Court finds that A&W's allegation that the EPA is without legal authority to promulgate abatement orders under CERCLA is without merit.
B. Motion to Amend Complaint
Federal Rule of Civil Procedure 15(a) provides for the amendment of pleadings by leave of court and notes that such leave "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, the grant or denial of a motion to amend is committed to the discretion of the district court, and denial is proper where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991). An amendment is considered futile where the added claim could be defeated by a motion to dismiss or for summary judgment. See Wilson v. American Trans Air, Inc., 874 F.2d 386, 392 (7th Cir. 1989).
Although this case is set for trial on April 7, 1997, plaintiff has filed a Motion to Amend its complaint. The amended complaint is significantly similar to the original complaint except for the fifth cause of action for declaratory relief. Plaintiff has modified all of its requests for declaratory relief, stating that the primary purpose in seeking declaratory relief "is an attempt to forestall, streamline or (preferably) eliminate three other federal lawsuits, which appear to be inevitable between the parties." Pl. Motion at 2. The new issues for which A&W seeks declaratory relief are independent of their reimbursement claims.
Defendant opposes this Motion on two grounds. EPA asserts that the new claim of declaratory relief should be barred because in essence it is asking the Court for an advisory opinion to solve issues that it may claim in other lawsuits. The claims for which plaintiff is seeking declaratory relief are inapplicable to the instant case. It is established that courts lack jurisdiction to issue advisory opinions that do not affect the rights of the parties in the case at hand. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 81 L. Ed. 617, 57 S. Ct. 461 (1937). Because the plaintiff seeks to change the allegations in the fifth cause of action to aid in the determination of other lawsuits, their resolution in the context of this case is improper.
Secondly, the EPA argues that it would be prejudiced by the new allegations in the fifth cause of action because they are no longer duplicative of the first four causes of action. Trial could not go forward as scheduled, substantial delay would be caused, and defendant argues that it would be required to file an additional summary judgment motion to address those changes. M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1492 (9th Cir. 1983) (motion to amend properly denied where plaintiff failed to allege new facts and dispositive motion was pending and disposition of case would be delayed by granting leave to amend). Thus plaintiff is denied leave to amend its complaint.
For the foregoing reasons and for good cause shown, defendants' Motion for Summary Judgment is GRANTED; and plaintiff's Motion For Leave to File an Amended Complaint is DENIED.
IT IS SO ORDERED.
Dated: March 24, 1997
United States District Judge
In accordance with the Court's Order of March 24, 1997, judgment is hereby entered in favor of defendants and against plaintiff.
IT IS SO ADJUDGED.
Dated: March 25, 1997.
United States District Judge