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UNITED STATES v. MARISOL

October 31, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
MARISOL, INC., et al., Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, UNITED STATES DISTRICT JUDGE

 Currently before the court is the motion of the United States of America (the Government) seeking to strike certain affirmative defenses set forth in the answers of defendants Marisol, Inc. (Marisol), Inland Container Corporation (Inland), American Cyanamid Company (American Cyanamid), and Smithkline Beckman Corporation (Smithkline). For the reasons that follow, the court will grant the Government's motion in part and deny it in part.

 I. Background

 The Government commenced this action pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), see 42 U.S.C. § 9607(a), on September 30, 1988. See document 1 of record. The complaint alleges that each of the defendants was, at the time of the events that form that basis of this action, a generator or transporter of hazardous substances found at the Keyser Avenue Borehole Site (the Site) in Scranton, Pennsylvania, and that the Government incurred certain response costs in connection with the release or threatened release of these substances. See document 1 of record. Specifically, the government seeks recovery of $ 533,654.53 in removal costs and a declaratory judgment that the defendants are jointly and severally liable for any future response costs which may be incurred by the Government at the Site. See id.

 Between January 26, 1989 and February 6, 1989, defendants Marisol, Smithkline, Inland, and American Cyanamid filed answers to the complaint in which each raised various affirmative defenses. See documents 10, 11, 12, and 14 of record. On March 21, 1989, the Government filed the instant motion seeking to strike certain affirmative defenses from each defendant's answer. See document 31 of record. The Government filed a brief in support of its motion on June 5, 1989. See document 40 of record.

 The Government filed a reply brief on August 10, 1989. See document 53 of record. Because all the supporting and opposing documents concerning the instant motion have been filed, the matter is now ripe for consideration by this court.

 II. Discussion

 A. Standards Governing Motions to Strike

 The instant motion to strike is brought pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, which provides, in part:

 
(f) Motion to Strike. Upon motion made by a party . . . the court may order stricken from the pleading any insufficient defense . . .

 Fed.R.Civ.P. 12(f). Motions to strike are generally viewed with disfavor, see American Standard Life & Accident Insurance Co. v. U.R.L., Inc., 701 F. Supp. 527, 531 (M.D.Pa. 1988) (Caldwell, J.), and should not be granted when the sufficiency of the defense depends upon disputed issues of fact or unclear questions of law. United States v. 187.40 Acres of Land, 381 F. Supp. 54, 56 (M.D.Pa. 1974) (Nealon J.).

 Nevertheless, a motion to strike under Rule 12(f) is the "primary procedure" for objecting to an insufficient affirmative defense. 5 C. Wright and A. Miller, Federal Practice and Procedure § 1380 at 782 (1969). Thus, even though motions to strike are often viewed with disfavor because of their potential to be used as a dilatory tactic, they do serve a useful purpose by eliminating insufficient defenses and saving the time and expense which would otherwise be spent in litigating issues which would not affect the outcome of the case. United States v. Geppert Bros., Inc., 638 F. Supp. 996, 998 (E.D.Pa. 1986). (citing Narragansett Tribe v. Southern Rhode Island Land Development Corp., 418 F. Supp. 798, 801 (D. R.I. 1976)).

 In the instant motion, the Government challenges the sufficiency of certain affirmative defenses raised by the defendants in their respective answers. Applying the standards outlined above, the court will examine each of these challenges seriatim.

 1. Failure to State a Claim

 Each answering defendant contends that the Government's complaint fails to state a claim upon which relief can be granted. *fn1" In seeking to have these defenses stricken, the Government argues that a claim upon which relief can be granted is stated by the complaint. See documents 40 and 53 of record.

 Initially, the court notes that neither Inland, Smithkline, nor American Cyanamid has responded to the Government's contention that the court should strike their defenses alleging that the complaint fails to state a claim upon which relief can be granted. Only defendant Marisol responded to the Government's contention, arguing that the defense of failure to state a claim should not be stricken before Marisol is given sufficient opportunity to discover facts which will support such a defense. See document 52 of record at 11-13.

 As the Government correctly points out, however, the defense of failure to state a claim upon which relief can be granted challenges only the formal sufficiency of the claims set forth in the complaint. See 5 C. Wright and A. Miller, Federal Practice and Procedure § 1356 at 590 (1969). The function of a motion to dismiss for failure to state a claim upon which relief can be granted is to test the law of the claim and not the facts which support it. Spell v. McDaniel, 591 F. Supp. 1090, 1099, n. 1 (E.D. N.C. 1984). Moreover, a court should not dismiss a complaint for failure to state a claim unless it affirmatively appears that plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 The instant complaint purports to state a claim under § 107(a) of CERCLA. See document 1 of record. As recently outlined by the United States Court of Appeals for the Eighth Circuit, in order to establish a prima facie case for liability under § 107 of CERCLA, a plaintiff must show that:

 
(1) the site is a "facility";
 
(2) a "release" or "threatened release" of a "hazardous substance" from the site has occurred;
 
(3) the release or threatened release has caused the United States to incur response costs; and
 
(4) the defendants fall within at least one of the four classes of responsible persons described in § 107(a).

 United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1378-1379 (8th Cir. 1989). See also New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985); T & F Industries, Inc. v. Safety Light Corp., 680 F. Supp. 696, 708 (D.N.J. 1988).

 Initially, the complaint clearly avers that the site was a waste facility. See document 1 of record at para. 14-18. In addition, the complaint alleges that there was a release or threatened release of hazardous substances at the site which resulted in the incurrence of response costs by the Government, and that each of the defendants falls within the classes of responsible persons described in § 107(a). See id. Thus, the complaint has sufficiently alleged the elements necessary to state a claim for recovery of response costs under § 107(a) of CERCLA. Accordingly, the court will grant the Government's motion to strike the defendants' contentions that the complaint fails to state a claim for relief.

 2. Failure to Offer Proof of Imminent and Substantial Endangerment

 Defendants Inland, American Cyanamid and Smithkline assert that the Government has failed to allege or offer any proof of any actual or potential imminent and substantial endangerment to public health, welfare or the environment because of an actual or threatened release of a material which they generated. *fn2" The Government argues that these defenses should be stricken because no proof of imminent or substantial endangerment is required in a cost recovery action under § 107(a) of CERCLA. See document 40 of record at 18. The defendants do not further address this issue in their various responses to the Government's motion.

 As the court views it, this defense must be stricken based upon the same reasoning that invalidated the defendants' assertions that the complaint failed to state a claim. Namely, the requirements for what a plaintiff must prove in order to state a claim under § 107(a) of CERCLA, as set forth above, see supra. (quoting Aceto, 872 F.2d at 1378-1379), do not require any allegation or proof of an imminent and substantial danger to public health, welfare, or the environment. The court will, therefore, grant the Government's motion to strike this defense from the answers of defendants Inland, American Cyanamid, and Smithkline.

 3. Act of Omission of a Third Party

 A strong majority of courts have held that liability under § 107(a) of CERCLA is subject only to the defenses set out in § 107(b). See Kelley v. Thomas Solvent Company, 714 F. Supp. 1439, 1445-46, n. 3 (W.D. Mich. 1989) (listing eleven cases). Thus, the only "third party" defense available to a defendant in an action under § 107(a) of CERCLA is that provided for in § 107(b)(3).

 As the United States Court of Appeals for the Fourth Circuit observed, "section 107(b)(3) sets forth a limited affirmative defense based on the complete absence of causation." United States v. Monsanto, 858 F.2d 160, 168 (4th Cir. 1988), petition for cert. denied 490 U.S. 1106, 109 S. Ct. 3156, 104 L. Ed. 2d 1019 (U.S. Mar, 14, 1989) (No. 88-1404). In order to establish a defense under § 107(b)(3), a defendant would have to demonstrate that:

 
(1) a third party was the sole cause of the release of ...

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