AVX Corporation v. Corning Incorporated ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:15-CV-543-FL AVX CORPORATION, ) ) Plaintiff, ) ) v. ) ORDER ) CORNING INCORPORATED, ) ) Defendant. ) This matter is before the court on plaintiff’s motion for temporary restraining order (“TRO”) and for preliminary injunction (DE 277).1 The motion has been briefed fully and the issues raised are ripe for ruling. For the following reasons, plaintiff’s motion is denied. STATEMENT OF THE CASE Plaintiff commenced this action on October 15, 2015, asserting claims for costs and damages, as well as declaratory and injunctive relief, associated with alleged environmental contamination on its property at 3900 Electronics Drive in Raleigh, North Carolina (hereinafter, the “Property”), formerly owned by defendant between 1962 and 1987. Plaintiff purchased the Property in 1987 as part of a multi-party “Agreement of Purchase and Sale” (hereinafter “Purchase Agreement”), executed by defendant and several entities affiliated with defendant who are former- defendants in this matter (hereinafter, the “former secondary defendants”). 1 Also pending, but not yet ripe, is plaintiff’s motion to strike/exclude the supplemental expert opinions of Daniel G. Sullivan and David L. Duncklee (DE 310), which will be addressed by separate order. Plaintiff filed its operative complaint on October 13, 2017.2 Defendant filed an answer and six counterclaims, on October 27, 2017, contending that plaintiff is responsible for additional environmental contamination on the Property. In orders on motions to dismiss and for summary judgment, entered August 28, 2018, and September 26, 2019, respectively, the court dismissed in part several claims asserted by plaintiff and counterclaims by defendant, as well as all claims against the former secondary defendants, with the following claims and counterclaims now remaining for trial: 1) Claims and counterclaims under CERCLA for cost recovery, contribution, and declaratory relief, under 42 U.S.C. §§ 9607(a)(1), 9613(f) and (g)(2), (claims I-II, and IV-V, counterclaims I-II, and IV-V), except for that part of the claims and counterclaims bearing on the issue of whether plaintiff used or released TCE at the Property, which issue the court decided in plaintiff’s favor as a matter of law; and 2) Claims and counterclaims for breach of contract/indemnification and state law declaratory relief, (claims III and XI, counterclaims III and VI), except for that part of defendant Corning’s breach of contract counterclaim claim and related counterclaim for declaratory relief premised upon violations attributable to plaintiff, which issue the court decided in plaintiff’s favor as a matter of law. (See Order (Sept. 26, 2019) at 3, 68; AVX Corp. v. Corning Inc., No. 5:15-CV-543-FL, 2019 WL 4727851, at *2-3, 35-36 (E.D.N.C. Sept. 26, 2019)). On October 17, 2019, the parties filed a joint status report in furtherance of the court’s trial planning and scheduling. That same date, plaintiff filed the instant motion, seeking a temporary restraining order and preliminary injunction “enjoining [defendant] from continuing to interfere 2 Unless otherwise specified, all references to the “complaint” refer to the Third Amended Complaint filed October 13, 2017. with and obstruct [plaintiff’s] implementation of permanent storm water controls at [the Property], as requested by the North Carolina Department of Environmental Quality, and as required by [plaintiff’s] City of Raleigh-issued land-disturbing and zoning permits.” (Pl’s Mot. (DE 277) at 1). In support of the motion, plaintiff relies upon the following: 1) declaration of John Waites, an environmental manager with plaintiff, with exhibits comprising a) City of Raleigh permits; b) plaintiff’s grading plan; c) a March 15, 1993, lease, and March 9, 2018, letter renewal, between plaintiff and defendant (hereinafter the “Lease”); and d) City of Raleigh inspection reports; 2) correspondence between plaintiff and defendant regarding the Property; 3) correspondence between the parties and the North Carolina Department of Environmental Quality (NCDEQ); 4) excerpts of deposition of Daniel Shields; and 5) City of Raleigh storm water ordinance. The court held a Rule 16 status conference on October 29, 2019, and reconvened a status conference and motion hearing on November 5, 2019. Upon joint status report filed by the parties, on November 18, 2019, the court entered a trial scheduling order setting trial to commence on August 3, 2020, the date of its current setting. The court held in abeyance briefing on the instant motion “pending efforts by the parties to resolve amicably issues raised therein,” (Order (Nov. 18, 2019) at 1), which stay the court continued in text orders entered up through February 24, 2020. In the meantime, the parties engaged in a period of limited supplemental expert discovery, in accordance with the court’s December 17, 2019, modification to the case management order. Upon status report indicating impasse in resolution of the motion, the court directed briefing to resume on the instant motion on March 27, 2020. On April 24, 2020, defendant responded in opposition to the motion, relying upon a declaration of counsel with exhibits comprising: 1) an environmental evaluation of the Property prepared by Mid-Atlantic Associates, Inc., on September 3, 2015; 2) correspondence between the parties and their agents and consultants; 3) transcript of deposition of Thomas Darby; 4) reports, surveys and permits related to the Property; and 5) correspondence between the parties and NCDEQ. Plaintiff replied on May 8, 2020, relying upon additional correspondence between the parties. STATEMENT OF FACTS For background, the court incorporates herein by reference the statement of undisputed facts contained in the court’s summary judgment order. (See Order (Sept. 26, 2019) at 7-18; AVX Corp., 2019 WL 4727851, at *4-11). The court summarizes below additional facts pertinent to the instant motion. The Lease between the parties, first executed March 15, 1993, recites that defendant “received approval from the State of North Carolina of a corrective action plan relating to the remediation of certain environmental matters predating [defendant’s] sale of the [Property] to AVX, and this corrective action plan requires the installation of certain groundwater wells and the construction of a groundwater treatment system and small central treatment building at the [Property] and [defendant’s] access to the wells, the system and the building.” (Lease (DE 278-2 at 20-21).3 For this purpose, the Lease provides that plaintiff lets to defendant and defendant takes from plaintiff the following premises (the “Leased Premises”) at the Property: “the groundwater monitoring, observation and treatment wells and the underground recovery system junction boxes and conduits, the treatment facility and the right of ingress and egress in connection therewith, all as shown on Drawing No. 591574G1 of Law Environmental, Inc. Proposed Recovery System 3 Page numbers in citations to record documents, including a corresponding docket entry “DE” number, reference the page number specified in the court’s electronic case filing system and not the page number or party appendix page number showing on the face of the underlying document, if any. Layout dated 02/01/92 as the same may be amended or modified from time to time.” (Id. at 21). Attached to the lease as Exhibit A is the referenced drawing, an excerpt of which is copied below: Wo. | ot i i it = \ Ne % |e PE eh oy bytes jfeoou Bett FE crewcal |e HS = 4 eer off STORAGE BL Nate \ | fo 2 Sore Lit S| slesetsrareve TI wae r \ \, rl {6.3.1} SP core MN ) \ bY ore a i