United States District Court, N.D. Alabama, Middle Division
KARON OWEN BOWDRE, Chief District Judge.
This CERCLA matter comes before the court on two series of Reports and Recommendations. Plaintiff United States of America's subsequent "Unopposed Motion for Leave to Dismiss Claim of Operator Liability and to Withdraw Motion for Leave to Amend Complaint, " (Doc. 32), which the magistrate judge granted in part, (Doc. 33), renders moot many of the objections USA previously raised to the first report.
Specifically, the magistrate judge issued his first Report and Recommendation, (Doc. 22), which recommends granting defendant Gadsden Industrial Parks, LLC's "Motion to Dismiss, " (Doc. 10). Both USA and GIP filed objections ("United States' Objections to Magistrate Judge's Report and Recommendation on Motion to Dismiss, " (Doc. 26); "Defendant's Precautionary Limited Objections to Report and Recommendation Solely in Order to Protect the Record Against Waiver, " (Doc. 24)). Both parties responded to each other's objections. (Doc. 28; Doc. 29).
USA also filed its "Motion for Leave to Amend Complaint [Opposed], " (Doc. 25), which the magistrate judge recommended denying as futile in his second Report and Recommendation, (Doc. 31). At that point, USA filed its motion for leave to dismiss its operator liability claim and to withdraw its motion for leave to amend its compliant, (Doc. 32). The magistrate judge granted USA's motion as to the request to withdraw its motion for leave to amend its complaint, (Doc. 33).
I. Report and Recommendation on Motion to Amend (Doc. 31)
USA's withdrawal of its motion for leave to amend after the magistrate judge filed his Report and Recommendation recommending its denial presents an interesting procedural issue: how should this court treat the Report and Recommendation to deny the motion to amend when USA has withdrawn its motion to amend? The granting of the motion to withdraw seems to render moot the previously issued Report and Recommendation because the motion to amend addressed by the Report and Recommendation no longer exists. In any event, should doing so be necessary, the court ADOPTS the Report and Recommendation, (Doc. 31), and DENIES USA's motion for leave to amend. The result is the same.
II. Report and Recommendation on Motion to Dismiss (Doc. 22)
The magistrate judge recommended finding against USA on all claims. USA made several objections. (Doc. 26). However, USA subsequently "concede[d] dismissal of its operator liability claim" and "[withdrew] its Objections to the First R&R, to the extent they address the United States' claim of operator liability." (Doc. 32, 2). The operator liability and owner liability issues are discussed separately below.
A. Operator Liability
As part of its motion to withdraw, USA sought permission to dismiss with prejudice its claim for operator liability against GIP. It also withdrew its corresponding objections to the Report and Recommendation that challenged the recommendation to dismiss the operator liability claim. The court, having reviewed the materials in the record on this matter, ADOPTS the portion of the Report and Recommendation concerning operator liability, (Doc. 22), and DISMISSES WITH PREJUDICE the claims in the complaint predicated on operator liability.
B. Owner Liability
1. USA's Objections
USA makes several objections to the magistrate judge's Report and Recommendation regarding owner liability.
First, USA objects to the magistrate judge's finding that the slag owned by GIP and the slag pile containing the slag, which GIP owned, are not "facilities" within the meaning of CERCLA. USA argues that the slag or the slag pile are a "facility" and the contents of the slag-arsenic, chromium, copper, lead, manganese, and zinc-are the "hazardous materials." GIP responds that USA's argument, in essence, turns any mixing of hazardous and non-hazardous materials into a "facility." Instead, argues GIP, the statutory definition of "facility" does not include an item of personal property, no ...