Donald P. Davis and Maxine Elaine Davis v. Sun Oil Company

606 legislation. United post to a bill at- bition ex are three essential elements facto (6th 839, Knipp, Cir. ..., States v. 844 ‘specificity punishment, and tainder: ” 1992). Utah, Here, Hopt v. U.S. judicial Longo, v. lack of a trial.’ Zilich 589-90, (6th Cir.1994) L.Ed. S.Ct. (quoting F.3d Selec- Florida, (quoted v. in Dobbert Sys., 468 U.S. at tive Serv. (1977)), ... for which the defendant was “[t]he crime 1915(g), Congress specify does therefor, indicted, punishment prescribed

particular punishment', but individuals for proof quantity degree nec group indigent prisoners rather defines — essary guilt, his establish remained to having file after seeking to civil actions subsequent statute.” unaffected prior at three cases dismissed as frivo- least lous, malicious, failing to state claim— CONCLUSION subject the legisla- to the directives of recognized right of ac- We have wording import 1915(g), tion. The To cess to the courts fundamental. moreover, remaining of the satisfies neither any provisions extent of 28 U.S.C. First, elements of bills of attainder. arguably 1915(g) right restrict to statutory unquestionably subsection is civil reviewed, provisions claims those meritorious impact never most its effect be deemed unconstitutional. targeted by provi- the group members of its case, however, Wilson has failed to show that result, As a it cannot be sions. considered deprived he has of all court access as a been Second, “punishment.” statute does indigency. 1915(g) result of his Section operate disadvantage targeted not, therefore, unconstitutionally infringe group complete members absence upon protection process equal or due his judicial Only judicial after a intervention. rights petition the courts for review this separate determines that three fil- tribunal All other matter. constitutional claims indigent, ings by litigant incarcerated are plaintiff raised are also without merit. present so meritless as fail to even We AFFIRM the therefore chance of success the statute’s sanctions dismissing underlying district court Wilson’s circumstances, imposed. Under such claims, § 1983 in No. as frivolous § 1915(g) do find that a bill constitutes provisions No. 96^1323 barred of attainder. the PLRA. Challenge

E. Ex Post Facto issue,

As his final Wilson contends “three strikes” be invalidated as unconstitu

PLRA should post legislation. tional ex facto P. and Maxine Elaine Donald DAVIS however, determined, unambiguously that ex Davis, Plaintiffs-Appellants, post principles application in have no facto contexts, only apply puni civil but instead INS, legislation. Campos tive COMPANY, OIL Defendant- SUN Press, Cir.l994)(citing Galvan Appellee. 522, 531-32, 98 L.Ed. 911 No. 96-4077. Columbus, Ohio, (1954)); City Gardner Appeals, (1988). States Court of provisions Sixth Circuit. terms, only 1915(g), very apply § and, filing of civil actions while Argued Aug. may impact incarcerated in the individuals Decided June justice system, procedural criminal nature and were not enacted affect the

punishments already meted out for crimes. not, therefore,

They prohi fun afoul of the do 671 N.E.2d 1049.

See Also briefed), Segreti, (argued

A. Mark and Jr. OH, Haffey Dayton, & Segreti, Plaintiffs- Appellants. (argued

Michael R. Blumenthal briefed), (briefed), Hoffman David S. McMa- hon, Hoffman, Cleveland, OH, DeGulis & Defendanri-Appellee. WELLFORD, MERRITT,

Before: BOGGS, Judges. Circuit PER CURIAM court-delivered 613-615), BOGGS, opinion. (pp. delivered a J. opinion concurring separate dissenting in part. site, up spent in an effort clean

OPINION agreement. specific performance of the letter PER CURIAM. recommended that Sun be referee also brought this ac Donald and Maxine Davis fraud, that the Davises found liable for Conservation and tion under Resource damages. In March of punitive be awarded (“RCRA”), Recovery Act U.S.C. court issued a decision and the state (“Sun”). 6972(a)(1)(B), against Oil Co. Sun entry adopting the recommenda- referee’s Co., F.Supp. 1077 In Davis v. Sun Oil specific reme- performance tions. As to the 1996) (“Davis I"), (S.D.Ohio the district court up dy, required to clean the the Sun for the Davises’ motion denied satisfy guide- regulatory so site as to state Co., and in v. Sun Oil judgment, Davis $400,000 year, post a lines within one and to (“Davis (S.D.Ohio 1996) II"), F.Supp. it January, guarantee. In the bond as summary judg granted Sun’s motion appeals of affirmed the decision state court AFFIRM. ment. We court, except modified of the trial that it the award, grounds specific performance on the up site to meet cleaning the so as state year. regulations might take more than one may be in The facts of this case found appellate The “to com- ordered Sun II, in in Davis I Davis as well as detail and manner, plete cleanup expedited in an in the Co., Refining Marketing and Davis requirements full with all and accordance App.3d 109 Ohio 671 N.E.2d 1049 regulations promulgated by the fire marshall judicial To take notice. summa- of which we agent charged regulating [the with [sic] state situation, pur- the rize the in 1985 Davises Davis, underground storage tanks].” parcel from of land on which chased Sun a N.E.2d 1049. filling operated a station. Sun had Sunoco Meanwhile, in sale, October of the Davises Sun told the Davises that Prior 6,000 in this RCRA action federal district removing gallon the under- four court, Sun, leaving gasoline alleging the ground gasoline storage proper- tanks on property, buried in the had “contributed to ty, and did so. In the Davises con- disposal and the Dairy caused of solid hazardous tracted to sell the land (“UDF”), may present property waste the which an subject to an environmen- Farmers endangerment substantial imminent and inspection. UDF’s tal When consultants environment,” health in violation land, of quantities the discovered of tested 6972(a)(1)(B). RCRA, The soil, emanating from gasoline buried and, July a in pretrial held conference gasoline pipes that had connected the tanks first of a issued the series orders gas pumps; piping had left and the the staying proceedings pending the resolution of up and it with dirt when the place in covered court, litigation requesting and pros- tanks were removed. Faced with the timely reports respect lawsuit, status with pect of a Sun executed with pending. other action agreement pledging a letter to clean Davises up the site. II so, do largely failed to After Sun July, moved for sum- Davises May sued Sun in state court

Davises mary They argued that judgment. nuisance, contract, alleging and breach September a factual of a referee essential elements fraud.1 trial, finally thi’ee-day and under 42 U.S.C. 6972 have been conducted December report by filed a with the court recom- determined Court of Common Pleas Cuyahoga County, spe- ... mending [which] to be breach of Ohio Sun be found contract, cifically be and that the Davises awarded found contamination indi- benzene, toluene, equal already “high cated levels of eth- damages what ic originally statutory complaint the federal included basis stated for alle- 1. The state court law, gations, why were do know a claims for violations of federal dropped complaint. specif- an them from the lawsuit. eliminated in amended No xylenes (together also at- called Davises’ yl benzene ‘BTEX’), levels tempted lead and PHC. PHC use of Environmental Protection guidelines.” ... The Agency regulations the State’s cited their brief to exceeded levels findings high of benzene several level of establish standard contami- necessarily law, determines there “pres- might, nation that as matter of endanger- an imminent substantial danger.” ent imminent substantial §§ ment. 141.32 C.F.R.. noted that the EPA court" cited 141.50(a). Thus, principles of through the regulations pertain to contamination levels now estoppel, Defendant Sun is collateral soil, water, drinking and observed: estopped contesting findings no simply There is evidence to either Pleas.... Under the Court Common precise gasoline quantity which re- law, are determined and those issues soil; seepage mains whether preclusive to effect. 28 U.S.C. are entitled currently has an on either effect the drink- requires give them that the water, likely is to have an such preclusive effect. v. the same Marrese effect; an magnitude or what such Academy Orthopaedic Sur- American be, in might regard or the effect to health 373, 1327, geons, 105 S.Ct. 470 U.S. Although this Court could environment. (1985); City Migra v. L.Ed.2d 274 Warren issues, speculate speculation these such Bd., School provide proper a would not basis for sum- (1984); Kremer Chemical mary judgment. 461, 481-82, Corp., 456 Constr. is á remedial measure that courts RCRA (1982). 1883,72 L.Ed.2d 262 apply to in a lib- tended construe the Davises’ eral, unbridled, though not manner. correctly observing pre- argument, Circuit has discussed the statute as Second “may issue whether the contamination cise follows: substantial endan- present an imminent and congress When enacted RCRA had germent health or the environment” to sought remaining loop- “the to close last actually litigated been determined never law, unregu- hole environmental Therefore, was by the court. the issue state disposal lated of discarded materials land litigation. 929 precluded not from further n and hazardous wastes.” RCRA’s waste F.Supp. at 1081.2 management requirements disposal fa- summary Further, the court held designed only prevent, cilities are judgment inappropriate because there mitigate endangermehts pub- but also to genuine a issue of material fact as to lic health and environment. “may an present the contamination whether Significantly, congress used' the word endangerment.” imminent and substantial liability: “may” preface standard presented affida- The Davises and Sun each “present en- an imminent substantial who, by consulting engineers, after eval- vits dangerment to health or the environment”. uating the same environmental assessments “expansive language”, is “in- This which is had submitted as evidence been tended, upon confer the courts the au- unsurprisingly—opposite reached — thority equitable grant affirmative relief question. As the court conclusions on any necessary to to the extent eliminate “[tjhis observed, by ex- disagreement posed by risk toxic wastes.” parties, each would perts retained “basically prospective a genuine appear to issue of material statute create designed prevent improper disposal legal in this act ultimate issue fact wastes in the future”. It is of hazardous Id. at 1082. case.” Co., St.2d did Whitehead v. General Tel. 20 Ohio Although of the Ohio court (1969); overruled in of RCRA N.E.2d not settle as a matter of law issue Township, 73 Ohio St.3d liability, actu Grava v. Parkman hold that other facts and issues (1995); Hap see necessarily litigated ally and determined N.E.2d also Warren, City Cir. precluded relitigation, good the Ohio preclusion. law of issue accordance with Ohio’s Liberty Lobby, 477 U.S. emergency-type specifically limited to Anderson (1986). finding “immanency” situations. A 91 L.Ed.2d 202 showing cited, require correctly that actual harm will distin- The district court immediately long occur so as the risk of cases, particu- guished, in which the two such present: harm “An ‘immi- threatened summary justify lar been held to facts had any point nent hazard’ be declared at II, F.Supp. at 893 n. 3. judgment. Davis ultimately in a chain of events which explana- agree with the district court’s public.” result in harm to the Imminence above, tion, why the determination noted the nature rather refers “to threat polluted the by the Ohio court than identification of the time when the degree by the in that manner and shown soil endangerment initially arose.” was not itself ade- submitted evidence addition, finding activity that an ques- quate a matter of law the to settle as may present an imminent and substantial “may pollution present tion of whether endangerment require does not actual endangerment.” imminent and substantial consistently harm. Courts have held that Accordingly, court’s we affirm the district “endangerment” means a threatened or Davises’ motion for denial of the potential require proof harm and does not judgment. of actual harm. Dague Burlington, City Ill (2d Cir.1991) (citations omitted).3 The district court next addressed Sun’s keeping language In with the recited judicata pre claim that the doctrine of res Dague, might in courts in some eases be maintaining this vents the Davises from fed law, justified holding, in as a matter of that a eral action. In its cross-motion for degree par certain of hazardous waste at a judgment, argued that “Plaintiffs Sun “may present ticular site an imminent and only they obtained the relief are entitled to They endangerment.” substantial could do § under the decision and specific so where the circumstances of the plaintiffs’ parallel order state cause of disposal presented large site such and unmit (such By application action. the of the common igated type hazards as the amount and waste, judicata, plaintiffs law doctrine of res cannot proximity to combined with its the public) present having maintain the action that “reasonable minds could not dif obtained import fer as to the of the evidence.” See same relief state court.” Were the Western, Inc., challenge Meghrig city's zoning v. KFC 516 U.S. ordinance where unable (1996), personally to show that "he 116 S.Ct. 134 L.Ed.2d 121 would benefit in a that, intervention”); 6972(a)(1), tangible way Supreme from the court’s Court stated under D., 614, 618, endangerment only Linda R.S. v. Richard 410 U.S. "[a]n can be imminent if (mother immediately.” S.Ct. 35 L.Ed.2d 536 to occur Id. 116 threatens (internal standing compel prosecution no quotations suit to at 1255 and citation to dic- omitted). pay support father for failure to child tionary where definition of "imminent” only jailing successful action result support "would Court made this observation in of its prospect prosecu of the child's father. The holding that the citizen-suit of RCRA can, payment support tion will ... best, result in at remedy clean-up did not afford as a the costs of a only speculative."). lawsuit; generally be termed prior filing undertaken to the Miller, Wright 13 Charles Alan & Arthur R. up, longer present a once site is cleaned it can no Fed may 3531.6. Sun predicate eral Practice and Procedure the threat that is a for the action. It is however, prevail theory, on such a because not clear whether the Court intended to refute pressure placed the Davises benefit from the reading of "imminence” contained in cases remedy pollution by daily- on Sun to harm, Dague: looming such as a threat of but accruing penalties. looming necessarily a harm. Alternatively, argument Sun's could be viewed possible It would be to reformulate Sun's theo expressing the facet of the mootness doctrine ry challenge standing as a to the Davises’ to under which it ”[i]f be held that full relief is bring tribunal, specifically, their RCRA as an as proceeding accorded another a seek- action — sertion that the Davises fail meet "remedi Wright to the same relief is moot...." See 13A requirement standing. cases). al benefit” (citing See Warth & Miller 3533.2 & n. 28 Where Seldin, penalties might substantial civil be assessed Sun, (1975) (plaintiff standing against clearly lacked the case is not moot. main- suit, prevented.the Davises from argued, preclusion to win RCRA Sun Davises taining the federal action. than nothing more they would be entitled “necessary requiring Sun take an order Stuhlreyer The district court relied site, i.e., action,” investigate the remedi Armco, Inc., Cir.1993), as an F.3d site, claims Davises etc. that the ate the Sun claim statement of Ohio’s law on accurate fact, have, already obtained an order preclusion: up the requiring “to clean the state judicial are entitled to proceedings State property.” In an at on the contamination preclusive the same effect Davises had tempt to demonstrate they judgment- would receive “ already get, relief obtained all the state____ Ohio, rendering doc- ‘[t]he light argued (correctly, Meghrig existing final trine of res is that Western, Inc., KFC merits, upon the with- rendered supra) n. 3 see collusion, by compe- or out fraud not be under that the Davises would entitled jurisdiction, rights, tent is conclusive of , for costs compensation RCRA issue, questions facts as to the partial efforts to clean had incurred in their privies, ac- all other argued that up the site. Sun also any judicial tions other same in. ” imposition civil could not seek jurisdiction.’ ... tribunal of concurrent § 6928(g), under penalties available This all claims which includes were provides: might litigated in first law- have been any requirement Any person who violates Thus, law, pre- ... suit. under subehapter shall be this liable requires rendering clusion penalty in an States for civil possess subject matter over $25,000 each such amount to exceed original claim. shall, day of such violation. Each violation (citations omitted); Stuhlreyer, 12 at subsection, purposes constitute Township, 73 Ohio see Grava Parkman separate violation. 226, (1995) (hold 379, 653 N.E.2d 227 St.3d valid, Initially, Sun’s “a final rendered the district that subsequent enforce argument upon that the Davises could not actions merits bars party. penalty provision private upon any arising the civil based out Indeed, penalties payable the United that sub civil transaction or occurrence was the action.”). ject previous in a citizen suit matter of the be awarded States 6972(a). against “claim-split brought under Co. this rule Clorox accordance with ques 128 Corp., ting,” 158 F.R.D. the district court turned to the Chromium (N.D.Ill.1994); County “might Sewer Middlesex of whether the RCRA suit tion cf. Ass’n, litigated” proceedings age Auth. v. National Sea Clammers been the state whether, instead, 69 14 n. 101 federal- courts en U.S. availability (recognizing jurisdiction mat joyed over such L.Ed.2d exclusive penalties brought in suits under civil ters. 1365(a), provision the citizen-suit U.S.C. recognized that Pollution Amend Federal Water Control Levitt, Tafflin ment (1990), Freight and Yellow Donnelly, 494 argu- System, Inc. v. then noted Sun’s The district court im that the Davises could not maintain ment question judi- portant resolving of whether of res action under doctrine federal jurisdiction cata, in citizen in state federal exclusive because had obtained two under the RCRA. These all the the district court suits relief expressly require Congress either litigation. in the cases that given them federal jurisdiction that is exclusive that claim states federal The court declined address way however, in some other affirmative overcomes because it found specifically, jurisdiction is con strong presumption all such if the had not obtained even court, doctrine is claim current with courts. This Ohio’s laws on state relief integral part system gress an of our of federalism. intended to divest the state courts of jurisdiction Congres- The federal courts over those matters. In the same cannot create intent, unstated, way, language in by making if it the “shall” the RCRA en- sional is left provision grant jurisdiction forcement does not exclusive assumption jurisdiction Rather, to the federal courts in suits strong pre- should be exclusive. brought pursuant thereto. sumption jurisdic- is in favor of concurrent tion the state courts. See Holmes Fin. that, The dissent is of the view even if Corp., Assocs. v. Resolution Trust concurrent, rely (6th Cir.1994) (holding that Con- judicata on a res it ac defense because gress “affirmatively must divest” the state quiesced claim-splitting. disagree. We “presumptive competence” courts of their gave plaintiffs notice to the that it would law). arising heai’ cases under federal rely judicata on the defense res its answer, specifically states that Sun is case, the instant we find that the relying upon the doctrine of res as a provision citizen suit of the RCRA does not upon defense. The district court relied expressly provide jurisdiction.5 for exclusive pleading judica- and held the doctrine of res legislation As in the scrutinized in Tafflin defense, applicable ta aas and the court did Freight, Congress specifi and Yellow did not holding applies. not err that the doctrine cally question. disagree deal with the We Therefore, proper application of the doc analysis with the County in Middlesex Bd. of precludes trine this action federal court. Jersey, Chosen Freeholders v. New conclude, moreover, that the defense was (D.N.J.1986), F.Supp. 715 in which the dis not waived in the Having district court. provi trict court held that the enforcement stated its answer that “Plaintiffs’ claims jurisdic sion the RCRA creates exclusive judicata,” are barred the doctrine of res tion the federal courts. That may rely defendant on this defense and we provides private that RCRA suits “shall be find no error in the district court’s determi brought in the district court for the district in nation. alleged which the violation occurred or the alleged endangerment may occur.” ¶ joinWe with the dissent that 26 of added). (emphasis The Mid- Judgments the Restatement adopted in dlesex court found that the term “shall” was Township, Grava Parkman 73 Ohio St.3d mandatory, discretionary. The court (1995), precludes 653 N.E.2d legislative history also found that the claim-splitting except where “the “Congress RCRA indicated that did not con agreed have in or in terms effect that the template that RCRA suits would be claim, plaintiff may split his or the defendant in courts.” disagree State Id. at 719. We acquiesced has therein.” agree Sun did not view, reasoning. with that In our the term plaintiffs claim-splitting, and we cannot “shall” it is used in the statute not agree acquiesced with dissent that it the in affirmatively divest the state courts of their respect. Sun defended on the doctrines jurisdiction. presumptive Freight, In Yellow judicata. of both waiver and res We do not Supreme the argu a similar Van, Inc., Super construe Matter of respect ment with made to a in (5th Cir.1996), support plaintiffs posi Title VII which “[e]ach states that in Super tion this case. Van defendants did States district court and each United States plead judicata, not res and defendants indi place subject jurisdiction court of a to the bankruptcy cated to the they “pre that the United States shall have ferred not to have the two action in [one subchapter.” Freight, under this Yellow 494 state court and one in federal court] consoli at (quoting S.Ct. 1566 action, By dated.” Id. at 371. reason of this 2000e-5(f)(3) added)). (emphasis contrary The posture to defendant’s in the instant case, “shall have” language in that statute not defendants were deemed to have ac quiesced deemed to be sufficient that plaintiffs evidence Con- in the claim-splitting. We argue statutory 5. The do jurisdiction. Davises not that the the exercise of state-court Holmes, plainly disrupted scheme of the RCRA would at dissent, therefore, plain- action the believe, contrary ble basis for second to the against tiff the defendant: unjustly and plaintiffs were not treated that fair notice of the defendant’s (a) had that agreed in terms The judicata. res claim of may split plaintiff in the effect that claim, ac- or the defendant' has his out, mindful, points are dissent therein.... quiesced judicata can of res mean that the defense part: accompanying comment states in things. The district court relied on several general A stated purpose main rule pending” facet of res “other action protect in from 24 is to the defendant this federal judicata finding doctrine by repetitive actions based being harassed It was barred. is unfortunate suit on claim. The rule is thus the same rule on the court did earlier district consents, applicable where the defendant issue, at a time when otherwise, split- words to the express opportunity to amend their state- claim____ ting plaintiff Where the if so action to add the RCRA suit simultaneously maintaining separate ac- is But we are the view desired. claim, upon parts tions of the same based answer, in its properly asserted the defense and in neither action does defendant and that was warranted objection that another action make addressing aspects of the res claim, judg- pending based the same claim. pre- ment one the actions does Accordingly, AFFIRM the denial of plaintiff proceeding and clude the plaintiffs’ motion obtaining judgment in the other action. motion, entry granting of defendant’s object failure defendant judgment for the defendant. splitting plaintiffs claim is effec- acquiescence splitting tive in the as an BOGGS, Judge, concurring part Circuit the claim. dissenting part. an amended answer Sun filed 22, 1994, as suit on March Davises’ RCRA parts I and II of the court’s I concur in defenses, serting, among “Plain other I from the opinion this case. dissent by the tiff’s are barred doctrine claims general

holding III that Oil’s waiver,” claims barred and “Plaintiffs judicata” in its amended of “res invocation judicata.” question the doctrine of res acquies- to overcome answer suffices Sun’s objection, or a arises this was an whether Davis of concur- cence maintenance one, claim-splitting. to the Davises’ sufficient rent actions in state court. not, it that Sun conclude Judg- 24 of the Restatement Section bringing thereby acquiesced in effect (2d) (1982), the rule which articulates ments See, e.g., Super In re of the federal action. provides that against claim-splitting, (5th Cir.1996); Inc., Van §in subject exceptions described Airport Auth. Washoe Coun Clements Supreme Consequently, when (9th Cir.1995); Bradley ty, 69 F.3d applica- “expressly adherefd] the modern Educ., Pittsburgh Bd. 913 F.2d of ” judicata of res found in of the doctrine tion (3d Cir.1990); Rosado Calderon 24-25, Township, §§ see Grava Parkman Breakers, Inc., 805 Elec. Circuit General 653 N.E.2d 73 Ohio St.3d (1st Cir.1986). § adopted the Restate- it also 26 of Conceivably sug- the mention waiver ment, pertinent part: provides, opportu- waived their gests that the Davises TO THE GENERAL EXCEPTIONS court, nity bring the RCRA claim state RULE CONCERNING SPLITTING speculation never borne out but that is a of res following below. As for defense any of the circum- Sun’s briefs When claim-splitting exists, judicata, falls general §of it is true that rule stances claim, heading. But brief under broad Sun’s extinguish that apply defense, claiming that possi- suggests below part or subsists complaining claim-splitting, party was not but should not have to deal with an extra advancing theory its of full remedies specifical neous issue in a unless it is lawsuit discussed above at 610-612.1 ly impor brought to his attention.... More tant, magic what matters is not whether the note, too, boiler-plate I nature of Sun’s appears plead words ‘affirmative defense’ amended answer. Here it is useful to look to ings, but whether the Court and pertaining pleading the rules to the of affir were aware of the issues involved.” Baker v. course, recognize, mative defenses. Detroit, City F.Supp. 8(e) provides Fed R. techni “[n]o P. Civ. (E.D.Mich.1979), grounds on other sub pleadings cal forms of or motions are re aff'd Detroit, City nom. Bratton v. 704 F.2d quired.” requiring But an affirmative de rehearing, vacated on intelligible fense to be stated in an manner is Cir.1983). not a mere formalism. While the rule against splitting claims is essential short, cloudy I do not think that Sun’s repose ultimately to which defendants are answer sufficed—if such was its intent at entitled, it applied fairly plaintiffs, must be put all—to the Davises on fair notice that An aspect as well. essential of that fairness objected to the Davises’ maintenance of adequate notice of the nature of the affir separate state and federal A actions. useful mative defense. “Res and collateral comparison can be found in Diversified estoppel are affirmative defenses that must Foods, Boston, Inc. v. First Nat’l Bank of pleaded---- purpose be The plead of such (1st Cir.1993), where, ings give is to opposing party notice of answering complaint in the successive plea of estoppel argue, and a chance to if suit, the defendants “included aas can, why imposition he estoppel of an defense the assertion the borrowers inappropriate.” would be Blonder-Tongue action, improperly split ‘have their causes of Labs., Found,., University Inc. v. Ill. having previously filed another court an- 313, 350, 28 L.Ed.2d 788 complaint arising other out of the same (1971). “An affirmative defense be ” transaction or series of transactions.’ pleaded general terms and will be held to present- court held that defendants who had sufficient, be and therefore invulnerable to a plain objection ed such a hardly strike, long gives motion to plaintiff as it acquiesced split found to claim. 'notice the nature fair defense.” Wright Miller, R. Alan Charles & Arthur prejudice to the Davises is obvious. If 5 Federal Practice Procedure they perceived objection, such an then added). (emphasis 8(c), by requiring “Rule repaired could have to state court be- plead defendant to his defense or risk waiv entry judgment, seeking fore the to amend it, purpose giving also selves the complaint to include a RCRA count. opposing party notice of the defense and Or could have asked the district court to opportunity argue why his claim should defense, arguments strike the and mustered completely.” not be barred Id. at at. that time in favor of exclusive federal highly “Another relevant consideration [as jurisdiction. theory whether a pleaded must be as an difficulty plaintiff affirmative for the defense] is whether will Davises was com- court, by surprise by pounded by be taken the assertion at the fact that no trial so far as I tell, of a pleaded affirmatively by defense not can had ever held that RCRA cases require court, defendant.” Id. at “The could be in state and that ment that specifically affirmative defenses be numerous courts had either held or assumed pleaded is based on play. notions of fair A exclusively federal.2 terms, 1. This court has had meanings occasion to comment on the whose have become so convo- by McDowell, confusion caused the use of the broad term luted.” Barnes v. 848 F.2d 728 judicata,” (6th "express Cir.1988). hope "res and to our n. 5 litigants, precision future in the interests of clarity, arguments will formulate County which refer 2. See Middlesex Bd. Chosen Freeholders solely preclusion Jersey, (D.N.J.1986); to issue or claim F.Supp. and which v. New 645 719 Colorado, using predecessors refrain from of those Jilot v. 944 P.2d 568-69

615 respectfully dis- may proceed, I therefore any report a RCRA citizen do we find Nor sent. in an court. being brought Ohio action ever holding on this matter is

The district court’s say reso plausible, but cannot

at least sufficiently plain question is

lution of that put Freightand Holmes have

under Yellow fairly on notice could

the Davises allegation in court.

bring the RCRA Foods, (recog F.2d at 31

See Diversified FLOYD, Jr., Archie I. Petitioner- nizing good-faith belief exclusive Appellant, jurisdiction might excuse a failure federal previous of a bring a claim as v. action, rejecting but that excuse state-court ALEXANDER, Warden, George D. jurisdic in exclusive federal where the belief Respondent-Appellee. face of two circuit tion was “formed Indeed, No. 96-3698. contrary.”) if the decisions to strong mat court held views Appeals, Court of United States ter, parties, might alerted Circuit. Sixth perhaps asked them to brief the issue. was, prior year a half As it for the June Submitted judgment, the Davises’ federal state court 25, 1998. Decided June pending were simultaneous and state claims requested received ly. The district reports. It was reasonable

periodic status that, to believe once the over, they pro proceeding was complaint with RCRA in federal

ceed (and record shows Sun confirmed

court. The that, vague argument), other than the

at oral answer, never in its amended

statements objection splitting Davises’

voiced an

of the claims.

Thus, the Davises’ I would hold that application not barred

RCRA suit was against claim-splitting, and rule

of Ohio’s True, remedies, normally required. appeal). (Colo.App,1996)(unpublished pending tribal years stringent Legs preceded Blue two other courts have stated or assumed A number of exclusively Freight language jurisdiction federal. To- of Yellow Nonetheless, noted this court that RCRA is emphatic Freight, gether, cases is an Blue the effect these since Yellow Holmes. exclusively good Legs repeatedly that RCRA law— consensus has been cited apply with full again, jurisdic none of the cases though, generally federal. Yet without much analytic See, rigor erected the Su- Freight. e.g., framework analysis under Yellow tional beginning preme States, with in the line of cases 116 F.3d Fletcher United Corp., Oil 1997); Co. Mobil (10th Corp. Farley, Cir. Kerr-McGee Offshore Gulf 473, (10th Cir.1997); Reservation Tel. System, Freight culminating Inc. v. in Yellow Coop. Bert v. Three Tribes Fort Affiliated Donnelly, (8th Reservation, Cir. hold (1990). have, 1996). citing Blue courts without Other Legs, White & reached the same conclusion. See flatly Eighth stated that “RCRA Circuit has Donley, F.Supp. Trucking, Inc. Brewer jurisdiction in places federal courts exclusive (C.D.Ill.1997) (Burford inappro 6972(a)(1)....” abstention brought pursuant to section suits Affairs, priate when federal action in abstention Legs v. Bureau Indian Blue claims, Thus, sought RCRA over which federal contains it was not Cir. jurisdiction). necessary, possible, have exclusive to exhaust certain courts even

Case Details

Case Name: Donald P. Davis and Maxine Elaine Davis v. Sun Oil Company

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 24, 1998

Citation: 148 F.3d 606

Docket Number: 96-4077

Court Abbreviation: 6th Cir.