otherwise provided for pursuant to the Consent Decree. Elf asserts, therefore, that the subject matter covered in the Consent Decree is the same subject matter at issue in this litigation, except that the United States seeks relief against Witco now.
Witco, in contrast, asserts that there is a gap between the subject matter covered in the Consent Decree and the subject matter of the present lawsuit. It grounds this argument in an earlier opinion of this Court that denied summary judgment on its behalf against the United States. In that opinion, we held that the United States could not recover oversight costs from Witco under the ruling of United States v. Rohm & Haas Co., 2 F.3d 1265 (3d Cir. 1993). However, we declined to grant summary judgment entirely, and held that we were "unable to conclusively find that the only remedy sought by the government's complaint is the recovery of oversight costs, that it has already received a complete recovery from Elf Atochem, or that it cannot recover anything further from Witco in this action." United States v. Witco Corp., 853 F. Supp. 139, Memorandum and Order at 11 (1994).
Witco's argument is that if the United States can recover anything from it, then that recovery is of necessity not covered in the Consent Decree. Witco argues, "if, and to the extent that, the Consent Decree does not provide all the relief to which the United States is entitled, a gap exists, the Consent Decree does not address that matter, and Elf Atochem correspondingly lacks contribution protection." Witco Brief at 4. We do not accept this part of Witco's reasoning because it is too narrow and does not take into consideration the nature of a settlement.
When parties settle a dispute before trial, there is necessarily compromise. Both sides give up certain rights they allege they hold. One side agrees to accept less than it asked for, one side agrees to give more than it claimed was due and both agree not to litigate. In the litigation by the United States against Elf, the United States sought all past and future payments and performance of all its remediation. As settlement, Elf agreed to pay most of the past costs, some of the future costs and perform much of the remediation. In exchange, the United States dropped its suit against Elf. Contrary to Witco's argument, therefore, even though the "Consent Decree does not provide all the relief to which the United States is entitled," no "gap [necessarily] exists [that] the Consent Decree does not address." By its own terms, the Consent Decree covers the entire subject matter of the original complaint, even if it does not provide all the relief requested.
Nonetheless, the United States' complaint against Witco appears to cover more than the complaint against Elf did. The United States seeks all unreimbursed response costs incurred by the United States and "a declaratory judgment for the United States that the defendant is liable for all response costs not otherwise provided for pursuant to the Atochem settlement which may be incurred by the United States in the future at the Site." When deciding a motion to dismiss, a court can only dismiss a claim if there is no set of facts that show a right to relief by plaintiff. This second claim for relief by the United States precludes us from finding that the United States only seeks relief within the ambit of the Consent Decree. As with our earlier decision in this case, "in the event that subsequent discovery reveals that the only costs to be recovered by the government in this action are [within the subject matter of the Consent Decree,] the defendant is free to move for summary judgment."
An appropriate Order follows.
AND NOW, this 28th day of September, 1994, upon consideration of the Motion by Elf Atochem North America, Inc. to Dismiss Witco Corporation's Third Party Complaint, and the responses thereto, it is hereby ORDERED that the Motion is DENIED in accordance with the rationale set forth in the preceding Memorandum.
BY THE COURT:
J. CURTIS JOYNER, J.