Summary of a Recent
Judicial Development in
Environmental Law

Conclusory Statement Is Insufficient to Preclude Termination of Discovery

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Avila v. CNH Am., LLC, Nos. 4:04CV3384, 4:07CV3170, 2009 WL 151600 (D. Neb. Jan. 2, 2009), the United States District Court for the District of Nebraska granted the defendant's motions for summary judgment. The plaintiffs filed toxic tort cases against Cargill, Inc., alleging that Cargill released chlorinated solvents or knew or should have known that the previous owner created subsurface contamination. Because there was no evidence to back up the plaintiffs' contentions, the court granted the defendant's motions for summary judgment.

Background

The plaintiffs, current and former residents of Parkview Community, asserted claims under Nebraska common law for personal injuries, wrongful death, and property damages against Cargill and seven other defendants stemming from their roles in contaminating area groundwater. Id. at *1. In December 1981, Cargill purchased the Engleman Road Facility (facility) from Heinzman Engineering, Inc., and remained in ownership of the property until November 2000. Id. at *2. Cargill used the facility to house its Seed Division, which received and stored bags of seed, shipped bags of seed, and conditioned some of the seed by coating it with a fungicide. Id. at *4, *6. One year after Cargill sold the facility, the city of Grand Island closed a municipal groundwater well upon discovering high concentrations of chlorinated solvents. Id. at *1. Both state and federal agencies investigated the source of the contamination. Id. In July 2006, the Environmental Protection Agency (EPA) determined that the facility was the source of the contamination. Id. Thereafter, Cargill deposed former Heinzman employees and discovered "that chlorinated solvents were regularly dumped on the ground before [Cargill] purchased the Engleman Road Facility." Id.

Arguments

Cargill argued that "it [could not] be held liable under Nebraska law for Heinzman's dumping activities unless the pollution was 'visible and apparent,' which it was not." Id. On the other hand, the plaintiffs argued "that Cargill had a duty to investigate the condition of the property." Id. The plaintiffs also "speculate[d] that [the] discovery they intend[ed] to conduct . . . [might] disclose that Cargill [had] contributed to the pollution." Id.

Analysis and Holdings

Federal Rule of Civil Procedure 56(f) allows courts to grant a party's request to delay summary judgment "if the party can make a good faith showing that postponement of the ruling would enable it to discover additional evidence which might rebut the movant's showing of the absence of a genuine issue of material fact." Id. at *10. However, "[a] conclusory statement that some useful evidence could possibly be found is insufficient to preclude the termination of discovery." Id.

After examining the proffered evidence, the court determined that "[t]here [was] no evidence that Cargill previously knew of [the] dumping activity, nor [was] there any evidence that solvents or other chemicals were improperly disposed of during the 19 years that Cargill owned the property." Id. at *2. There was also "no record of Heinzman notifying the EPA or any other government agency of its past disposal practices at the Engleman Road Facility." Id. at *4. Ultimately, the court held that the plaintiffs had ample time to conduct discovery but "failed to produce evidence that Cargill had actual or constructive knowledge of the contamination problem, or that Cargill caused or contributed to the problem." Id. at *25. For this reason, the court granted summary judgment in favor of the defendants on all claims. Id.

The case was decided on January 2, 2009.