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Ilco Site Remediation Group v. Taracorp, Inc.

United States District Court, N.D. Georgia, Atlanta Division

July 10, 2014

ILCO SITE REMEDIATION GROUP, Plaintiff,
v.
TARACORP, INC. and NK HOLDINGS, LLC, Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Plaintiff ILCO Site Remediation Group's ("Plaintiff" or "ILCO Group") Partial Motion for Summary Judgment [41], and Defendant NK Holdings, LLC's ("Defendant") (formerly Taracorp, Inc.) Motion for Summary Judgment [69], on Plaintiff's breach of contract claim.

I. BACKGROUND

A. Facts

Plaintiff is an unincorporated association of twenty-three companies that are potentially responsible parties ("PRPs") for the costs of remediation and removal of environmentally hazardous substances at the Interstate Lead Company Superfund Site located at 1247 Borden Avenue, Leeds, Alabama, and related disposal locations (the "Site"). Defendant is a PRP for the Site and formerly was a member of the ILCO Group.

In 1997, the United States Environmental Protection Agency ("EPA") filed an action under Sections 101 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") for reimbursement of costs incurred for environmental response actions taken at the Site. On April 22, 1997, the members of the ILCO Group, including Defendant, entered into a Consent Decree with the EPA providing for a Remedial Design/Remedial Action ("Remedial Work Plan") for the Site. In October 1997, the members of the ILCO Group, including Defendant, entered into an agreement entitled "The ILCO Site Remediation Agreement" ("Agreement"). Defendant's Chief Financial Officer signed the Agreement on Defendant's behalf. The Agreement sets forth procedures for coordinating and allocating costs associated with the Remedial Work Plan. ILCO Group has spent millions of dollars on remedial work at the Site since the execution of the Consent Decree and the Agreement. For about ten years, Defendant paid the pro rata amount assessed against it under the Agreement without raising any objections to its obligation to pay the assessments, the nature of the amount assessed or the allocation of its share of responsibility for the Remedial Work Plan. On December 22, 2008, Louis J. Taratoot, the owner of NK Holdings LLC, wrote a letter to Plaintiff's counsel in which he stated:

I have delayed responding to you in the hopes that [NK Holdings LLC] would be able to pay its $30, 199.28 assessment by the end of the year. Unfortunately, with the current state of the economy, [NK Holdings LLC] simply does not have sufficient cash flow to pay even a portion of the assessment at this time.
Please be assured, however, that [NK Holdings LLC] wishes to continue to participate in the [ILCO Group] but must request that the payment of this assessment be deferred until such time as [NK Holdings LLC] has sufficient cash to pay the assessment in whole or in installments.

NK Holdings LLC subsequently made a partial payment to the ILCO Group in the amount of $15, 000 on its allocation in the December 2008 assessment. From December 30, 2008, through June 20, 2011, ILCO Group issued Defendant invoices for the assessments it was required to pay. Defendant failed to make any payments after December 30, 2008.

On July 14, 2011, Plaintiff declared Defendant in default under the Agreement. On September 7, 2011, Plaintiff removed Defendant from the ILCO Group because of Defendant's continued failure to pay its share of the Remedial Work Plan costs allocated to Defendant under the Consent Decree and the Agreement.

B. Procedural History

On January 24, 2012, Plaintiff filed a six-count (6) Complaint against Defendant seeking cost recovery and contribution pursuant to CERCLA, a declaratory judgment against Defendant for its liability to pay existing and future costs associated with the Remedial Work Plan, damages in excess of $119, 699.18 for breach of contract, and attorneys fees.

On August 7, 2013, Plaintiff moved for partial summary judgment on its breach of contract claim, seeking damages in the amount of $267, 480.36, plus interest for unpaid assessments owed from December 2008 through 2013, and a declaration that Defendant is responsible for paying its share of all future assessments pursuant to the Agreement. On November 18, 2013, Defendant replied to Plaintiff's Partial Motion for Summary Judgment.[1] Defendant argues that the Agreement is void for indefiniteness, and to the extent the Agreement is valid, Plaintiff has failed to show that the Agreement was breached. On December 5, 2013, Plaintiff replied to the Defendant's Response to Plaintiff's Motion for Partial Summary Judgment.

On November 25, 2013, Defendant moved for summary judgment on the Plaintiff's CERCLA and breach of contract claims. On November 27, 2013, the Court ordered the Plaintiff to file a response to the Defendant's Motion for Summary Judgment, if required, within thirty (30) days of the Court's ruling on Plaintiff's Motion for Partial Summary Judgment. On March 10, 2014, the Court stayed this matter for thirty (30) days to allow Defendant to consider who it would retain to represent it in this action in light of the death of Defendant's lead counsel. On May 8, 2014, the Court lifted the stay and ordered the Plaintiff to file, on or before April 23, 2014, a response to Defendant's Motion for Summary Judgment on Plaintiff's breach of contract claim. On April 23, 2014, Plaintiff replied to the Defendant's Motion for Summary Judgment on Plaintiff's breach of contract claim.

II. DISCUSSION

A. Legal Standard

A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Parties "asserting that a fact cannot be or is genuinely disputed must support that assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including ...


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