United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. Peterson, District Judge.
William and Nancy Liebhart sued defendants SPX Corporation,
Apollo Dismantling Services, Inc., and TRC Environmental
Corporation under the Resource Conservation and Recovery Act,
the Toxic Substances Control Act, and state law for alleged
PCB contamination of their property. After this court granted
summary judgment to defendants, the court of appeals vacated
the judgment and remanded the case for reconsideration of
“whether a substantial and imminent endangerment to
health exists in this case under the standards [the court of
appeals] outlined.” Liebhart v. SPX Corp., 917
F.3d 952, 966 (7th Cir. 2019).
question before the court now is what steps need to be taken
to comply with the mandate and bring this case to a
resolution. Both sides have filed multiple briefs on the
issue. See Dkts. 236, 240, 244, 246-47, and 251.
court concludes that the appropriate course of action is to
allow the parties to reargue their summary judgment positions
in supplemental briefs, applying the guidance provided by the
court of appeals to the current record. Plaintiffs seek leave
to amend their complaint to add multiple new claims. They
also ask for a schedule that allows for new discovery, new
expert reports, and new motions for summary judgment. But the
court of appeals did not direct this court to start over,
reopen discovery, or otherwise expand the scope of the case.
Rather, the court of appeals concluded that this court
applied the wrong legal standard to plaintiffs' federal
claims. Liebhart, 917 F.3d at 954 (“[T]he
court set the bar unnecessarily high for the plaintiffs to
show a violation of the applicable federal statutes.”).
So the proper remedy is to allow plaintiffs to reargue their
case under the standard articulated by the court of appeals,
not to hit the reset button.
court of appeals affirmed this court's decision to deny
plaintiffs' motion for leave to amend their complaint on
the ground that doing so would be unduly prejudicial to
defendants, id. at 964-66, which supports this
court's conclusion not to expand the scope of the case
now. Plaintiffs point to the court of appeals' statement
that “the district court may permit an amendment on
remand if the interests of justice so require, ”
id. at 966, but plaintiffs haven't pointed to
any new facts that would require a different conclusion. If
anything, plaintiffs' proposed amendments would be
more prejudicial now. Plaintiffs are essentially
asking for an opportunity to relitigate their entire case.
But the case is already nearly three years old; the parties
have engaged in extensive discovery, prepared multiple expert
reports on both sides, and generated 250 docket entrees.
Starting over now would create significant delay and
additional expense on both sides.
their briefs, plaintiffs state repeatedly that justice
requires the court to grant all of their requests. But
missing from their briefs is any justification for failing to
raise their new claims earlier. The court of appeals
clarified the legal standard for plaintiffs' existing
claims, but it didn't create any new causes of action.
Under the Federal Rules of Civil Procedure, parties are
entitled to one full and fair opportunity to litigate their
claims. They are not entitled to reinvent their case three
years after filing their lawsuit because they conclude that
their original claims are insufficient.
accuse defendants of concealing evidence related to the
alleged burial of PCBs, which is one of the new claims they
wish to assert. But both this court and the court of appeals
concluded that, by their own admission, plaintiffs waited
four months to move for leave to amend after learning about
the burial. Dkt. 204, at 15; Liebhart, 917 F.3d at
966. So plaintiffs cannot prevail on an argument that
defendants' alleged conduct entitles them to assert new
court will deny plaintiffs' motion for leave to amend
their complaint. Instead, the court will set a schedule for
filing supplemental briefs to allow the parties to apply the
guidance provided by the court of appeals.
1. Plaintiffs' motion for leave to amend their complaint,
Dkt. 239, is DENIED.
2. The parties' motions to set a schedule, Dkt. 236 and
Dkt. 243, are GRANTED in part and DENIED in part as described
above. The parties may have until June 3, 2019, to file
opening briefs addressing the question whether defendants are
entitled to summary judgment under the standard articulated
by the court of appeals. The parties may have until June 27,
2019, to file response briefs.
3. If necessary, the court will set the remainder of the
schedule after resolving the issues raised in the