 1996)); Pritkin v.

U.S. Dep’t of Energy, 47 F. Supp. 2d 1225, 1231 (E.D. Wash.

1999).

Because the court has determined that the defendant,

having failed to plausibly allege that it incurred necessary

response costs, lacks standing to bring its § 9607 cost-recovery

claim, the court concludes that the defendant also lacks

standing to bring its derivative claim for declaratory relief

under § 9613(g)(2). Accordingly, the court will dismiss the

second cause of action for lack of subject-matter jurisdiction.

(3) Remaining state-law causes of action

The defendant’s three remaining causes of action for

negligence, declaratory relief under W. Va. Code § 55-13-1, and

equitable indemnity all arise under state law. See ECF No. 82

at 41-43; see also id. at 38-39 (stating that non-CERCLA claims

are state-law claims). The defendant asserts that the court has

subject-matter jurisdiction over these state-law claims “under

the [c]ourt’s ancillary jurisdiction because th[e] state-law

claims arise from the same nucleus of operative facts as the

federal claims.” Id. at 39.

The plaintiff argues that the court lacks jurisdiction

over the defendant’s remaining state-law claims. The plaintiff

points out that the defendant appears to assert supplemental

jurisdiction over the state-law claims based on the court’s

federal-question jurisdiction over the defendant’s federal

claims and that, because those federal claims must be dismissed

for lack of standing, there is no supplemental jurisdiction over

the remaining state-law claims. The defendant responds, in

part, that its state-law claims are ancillary not to its own

federal claims brought in the counterclaim, but to the federal

claims brought by the plaintiff in its complaint. See ECF No.

123 at 10.

Fairly read, the jurisdictional averment in the

defendant’s counterclaim asserts that the defendant’s state-law

claims are ancillary to its own federal claims brought in the

counterclaim. In this regard, the court notes that the

jurisdictional allegations related to the state-law claims

appear immediately after the defendant’s jurisdictional

allegations related to its federal claims and that neither the

counterclaim’s jurisdictional averment nor the rest of the

counterclaim purport to incorporate by reference the portions of

the defendant’s answer relating to jurisdiction over the

plaintiff’s federal claims. See id. at 3, 38-39. Moreover, the

court notes that the portion of the defendant’s answer relating

to jurisdiction for the plaintiff’s claims generally denies the

plaintiff’s jurisdictional allegations and that the defendant’s

fourth affirmative defense asserts that the court lacks subject-

matter jurisdiction over the plaintiff’s claims. See id. at 3,

32.

To the extent the defendant asserts supplemental

jurisdiction, pursuant to 28 U.S.C. § 1367, over its state-law

claims based on the court’s federal-question jurisdiction over

the defendant’s federal claims, those federal claims are subject

to dismissal for lack of standing, and therefore the court may

not exercise supplemental jurisdiction based on them. See

Arbaugh, 546 U.S. at 514.

To the extent the defendant asserts supplemental

jurisdiction over its state-law claims based on the court’s

federal-question jurisdiction over the plaintiff’s federal

claims, the court is not persuaded. The defendant argues that,

to the extent the court has federal-question jurisdiction over

the plaintiff’s federal claims (though, strangely, the

defendant’s answer denies such jurisdiction), the court ipso

facto has supplemental jurisdiction over the defendant’s state-

law counterclaims. See ECF No. 123 at 9. The defendant is

correct that supplemental jurisdiction over counterclaims can be

premised on claims found in the complaint, but it is incorrect

that, by merely exercising jurisdiction over the plaintiff’s

federal claims, the court necessarily has supplemental

jurisdiction over the defendant’s state-law counterclaims.

Under § 1367, “in any civil action of which the

district courts have original jurisdiction,” they may exercise

supplemental jurisdiction over state-law claims that “are so

related to claims in the action within such original

jurisdiction that they form part of the same case or

controversy.” 28 U.S.C. § 1367(a). When, as here, no federal-

question or diversity jurisdiction is asserted for the

counterclaims at issue, the court assesses whether the

counterclaims are “compulsory” or “permissive” to determine if

it has supplemental jurisdiction over them in light of its

original jurisdiction over the claims asserted in the complaint.

See Painter, 863 F.2d at 331.14 “If [a] counterclaim is

14 District courts in the Fourth Circuit continue to follow

Painter as binding precedent even after the subsequent enactment

of § 1367. See Colborn v. Forest Good Eats, LLC, No. 5:19-CV-

compulsory, it is within the [supplemental] jurisdiction of the

court to entertain[,] and no independent basis of federal

jurisdiction is required.” Id. “If [a] counterclaim is

permissive, however, it must have its own independent

jurisdictional bas[is].” Id.

Determining whether a counterclaim is compulsory

involves four inquiries:

(1) Are the issues of fact and law raised in the claim

and counterclaim largely the same? (2) Would res

judicata bar a subsequent suit on the party’s

counterclaim, absent the compulsory counterclaim rule?

(3) Will substantially the same evidence support or

refute the claim as well as the counterclaim? and (4)

Is there any logical relationship between the claim

and counterclaim?

Id. These inquiries provide “guideline[s]” rather than a

“litmus” test, and the court need not answer all of them to

determine compulsoriness. Id. As is the case with establishing

subject-matter jurisdiction generally, see Evans, 166 F.3d at

647 Richmond, Fredericksburg, & Potomac R.R. Co., 945 F.2d at

768, the counterclaimant bears the burden of establishing that

the counterclaims are compulsory in order for the court to

exercise supplemental jurisdiction, see DirecTV v. Edwards, 293

F. Supp. 2d 873, 879 (N.D. Ind. 2003).

431-D, 2020 WL 5629765, at *8 (E.D.N.C. Sept. 21, 2020); see

also Ginwright v. Exeter Fin. Corp., No. TDC-16-0565, 2016 WL

5867443, at *2 (D. Md. Oct. 6, 2016) (providing rationale and

collecting cases).

Having considered the four inquiries, the court

concludes that the defendant’s state-law claims are not

compulsory and are not so related to the plaintiff’s federal

claims that they form part of the same case or controversy. The

plaintiff’s federal claims involve the alleged release of a

number of hazardous substances and wastes that have been stored

or disposed, through the defendant’s actions and without a

permit, at the defendant’s two properties and that have migrated

to the surrounding environment and the plaintiff’s property,

causing an imminent and substantial danger to health and the

environment as well as the plaintiff’s incurrence of its own

response costs. See ECF No. 1 ¶¶ 58-88. The defendant’s state-

law claims, on the other hand, involve allegations that the

plaintiff failed to exercise due care in storing or disposing

chemicals on the plaintiff’s property, resulting in a release of

the chemicals onto the plaintiff’s property and requiring the

defendant to incur costs assessing and monitoring the release.

See ECF No. 82 at 41-43. Accordingly, the defendant’s state-law

claims do not involve largely the same issues of law and fact or

substantially the same evidence as the plaintiff’s federal

claims; there is no indication that adjudication of the

plaintiff’s federal claims will subsequently bar the defendant

from asserting the state-law claims; and, in the court’s view,

the claims are not so logically related that they should proceed

together.

The defendant has failed to meet its burden to

demonstrate its state-law counterclaims are compulsory, as it

presents no argument as to any of the four inquiries, and the

court is not persuaded by its conclusory assertion, advanced

only in passing, that the court’s jurisdiction over the

plaintiff’s federal claims ipso facto provides supplemental

jurisdiction over the defendant’s state-law counterclaims. The

court thus concludes that it may not exercise supplemental

jurisdiction over the defendant’s state-law claims based on its

federal-question jurisdiction over the plaintiff’s federal

claims.

Accordingly, the court will dismiss the remaining

state-law claims for lack of subject-matter jurisdiction.

III. Conclusion

For the foregoing reasons, it is ORDERED that:

1. the plaintiff’s motion to dismiss the defendant’s

counterclaim and strike its affirmative defenses

(EFC No. 103) be, and hereby it is granted to the

extent it requests that the defendant’s

counterclaim be dismissed and that the

defendant’s fifteenth, thirtieth, and thirty-

first affirmative defenses be stricken and denied

to the extent is requests that the defendant’s

remaining affirmative defenses be stricken;

2. the defendant’s fifteenth, thirtieth, and thirty-

first affirmative defenses (ECF No. 82 at 34, 36-

37) be, and hereby they are, stricken; and

3. the defendant’s counterclaim (ECF No. 82 at 38-

44) be, and hereby it is, dismissed without

prejudice.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: May 10, 2021

De,

Jo . Copenhaver, Jr.

Senior United States District Judge

15 The plaintiff argues that the defendant’s counterclaim should

be dismissed with prejudice. See ECF No. 128 at 1-2, 5.

However, “[a] dismissal for lack of standing — or any other

defect in subject matter jurisdiction — must be one without

prejudice, because a court that lacks jurisdiction has no power

to adjudicate and dispose of a claim on the merits.” S. Walk at

Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,

LLC, 713 F.3d 175, 185 (4th Cir. 2013).

43