Demonstrating the importance of timely service of process in complex environmental cases, a federal court in Ohio dismissed CERCLA natural resource damages claims and related state statutory actions for the state’s failure to serve a complaint on an individual defendant for nearly two years. Ohio, ex rel. DeWine v. Superior Fibers, Inc., No: 2:14-cv-1843 (S.D. OH June 29, 2017).
Ohio brought suit under CERCLA and Ohio’s surface water and hazardous waste laws to recover damages and secure remediation for contamination of groundwater in Fairfield County, Ohio. The state alleged that the contamination resulted from the disposal of the solvent trichloroethylene (TCE) at a manufacturing facility. Ohio brought suit against three owners and operators of the site: Reichhold, Inc., which used TCE at the site from 1964 until 1984 and declared bankruptcy in 2011; Superior Fibers, Inc., which operated and used TCE on the site from 1984 until 2006; and Superior Bremen Filtration, LLC, which has owned and operated the site since 2006 without use of TCE. Ohio also brought suit against William Miller, the statutory agent for Superior Fibers and a former employee of Reichhold.
Ohio filed its complaint in October 2014 against the four defendants and all three corporate defendants filed notices of appearance within the month. Service was not made on Miller until 22 months later, in August 2016. During that nearly two-year period, the court entered a preliminary injunction and approved two consent decrees with the three corporate defendants. After Miller was finally served, he moved to dismiss in February 2017, alleging failure to timely serve a summons and complaint, insufficient service of process, and failure to prosecute claims.
The court noted that the Sixth Circuit considers dismissal for failure to prosecute “a harsh sanction which the court should order only in extreme situations” of delay or disobedience by the plaintiff. The district court applied a four-part test from the Sixth Circuit’s opinion in Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008), considering whether the dismissed party acted willfully or was warned, whether the adversary moving to dismiss was prejudiced, and whether less drastic sanctions were imposed first. Here, Ohio provided no explanation for why it took so long to find Miller or evidence that it had searched in good faith in the intervening 22 months. Because Ohio entered into consent decrees to the detriment of Miller during that time and because Miller was not able to participate in negotiations or enter into those consent decrees with his employers, the court determined that Miller’s participation in the case would be too burdensome and expensive, and dismissed the claims with prejudice.