Case 1:20-cv-03385-SAG Document 786 Filed 09/16/21 Page 1 of 58
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`68th STREET SITE WORK GROUP,
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`Plaintiff,
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`v.
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`AIRGAS, INC., et al.,
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`Defendants.
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`Civil Case No.: SAG-20-3385
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`MEMORANDUM OPINION
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`Plaintiff 68th Street Site Work Group (“Plaintiff”) filed suit against 156 Defendant
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`companies (collectively, “Defendants”) under the Comprehensive Environmental Response,
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`Compensation and Liability Act (“CERCLA”), for the recovery of costs incurred and to be
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`incurred in response to the release or threatened release of hazardous substances from the 68th
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`Street Dump Superfund Alternative Site (“68th Street Site,” or “Site”). ECF 1. Plaintiff also seeks
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`a declaration of each Defendant’s liability for future response costs to be incurred by Plaintiff (and
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`its assignors) at the Site ECF 1. As of today, forty-five Defendants are actively litigating the case,
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`following a number of voluntary dismissals and certain entries of default. Thirty-one of those
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`remaining Defendants have filed motions to dismiss the Complaint, with several of those motions
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`seeking summary judgment in the alternative. ECF 163 (Armacell, LLC); ECF 174 (Truist
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`Financial Corporation); ECF 287 (Pabst Brewing Co.); ECF 384 (C&I Leasing, Inc.); ECF 386
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`(Cowan Systems, Inc.); ECF 411/452 (Lifoam Industries, LLC); ECF 425 (High’s of Baltimore,
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`LLC); ECF 442 (Cloverland Dairy Limited Partnership); ECF 448 (“Certain Defendants”
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`(American Sugar Refining, Inc.; Bob Bell Automotive Group, Inc.; Donohoe Real Estate Services;
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`HMS Host Family Restaurants, Inc.; Len Stoler, Inc.; and Stella Maris Operating Corp.)); ECF
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`461 (The Rukert Terminals Corporation); ECF 478 (Alban Tractor Co., Inc.); ECF 479 (Crown
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`Central LLC); ECF 480 (New Ridge Associates, Inc.); ECF 481 (Norris Automotive Holdings
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`LLC); ECF 482/484 (The Victory Racing Plate Company); ECF 510 (Host Hotels and Resorts,
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`Inc.); ECF 537 (Caraustar Industries, Inc.); ECF 539 (Greif, Inc.); ECF 549 (Heritage Chevrolet-
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`Buick, Inc.); ECF 609 (Hilton Worldwide, Inc.); ECF 672 (Ridgeway Manor, Inc.); ECF 701
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`(Mattress Company of Delaware, LLC d/b/a Eclipse International); ECF 704 (Morgan Properties
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`Management Company, LLC); ECF 767 (Airgas, Inc.); ECF 768 (Drug City Pharmacy, LLC);
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`ECF 769 (Melibelle USA, Inc.). Plaintiffs opposed each motion, ECF 284, ECF 285, ECF 367,
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`ECF 521, ECF 523, ECF 529, ECF 530, ECF 538, ECF 543, ECF 547, ECF 563-566, ECF 568,
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`ECF 569, ECF 580, ECF 581, ECF 596, ECF 677, ECF 697, ECF 728, ECF 730, ECF 775-77, and
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`most Defendants replied, ECF 363, ECF 368, ECF 460, ECF 555, ECF 570, ECF 579, ECF 583,
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`ECF 587, ECF 593, ECF 599, ECF 621-625, ECF 636, ECF 639-641, ECF 698, ECF 742, ECF
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`747.
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`This Court held a telephonic hearing on a representative subset of the pending motions on
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`July 13, 2021. Specifically, the hearing addressed ECF 163, ECF 287, ECF 384, ECF 448, and
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`ECF 537. No hearing is necessary as to the remaining motions to dismiss.1 See Loc. R. 105.6 (D.
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`Md. 2021).
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`For the reasons stated below, Defendants’ motions will be granted, with the precise
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`disposition as to each motion detailed herein and in the accompanying order.
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`1 This memorandum opinion will address all substantive pending motions with three exceptions:
`ECF 515 (Defendant Schumacher & Seiler, Inc.’s Motion for Summary Judgment); ECF 688
`(Defendant American Sugar Refining, Inc.’s Motion for Sanctions); and ECF 761 (Plaintiff’s
`Motion for Fees and Costs). A memorandum opinion and order deciding ECF 761 will be issued
`along with this opinion, and ECF 515 and ECF 688 will be decided on a later date.
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`2
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`Case 1:20-cv-03385-SAG Document 786 Filed 09/16/21 Page 3 of 58
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`I.
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`Factual Background2
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`Plaintiff 68th Street Site Work Group is an unincorporated association that consists of the
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`following members: AAI Corporation; Acme Markets, Inc.; AK Steel Corporation; Browning-
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`Ferris, Inc.; Black & Decker (U.S.) Inc.; Brunswick Corporation; ConAgra Grocery Products
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`Company, LLC; Crown Cork & Seal Company, Inc.; CSX Realty Development, LLC; CSX
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`Transportation, Inc.; Exxon Mobil Corporation; and Illinois Tool Works, Inc., on behalf of
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`Signode and Vulcan-Hart. ECF 1 ¶ 27. These member entities have each assigned their claims in
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`this case to the Work Group. ECF 1 ¶ 28. Plaintiff alleges that Defendants in this case are liable
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`as potentially responsible parties (“PRPs”) for their generation and transportation, and/or their
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`arranging for transportation, of materials containing hazardous substances for disposal and/or
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`treatment at the 68th Street Site. ECF 1 ¶ 1.
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`The 68th Street Site is a mixed industrial, commercial, and residential area, encompassing
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`239 acres in the Rosedale neighborhood in Baltimore County, along the eastern border of
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`Baltimore City. ECF 1 ¶ 4. The Site is an aggregate of seven landfills, which operated within the
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`boundaries of what the United States Environmental Protection Agency (“EPA”) later designated
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`as five Management Areas (A, B, D, E, and F). ECF 1 ¶¶ 5-11. Waste disposal activities were
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`conducted at the Site from the 1950s through the early 1970s, and included the disposal of
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`municipal, industrial, and commercial wastes. ECF 1 ¶ 6. Among the entities operating permitted
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`landfills at the Site was Robb Tyler, Inc. (“Robb Tyler”). Management Area E of the 68th Street
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`Site was the “original Robb Tyler Landfill,” which was permitted in 1953 and closed by 1956.
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`ECF 1 ¶ 10. Robb Tyler was issued a refuse disposal permit for Management Area F in 1956, and
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`2 These facts are derived from Plaintiff’s Complaint, ECF 1, and, where appropriate, from evidence
`attached to the motions and related filings.
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`it operated the Island Landfill (a six-acre landfill within Management Area F) as a permitted
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`landfill from 1960-1969. ECF 1 ¶ 11.
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`After several years of emergency response actions and site inspections, EPA proposed the
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`68th Street Site to the National Priorities List (“NPL”) in 1999, and again in 2003. ECF 1 ¶¶ 12-
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`15; U.S. Env’t Prot. Agency, Proposed National Priorities List (NPL) Sites – by State,
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`https://www.epa.gov/superfund/proposed-national-priorities-list-npl-sites-state#MD. The Site
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`has not been finalized to the NPL, instead being evaluated under the Superfund Alternative Site
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`process. U.S. Env’t Prot. Agency, Superfund Site: 68th Street Dump/Industrial Enterprises,
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`https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.Cleanup&id=0300
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`338. In April 2006, EPA entered into an Administrative Settlement Agreement and Order for
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`Remedial Investigation and Feasibility Study with the members of the 68th Street Site Work
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`Group. ECF 1 ¶ 16. Plaintiff alleges that it commenced the Investigation and Study shortly
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`thereafter, in June 2006. ECF 1 ¶ 17. Plaintiff’s member entities completed the Remedial
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`Investigation in May 2012, and the Feasibility Study in March 2013, and EPA issued its final
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`Record of Decision for remedial actions at the Site in September 2013. ECF 1 ¶¶ 20-21.
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`In November 2017, this Court entered a Consent Decree for Remedial Design/Remedial
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`Action (“Consent Decree”) between EPA and the State of Maryland, on the one hand, and a group
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`of defendants (the “Settling Defendants”) on the other hand. United States v. AAI Corp., et. al.,
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`Case No. 17-cv-2909-RDB, ECF 8 (D. Md. Nov. 29, 2017). The Settling Defendants included
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`Settling Performing Defendants—who are the members of the 68th Street Site Work Group—and
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`other Settling Non-Performing Defendants. ECF 1 ¶ 22. All of Plaintiff’s individual members are
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`signatories to the Consent Decree. ECF 1 ¶ 29. Plaintiff itself (the 68th Street Site Work Group
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`entity) is not a signatory.
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`Case 1:20-cv-03385-SAG Document 786 Filed 09/16/21 Page 5 of 58
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`Plaintiff filed its initial Complaint in November 2020, naming more than 150 Defendants
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`(who were not Settling Defendants party to the Consent Decree) as potentially liable for more than
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`$4.8 million in past costs incurred by Plaintiff for response activities required by the Consent
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`Decree. The Complaint seeks contribution, in addition to a declaration of each Defendant’s
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`liability for future response costs Plaintiff may incur. ECF 1 ¶ 1. Plaintiff alleges that each
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`Defendant it named, “by contract, agreement or otherwise arranged for disposal or treatment, or
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`arranged with a transporter for transport for disposal or treatment, of waste containing hazardous
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`substances at the 68th Street Site.” See, e.g., ECF 1 ¶ 30. Plaintiff alleges that each Defendant’s
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`respective waste streams contained, at minimum, the following fourteen hazardous substances:
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`acetone, benzene, cadmium, dichloroethylene, lead, methyl ethyl ketone, methylene chloride,
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`perchloroethylene, toluene, trichloroethane, trichloroethylene, vinyl chloride, xylene, and zinc. In
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`instances where the only waste stream alleged is “general office waste”—such as with respect to
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`Defendant Donohoe Real Estate Services—those fourteen substances make up the entirety of
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`Plaintiff’s allegations. See, e.g., ECF 1 ¶ 347. For certain other Defendants, however, Plaintiff
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`alleges that additional hazardous substances were disposed, including: arsenic, barium, chromium,
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`copper, dichlorobenzene, ethyl benzene, manganese, mercury, and/or nickel. See, e.g., ECF 1 ¶¶
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`217; 691.
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`II. Legal Standards Governing the Motions in General
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`A. Rule 12(b)(2) Motion to Dismiss
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`Three Defendants, Armacell, LLC (“Armacell”), Pabst Brewing Co. (“Pabst”), and
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`Caraustar Industries, Inc. (“Caraustar”), have filed motions to dismiss under Federal Rule of Civil
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`Procedure 12(b)(2), challenging this Court’s personal jurisdiction over them. ECF 163, 287, 537.
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`Under Rule 12(b)(2), the burden is “on the plaintiff ultimately to prove the existence of a ground
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`for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th
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`Cir. 1989); see Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014);
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`Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing
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`Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993)). When “a district court decides
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`a pretrial personal jurisdiction motion without conducting an evidentiary hearing, the plaintiff need
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`only make a prima facie showing of personal jurisdiction.” Carefirst of Md., 334 F.3d at 396
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`(citing Combs, 886 F.2d at 676). To determine whether the plaintiff has met this burden, “the court
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`must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume
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`credibility, and draw the most favorable inferences for the existence of jurisdiction.” Combs, 886
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`F.2d at 676. The court need not “look solely to the plaintiff’s proof in drawing” all reasonable
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`inferences in plaintiff’s favor and may also look at the defendant’s proffered proof and assertions
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`regarding defendant’s lack of contacts with the forum state. Mylan Labs., Inc., 2 F.3d at 62.
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`“When the existing record is inadequate to support personal jurisdiction over a defendant, the
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`plaintiff is entitled to jurisdictional discovery if it can demonstrate that such discovery would yield
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`‘additional facts’ that would ‘assist the court in making the jurisdictional determination.’”
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`FrenchPorte IP, LLC v. Martin Door Mfg., Inc., Civil Action No. TDC-14-0295, 2014 WL
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`4094265, at *5 (D. Md. Aug. 14, 2014) (quoting Commissariat A L’Energie Atomique v. Chi Mei
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`Optoelectronics Corp., 395 F.3d 1315, 1323 (Fed. Cir. 2005); and then citing Toys “R” Us, Inc.
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`v. Step Two, S.A., 318 F.3d 446, 456 (Fed. Cir. 2003) (“[C]ourts are to assist the plaintiff by
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`allowing jurisdictional discovery unless the plaintiff’s claim is clearly frivolous.”)).
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`To exercise personal jurisdiction over a non-resident defendant, a court must determine
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`that (1) the exercise of jurisdiction is authorized under the state’s long-arm statute, pursuant to
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`Federal Rule of Civil Procedure 4(k)(1)(A); and (2) the exercise of jurisdiction conforms to the
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`Fourteenth Amendment’s due process requirements. Carefirst of Md., 334 F.3d at 396. When
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`interpreting the reach of Maryland’s long-arm statute, a federal district court is bound by the
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`interpretations of the Maryland Court of Appeals. See Carbone v. Deutsche Bank Nat’l Tr. Co.,
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`Civil Action No. RDB-15-1963, 2016 WL 4158354, at *5 (D. Md. Aug. 5, 2016); Snyder v.
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`Hampton Indus., Inc., 521 F. Supp. 130, 135-36 (D. Md. 1981), aff’d, 758 F.2d 649 (4th Cir. 1985);
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`see also Mylan Labs., 2 F.3d at 61 (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
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`Moreover, courts must address both prongs of the personal jurisdiction analysis, despite Maryland
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`courts consistently holding that “the state’s long-arm statute is coextensive with the limits of
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`personal jurisdiction set out by the due process clause of the Constitution.” Carefirst of Md., 334
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`F.3d at 396; Bond v. Messerman, 391 Md. 706, 721, 895 A.2d 990, 999 (2006); see CSR, Ltd. v.
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`Taylor, 411 Md. 457, 472, 984 A.2d 492, 501 (2009) (noting that the personal jurisdiction analysis
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`“entails dual considerations”).
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`Under the first prong, the plaintiff must identify a provision in the Maryland long-arm
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`statute that authorizes jurisdiction. Ottenheimer Publishers, Inc. v. Playmore, Inc., 158 F. Supp.
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`2d 649, 652 (D. Md. 2001). Under the second prong, “due process requires only that . . . a
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`defendant . . . have certain minimum contacts . . . such that the maintenance of the suit does not
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`offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326
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`U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This “minimum
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`contacts” analysis depends on the number and relationship of a defendant’s contacts to the forum
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`state, and whether the present cause of action stems from the defendant’s alleged acts or omissions
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`in the forum state. Id. at 316-19.
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`Finally, a court may exercise two types of personal jurisdiction, “general” or “specific.”
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`Bristol-Myers Squibb Co. v. Superior Court of Cal., S.F. Cty., 137 S. Ct. 1773, 1780 (2017).
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`“General” jurisdiction is a fairly limited concept, since it only arises where “the continuous
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`corporate operations within a state [are] so substantial and of such a nature as to justify suit against
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`[defendant] on causes of action arising from dealings entirely distinct from those activities.” Int’l
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`Shoe, 326 U.S. at 318. “For an individual, the paradigm forum for the exercise of general
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`jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which
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`the corporation is fairly regarded as at home.” Goodyear Dunlop Tires Operations, S.A. v. Brown,
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`564 U.S. 915, 924 (2011). In the context of a corporation, the paradigm bases for general
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`jurisdiction are “the place of incorporation and principal place of business.” Daimler AG v.
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`Bauman, 571 U.S. 117, 137 (2014). The Daimler court clarified that while those paradigms are
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`not necessarily the only bases for general jurisdiction, it would be “unacceptably grasping” to
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`approve the exercise of general jurisdiction wherever a corporation, “engages in a substantial,
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`continuous, and systematic course of business.” Id. at 137-38 (declining to find general
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`jurisdiction lies in every state in which a corporate defendant has “sizable” sales).
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`“Specific” jurisdiction arises when there is an “affiliation between the forum and the
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`underlying controversy.” Goodyear, 564 U.S. at 919; Carefirst of Md., 334 F.3d at 397. To assess
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`specific jurisdiction, the Fourth Circuit considers: “(1) the extent to which the defendant
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`purposefully availed itself of the privilege of conducting activities in the State; (2) whether the
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`plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the exercise of
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`personal jurisdiction would be constitutionally reasonable.” Consulting Eng’rs Corp. v. Geometric
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`Ltd., 561 F.3d 273, 278 (4th Cir. 2009) (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc.,
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`293 F.3d 707, 712 (4th Cir. 2002)).
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`Under Rule 12(b)(2), the court is permitted to consider evidence outside the pleadings in
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`resolving a motion to dismiss for lack of personal jurisdiction. Structural Preservation Sys., LLC
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`v. Andrews, 931 F. Supp. 2d 667, 671 (D. Md. 2013); see also 5B Charles Alan Wright & Arthur
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`R. Miller, Federal Practice and Procedure § 1351, at 305 (3d ed. 2004) (“[T]he district judge has
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`considerable procedural leeway in choosing a methodology for deciding the motion. The court
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`may receive and weigh the contents of affidavits and any other relevant matter submitted by the
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`parties to assist it in determining the jurisdictional facts.”).
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`B. Rule 12(b)(6) Motion to Dismiss
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`The majority of the currently pending motions cite Rule 12(b)(6), which permits a
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`defendant to test the legal sufficiency of a complaint by way of a motion to dismiss. In re
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`Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
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`165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom.,
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`McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
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`Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts
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`alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which
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`relief can be granted.”
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`Whether a complaint states a claim for relief is assessed by reference to the pleading
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`requirements of Federal Rule of Civil Procedure 8(a)(2). That rule provides that a complaint must
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`contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The
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`purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds”
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`for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
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`To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state
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`a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556
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`U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the pleading
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`standard for ‘all civil actions’ . . . .”); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a
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`plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly,
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`550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint
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`for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of
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`Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam).
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`Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly,
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`550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a
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`complaint provides no more than “labels and conclusions” or “a formulaic recitation of the
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`elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the
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`minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken
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`as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is
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`improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal
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`quotation marks omitted).
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`In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual
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`allegations contained in the complaint” and must “draw all reasonable inferences [from those facts]
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`in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
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`(4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017);
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`Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650
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`F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to
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`accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986).
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`“A court decides whether [the pleading] standard is met by separating the legal conclusions from
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`the factual allegations, assuming the truth of only the factual allegations, and then determining
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`whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the
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`legal remedy sought. A Soc’y Without a Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert.
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`denied, 566 U.S. 937 (2012).
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`Courts generally do not “resolve contests surrounding the facts, the merits of a claim, or
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`the applicability of defenses” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting
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`Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare
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`circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint,
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`the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v.
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`Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long
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`Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended
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`[only] to test the legal adequacy of the complaint,” Richmond, Fredericksburg & Potomac R.R.
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`Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary
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`to the affirmative defense ‘clearly appear[] on the face of the complaint.’” Goodman, 494 F.3d at
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`464 (emphasis, and second alteration, in original) (quoting Forst, 4 F.3d at 250).
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`In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a
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`court ordinarily “may not consider any documents that are outside of the complaint, or not
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`expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th
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`Cir. 2013); see Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, a court may
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`properly consider documents incorporated into the complaint or attached to the motion to dismiss,
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`“‘so long as they are integral to the complaint and authentic.’” U.S. ex rel. Oberg v. Pa. Higher
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`Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty. Mem’l
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`Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Anand v. Ocwen Loan Servicing, LLC, 754 F.3d
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`195, 198 (4th Cir. 2014); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
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`(4th Cir. 2004), cert. denied, 543 U.S. 979 (2004).
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`Accordingly, when resolving a Rule 12(b)(6) motion, a court may consider certain exhibits,
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`without converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor &
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`City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015). In particular, a court may consider
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`documents that are “explicitly incorporated into the complaint by reference and those attached to
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`the complaint as exhibits[.]” Goines, 822 F.3d at 166 (citations omitted); see also U.S. ex rel.
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`Oberg, 745 F.3d at 136; Anand, 754 F.3d at 198; Am. Chiropractic Ass’n, 367 F.3d at 234; Phillips
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`v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999).
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`A court may also “consider a document submitted by the movant that was not attached to
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`or expressly incorporated in a complaint, so long as the document was integral to the complaint
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`and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations
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`omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied,
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`138 S. Ct. 558 (2017); Kensington Volunteer Fire Dep’t v. Montgomery Cty., 684 F.3d 462, 467
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`(4th Cir. 2012). To be “integral,” a document must be one “that by its ‘very existence, and not the
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`mere information it contains, gives rise to the legal rights asserted.’” Chesapeake Bay Found.,
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`Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (alterations
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`omitted) (quoting Walker v. S.W.I.F.T. SCRL, 517 F. Supp. 2d 801, 806 (E.D. Va. 2007)).
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`C. Rule 56 Summary Judgment
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`Several Defendants ask, in the alternative, that summary judgment be granted in their favor,
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`and many attach exhibits to their motions to this end. ECF 448, ECF 452, ECF 464, ECF 478,
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`ECF 479, ECF 480, ECF 481, ECF 482/484, ECF 510, ECF 549, ECF 672, ECF 701, ECF 704,
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`ECF 767, ECF 768, ECF 769. Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
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`judgment is appropriate only “if the movant shows that there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” The moving party bears
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`Case 1:20-cv-03385-SAG Document 786 Filed 09/16/21 Page 13 of 58
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`the burden of showing that there is no genuine dispute of material fact. See Casey v. Geek Squad,
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`823 F. Supp. 2d 334, 348 (D. Md. 2011) (citing Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282,
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`1286 (4th Cir. 1987)). If the moving party establishes that there is no evidence to support an
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`element of the non-moving party's case, the burden then shifts to the non-moving party to proffer
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`specific facts to show a genuine issue exists for trial. Id. The non-moving party must provide
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`enough admissible evidence to “carry the burden of proof in [its] claim at trial.” Id. at 349 (quoting
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`Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)). The mere existence of a
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`scintilla of evidence in support of the non-moving party's position will be insufficient; there must
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`be evidence on which the jury could reasonably find in its favor. Id. at 348 (citing Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). Moreover, a genuine issue of material fact cannot
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`rest on “mere speculation, or building one inference upon another.” Id. at 349 (quoting Miskin v.
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`Baxter Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999)).
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`Additionally, summary judgment shall be warranted if the non-moving party fails to
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`provide evidence that establishes an essential element of the case. Id. at 352. The non-moving
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`party “must produce competent evidence on each element of [its] claim.” Id. at 348-49 (quoting
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`Miskin, 107 F. Supp. 2d at 671). If the non-moving party fails to do so, “there can be no genuine
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`issue as to any material fact,” because the failure to prove an essential element of the case
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`“necessarily renders all other facts immaterial.” Id. at 352 (quoting Celotex Corp. v. Catrett, 477
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`U.S. 317, 322-23 (1986); Coleman v. United States, 369 Fed. App’x 459, 461 (4th Cir. 2010)). In
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`ruling on a motion for summary judgment, a court must view all of the facts, including reasonable
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`inferences to be drawn from them, “in the light most favorable to the party opposing the motion.”
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United
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`States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
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`Case 1:20-cv-03385-SAG Document 786 Filed 09/16/21 Page 14 of 58
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`Relevant to this case, summary judgment typically is not granted “where the parties have
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`not had an opportunity for reasonable discovery.” E.I. du Pont, 637 F.3d at 448.. However, “the
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`party opposing summary judgment ‘cannot complain that summary judgment was granted without
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`discovery unless that party had made an attempt to oppose the motion on the grounds that more
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`time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,
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`244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
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`1996)). To present the issue, the nonmovant is typically required to file an affidavit pursuant to
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`Federal Rule of Civil Procedure 56(d), explaining why “for specified reasons, it cannot present
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`facts essential to justify its opposition,” without further discovery. Fed. R. Civ. P. 56(d). In
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`particular circumstances, the court may find that a nonmovant has effectively served the purpose
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`of the Rule 56(d) affidavit requirement by otherwise articulating its need for discovery in briefings
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`and hearings. Harrods Ltd., 302 F.3d at 246 (electing not to penalize nonmovant for failing to file
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`Rule 56(d) affidavit where it had “repeatedly explained to the district court both in writing and
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`orally that more discovery was needed,” and “[t]he district court was thus fully informed[.]”).
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`However, the ultimate evaluation of the sufficiency of a nonmovant’s request for discovery is
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`made at the Court’s discretion, and requirement of a Rule 56(d) affidavit remains the prevailing
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`rule in this Circuit. See Medlock v. Rumsfeld, 336 F. Supp. 2d 452, 470 (D. Md. 2002) (“While
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`the specific facts in Harrods led the court to conclude that the plaintiff’s efforts had served the
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`purpose of the Rule 56(f) affidavit, . . . it clearly did not eliminate the Rule 56(f) affidavit
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`requirement discussed in Evans[.]”).3
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`
`
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`3 “The language of Rule 56(d) appeared in Rule 56(f) before amendments in 2010, but these
`amendments made no substantial change to the rule.” McCray v. Maryland Dep’t of Transp., 741
`F.3d 480, 484 n.2 (4th Cir. 2014).
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`Case 1:20-cv-03385-SAG Document 786 Filed 09/16/21 Page 15 of 58
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`III. Analysis
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`A. Motions to Dismiss for Lack of Personal Jurisdiction
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`As noted above, three Defendants, Armacell, Pabst, and Caraustar, challenge this Court’s
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`exercise of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Armacell and
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`Caraustar also seek dismissal for failure to state a claim pursuant to Rule 12(b)(6). Each of those
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`Defendants, through the sworn statements of their respective affiants, establish that they are neither
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`incorporated nor do they maintain their principal place of business in Maryland. See ECF 163-3
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`at ¶¶ 3-6 (“Ahumada Decl.”); ECF 287-2 at ¶¶ 3-11 (“Urband Decl.”); ECF 537-2 at ¶¶ 4-5 (“Martz
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`Aff.”). Pabst, in addition, contends that it is not subject to general personal jurisdiction despite its
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`registration in Maryland and the fact that its brands are distributed and sold in Maryland, along
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`with most other states, (citing Md. Code Ann., Corps. & Ass’ns § 7-210 (West) (2021) and
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`Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482, 487 (Md. 1988)). This Court is permitted
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`to, and has, considered those statements in adjudicating this Rule 12(b)(2) motion. Thus, in the
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`absence of any exceptional circumstances to suggest otherwise, this Court lacks general
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`jurisdiction over Defendants Armacell, Pabst, and Caraustar.
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`
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`As for specific in personam jurisdiction, Plaintiff’s claims do not arise out of any action
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`conducted by those Defendants in Maryland. Instead, they rest entirely on the actions of
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`companies for which Plaintiff claims Defendants are liable as successors. Plaintiff alleges that
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`specific jurisdiction may be asserted against Armacell as the successor to Monarch Rubber Co.,
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`against Pabst as the successor to Carlings Brewing Company, F&M Schaefer Brewing Co., Mr.
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`Jerold C. Hoffberger, National Brewing Company, and P. Ballantine & Sons, and against Caraustar
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`as the successor to Chesapeake Paperboard Company, for those entities’ purported arranging for
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`disposal of waste at the 68th Street Site. Plaintiff spends considerable time in its various responses
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`Case 1:20-cv-03385-SAG Document 786 Filed 09/16/21 Page 16 of 58
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`laying out its bases for personal jurisdiction over the purported predecessor entities. However,
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`this Court need not reac