Corvello v. New England Gas Co.

247 F.R.D. 282, 2008 U.S. Dist. LEXIS 2858, 2008 WL 111995
CourtDistrict Court, D. Rhode Island
DecidedJanuary 9, 2008
DocketC.A. Nos. 05-221T, 05-274T, 05-370T, 05-522T
StatusPublished
Cited by6 cases

This text of 247 F.R.D. 282 (Corvello v. New England Gas Co.) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corvello v. New England Gas Co., 247 F.R.D. 282, 2008 U.S. Dist. LEXIS 2858, 2008 WL 111995 (D.R.I. 2008).

Opinion

MEMORANDUM AND ORDER

ERNEST C. TORRES, Senior District Judge.

These four consolidated cases were brought by more than 120 residents of Tiver-ton, Rhode Island who allege that their properties have been contaminated by hazardous substances contained in coal gasification wastes that were buried in Tiverton approximately fifty years ago. The plaintiffs seek damages and injunctive relief against New England Gas Company (“NEG”), an unincorporated division of Southern Union Company and the successor to Fall River Gas Company (“FR Gas”), the entity that allegedly generated the coal gasification waste. NEG has filed third-party complaints seeking contribution and/or indemnity from six other companies, two municipalities and another utility which NEG claims may be responsible for some or all of the alleged contamination.

The plaintiffs have moved to sever the third-party claims and to try them separately from the plaintiffs’ claims against NEG. For the reasons hereinafter stated, the plaintiffs’ motion is granted to the extent that it seeks to have the third-party claims tried separately-

Background

It appears to be undisputed that, in August 2002, a sewer interceptor line was being installed in an area near the plaintiffs’ property [285]*285and some of the excavated soil was an unusual blue color and emitted a strong odor. After investigating, the Rhode Island Department of Environmental Management (“RIDEM”) concluded that the excavated material was coal gasification waste that contained hazardous substances in concentrations that exceed safe levels.

Because the contamination appeared to be widespread, the Town of Tiverton imposed an emergency moratorium prohibiting excavation or the issuance of building permits in a section of the town that encompasses the plaintiffs’ properties. Meanwhile, RIDEM concluded that a nearby facility operated by NEG was the source of the coal gasification waste and, on March 17, 2003, RIDEM sent a “Letter of Responsibility” to NEG. NEG has denied responsibility and administrative enforcement proceedings have been brought against NEG by RIDEM. Those proceedings are still pending.

Around May 2005, the Corvello, Burns, and Bigelow plaintiffs commenced suit against NEG in the Rhode Island Superior Court and on August 5, 2005, the Reis plaintiffs sued NEG in the United States District Court for the District of Massachusetts. The Corvello, Burns, and Bigelow eases were removed to this Court and the Reis case was transferred here. All of the plaintiffs seek damages for alleged diminution of their property values as well as injunctive relief. In addition, some of the plaintiffs seek damages for what they claim are adverse health effects that they have suffered as a result of the alleged contamination.

On December 16, 2006, this Court set a discovery closure date of November 15, 2007, which projected a trial date in January 2008. On September 11, 2 007, the trial date was postponed until April 2008 because the parties requested additional time to complete discovery. It was not until November 2007 that NEG filed its third-party complaint.

Although the plaintiffs’ motion is denominated as a Motion to Sever and the plaintiffs’ supporting memorandum contains references to Fed.R.Civ.P. 14(a), the motion is brought “pursuant to Federal Rules of Civil Procedure Rule 42” and seeks a separate trial of the third-party complaints. Pl.’s Mem. at 6.

Analysis

I. The Applicable Rules

Rule 14(a) of the Federal Rules of Civil Procedure recognizes a defendant’s right to assert claims for contribution and/or indemnity against a person who is not a party to an action but “who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claims against the [defendant].” However the Rule also provides that “any party may move to strike the third-party claim or for its severance or separate trial”. Fed.R.Civ.P. 14(a).

Although the terms “severance” and “separate trial”, sometimes, are used interchangeably, they refer to two different procedures. See, Moore’s Federal Practice § 42.20[2] (3d ed.2007). Severance refers to the process of dividing a case containing multiple claims into “separate actions” and it is governed by Rule 21. Acevedo-Garcia v. Monroig, 351 F.3d 547, 558 (1st Cir.2003). On the other hand, ordering separate trials refers to the process of dividing “a single action into separate trials that remain under the umbrella of the original solitary action,” thereby enabling a court to “hear and decide one or more issues without trying all of the controverted issues at the same hearing.” Id. at 559. Decisions regarding whether claims or issues should be tried separately or bifurcated are governed by Rule 42(b). Id.

The distinction between severance and separate trials is important because a “judgment in a severed action is final, enforceable and appealable when it disposes of all parties and issues,” but an “order entered at the conclusion of a separate trial” may not be because it is “often interlocutory.” Acevedo-Garcia, 351 F.3d at 559. Accordingly, severance under Rule 21 may be appropriate where “the two claims are ‘discrete and separate,’ i.e., one claim must be capable of resolution despite the outcome of the other claim” while separate trials under Rule 42(b) may be appropriate where “final resolution of one claim affects the resolution of the other.” 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2387, Note 2.

[286]*286II. The Rule í2(b) Bifurcation Decision

Rule 42(b) provides:

“(b) Separate Trials. The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counter-claim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims or issues, always preserving inviolate the right of trial by jury ____”

Rule 42(b) gives courts broad discretion to decide whether claims or issues should be tried separately. Gold v. JohnsManville Sales Corp., 723 F.2d 1068, 1077 (3d Cir.1983) (citing Landis v. North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 81 L.Ed. 153 (1936)). In exercising that discretion, the overarching consideration is whether separate trials will facilitate the fair and efficient adjudication of the case.

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Bluebook (online)
247 F.R.D. 282, 2008 U.S. Dist. LEXIS 2858, 2008 WL 111995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corvello-v-new-england-gas-co-rid-2008.