I. Rule 8(e)
First, defendants claim that plaintiff's complaint violates Rule 8(e), which reads that "each averment of a pleading shall be simple, concise, and direct." Fed. R. Civ. P. 7. Defendants rely on Gordon v. Green, 602 F.2d 743 (5th Cir. 1979), and Martin v. Hunt, 29 F.R.D. 14 (D.Ma. 1961) for their contention that the complaint must be stricken.
Defendants ignore a wealth of case law, including the principles articulated in the cases they rely on, interpreting Rule 8 very liberally. Rule 8 is intended to "eliminate prolixity in pleading and to achieve brevity, simplicity, and clarity." 602 F.2d at 746 (citing Knox v. First Security Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952), in other words, to ensure that complaints are understandable, fair and amenable to response. Only complaints that clearly violate this standard should be stricken. In Gordon itself, the violative complaint was so garbled, wordy and confused that Chief Judge Brown titled the first section of his opinion "The Pleadings: Gobbledygook." 602 F.2d at 744. The various complaints and amendments totalled over 4,000 pages, contained sentences running full legal pages, and was, as the court put it, "verbose and scandalous." Id. at 745. Judge Brown was quick to point out, though, that "we do not recede even one inch from the position expressed by this Court . . . and a host of other cases sounding an approach of liberality . . . ." Id. at 746. Similarly, the court in Martin v. Hunt, 29 F.R.D. 14 (D. Mass. 1961), also relied on by defendants, described the complaint as containing "scandalous and vituperative" material. In other words, the case law consistently holds that in order to warrant dismissal of a case as a violation of Rule 8(e), the complaint must reach a level of outrageousness that far exceeds what is alleged here. While arguably lacking in detail, the complaint is clear and concise enough for defendants to understand the nature of the complaint and be able to respond and defend itself.
II. Rule 16(f)
Next, defendants argue that plaintiffs violated Magistrate Chesler's Case Management Order No. 1 of December 19, 1990. The Order demanded that plaintiffs to provide:
a good faith effort, by way of preliminary presentation, without obligation to perform definitive or exhaustive review of material, and without prejudice, a detailed description of the hazardous substance(s) . . . which such defendant allegedly transported or generated to the Kin-Buc Landfill site.
Rule 16(f) states that "if a party . . . fails to obey a scheduling or pretrial order . . . . the judge, upon motion . . . may make such orders with regard thereto as are just . . . ." Cases that have been dismissed for violating this Rule universally have involved complete disregard of court Orders. For example, in Goforth v. Owens, 766 F.2d 1533 (1985), relied on by defendants, the plaintiff did not submit to the court a medical statement that he was ordered to submit. Id. at 1534. As the court said, "the [district] court could have used the sanction of dismissal to punish counsel for his disregard of the court's orders to submit [the statement.)" Id. at 1535. See also Titus v. Mercedes Benz of North America, 96 F.R.D. 404, 405 (1982) (dismissing complaint for willful violation of court order); Lockhart v. Patel, 115 F.R.D. 44 (E.D.Ky. 1987) (striking pleadings of the defendant for "deliberately [refusing] to obey the order of the court").
In this case, the plaintiffs responded point by point to the Nexus order, alleging that Clairol was "(i) a generator; who (ii) supplied Waste Water, Processed Water Waste, Ink and Dye Waste, and Water Wash & Detergent . . . ." By clear implication, plaintiffs are alleging that Waste Water, Processed Waste Water, Ink and Dye Waste, and Water Wash and Detergent are hazardous substances. At this point in the case, when the same Case Management order limited the ability of plaintiffs to discover defendants' records, it is not unreasonable to respond as did plaintiffs. They did not flagrantly violate or ignore the order; they cannot be held liable "for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation." Id. at 1535. See also In re Baker, 744 F.2d 1438, 1441 (10th Cir. 1984).
III. Rule 11
Next, defendant contends that the pleading violates Rule 11's good faith requirement. Under Rule 11, an attorney must certify "that to the best of his knowledge, information and belief formed after reasonable inquiry, the claim is well grounded . . . in fact and in law." The test is reasonableness: By signing the complaint, attorneys for plaintiff are stating their belief that the complaint is grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." F.R.Civ.P. 11. Defendant simply has not presented evidence that plaintiff's allegations violate this standard. Plaintiffs' relied upon the following facts: 1) Clairol settled a claim by the EPA for contribution for government clean-up expenditures at the Site;
2) the wastes alleged by plaintiffs to be hazardous were in fact deposited at the Site. While defendants contend that the claim it settled with the EPA was simply a payment of "nuisance money," that contention is simply not enough to show a violation of Rule 11.
IV. Summary Judgment Motion
In the alternative, defendants move for summary judgment, under Rule 56(b). I have outlined the standard for summary judgment above. Clairol has not met its burden of showing that there is no issue of material fact in dispute.
In this case, Clairol essentially claims that it has not deposited hazardous waste products at the Site and that there is no evidence on the plaintiff's part to contest this. It points out that in several past cases, Clairol has been accused and subsequently acquitted of disposing hazardous waste at sites, and that the same waste products are at issue here. But even relying solely on Clairol's own accompanying affidavits, material issues of fact remain as to whether Clairol has deposited hazardous waste products at the Site. Exhibit B of an affidavit by Mohamed H. Tarifi, a Clairol employee, lists a series of compounds that "May be Present in Clairol Concentrate Waste." Among these are "ammonia" and "Ethyl, Lauryl, & Other Ethers." As plaintiffs correctly point out, both of these are listed by the E.P.A. as hazardous substances under CERCLA. 40 C.F.R. § 302.4. In its reply brief, Clairol dismissively states that "as any simple textbook analysis would disclose, ammonia very rapidly becomes neutralized and turns into a harmless salt." The claim is that ammonia cannot "possibly generate response costs" but the fact is that the EPA has listed ammonia as a hazardous substance.
Even if this contention about ammonia was persuasive, Clairol's argument about ethyl ether is clearly disingenuous. It contends that the item "Ethyl . . . and Other Ethers" in Appendix B refers only to the chemical prefix "ether" and not to Ethyl Ether, the compound contained in the EPA's list. Yet the only reasonable interpretation of the language "Ethyl, Lauryl, & Other Ethers" is that the items referred to are Ethyl Ether, Lauryl Ether and Other Ethers. In another affidavit, Clairol nonetheless claims that its products contain no ethyl ether, but the contradictory statements in its supporting materials create enough questions to deny a motion for summary judgment. The opposing party to a motion for summary judgment bears the burden of responding "only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 321, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Catrett v. Johns-Manville Sales Corp., 244 U.S. App. D.C. 160, 756 F.2d 181, 183, n. 3 (D.C. Cir. 1985). Defendants have not met this burden.
Moreover, summary judgment generally should not be granted before an opportunity for discovery. See, e.g. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In a complex case such as this, in which much of the evidentiary material is in the depositors hands, discovery is all the more imperative. See, e.g., United States v. Price, 577 F.Supp. 1103, 1115 (1983) ("Most courts are reluctant to grant summary judgment prior to the termination of discovery . . . . In situations . . . where a plaintiff must obtain a good deal of information from the opposing party, judgment should be withheld until the discovery process has been completed.") Therefore, the motion for summary judgment is denied.
For the foregoing reasons, the settler-defendant's motion to dismiss and defendant Clairol's motion to strike the complaint, or in the alternative for summary judgment, are denied.