state v. bradford oil ( 2023 )

STATE OF VERMONT FILED
WASHINGTON COUNTY ZH
2009 JAN27 A 10 20
State of Vermont, )
Plaintiff, ) Washington Superior Court
) Docket No. 307-5-06 WneGUPERIOR COURT
Vv. ) WASHINGTON COUN: Y
)
Bradford Oil Company, Inc., )
Defendant. )
Decision
Frank Stark’s Motion to Dismiss (filed Nov. 12, 2008) and
Bradford’s Motion for Leave to File a Surreply (filed Dec. 23, 2008)
In this case, the Vermont Agency of Natural Resources seeks the abatement and cleanup
(including related damages and penalties) of hazardous waste discovered on a site in Springfield
currently owned by Defendant Bradford Oil Company, Inc. Bradford, the sole defendant to the
State’s claim, has filed third-party claims against numerous parties, including Frank Stark, for
contribution. In the second amended third-party complaint, Bradford claims that Frank Stark has
contribution liability as a 10 V.S.A. § 6615(a)(2) operator. Mr. Stark has filed a motion to
dismiss for lack of personal jurisdiction and for failure to state a claim.
Lack of personal jurisdiction
Mr. Stark is a resident of New York and claims that this court lacks both specific and
general jurisdiction over his person. Bradford argues that Mr. Stark waived any such claim by
not raising it in a timely manner in response to the first amended third-party complaint. Bradford
also presented evidence of Mr. Stark’s contacts with Vermont in an effort to show that, in any
event, the court has personal jurisdiction. Alternatively, Bradford seeks a period of limited
discovery to develop sufficient evidence of personal jurisdiction.
The State’s complaint against Bradford was filed on May 24, 2006. Bradford’s original
answer and third-party complaint were filed on September 8, 2006. Bradford’s first amended
third-party complaint was filed “as a matter of course” on September 21, 2006. V.R.C.P. 15(a).
In that complaint, Bradford alleged that from 1962 to 1984 Mr. Stark was an officer of a family-
run corporation, Gas Company of Vermont, that owned the site. Bradford does not specifically
allege that a release occurred during Mr. Stark’s operation of the site, but states that “The matters
asserted in the Complaint arise from and are the responsibility, in whole or in part, of Frank
Stark by virtue of his operation and/or control of the Site.” First Amended Third-Party
Complaint § 189. Bradford claimed that Mr. Stark has contribution liability asa 10 V.S.A. §
6615(a)(2) operator.
Frank Stark, appearing pro se, filed an answer to the first amended third-party complaint
on November 2, 2006, Mr. Stark’s answer does not raise any issue over personal jurisdiction,
and Mr. Stark did not file a Rule 12 motion at that time.
On July 14, 2008, Bradford sought leave to amend its first amended third-party
complaint, which was granted on September 8, 2008. On September 10, 2008, Bradford filed its
second amended third-party complaint. As against Frank Stark, the amendment changed the
substance of the allegations against Frank Stark little, but specifically added that “releases of
hazardous substances occurred on the Site . . . during the period of Mr. Stark’s operation... .”
Second Amended Third-Party Complaint §J 182-89 (filed Sept. 10, 2008). The first amended
third-party complaint did not specifically allege a release during Mr. Stark’s period of operation.
Mr. Stark filed the motion to dismiss under consideration on November 12, 2008.
Under Rule 12(g), all bases for Rule 12 relief are required to be consolidated into one
Rule 12 motion, other than motions based on a failure to state a claim, a failure to join a
necessary party, a failure to state a legal defense, or subject matter jurisdiction. See Rule 12(g),
(h)(2), and (h)(3). Under Rule 12(h)(1), “[a] defense of lack of jurisdiction over the person . . . 1s
waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if
it is neither made by motion under this rule nor included in a responsive pleading or an
amendment thereof permitted by Rule 15(a) to be made as a matter of course.”
Mr. Stark did not raise personal jurisdiction as a defense to the first amended third-party
complaint in a Rule 12 motion or in his answer. He thus waived the defense, with regard to that
complaint, under the plain language of Rule 12(h)(1). See Wright & Miller, Federal Practice and
Procedure: Civil 3d § 1391, available on Westlaw (“The penalty for failing to raise any of these
defenses at this point is waiver as numerous federal courts have held, . . . and as the text of the
rule makes clear.”).
The question now is whether, two years later, Mr. Stark gets a second bite at the personal
jurisdiction apple because Bradford amended its third-party complaint. The controlling principle
is stated succinctly by Wright and Miller: “The filing of an amended complaint will not revive
the right to present by motion defenses that were available but were not asserted in timely
fashion prior to the amendment of the pleading; conversely, a Rule 12 defense that becomes
available because of new matter in the amended complaint may be asserted by motion.” Jd. §
1388. There is no difference between the corresponding Vermont and federal rules suggesting a
different approach in Vermont.
Mr. Stark has not explained why he thinks the amendment of the third-party complaint
should revive his personal jurisdiction defense two years after the original waiver. The court has
reviewed the.allegations against Mr. Stark in the first amended third-party complaint with those
of the second amended third-party complaint and discerns no reason why the defense raised in
response to the latter complaint was not equally available to Mr. Stark at the time of the former
complaint. Mr. Stark presumably knows what his specific and general contacts with Vermont
were and should have raised the matter in response to the first amended third-party complaint.
Mr. Stark waived his personal jurisdiction defense.
Failure to state a claim
Mr. Stark also argues that he is entitled to dismissal because the second amended third-
party complaint fails to state a claim upon which relief may be granted against him. Nominally,
he argues that the complaint fails to allege that he was an operator at the time of a release within
the meaning of United States v. Bestfoods, 524 U.S. 51 (1998), which the court adopted in a prior
ruling. The complaint plainly alleges, however, that Mr. Stark was an operator at the time of a
release and thus has contribution liability under 10 V.S.A. § 6615(a)(2), 6615(). It is evident
that Mr. Stark’s argument is not so much that a legal claim has not been stated, but that the claim
stated is impermissibly vague or unsupported by more detailed allegations. Mr. Stark explains,
Bradford Oil cannot point to a single fact to support its claim, however, and the
law imposes a higher duty on Bradford Oil than simply to make allegations
(virtually all “upon information and belief”) against an individual in the hope that
discovery will turn up some evidence of actual liability by Mr. Stark. This Court
should dismiss Mr. Stark from the case, and not force him to spend tens of
thousands of dollars to defend himself against such tenuous claims.
Frank Stark’s Reply to Bradford’s Opposition at 4 (filed Dec. 16, 2008).
Recently, the Vermont Supreme Court has not been particularly receptive to this form of
argument in support of Rule 12(b)(6) dismissal. See Bock v. Gold, 2008 VT 81, § 4 (“the
threshold a plaintiff must cross in order to meet our notice-pleading standard is ‘exceedingly
low’”); Colby v. Umbrella, Inc., 2008 VT 20, § 13 (“The complaint is a bare bones statement that
merely provides the defendant with notice of the claims against it.”). Mr. Stark has what Rule 8
requires, bare bones notice of the legal claim against him; Rule 56 is the better vehicle to
demonstrate that Bradford cannot prevail on the claim. Rule 12(b)(6) is not always an all-or-
nothing chance at ending litigation early. As Colby urges, in appropriate cases, summary
judgment proceedings can be undertaken “at little expense after conducting limited discovery.”
Colby, 2008 VT 20, ¥ 14.
Counsel do have, however, a “higher duty” than to make wild allegations hoping beyond
hope that discovery will reveal a legitimate basis for a claim. In Vermont, the higher duty exists
less in Rules 8 and Rule 12(b)(6) and more in Rules 1 and 11. At risk of sanction, Bradford’s
counsel, by signing the complaint, certified that to the best of his knowledge, formed after a
reasonable inquiry, the “allegations and other factual contentions have evidentiary support, or, if
specifically so identified, are likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.” V.R.C.P. 11(b)(3); see also Bradford’s Surreply at 4 (filed
Dec. 23, 2008) (expressly claiming to have undertaken “an extensive pre-filing investigation into
the activities of the Stark family’’). Bradford is entitled to the opportunity to make its case.
ORDER
For the foregoing reasons,
1) Bradford’s Motion for Leave to File a Surreply is granted, and
2) Frank Stark’s Motions to Dismiss is denied.
Dated at Montpelier, Vermont this 23 “Gay of January 2009.
“| A é
VV ree, Y As hancb nad ~
Mary Milgs Teachout
Presiding Judge