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West Virginia Hospitality and Travel Association, Inc. v. Southern

United States District Court, S.D. West Virginia

June 4, 2019

WEST VIRGINIA HOSPITALITY AND TRAVEL ASSOCIATION, INC., a West Virginia Not-for-Profit corporation, on behalf of all of its adversely affected members, and as assignee of certain of its adversely affected members, Plaintiff,
v.
GARY SOUTHERN, Defendant.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. Senior United States District Judge

         Pending is plaintiff West Virginia Hospitality and Travel Association, Inc.'s (“Hospitality”) motion to strike the affirmative defenses set forth in the answer of defendant Gary Southern to the amended and supplemental complaint, filed June 1, 2018. Also pending is defendant Southern's motion to strike, on the ground of late filing, plaintiff's reply in support of its motion to strike the affirmative defenses of Southern, filed June 27, 2018. Though the reply was filed six days late under the local rules, there has not been any prejudice alleged by Southern and, in the interest of justice, the court denies Southern's motion to strike and ORDERS acceptance of Hospitality's late-filed reply.

         I. Background

         The court recited the facts of this case as it pertains to Southern in the order denying Hospitality's motion for partial summary judgment, entered March 15, 2018. For present purposes, the following summary will suffice.

         On January 9, 2014, a liquid mixture containing crude methylcyclohexanemethanol (“MCHM”), which is itself a mixture comprised of 1% methanol, leaked from tanks owned by Freedom Industries, Inc. (“Freedom”), into the Elk River near Charleston, West Virginia. ECF No. 103, at 2. The MCHM traveled downstream, penetrated the filtration system of a West Virginia American Water (“American Water”) plant, and entered the water supply of customers across nine counties. Id. at 2-3. American Water issued a “Do Not Use Order” that prohibited water service for nine days. Id.

         Southern served on Freedom's board of directors from March 2010 to December 2013, at which time he became the company's president. Id. at 3. Hospitality is a West Virginia not-for-profit comprised in part of businesses impacted by the MCHM leak. Id. at 6. Hospitality claims that it suffered and continues to suffer economic and non-economic harms stemming from the MCHM leak. Id. Regarding Southern, Hospitality contends that Southern is jointly and severally liable for at least $12 million in damages and costs. Affidavit of Carol Fulks in Support of Attachment, ECF No. 62-1, at ¶¶ 4, 7; Affidavit of Buddy Butler in Support of Attachment, ECF No. 62-2, at ¶ 9.

         On March 19, 2018, Hospitality filed an amended and supplemental complaint. ECF No. 106. All defendants except Southern have been dismissed from this action, as of October 12, 2018.[1]

         The amended and supplemental complaint seeks recovery against Southern as follows:

Count I - Response costs under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a);
Count II - Judicial abatement of a public nuisance;
Count III - Relief from private nuisance;
Count IV - Negligence;
Count V - Negligence per se; and Count VI - Gross negligence.

         Hospitality seeks injunctive relief on the Count II public nuisance claim on behalf of its “numerous adversely affected member entities, ” which Southern contends actually includes a request for money damages. See ECF No. 136, at 7-8. For each of the remaining Counts, it seeks recovery only as assignee on behalf of “certain of its adversely-affected members, ” consisting now of six entities, identified below and listed in Appendix A to the amended and supplemental complaint. ECF No. 106, at ¶ 1. The recovery sought on behalf of those six entities is as follows:

Count I CERCLA claim - response costs
Counts III, IV, V, and VI - money damages.

         The six entities are Adelphia, Inc., Atrium Hotels, L.P. and Atrium Finance V, LLC, Bridge Road Bistro, LLC, Sharp #4502, Inc., and Country Road 3054, Inc. ECF No. 106-1, at 1.[2]The Atrium entities, known locally as Embassy Suites, represent a hotel/restaurant. The remaining entities are restaurants, including Sharp and Country Road that are IHOP restaurants.

         On May 11, 2018, Southern filed an answer to the amended and supplemental complaint in which he asserted twenty-one defenses that he labels as affirmative defenses. ECF No. 121, at 20-23. Those defenses are as follows:

(1) If the plaintiff was injured or damaged, the injuries and damages were caused by the acts, wrongs or omissions of others, by intervening or subsequent causes, or by persons, entities and/or things over which Defendant Southern has no control and for which he is not responsible;
(2) Plaintiff failed to mitigate their alleged damages;
(3) Southern's guilty plea to violations of the federal Refuse Act and Clean Water Act was not based on intentional conduct;
(4) Southern committed no act which was repeated or willful;
(5) Southern committed no act that amounts to gross negligence;
(6) Plaintiff has failed to join indispensable or necessary parties;
(7) Plaintiff is not entitled to punitive damages because Southern did not act in a willful, wanton, ...

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