Opinion
In litigation under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), allegedly liable parties moved for summary judgment. The District Court, 158 F.R.D. 16, denied motions, but granted motions as to all parties who chose not to oppose the motions. Following receipt of letters by nonopposing parties tending to indicate that nonopposing parties did not concede on the merits, in its amended order, the District Court, McAvoy, Chief Judge, held that where fact questions as to oil companies' involvement with respect to hazardous waste at site precluded summary judgment as to companies' CERCLA liability, fact questions existed as to all parties, including nonopposing parties.
So ordered.
AMENDED ORDER
McAVOY, Chief Judge.
On October 8, 1994, this Court issued a Memorandum-Decision & Order denying summary judgement to Citgo Petroleum Corporation (" Citgo" ), Atlantic Richfield Company (" ARCO" ), and AlliedSignal Corporation. 158 F.R.D. 16. However, the denial applied only as to those parties who filed opposition papers to the pending motions. The motions were granted as to any and all parties who chose not to oppose the motions. This determination was made under the assumption that the non-opposing parties were conceding on the merits-a majority of these parties notified the Court in writing that the motions were not being opposed by them. Now, the Court is in receipt of letters sent by the non-opposing parties which tend to indicate that they were not in fact conceding on the merits.
Although failure to file opposition papers to pending motions must be viewed unfavorably, the Court, nevertheless, determines that since material issues of fact did in fact exist as to the involvement of Citgo and ARCO to the York Oil Site, material issues of fact must be found to exist as to all parties, including the non-opposing parties. Accordingly, the summary judgment motions made by Citgo and ARCO must be denied in its entirety as to all parties. This determination applies with equal force to AlliedSignal's motion for summary judgment. This is because AlliedSignal's motion was also denied partly on the fact that there were material issues of fact as to its involvement with the York Oil Site. Thus, in sum, the summary judgment motions brought forth by Citgo, ARCO and AlliedSignal are denied in their entirety as to all parties, including those who did not file opposition papers.
There were two reasons why summary judgment was denied as to AlliedSignal. First, there were material issues of fact as to AlliedSignal's involvement with the York Oil Site. Second, the opposing parties did not have enough time for discovery on the petroleum exclusion question.
Accordingly, it is hereby ORDERED, that this Amended Order supersede the Court's prior October 8, 1994 Order with respect to the motions filed by Citgo, ARCO and AlliedSignal. The motion filed by Bethlehem Steel, however, will not be disturbed.
IT IS SO ORDERED.