Chemetco Site Group dismisses 483 defendants from pollution suit

By Record News | Mar 14, 2019

BENTON – Thirteen days after U.S. District Judge Staci Yandle told lawyer Gary Justis he used her authority to extract payments from defenseless parties, he dismissed 483 defendants in a suit about pollution at the former Chemetco scrap smelter.

Yandle had ruled at a Feb. 15 hearing that a stay she imposed on the proceedings would expire March 1. 

She told Justis, “It’s now time to litigate.” 

Justis represents Chemetco Site Group, an association of companies cooperating with the U.S. government in remediation of the smelter site south of Hartford. 


Justis  

Under a consent decree, group members can recover remediation costs from other responsible parties. 

The government gave the group a nearly obsolete Wang database with names of companies that might have sent scrap to Chemetco or hauled it there. 

The group sued about 3,500 defendants last February, and Justis immediately moved to stay service of process and all proceedings for a year. 

He wrote that Wang analysis continued, and that the group sued before completing the analysis due to a statute of limitations. 

Yandle granted the stay. 

This January, Justis moved to extend it for another year, pleading that that the group issued 2,121 settlement offers to defendants and other parties the group didn’t sue. 

He wrote that they dismissed or settled with 708 defendants, that they identified more than 900 that might not be viable and that they started serving defendants that didn’t settle and those that let offers expire. 

A defendant in Pennsylvania objected to the extension, and so did two defendants in Michigan with cousins for owners. 

At the hearing on Feb. 15, Yandle said she found it appropriate to allow plaintiff to streamline the suit before beginning in earnest. 

She said that intentionally or not, a stay could be weaponized as leverage. 

“That was not my intention,” she said. “You can’t hold a defendant when the basis of the claim is unclear.” 

Justis said the Wang process made the case unique. He said he believed he could whittle the defendants down by half. 

He said 400 settlements were in process. 

Yandle asked what information they had. 

Justis said he gave them a transaction summary. 

“They have no way of verifying that information,” Yandle said. 

She said that was okay for informal settlement but not in court. She also said the unliquidated contingent liability of defendants affects their interests. 

Defendants in that the group served couldn’t file answers, and Yandle said it seemed inconsistent with what was represented to her. 

She told Justis, “You are unilaterally not really litigating but using the authority and jurisdiction of this court to extract payments.” 

She set a status conference in July. 

On Feb. 22, Justis filed a motion for clarification that amounted to a motion for leave to amend the complaint. 

He wrote that he would correct the names of about 700 defendants, add defendants from Wang information, and remove all dismissed defendants. 

He asked Yandle to clarify the date when responsive pleadings would come due for defendants who waived service. 

“Plaintiff appreciates the court’s one year stay that was originally entered in this case and will be ready to proceed with active litigation as effectively and efficiently as possible,” Justis wrote. 

He wrote that the group would amend the complaint by March 8. 

Then the group decided not to litigate, at least not now. 

On Feb. 28, Justis filed notice of voluntary dismissal of all remaining defendants without prejudice. 

He wrote that the group would continue retrieving Wang information and would try to settle with parties in a non litigation setting. 

He also wrote that the group anticipated filing suit in the future against potentially responsible parties that refuse to cooperate. 

On March 1, Yandle posted a docket entry finding the notice effective immediately because defendants hadn’t answered. 

She wrote that she would enter separate judgment on pending motions to dismiss defendants with prejudice. 

Justis leads a firm in Overland Park, Kan. 

Rachel Guthrie and Matthew Merryman of his firm also appear on the docket. 

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