EnergyNorth v. UGI Utilities CV-00-500-B 03/28/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
EnergyNorth Natural Gas, Inc.
v. Civil No. 00-500-B Opinion No. 2003 DNH 056
UGI Utilities, Inc.
O R D E R
EnergyNorth Natural Gas, Inc. ("EnergyNorth") brought suit
against UGI Utilities, Inc. ("UGI") under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
42 U.S.C. § 9601, et seq, (1995 & Supp. 2002) ("CERCLA"), seeking
contribution for costs it incurred, and will incur in the future,
in cleaning up property it owns on Elm Street in Manchester, New
Hampshire ("Manchester site"). EnergyNorth also seeks relief
under the federal Declaratory Judgment Act, 28 U.S.C. § 2201
(1994 & Supp. 2002) . In addition to it's federal claims,
EnergyNorth seeks contribution under the New Hampshire hazardous
waste statute, N.H. Rev. Stat. Ann. ("RSA") § 147-B (1996 & Supp.
2002), and under New Hampshire's general contribution statute,
RSA § 507:7 (1997 & Supp. 2001). UGI alleges various counterclaims including it's own CERCLA and RSA § 147-B claims, a
statutory contribution claim under RSA § 507-7 and common law
indemnification and breach of contract counterclaims (Doc. No.
19) .
UGI has asked me to remove this case from the jury list. It
argues that EnergyNorth has no right to a jury trial with respect
to its CERCLA, Declaratory Judgment Act, RSA § 147-B, and RSA §
507:7 claims. Although UGI concedes that EnergyNorth has a right
to have UGI's breach of contract counterclaim tried to a jury, it
argues that the counterclaim should be severed from the main case
and tried to a jury, if necessary, at a later date. EnergyNorth
concedes that it has no right to have its CERCLA claims tried to
a jury but argues that it is entitled to a jury trial with
respect to the remaining claims. It opposes severance,
contending that it would be inefficient to hold separate trials.
It also argues that its right to a jury trial could be compro
mised if I were to sever the breach of contract counterclaim and
wait to try it until after the main trial has been completed.1
1 UGI also moves to sever it's state law claims. (Doc. No. 63). For the reasons discussed below, I deny it's motion as to the RSA §§ 147-B, 507-7 and common law indemnification counterclaims; however, I grant it's motion as to the breach of
- 2 - I resolve UGI's motion by first outlining Supreme Court and
First Circuit precedents discussing the Seventh Amendment right
to a jury trial.2 I then apply the precedent to each of the
claims for which the right to a jury trial is in dispute.
Finally, I consider UGI's argument for severance.
I. Seventh Amendment Analysis
Generally speaking, the Seventh Amendment right to a jury
trial attaches only to claims that are legal in nature. See
Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).
The determination of whether a right to a jury trial exists for a
particular claim "depends not upon the factual setting from which
the claim arose, however, but (i) upon whether the claim involves
an issue triable of right by a jury, and (ii) upon the nature of
contract counterclaim. In addition, UGI moves to withdraw it's claim for attorney's fees under Harkeem v. Adams, 117 N.H. 687 (1997). (Doc. No. 63). I grant UGI's motion to withdraw it's claim for attorney's fees.
2 The Seventh Amendment provides the appropriate framework for analyzing UGI's motion to remove the case from the jury list because EnergyNorth does not argue that it has a statutory right to a jury trial with respect to its federal Declaratory Judgment Act claim and its right to a jury trial with respect to its state law claims is governed by federal law. See Simeler v. Conner, 372 U.S. 221, 222 (1963); Ed Peters Jewelry Co., Inc. v. C&J Jewelry Co., Inc., 215 F.3d 182, 186 (1st Cir. 2000).
- 3 - the cause of action as well as its historical treatment in
English-American jurisprudence (viz., whether the proceedings are
more emblematic of a legal proceeding, as distinguished from an
eguitable one." Boqosian v. Woloohoiian Realty Corp., 2003 WL
1337702 (1st Cir. March 19, 2003) (citing Tull v. United States,
481 U.S. 412, 417-418 (1987)). This test reguires an analysis of
which court a particular statutory action would have been brought
in the 18th-century, prior to the merger of law and eguity.
Hatco v. W.R. Grace & Co. Conn., 59 F.3d 400, 412 (3d Cir.
1995)(citing Wooddell v. Int'l Brotherhod of Electronic Workers,
Local 71, 502 U.S. 93, 97 (1991)). In applying this test, I
acknowledge that a right to a jury trial is "not dependent on the
character of the overall action but rather is to be determined by
looking to the nature of the issue to be tried." In re N-500L,
691 F.2d 15, 19 (1st Cir. 1982)(citing Pernell v. Southall
Realty, 416 U.S. 363, 375 (1974)). With this test in mind, I
turn to EnergyNorth's specific claims.
II. RSA S3 147-B:10 and 507-7
RSA § 147-B:10, like CERCLA, gives a person who has incurred
environmental response costs a right to contribution against a
facility's prior owners and operators. See RSA § 147-B:10-
- 4 - Ill(b). RSA § 507-7 is New Hampshire's general contribution
statute. Neither provision purports to grant claimants a right
to a jury trial and nothing in either provision's legislative
history suggests that the New Hampshire legislature intended it
to be enforced through a jury trial.3 In Hatco, the third
circuit determined that the Seventh Amendment does not entitle
litigants to have CERCLA contribution claims tried to a jury.
Hatco, 59 F.3d at 413. The Third Circuit's reasoning on this
point persuasive and indistinguishable from the claims at issue
here as EnergyNorth's state law claims mirror the right to
contribution under CERCLA. See e.g., Sherilyn Young and Charles
G. Willing, Jr., Defending a Complex Private Hazardous Waste
Case, New Hampshire Bar Journal, June 1991, n.43 (citing House
Comm, on Env't and Agriculture Report on HB 58, as amended, at 1
(1986) and noting purpose of RSA § 147:B is to give state
enforcement mechanism eguivalent to CERCLA). Thus, I reject
EnergyNorth's claim that it has a right to a jury trial with
3 I express no view as to whether a contribution claimant has a right to a jury trial under RSA § 507-7 when the underlying claim on which the right to contribution is based is a legal claim that ordinarily is tried to a jury.
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EnergyNorth v. UGI Utilities CV-00-500-B 03/28/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
EnergyNorth Natural Gas, Inc.
v. Civil No. 00-500-B Opinion No. 2003 DNH 056
UGI Utilities, Inc.
O R D E R
EnergyNorth Natural Gas, Inc. ("EnergyNorth") brought suit
against UGI Utilities, Inc. ("UGI") under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
42 U.S.C. § 9601, et seq, (1995 & Supp. 2002) ("CERCLA"), seeking
contribution for costs it incurred, and will incur in the future,
in cleaning up property it owns on Elm Street in Manchester, New
Hampshire ("Manchester site"). EnergyNorth also seeks relief
under the federal Declaratory Judgment Act, 28 U.S.C. § 2201
(1994 & Supp. 2002) . In addition to it's federal claims,
EnergyNorth seeks contribution under the New Hampshire hazardous
waste statute, N.H. Rev. Stat. Ann. ("RSA") § 147-B (1996 & Supp.
2002), and under New Hampshire's general contribution statute,
RSA § 507:7 (1997 & Supp. 2001). UGI alleges various counterclaims including it's own CERCLA and RSA § 147-B claims, a
statutory contribution claim under RSA § 507-7 and common law
indemnification and breach of contract counterclaims (Doc. No.
19) .
UGI has asked me to remove this case from the jury list. It
argues that EnergyNorth has no right to a jury trial with respect
to its CERCLA, Declaratory Judgment Act, RSA § 147-B, and RSA §
507:7 claims. Although UGI concedes that EnergyNorth has a right
to have UGI's breach of contract counterclaim tried to a jury, it
argues that the counterclaim should be severed from the main case
and tried to a jury, if necessary, at a later date. EnergyNorth
concedes that it has no right to have its CERCLA claims tried to
a jury but argues that it is entitled to a jury trial with
respect to the remaining claims. It opposes severance,
contending that it would be inefficient to hold separate trials.
It also argues that its right to a jury trial could be compro
mised if I were to sever the breach of contract counterclaim and
wait to try it until after the main trial has been completed.1
1 UGI also moves to sever it's state law claims. (Doc. No. 63). For the reasons discussed below, I deny it's motion as to the RSA §§ 147-B, 507-7 and common law indemnification counterclaims; however, I grant it's motion as to the breach of
- 2 - I resolve UGI's motion by first outlining Supreme Court and
First Circuit precedents discussing the Seventh Amendment right
to a jury trial.2 I then apply the precedent to each of the
claims for which the right to a jury trial is in dispute.
Finally, I consider UGI's argument for severance.
I. Seventh Amendment Analysis
Generally speaking, the Seventh Amendment right to a jury
trial attaches only to claims that are legal in nature. See
Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).
The determination of whether a right to a jury trial exists for a
particular claim "depends not upon the factual setting from which
the claim arose, however, but (i) upon whether the claim involves
an issue triable of right by a jury, and (ii) upon the nature of
contract counterclaim. In addition, UGI moves to withdraw it's claim for attorney's fees under Harkeem v. Adams, 117 N.H. 687 (1997). (Doc. No. 63). I grant UGI's motion to withdraw it's claim for attorney's fees.
2 The Seventh Amendment provides the appropriate framework for analyzing UGI's motion to remove the case from the jury list because EnergyNorth does not argue that it has a statutory right to a jury trial with respect to its federal Declaratory Judgment Act claim and its right to a jury trial with respect to its state law claims is governed by federal law. See Simeler v. Conner, 372 U.S. 221, 222 (1963); Ed Peters Jewelry Co., Inc. v. C&J Jewelry Co., Inc., 215 F.3d 182, 186 (1st Cir. 2000).
- 3 - the cause of action as well as its historical treatment in
English-American jurisprudence (viz., whether the proceedings are
more emblematic of a legal proceeding, as distinguished from an
eguitable one." Boqosian v. Woloohoiian Realty Corp., 2003 WL
1337702 (1st Cir. March 19, 2003) (citing Tull v. United States,
481 U.S. 412, 417-418 (1987)). This test reguires an analysis of
which court a particular statutory action would have been brought
in the 18th-century, prior to the merger of law and eguity.
Hatco v. W.R. Grace & Co. Conn., 59 F.3d 400, 412 (3d Cir.
1995)(citing Wooddell v. Int'l Brotherhod of Electronic Workers,
Local 71, 502 U.S. 93, 97 (1991)). In applying this test, I
acknowledge that a right to a jury trial is "not dependent on the
character of the overall action but rather is to be determined by
looking to the nature of the issue to be tried." In re N-500L,
691 F.2d 15, 19 (1st Cir. 1982)(citing Pernell v. Southall
Realty, 416 U.S. 363, 375 (1974)). With this test in mind, I
turn to EnergyNorth's specific claims.
II. RSA S3 147-B:10 and 507-7
RSA § 147-B:10, like CERCLA, gives a person who has incurred
environmental response costs a right to contribution against a
facility's prior owners and operators. See RSA § 147-B:10-
- 4 - Ill(b). RSA § 507-7 is New Hampshire's general contribution
statute. Neither provision purports to grant claimants a right
to a jury trial and nothing in either provision's legislative
history suggests that the New Hampshire legislature intended it
to be enforced through a jury trial.3 In Hatco, the third
circuit determined that the Seventh Amendment does not entitle
litigants to have CERCLA contribution claims tried to a jury.
Hatco, 59 F.3d at 413. The Third Circuit's reasoning on this
point persuasive and indistinguishable from the claims at issue
here as EnergyNorth's state law claims mirror the right to
contribution under CERCLA. See e.g., Sherilyn Young and Charles
G. Willing, Jr., Defending a Complex Private Hazardous Waste
Case, New Hampshire Bar Journal, June 1991, n.43 (citing House
Comm, on Env't and Agriculture Report on HB 58, as amended, at 1
(1986) and noting purpose of RSA § 147:B is to give state
enforcement mechanism eguivalent to CERCLA). Thus, I reject
EnergyNorth's claim that it has a right to a jury trial with
3 I express no view as to whether a contribution claimant has a right to a jury trial under RSA § 507-7 when the underlying claim on which the right to contribution is based is a legal claim that ordinarily is tried to a jury.
- 5 - respect to its RSA §§ 147-B and 507-7 claims.4
Ill. Declaratory Judgment Claims
EnergyNorth contends that it also has a right to a jury
trial under the Declaratory Judgment Act, 28 U.S.C. § 2201. The
right to a jury for claims brought under the Declaratory Judgment
Act depends on whether a right to a jury trial exists on the
underlying action upon which declaratory relief is sought. See
Simler v. Conner, 372 U.S. 221, 223 (1963); United States
Fidelity & Guaranty Co. v. Nauer et al., 1 F.R.D. 547 (D. Mass.
1941); United States v. Wade, 653 F.Supp. 11, 13 19 (E.D.Pa.
1984)(CERCLA context); Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure: Civil 2d § 2313 (2d ed. 1995 &
Supp. 2003). Therefore, as EnergyNorth's contribution claims
under CERCLA, RSA § 147-B:10 and RSA § 507-7 do not provide for a
jury trial, it has no right to a jury trial with respect to its
derivative claim under the federal Declaratory Judgment Act.
4 The Hatco Court's reasoning applies with egual force to UGI's common law indemnification counterclaim. See Anenin Cvammid v. Key Industries, Inc., 814 F. Supp. 209, 214 (D.R.I. 1993) (citing United States v. Conservation Chemical Co., C.A. No. 92-0983-cv-W-5 (W.D. Mo. 1985) (no right to a jury trial for indemnification or contribution claims for CERCLA response costs).
- 6 - IV. Breach of Contract Counterclaim
UGI asserts in its breach of contract counterclaim that
EnergyNorth breached its contractual obligation to hold UGI
harmless for any liability arising from the provision of services
by UGI at the Manchester facility. UGI asks me to sever this
claim from the main case and set it for trial at a later date.
I ordinarily resolve all related claims in a case at one
time. If a case includes both jury and non-jury claims, I also
ordinarily resolve the jury claims first to avoid the possibility
that the parties' right to a jury trial could be compromised if I
were to resolve factual guestions in disposing of the non-jury
claims that are material to the resolution of claims that must be
tried to a jury. See Booqosian, 2003 W.L. 1337702 *4. In this
case, however, circumstances warrant a different approach.
First, although the claims and counterclaims at issue arise from
the same factual setting, the breach of contract counterclaim is
not interwoven with the main claims. I thus can resolve the non
jury claims first without determining factual issues that will
estop EnergyNorth from litigating any factual guestions that are
- 7 - material to the resolution of the contract counterclaim.5 See
id. Second, it makes sense to try the non-jury issues first
because the counterclaims will be moot unless I find in
EnergyNorth's favor with respect to one or more of the non-jury
claims. Third, in order to resolve the non-jury issues, I will
likely have to resolve several complex evidentiary questions that
cannot be efficiently addressed with a jury present. Thus, I
grant UGI's request to sever the breach of contract claim for
trial at a later date.
CONCLUSION
For the forgoing reasons, I grant UGI's motion to remove the
case from the jury list as to EnergyNorth's CERCLA, RSA § 147:B-
10, Declaratory Judgment Act (28 U.S.C. § 2201), and New
Hampshire contribution claim (RSA § 507:7) claims and as to UGI's
corresponding counterclaims. (Doc. No. 45). I deny UGI's motion
to remove from the jury list UGI's breach of contract
counterclaim. I also deny UGI's motion to sever it's state law
5 If it becomes apparent that factual issues material to the counterclaim overlap with factual issues material to the non jury claims, I will preserve EnergyNorth's right to a jury trial by withholding a decision on the non-jury claims until after the jury claims are resolved. counterclaims as to it's claims under RSA §§ 147-B and 507-7 and
it's common law counterclaim for indemnification. (Doc. No. 63) .
I grant UGI's motion to sever as to it's breach of contract
counterclaim. (Doc. No. 63). I also grant UGI's motion to
withdraw it's claims for attorney's fees. (Doc. No. 63). I will
conduct a bench trial on all eguitable claims and resolve the
breach of contract claim, if necessary, at a later date.
SO ORDERED.
Paul Barbadoro Chief Judge
March 28, 2003
cc: Bruce W. Felmly, Esg. E. Tipper Kinder, Esg.