UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60458
BRENDA GAIL RITZER; WILLIAM W. RITZER; PATRICIA
BOSARGE; PATRICIA R. LANNING; RUSSELL W. LANNING;
DOBBINS EDWARDS; LILLIE V. GOODSON; LESTER LANNING;
MARGARET LANNING,
Plaintiffs-Appellants/Cross-Appellees,
versus
T.L. JAMES CONSTRUCTION, INC.; DIXIE CONTRACTORS,
INC; MISSISSIPPI LEASING, INC., also known as Mississippi
Leasing Corporation; HARRISON COUNTY; WILLIAM
GILCHRIST, JR.,
Defendants-Appellees/Cross-Appellants.
Appeals from the United States District Court
For the Southern District of Mississippi
(1:94-CV-108-BrR)
June 9, 1998
Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.
POLITZ, Chief Judge:*
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Brenda Gail Ritzer and nine individuals residing and owning property located
near a closed landfill in Harrison County, Mississippi, brought suit against T.L.
James Construction, Inc., Dixie Contractors, Inc., Mississippi Leasing Inc.,
Harrison County, and William Gilchrist, Jr., alleging causes of action for private
response costs under the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA)1 and state claims of negligence, nuisance, strict
liability, trespass, and misrepresentation. In a bench trial on the CERCLA claims,
at the conclusion of the plaintiffs’ case the district court granted defendants
judgment as a matter of law under Fed.R.Civ. P. 52(c). Thereafter the district court
dismissed without prejudice the remaining state law claims. We affirm the
dismissal of the CERCLA action but vacate the dismissal of the state law claims
and remand for further proceedings thereon.
BACKGROUND
In 1969, defendants James, Dixie and Mississippi Leasing acquired a certain
tract of property in Harrison County, Mississippi. The tract was subdivided and the
three companies retained joint ownership of one 40-acre portion. In 1978,
defendant Gilchrist, pursuant to a management contract authorizing him to act on
behalf of the defendant property owners, leased the 40-acre tract to defendant
1
42 U.S.C. §§ 9601-9675 (1994).
2
Harrison County for use as a landfill.
On August 4, 1978, the Mississippi Bureau of Pollution Control, a division
of the Mississippi Department of Natural Resources, issued the County a permit to
operate a sanitary landfill on five acres located in the northwest quarter of the 40-
acre tract. In October 1981, the County sought permission from the State of
Mississippi to expand the landfill. The State conducted an investigation and
environmental geologist Michael Seal, reported the land proposed for the expansion
was unsuitable for a sanitary landfill. The request to expand was denied and in
March 1983 the County decided to close the landfill, although it had been granted
permission to dispose of dry trash thereon. In mid-1986 the County stopped
receiving all waste at the site and submitted a closure plan. In March 1989, the
BPC acknowledged to the County that the State of Mississippi’s regulatory
requirements for closing the landfill had been met.
During the landfill’s operation the neighboring property owners observed that
their water omitted an unpleasant odor, changed colors and began to taste bad. In
1993 the plaintiffs hired a consulting firm to perform an environmental assessment
of their property. Based on the information obtained, the plaintiffs formed the
opinion that hazardous material had been deposited at the landfill, leaching of those
materials had occurred, and there was a threat that the substances had migrated into
3
their water wells and onto their property. The present action followed, in which
plaintiffs invoked CERCLA, to recover response costs and a declaratory judgment,
and state claims of negligence, nuisance, strict liability, trespass, and
misrepresentation.
Following extensive discovery, the CERCLA claims were litigated. Upon
conclusion of plaintiffs’ case-in-chief, after three days of trial, the court invoked
Fed.R.Civ.P. 52(c) and granted the defendants judgment as a matter of law. The
court found that plaintiffs had failed to prove the release or threatened release of
hazardous substances which did or could contaminate their property. Acting sua
sponte the court dismissed the state law claims without prejudice. Plaintiffs moved
for relief under Fed.R.Civ.P. 59(e) requesting that the court retain jurisdiction over
the state law claims. The court denied the motion and plaintiffs timely appealed.
Defendants cross-appeal the dismissal without prejudice.
ANALYSIS
In our de novo review of the district court’s decision to grant judgment as a
matter of law we apply the same legal standard as it did.2 Credibility
determinations, the weighing of evidence and inferences drawn from the facts are
2
Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316 (5th Cir. 1994); Price v.
Marathon Cheese Corp., 119 F.3d 330 (5th Cir. 1997).
4
left to the finder of fact and such findings will not be disturbed unless clearly
erroneous.3
We first address the CERCLA claims. In order to establish a prima facie case
for relief under Section 107(a) of CERCLA, the plaintiffs must prove: (1) the site
in question is a “facility”; (2) the defendants are responsible persons; (3) a release
or threatened release of a hazardous substance4 has occurred; and (4) the release or
threatened release has caused the plaintiffs to incur response costs. 5
The district court found that plaintiffs failed to prove that the landfill had
released or threatened a release of a hazardous substance onto their property. The
district judge found that consultants, hired by the plaintiffs, analyzed the soil and
water in areas deemed most likely to have contamination, but that their analyses did
3
Fed R. 52(a); Conkling v. Turner, 18 F.3d 1285 (5th Cir. 1994).
4
Title 42 U.S.C. § 9601(14) defines a “hazardous substance” as: (A) any substance
designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound,
mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any
hazardous waste having the characteristics identified under or listed pursuant to section
3001 of the Solid Waste Disposal Act [42 U.S.C. § 6921] (but not including any waste
the regulation of which under the Solid Waste Disposal Act [42 U.S.C. § 6901 et seq.]
has been suspended by Act of Congress), (D) any toxic pollutant listed under section
1317(a) of Title 33, (E) any hazardous air pollutant listed under section 12 of the Clean
Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or
mixture with respect to which the Administrator has taken action pursuant to section 2606
of Title 15...
5
Amoco Oil, Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989).
5
not indicate any hazardous substance had been released from the landfill. In
addition, neither of the plaintiffs’ experts, John Szabo6 nor geologist Burton Kemp,
could provide evidence or testimony to support the plaintiffs’ theory that hazardous
waste had migrated from the landfill onto their property. Finally, Bill Barnett,
Chief of the Groundwater Division of the Mississippi Department of Environmental
Quality, testified that, based upon his personal knowledge of the landfill, the
records of his department as the state enforcement authority, and his review of all
data and findings obtained by both parties, there was no evidence of offsite
contamination from the landfill.
The district judge also found that there was no threatened release of
hazardous substances. The plaintiffs allege hazardous substances were received in
the sanitary landfill and rainwater falling on the landfill could leach those
hazardous substances into shallow groundwater under the landfill through
permeable sand and silt strata in the vicinity of the site. The district judge found
that the plaintiffs’ theory of a threatened release was based entirely upon
speculation and conjecture. Our review of the record likewise persuades. We
cannot accept the plaintiffs’ theory of a threatened release. Whether a release or
6
Szabo was offered as an expert “in recognizing...environmental concerns” from
records of landfill operations.
6
threatened release has caused a party to incur response costs must be determined
on a case-by-case basis, with a focus on whether the hazard at issue justified any
response actions.7 The trial court concluded, “apart from a generalized assumption
concerning the contents of sanitary landfills, the plaintiffs have offered no evidence
of specific hazardous substances which have been, or are about to be, released from
the site.” Assuming the existence of hazardous substances at the landfill, the
plaintiffs did not prove the release of any substance at the landfill or onto the
surrounding properties, the justification for response costs in the form of specific
evidence, or the justification for response costs as the result of a violation of federal
or state law.8 The district court did not err in finding that plaintiffs failed to prove
a release or threatened release and the judgment dismissing the CERCLA claims
is affirmed.9
Supplemental Jurisdiction
The standard of review, for both a denial of a Rule 59(e) motion to alter or
7
Amoco Oil.
8
See Licciardi v. Murphy Oil U.S.A., Inc, 111 F.3d 396 (5th Cir. 1997) (responsible
parties are not liable under CERCLA, unless there is evidence they posed a threat to the
public or the environment justifying a response action).
9
We find neither error nor abuse of discretion in the trial court’s exclusion of the
proffered testimony and report of Michael Seal. He was not designated as an expert in
accordance with Local Rules.
7
amend a judgment and the district court’s decision to exercise supplemental
jurisdiction, is abuse of discretion. 10 We conclude that the district court abused
its discretion in dismissing the state law claims. 28 U.S.C. § 1367(c) provides, in
pertinent part, that the district courts may decline to exercise supplemental
jurisdiction over a claim if, “...the district court has dismissed all claims over
which it has original jurisdiction....”11 This rule of law generally presents an
appropriate course of action in many instances, but “it is neither absolute nor
12
automatic.” In Carnegie-Mellon Univ. v. Cohill,13 the Supreme Court offered
some guidance for district courts in their exercise of supplemental jurisdiction
pursuant to United Mine Workers v. Gibbs.14
Under Gibbs, a federal court should consider and weigh
in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and
comity in order to decide whether to exercise jurisdiction
over a case brought in that court involving pendent state-
law claims. When the balance of these factors indicates
that a case properly belongs in state court, as when the
10
FDIC v. Fuller, 994 F.2d 223 (5th Cir. 1993); Noble v. White, 996 F.2d 797 (5th
Cir. 1993).
11
28 U.S.C. § 1367(c)(3)(1994).
12
Newport Limited, v. Sears, Roebuck and Co., 941 F.2d 302, 307 (5th Cir. 1991).
13
484 U.S. 343 (1988).
14
383 U.S. 715 (1966).
8
federal-law claims have dropped out of a lawsuit in its
early stages and only state-law claims remain, the federal
court should decline the exercise of jurisdiction by
dismissing the case without prejudice. 15
Our review of the record, aided by the briefs and oral argument of counsel,
persuades that the district court abused its discretion in declining to exercise
jurisdiction after dismissing the CERCLA claims. All of the factors weigh in favor
of exercising supplemental jurisdiction. Judicial economy, convenience, and
fairness would be served, and comity would not be offended by a determination of
the plaintiffs’ state claims in federal court. The state claims arise from the same
facts underlying the CERCLA claims, there are no novel or unsettled issues of
Mississippi law,16 and the claims were dismissed at an advanced stage of the
litigation.17
The record reflects that the district judge had heard three days of testimony
15
484 U.S. at 350.
16
Cinel v. Connick, 15 F.3d 1338 (5th Cir. 1994).
17
See Newport Limited v. Sears Roebuck and Co., 941 F.2d 302 (5th Cir. 1991) (for
purposes of maintaining pendent jurisdiction over state-law claims, the late stage of
litigation, as well as other factors, distinguished case from ordinary cases in which the
federal claims are disposed of early in the life of the litigation); Doddy v. Oxy USA, Inc.,
101 F.3d 448 (5th Cir. 1996) (district court did not abuse its discretion in maintaining
jurisdiction over state claims in case that had been in litigation for more than two years,
had more than 300 motions filed, and had required both parties to do extensive
discovery).
9
on the federal claims, and was familiar with the parties, procedural history, facts,
and essential legal arguments. Judicial economy and convenience militate in favor
of completion of the state law claims by the court à quo, rather than require the
parties to refile their pleadings, motions, designations of experts, and other related
matters in state court. Further, it is apparent that the parties have made a
significant investment of resources herein. The discovery process was extensive
and entailed over 30 depositions. More than ten expert witness designations and
approximately 3,000 pages of testimony were produced prior to trial, and nearly
400 exhibits were to be offered into evidence at trial. In addition, the plaintiffs
originally filed this action in federal court, neither of the parties contemplated
litigating this case in state court until the court dismissed the state claims.
“Hesitant though we may be in rejecting the exercise of discretionary authority by
the trial court, we are compelled to do so when we consider the resources, public
and private, already invested in this lawsuit, clearly distinguishing it from the
ordinary cases in which the federal claims are disposed of early in the life of the
litigation.”18
The order dismissing the state law claims without prejudice is vacated and
the matter is remanded to the district court for further proceedings consistent
18
Newport Limited, 941 F.2d at 308.
10
herewith.
AFFIRMED in part, VACATED and REMANDED in part.
11