Document km7O14D4zB3pOko1qm8LX692D

Not Reported m F Supp 2d (Cite as- 2002 WL 1203836 (S.D N.Y.)) t> Only the Westlaw citation is currently available United States District Court, S D New York RUTGERSWERKE AG and FRENDO S p A , Plaintiffs, v ABEX CORPORATION, Pneumo Abex Corporation and Whitman Corporation, Defendants No. 93 CIV 2914 JFK. June 4, 2002 Baker & McKenzie, Chicago, IL, Of Counsel Richard Franklin, Esq , for the Plaintiffs Fognam Guibord Homsy & Roberts, LLP, Chicago, IL, Of Counsel John Roberts, Esq , for Defendants Abex Corporation and Pneumo Abex Corporation Butler Rubin Saltarelh & Boyd, Chicago, IL, Of Counsel KirkT Hartley, Esq , for Defendant Whitman Corporation OPINION and ORDER KEENAN. District J *1 Before the Court are the following motions (1) motion for summary judgement by defendants Abex Corporation ("Abex"), Pneumo Abex Corporation ("Pneumo Abex"), and Whitman Corporation ("Whitman") (collectively "Defendants"), (2) Defendants' motion for partial summary judgment on the issue of whether the "dumps" were permanently closed m 1983, (3) Defendants' motion to strike, and (4) motion for summary judgment by plaintiffs, Rutgers AG (formerly known as Rutgerswerke AG and herein referred to as "Rutgers") and Frendo S p A ("Frendo") (collectively "Plaintiffs") The motions are opposed The Court has jurisdiction over this action pursuant to 28 USC 1332 1FN1I The Court heard oral argument on these motions on May 16, 2002 and thoroughly considered all submissions made m connection with them For the reasons stated herein, the Court grants Defendants' motion for summary judgment, denies Plaintiffs' motion for summary judgment and denies as moot all other pending motions Page 1 FN1 Jurisdiction before this Court is predicated upon diversity of citizenship between the parties, see 28 U S C 1332(a)(1). as plaintiff Rutgers is a German stock corporation with its principal place of business in Germany, plaintiff Frendo is an Italian stock corporation with its principal place ofbusiness in Italy, defendant Abex was a corporation organized and existing under the laws of Delaware with its principal place of business in New York, defendant Pneumo Abex is a corporation organized under the laws of Delaware with its principal place of business in New Hampshire, and defendant Whitman is a holding corporation organized under the laws of Delaware with its principal place of business in Illinois and the amount m controversy exceeds the applicable jurisdictional minimum See RuteerswerkeAG v Abex Cory. No 93 Civ 2914. 1995 WL 625701. *1 (SDNY Oct 25.19951 Background This lawsuit involves a dispute over who should bear financial responsibility for a landfill removal project at a brake manufacturing plant in Orzmuovi, Italy, a town located in the northern part of the country in an area known as the Lombardy Region On January 23,1970, the Mayor of Orzmuovi, upon consultation with the Hygienic Building Commission, granted authorization to construct the Orzmuovi plant See Defs' 56 1 Statement T[ 6, Roberts Aff,U 18, Ex Q From April of 1978 till the end of 1983, plaintiff Rutgers and defendant Abex, through wholly-owned subsidiaries, participated m ajoint venture that owned and operated the Orzmuovi plant See id H 7, Roberts Aff, ^ 5, Ex D During this time period, Hans Bethke, the Rutgers official responsible for reducing the waste stream at the plant, visited and toured the facility about twice a year See id 8-9, Roberts Aff ^[5, Ex D, pp 21,34,43 & 46 This tour included the backyard area of the plant where the underground landfills were located See id 8-9, Roberts Aff K 5, Ex D, pp 34, 43 At his deposition, Mr Bethke testified that on these occasions he saw above-ground waste piles, but no underground landfills See Roberts Aff 1]5,Ex D, pp 43-45 On or about September 22, 1980, the Region of Lombardy received a request for authorization to operate a waste disposal facility from Frendo. [FN2] Copr West 2003 No Claim to Orig U S Govt Works SCF-ABEX-3425 ABEX-216 50