The opinion of the court was delivered by: MCCLURE
Before the court is a motion by third party defendant Monroe Guaranty Insurance Company (Monroe) to dismiss the claims against it for lack of subject matter and personal jurisdiction.
For the reasons which follow, the motion will be granted.
Allegations against Monroe
Battery Salvage, a division of Ace Battery, Inc. (Ace), a defendant in this CERCLA action,
filed a third party complaint against Monroe Guaranty Insurance Company (Monroe) on October 19, 1995. Ace alleges in its complaint that: 1) it is an Indiana corporation with its principal place of business in Indiana; 2) Monroe is an Indiana corporation with its principal place of business in Indiana; 3) Johnson Controls, Inc., et. al. (hereafter collectively Johnson Controls), plaintiffs in the underlying CERCLA action, allege that Ace sold parts from lead acid batteries to the Tonolli Corporation (Tonolli) which Tonolli then disposed of at the Tonolli Pennsylvania site which is the subject of this action; 4) Johnson Controls alleges that Ace is jointly and severally liable under 42 U.S.C. § 9607 (a) for past and future response and clean-up costs incurred in connection with the government-mandated clean-up of the Tonolli site; 5) Monroe is contractually obligated under a Comprehensive General Liability Policy (Policy No. SMP-329-3-3) issued and in effect during the period materials were disposed of at the Tonolli site to defend and indemnify Ace from all costs incurred in connection with this action, up to policy limits; 6) Ace has formally notified Monroe of its alleged duty to defend and indemnify; 7) Ace denies responsibility on the grounds that no coverage exists under the terms of the alleged policy and on the further ground that no policy was in effect during the relevant period; and 8) Monroe has filed a declaratory judgment action in Marion County, Indiana, Superior Court Case No. 49D12-9508-CP-1319, requesting a ruling on its alleged obligation to defend and indemnify Ace in this action.
Subject matter jurisdiction
Citing LaSalle National Trust v. Schaffner, 818 F. Supp. 1161 (N.D.Ill. 1993), Ace argues that this court's undisputed original jurisdiction over the CERCLA claims asserted against it by Johnson Controls based on 42 U.S.C. § 9613, confers supplemental jurisdiction over the claims asserted against Monroe. In LaSalle, the district court noted that "only a loose factual connection" is needed to support a finding of supplemental jurisdiction under section 1367(a). Id., at 1165. The court found the allegations in the action before it more than sufficient to satisfy that criteria. There, just as in the case before this court, the underlying action was a CERCLA claim for response costs incurred in cleaning up a contaminated site.
Plaintiff LaSalle National Trust (LaSalle), the current owner of the property, sought to recover its response costs from defendants Jerry Schaffner and Martin Schaffner, former owners of the site, who were alleged to be responsible for disposing of toxic substances on site. Also named as a defendant in the suit was Chicagoland Laundry and Cleaners, Inc. (Chicagoland) an Illinois corporation owned and operated by the Schaffners. Chicagoland and the Schaffners filed an amended third-party complaint against Illinois Employers Insurance of Wausau (Wausau), alleging an obligation to defend and indemnify them against the claims brought by LaSalle. The district court ruled that it had supplemental jurisdiction under section 1367 (a) over the third party action filed against Wausau, because it arose out of the same facts as the CERCLA claims asserted against Chicagoland and the Schaffners.
We disagree with the analysis of LaSalle on this point, on the ground that it is not consistent with the application of section 1367(a) in this circuit. The United States District Court for the Eastern District of Pennsylvania rejected the application of supplemental jurisdiction on a fact pattern nearly identical to the one before this court. Bunzl Pulp & Paper Sale, Inc. v. Golder, 1995 U.S. Dist. LEXIS 2510, 1995 WL 89026 (E.D.Pa. March 2, 1995) was a CERCLA action filed by Bunzl Pulp & Paper Sale, Inc. (Bunzl) to recover its environmental cleanup costs from allegedly responsible parties. One of the defendants named in the action was the Federation of Jewish Agencies of Greater Philadelphia (the Federation). The Federation joined its insurer, Pennsylvania National Mutual Casualty Insurance Company (Penn National) as a third party defendant, claiming a right to a defense and to indemnification.
In concluding that supplemental jurisdiction was lacking, the district court relied upon recent Third Circuit authority. The court cited Lyon v. Whisman, 45 F.3d 758 (3d Cir. 1995), in which the Third Circuit "cast doubt on the appropriateness of the 'loose nexus' test," the test which the district court relied upon in LaSalle.
The district court in Bunzl then went on to cite and follow, as persuasive authority, the Pennsylvania Supreme Court decision in Stokes v. Loyal Order of Moose Lodge # 696, 466 A.2d 1341 (Pa. 1983). In Stokes, the Pennsylvania Supreme Court interpreted Pennsylvania's joinder rule, a rule similar to the federal rule. Pennsylvania Rule of Civil Procedure 2229, governing permissive joinder of parties, provides that a plaintiff may join "as defendants persons against whom he asserts any right to relief...in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action." 42 Pa. Cons. Stat. Ann., Pa. R. Civ. P. 2229. The Pennsylvania ...