Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 1 of 10 PageID #: 2643

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE COURTLAND COMPANY, INC., a
West Virginia Business Corporation
Plaintiff,
v.
UNION CARBIDE CORPORATION, a New
York Corporation;
Defendant,

)
)
)
)
)
)
)
)
)
)
)
)
)

Case. No. 2:19-cv-00894
Hon. John T. Copenhaver, Jr.

UNION CARBIDE CORPORATION’S RESPONSE IN OPPOSITION TO PLAINTIFF’S
MOTION FOR EXPEDIATED BRIEFING SCHEDULE AND EXPEDITED HEARING
ON PRELIMINARY INJUNCTION
COMES NOW Defendant, Union Carbide Corporation (“UCC”), by and through
undersigned counsel, and hereby makes the following response in opposition to Plaintiff’s Motion
for Expediated Briefing Schedule and Expedited Hearing on Preliminary Injunction [Dkt. 61]
(hereinafter “Plaintiff’s Motion”):
Plaintiff’s Motion does not raise any new issue or request for relief. Instead, Plaintiff once
again asks this Court to ignore judicial process and the schedule already in place and rule on
Plaintiff’s impassioned version of the “facts”, alone. Plaintiff’s Motion contains nothing more than
another installment of impassioned rhetoric and evocative hyperbole as to what Plaintiff imagines it
can prove but offers very little evidence to actually prove it. Despite the testing data extoled by
Plaintiff, it is a long road from allegation to proof that must be paved with evidence and not just a
legal sermon. As such, the instant motion is nothing more than yet another blatant attempt to
circumvent already existing deadlines and procedure in place in this matter.

4815-8858-6693.1

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 2 of 10 PageID #: 2644

In large part, Plaintiff’s Motion does nothing more than repeat the same arguments already
set forth before this Court. Nothing has changed, nothing new has occurred, and no new information
that warrants expedited treatment of this matter has been provided since these issues were put before
the Court in May, 2020. Unfortunately, because Plaintiff refuses to follow the judicial processes in
place by this Court, UCC must now respond again to these arguments.
I.

The Court’s Prior Decision to Rule on the Pending Motion for Leave First is the
Logical and Best Approach.
On June 9, 2020, UCC responded to Plaintiff’s request for a status conference and stated as

follows: “UCC does not oppose Plaintiff’s request for a status conference in the above-referenced
matter. However, in accordance with the Court’s June 2, 2020 Order, UCC suggests that the proper
time for a status conference is following the Court’s ruling on Plaintiff’s Motion for Leave to File
Supplemental Complaint (hereinafter “Motion for Leave”). See [Dkt. 52, UCC’s Resp. to Pl’s Req.
for Status Conf., ¶ 1, p. 1]. UCC hereby incorporates the arguments in UCC’s Response to Plaintiff’s
Request for Status Conference [Dkt. 52].
UCC continues to assert that this is the correct approach. Although UCC contends that
Plaintiff’s Motion for Leave should be denied, it is does agree with the Court that the best and most
logical approach is to first determine whether Plaintiff can bring the Clean Water Act claim before
deciding the other issues. As this Court previously recognized, “[t]he supplemental complaint seeks
to add a ‘Citizen Suit’ claim under Section 505 of the Federal Water Pollution Control Act (“Clean
Water Act”), 33 U.S.C. § 1365. The motion for preliminary injunctive relief concerns the Clean
Water Act claim, and the remaining motions concern the motion for preliminary injunctive relief.”
[Dkt. 46, June 2, 2020, Order]. To date, even with Plaintiff’s most recent suggestion that it will
“stay” at least for the time being its Clean Water Act claim, this statement remains true.

4815-8858-6693.1

2

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 3 of 10 PageID #: 2645

Further, Plaintiff also continues to argue that the Clean Water Act claim warrants injunctive
relief. See [Pl.’s Mot. at p. 3]. Moreover, even though framed as a request for preliminary injunctive
relief, a careful read of Plaintiff’s Motion for Preliminary Injunction indicates that Plaintiff is
actually seeking a final remedy.1 Thus, Plaintiff’s offer to stay the Clean Water Act claim is
functionally meaningless. Plaintiff has not agreed to withdraw the Motion for Leave in its entirety,
much less agreed that it will not later seek injunctive relief on its Clean Water Act claim if it fails to
obtain injunctive relief through other means. See generally [Pl.’s Mot.]. Plaintiff’s Motion for
Leave and the proposed Clean Water Act claim thus remain, and will under Plaintiff’s latest proposal
continue to remain, pending before the Court.
Plaintiff’s position is that since the law allows it to base the injunctive relief claim on a
number of the plethora of claims asserted in the original and proposed supplemental complaints, it
should be allowed to proceed to a hearing - a final hearing on a significant portion of the case without allowing UCC to undertake sufficient discovery of Plaintiff’s claims. See infra for a
discussion of necessary discovery. Under Plaintiff’s proposed course of action there would be
multiple hearings for injunctive relief while Plaintiff tried out various theories and arguments. The
fact that a party can base a claim for injunctive relief on multiple claims does not mean this Court
1

Plaintiff’s Motion for Preliminary Injunction seeks Defendant to: (1) conduct a remedial investigation/feasibility study
(“RI/FS”) performed in compliance with applicable requirements of the National Oil & Hazardous Substances Pollution
Contingency Plan, 40 C.F.R., Part 300 (“National Contingency Plan” or “NCP”); and (2) perform “time-sensitive”
interim removal action to include “containment, extraction, treatment, and/or disposal” of the alleged hazardous
materials allegedly leaking from the Filmont Landfill. See [Dkt. 39-1, Am. Mem. in Supp. of Mot. for Preliminary Inj.,
pp. 43-51]. Plaintiff further provides that Defendant should be given “15 days to develop an NCP-compliant Interim
Removal action workplan” and “no more than 30 days to begin uninterrupted implementation of that workplan…” [Id. at
p. 52]. Finally, Plaintiff requests that if it prevails on any portion of its motion for preliminary injunction that it be
granted a final hearing within 20 days. [Id]. While UCC vehemently disputes that the relief requested by Plaintiff is
necessary, proper, or even possible, it is clear that the relief requested is actually a final remedy – not preliminary relief
as Plaintiff continues to state. Accordingly, Plaintiff must be held to the standard applicable to a permanent or final
remedy as to all claims on which Plaintiff seeks relief and UCC submits that the logical and best approach is to first
determine which claims remain viable, before proceeding with a ruling on the Motion for Preliminary Injunction. See
generally eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct. 1837, 1839 (2006)(setting forth the fourfactor test for a plaintiff seeking permanent injunctive relief); see also [Dkt. 52, UCC’s Resp. to Mot. for Status Conf.]

4815-8858-6693.1

3

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 4 of 10 PageID #: 2646

should piece-meal this case and have multiple hearings just because Plaintiff wants the case to move
faster. Ironically, even while shouting that UCC’s property is a huge problem, Plaintiff agitates to
proceed will-nilly without the necessary factual investigation. The better approach is the one already
chosen by this Court, to determine the viability of the Clean Water Act claim and whether it is part
of the claims at issue. Only then should the Court set the schedule and scope of discovery, briefing,
and the hearing on preliminary injunctive relief.
Further, UCC submits that determination on its pending Motion to Dismiss [Dkt. 8 and 10] is
also appropriate prior to setting a schedule and scope of the injunctive relief process here. Plaintiff’s
statement in the instant motion that UCC “has not denied” Plaintiff’s various hyperbolic statements
is a false equivalency. It is an easy misrepresentation because with the Motion to Dismiss pending,
an Answer has not been filed in this matter wherein UCC would deny Plaintiff’s allegations. UCC
has stridently denied Plaintiff’s contentions throughout the course of this litigation and continues to
do so. UCC requests that the arguments in support of the Motion to Dismiss be considered and ruled
on prior to proceeding with the Motion for Preliminary Injunction in order to appropriately limit the
scope of claims to be considered.
II.

Plaintiff’s Citizen Suit Claims and Claim for Public Nuisance do not Require
Expedited Action Without Specific Justification
Although Plaintiff makes much of its status as a “private attorneys general” under the citizen

suit provisions of the various federal claims it has brought here, citizen suit provisions do not in and
of themselves call for expedited treatment. See 42 U.S.C. §6972; 33 U.S.C. § 1365. The role of a
citizen under those provisions as “private attorneys general” is a construct of the law that allows
private citizens to bring the civil enforcement action. “In those instances where, for whatever
reasons, the Government fails or declines to take action, the CWA allows citizens acting as private
attorneys general to fill the void. That does not mean, however, that HudFish is ipso facto entitled
4815-8858-6693.1

4

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 5 of 10 PageID #: 2647

to its own, ‘personalized’ remedy in this or any other CWA case.” Hudson River Fishermen's Ass'n
v. Cty. of Westchester, 686 F. Supp. 1044, 1052 (S.D.N.Y. 1988). Neither the language of the
statutes or the term convey any special procedural urgency that requires the Court to ignore the
process, to ignore the need for discovery, or to ignore the need for evidence in place of rhetoric. A
similar argument that a plaintiff’s role as private attorneys general acting on behalf of the public
entitled plaintiff to injunctive relief without the traditional balancing of the equitable factors was
rejected by the Seventh Circuit holding instead that following the standard for injunction is required,
even for a citizen suit. LAJIM, LLC v. GE, 917 F.3d 933, 944 (7th Cir. 2019). Here, much like the
plaintiff in the Seventh Circuit that sought to use the citizen suit to evade legal requirements,
Plaintiff must show a credible and pressing need for expedited treatment of this matter, which it has
not.2
Likewise, Plaintiff’s assertion that expedited treatment is required because it “now
represents” the interests “of the sovereign” under the law of public nuisance is misplaced. First, the
Supreme Court of Appeals of West Virginia has long recognized that “a suit to abate a public
nuisance cannot be maintained by an individual in his private capacity, as it is the duty of the proper
public officials to vindicate the rights of the public.” Hark v. Mountain Fork Lumber Co., 127 W.
Va. 586, 34 S.E.2d 348, 354 (W. Va. 1945). An individual in its private capacity may pursue a
public nuisance claim, only where “he has suffered a special injury different in kind from the general
public.” Id.; see also Rhodes v. E.I. DuPont de Nemours & Co., 657 F. Supp.2d 751,768-69 (S.D.
W. Va. 2009)(recognizing that the relevant inquiry is whether “plaintiffs have demonstrated a special
injury different in kind and degree from the general public.”). As set forth in UCC’s pending Motion
2

Similarly, the fact that various news outlets may be following this matter for a possible story does not support
expediting this matter and supplanting the rights of the parties or the law. Media coverage of the case cannot and should
not drive how this Court handles the case or drive any scheduling.

4815-8858-6693.1

5

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 6 of 10 PageID #: 2648

to Dismiss, UCC strongly disputes that Plaintiff has suffered any injury, much less a special injury
different in kind, to allow Plaintiff standing to proceed on its claim of public nuisance. See [Dkt. 10,
Mem. in Supp. of Mot. to Dismiss, pp. 17-19];see also Barker v. Naik, 2018 U.S. Dist. LEXIS
135289, *9 (S. D. W. Va. Aug. 10, 2018)(“Furthermore, as Plaintiffs are not public officials, they
fail to meet the requirements as articulated by the West Virginia Supreme Court of Appeals
regarding appropriate plaintiffs for public nuisance claims.”) Further, as with the citizen suit
provisions discussed supra, the law of public nuisance, alone, does not require any procedural
urgency that would necessitate this Court to ignore the normal judicial process and current
scheduling order and allow Plaintiff to proceed in an expedited manner on only speculative evidence.
III.

Discovery is Necessary and Appropriate Before the Briefing and a Hearing on the
Preliminary Injunction Motion can Occur and There is no Prejudice to the Plaintiff
as a Result of the Same.
UCC advocates for the path of proper discovery and then addressing the disputes between the

parties based on facts and not the Plaintiff’s musings. For example, Plaintiff stridently asserts that
there are impacts to the Kanawha River but offers no evidence of any such contamination from any
UCC facility. In order for this Court to consider the claims Plaintiff seeks to litigate, discovery as to
the facts related to all of the claims Plaintiff included in its Motion for Preliminary Injunctive Relief
is required.
Discovery is necessary and appropriate for the Court to fairly assess the claims without
prejudice to UCC. Although not a complete list by any measure, with respect to the claims from the
original complaint UCC needs to be able to complete a site inspection and necessary sampling and
UCC’s expert witnesses need time to evaluate the claims and evidence related to the Plaintiff’s
claims as to the Filmont Landfill. Further, depositions of witnesses Plaintiff asserts are critical, such
as Dr. Scott Simonton, are also necessary. Additionally, UCC is entitled to investigate new

4815-8858-6693.1

6

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 7 of 10 PageID #: 2649

information, such as Plaintiff’s recent July 10, 2020 disclosure that it conducted additional soil
sampling on the Courtland Property on November 16, 2019. See [Ex. A, Pl.’s Supplemental Obj. and
Ans. to UCC’s First Set of Inter, Sup. Ans. to Interr. No. 4]. Similarly, should the Court allow the
Clean Water Act claim to proceed, UCC is entitled to written discovery as to these new claims and
the right to review supporting documentary evidence. UCC will also need to engage new/additional
experts to evaluate discharge and stormwater allegations under the Clean Water Act. Proceeding
without allowing such rudimentary factual investigation is proceeding blind and is prejudicial to
UCC.
Moreover, despite Plaintiff’s assertions that it needs no further discovery to proceed on its
Motion for Preliminary Injunction, Plaintiff has, since the filing of the Motion for Preliminary
Injunction, pursued discovery from not only UCC but also non-parties Jacobs Engineering and The
Dow Chemical Company. See generally, [Dkt. 58, Subpoena to The Dow Chemical Company]; [Ex.
B, June 17, 2020 e-mail from T. Smith to G. Bailey]. In fact, Plaintiff has aggressively pursued
discovery. The parties are currently actively engaged in ESI discovery after substantial discussions
negotiating search terms. And, Plaintiff continues to pursue ESI document production from nonparty Jacobs Engineering. See generally [Ex. C, July 13, 2020, e-mail from T. Smith to G. Bailey].
Additionally, Plaintiff has sought the depositions of individuals from both UCC and Jacobs, which
due to concerns surrounding COVID-19 have yet to be scheduled though Plaintiff is demanding that
Jacobs provide both more documents and a witness for deposition in weeks if not sooner. See
generally [Ex. D, June 23, 2020 and July 27, 2020 e-mails from T. Smith to P. Bello (regarding
request for deposition of former UCC employee, J.L. Worstell)]; see also [Ex. E, July 23, 2020 email from T. Smith to G. Bailey (regarding deposition of Jacobs 30(b)(6) designee) and July 24,
2020, response from G. Bailey to T. Smith].

4815-8858-6693.1

7

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 8 of 10 PageID #: 2650

Finally, there is no prejudice to Plaintiff in following the current litigation schedule or
alternatively setting a schedule on Plaintiff’s Motion for Preliminary Injunction that provides a
reasonable time frame for discovery and briefing. In support, UCC notes the following:
•

Plaintiff filed the instant lawsuit on December 13, 2019 and waited nearly six months to
file its Motion for Preliminary Injunction.

•

Plaintiff admits it has been aware of the Filmont Landfill since at least October of 2019.

•

Plaintiff only recently sought leave to Amend its Complaint to add a claim under the
CWA

•

In January of 2020, the Parties agreed upon a discovery schedule that would have
allowed discovery to close in January 2022. [Dkt. 13-1, Joint Stip. and [Proposed] Order
to Coordinate]. Under the current Scheduling Order, the deadline for discovery is March
5, 2021. [Dkt. 23, Feb. 19, 2020 Order].

•

Plaintiff purchased the Courtland Property for “investment purposes.” [Dkt. 1, Compl. ¶
5]. Aside from Plaintiff’s intention to someday realize on its investment through a
“potential future sale to a third party,” Plaintiff has not set forth any current or future
intention to use the Courtland Property in any way. [Id.]

•

There exists no evidence to support that UCC has, through its Filmont Landfill (or
otherwise) endangered the public or adversely impacted public resources. Conversely, as
Plaintiff is aware, UCC performed both a Human Health Risk Assessment and
Ecological Risk Assessment for the Filmont Landfill in or around February of 2014 and
January of 2015, respectively. Both studies found no significant threat to human health
or the environment from the conditions at the Filmont Landfill.

Plaintiff has not identified any valid reason for expediting this matter. UCC requests that the
Court deny the present Motion for Expediated Briefing Schedule and Expedited Hearing on
Preliminary Injunction and take action in accordance with UCC’s June 9, 2020 Response to Motion
for Status Conference.
Respectfully Submitted this 29th day of July 2020,

4815-8858-6693.1

8

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 9 of 10 PageID #: 2651

UNION CARBIDE CORPORATION
By Counsel,
/s/Patricia M. Bello
R. Scott Masterson (WV Bar #10730)
Matthew A. Nelson (WV Bar #9421)
Patricia M. Bello (WV Bar #11500)
LEWIS BRISBOIS BISGAARD & SMITH LLP

707 Virginia Street, E., Suite 1400
Charleston, West Virginia 25301
(304) 553-0166/(304) 932-0265 (fax)
Scott.masterson@lewisbrisbois.com
Matt.nelson@lewisbrisbois.com
Patricia.bello@lewisbrisbois.com
And
Martin A. Shelton (pro hac vice)
LEWIS BRISBOIS BISGAARD & SMITH LLP
1180 Peachtree St. NE, Suite 2900
Atlanta, GA 30309
(404) 348-8585
Martin.Shelton@lewisbrisbois.com

4815-8858-6693.1

9

 Case 2:19-cv-00894 Document 63 Filed 07/29/20 Page 10 of 10 PageID #: 2652

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE COURTLAND COMPANY, INC., a
West Virginia Business Corporation
Plaintiff,
v.
UNION CARBIDE CORPORATION, a New
York Corporation;
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:19-cv-00894
Hon. John T. Copenhaver, Jr.

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 29th day of July, 2020, the foregoing “UNION
CARBIDE CORPORATION’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION
FOR EXPEDIATED BRIEFING SCHEDULE AND EXPEDITED HEARING ON
PRELIMINARY INJUNCTION” was electronically filed with the Clerk of the Court using the
CM/ECF system, which will send a Notice of Electronic Filing to, and constitutes service on counsel
of record.
/s/Patricia M. Bello
Patricia M. Bello (WV Bar #11500)
LEWIS BRISBOIS BISGAARD & SMITH LLP

707 Virginia Street, E., Suite 1400
Charleston, West Virginia 25301
(304) 553-0166/(304) 932-0265 (F)
Patricia.bello@lewisbrisbois.com

4815-8858-6693.1

10