Full opinion text
BROTMAN, District Judge, Sitting by Designation. ■ J. Background A. Introduction This case has its inception as far back as July 8, 1987, when Eric Tillet detected odors of gasoline emanating from a well located on No. 186 Estate Anna’s Retreat in the Tutu region on the island of St. Thomas, U.S. Virgin islands. Tillet contacted the Department of Planning and Natural Resources of the Territory of the Virgin Islands (“DPNR”), which contacted and conferred with the United States Environmental Protection Agency (“EPA”). On or about August 7, 1987, the DPNR ordered the closure of the wells of the Four Winds Plaza Partnership located at No. 392 Estate Anna’s Retreat, of the wells of PID, Inc., and of wells on property owned by the Harthman family. See EPA Administrative Order of Consent, Index No. 11-RCRA-Pro-ceeding 7003 & 9003-02-0401, dated Feb. 19, 1992 ¶ 6; see also PID Compl. ¶¶ 15-16, and Four Winds Compl. ¶¶ 13-14. As a result of DPNR orders, eighteen wells were closed between July 31 and September 2,1987. By late July 1987, the EPA had begun its investigation of the suspected pollution of the Tutu Water Wells under the provisions of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9615 (West 1995) (hereinafter “CERCLA”) and the Resource Conservation and Recovery Act, 42 U.S.C. § 6991 et seq. (West 1995) (“RCRA”). On August 10 and 11, 1987, the EPA collected water samples from twenty-four wells located in the Tutu section of Anna’s Retreat within what is known as the Turpentine Run Aquifer. An analysis of the recovered samples revealed the presence of 1,2-Trans-Dichloroethylene (“DCE”), Trichloroethylene (“TCE”), Tetrachloroethylene (“PCE”), Toluene (“TOL”), benzene, and Terbutylmethylether (“TBME”). In October of 1987, the EPA collected additional samples from twenty-four wells. The analysis of these samples revealed that DCE, TCE, PCE, and TBME are the major contaminants of the water. See Consent Order at ¶ 11. In January 1988, after taking additional samples from 123 cisterns serviced by area water haulers, the EPA initiated a limited CERCLA Removal Action, which included the cleaning of some cisterns, the providing of a temporary alternative water supply, and monitoring of the well water. See id. at ¶¶ 8-12. A photovac sampling in 1989 showed high levels of benzene, TCE, and PCE. See id. at ¶ 13. Benzene, DCE, PCE, TCE, TOL, and TBME are gasoline additives, petroleum derivatives, or components of cleaning solvents used by service stations. PCE is also a common component of dry cleaning fluids. In 1987 and 1988, the EPA issued a series of unilateral orders to Esso Standard Oil, S.A. (hereinafter “Esso”); Daniel Bayard; Texaco, Inc., Texaco Caribbean, Inc., and Vernon Morgan (collectively referred to herein as “Texaco”); and L’Henri Dry Cleaners (“L’Henri”) (sometimes referred to herein as “O’Henry”), requiring them to supply information about the underground storage tanks in which they kept their gasoline and about their use or handling of PCE. The orders also required them to conduct soil vapor surveys. See id. at ¶¶ 14-33. The surveys confirmed the presence of TCE, PCE, DCE, and benzene at the Esso facility and at the Four Winds Parking Lot. See id. at 20-22. Texaco also submitted information confirming that gasoline had leaked from its underground storage tanks. See id. at ¶¶ 25-26. Soil samples at the L’Henri facility contained PCE in concentrations of 440 parts per million. See id. at ¶ 33. In March 1989, the EPA completed preliminary assessments of potentially responsible parties (hereinafter “PRPs”) in the area. These parties included Ramsay Motors, Inc; the old Laga clothing manufacturing facility, which is now owned by the Virgin islands Department of Education (hereinafter VIDEO and others). Pursuant to the provisions of CERCLA and RCRA, the EPA on March 22, 1990 issued a Unilateral Consent Order against Esso, Texaco, and L’Henri, requiring them to take over a well-monitoring program. See id. at ¶ 4; EPA Administrative Order, Index No. ll-CERCLA-00401, RCRA-90-UST-9003-0401, dated Mar. 22, 1990, § VII, at 11-13 (“Unilateral Order”). B. The History of “Laga” The EPA’s search for those responsible for the contamination of the Tutu aquifer resulted in the naming of another PRP. Laga Industries, Ltd. (“Laga”), organized under Virgin Islands law, operated a textile manufacturing plant, also in Estate Anna’s Retreat. The primary chemical discovered on Laga’s property was PCE, which had been allegedly discharged via underground pipes into the ground as a result of Laga’s on-site dry cleaning operations — a final step in the manufacturing process of Laga’s textile products. It is worth noting portions of Laga’s history in the Virgin islands. In 1970, Laga’s initial shareholders and officers, Paul Lazare and Andreas Gal (hereinafter “Lazare” and “Gal”), sold Laga to The Duplan Corporation (“Duplan”), a Delaware corporation. Gal and Lazare stayed on as directors and majority shareholders of Duplan. As a result of the sale, Duplan owned one hundred percent (100%) of Laga’s shares. See Oct. 4, 1994 Lazare Dep. Laga was administratively dissolved in 1981 for failure to pay corporate franchise taxes. On August 31,1976, Duplan filed for Chapter XI reorganization. By court order dated October 5, 1976, Duplan’s bankruptcy proceeding was converted into a chapter X proceeding. In 1979, Duplan received authorization from the bankruptcy court to sell the Laga facility to Panex Co., a partnership composed of Gal and Lazare. This sale was formally consummated on December 12, 1979. Panex Co. later sold the property to the Government of the Virgin Islands, specifically to VIDE. Duplan’s Plan of Reorganization, and the bankruptcy court’s order of June 4, 1981, directed, among other matters, that Laga be dissolved. The Plan further provided that holders of subordinated notes and debentures in Duplan were to receive new common stock in the successor corporation. On July 11, 1981, Duplan was renamed Panex Industries, Inc. (hereinafter “Panex”). Article VIII of the Restated Certificate provides that, to the extent authorized under Delaware law, certain directors, officers and other identified persons could be indemnified by Panex. On September 18, 1981, the Board of Directors of Panex met and decided the following: that (1) 1,211,242 shares of Panex common stock would be issued to the holders of convertible subordinated debentures; that (2) Wundies, Inc., a subsidiary which manufactured ladies’ and girls’ undergarments and sleep wear, would be merged into Panex; and (3) pursuant to § 9.1 of the Reorganization Plan, Lady Suzanne Foundation, Inc. and Laga were to be dissolved. This Board meeting, as with subsequent meetings, was conducted by Daniel Rosenbloom, Chairman of the Board, a third-party defendant herein and a general partner of First Manhattan Co. See Oct. 5,1994 Rosenbloom Dep. at 157. As a result of these reorganizations and ■dissolutions, Gal and Lazare became the owners of twenty-seven percent (27%) of the common stock of Panex, and Firmanco Associates became the owner of forty percent (40%) of Panex. Firmanco was a limited partnership of which Rosenbloom is a general partner. Firmanco was formed to buy shares of stock in Panex from certain banks. Rosenbloom later became Chairman of the Board of Panex and a trustee of the Panex Trust. Panex possessed two major assets: Rochester Button and Wundies, Inc. On March 22, 1984, Panex sold the assets of Rochester Button to the Apiñe Group (“Apiñe”). However, under the- terms of the agreement, a facility in Wellsville, New York, which the State of New York alleged sent hazardous substances to that town’s landfill, was specifically exempted from the assets purchased by Apiñe. On July 26, 1984, after the Rochester Button sale, the Board of Directors met to consider the adoption of a plan of complete liquidation. On August 9, 1984, the Board arrived at and approved a Liquidation Plan for Panex, pursuant to which substantially all of Wundies, Inc.’s assets were to be sold. The Plan also provided that the Panex Trust would be formed to satisfy the contingent liabilities of Panex. The Panex Trust was to be initially funded with $6 million reserved from the funds received from the liquidation. On August 31, 1984, a Proxy. Statement describing the Liquidation Plan was distributed to all Panex shareholders, which disclosed that: IT IS POSSIBLE THAT THE AMOUNT HELD IN TRUST TO COVER CONTINGENT AND OTHER LIABILITIES OF LATEX WILL BE USED TO DISCHARGE SUCH LIABILITIES ... MOREOVER, ALTHOUGH THE BOARD OF DIRECTORS BELIEVES THAT THE AMOUNT OF APPROXIMATELY $6 MILLION WHICH WILL BE DEPOSITED IN THE LIQUIDATING TRUST WILL BE SUFFICIENT TO COVER ANY LIABILITIES WHICH MAY ARISE DURING OR AFTER THE LIQUIDATING PERIOD, THERE CAN BE NO ASSURANCE THAT THIS WILL BE THE CASE. IF THE AMOUNT HELD IN THE LIQUIDATING TRUST IS INSUFFICIENT TO DISCHARGE FULLY ALL LIABILITIES WHICH MAY ARISE AFTER THE TRUST IS TERMINATED, EACH PANEX STOCKHOLDER MAY BE LIABLE FOR ANY UNPAID PORTION OF SUCH LIABILITIES TO THE EXTENT OF THE LIQUIDATING DISTRIBUTIONS PAID TO HIM, INCLUDING, IF APPLICABLE, THE VALUE OF ANY WUNDIES STOCK WHICH HE MAY RECEIVE AS A LIQUIDATING DISTRIBUTION. The Panex shareholders ultimately received three cash liquidation distributions. The first distribution of $6.00 per share occurred on September 21, 1984. The second distribution of $16.00 per share occurred on December 12, 1984. On April 15, 1985, the Certificate of Dissolution of Panex, which had been adopted on September 24, 1984, was filed with the Delaware Secretary of State. On April 30, 1985, the Panex Board of Directors met and approved an Asset Purchase Agreement negotiated by Rosenbloom (for which First Manhattan Co. received a $500,000.00 fee) to sell substantially all of the assets of Wundies, Inc. to Wundies Industries, Inc. Wundies, Inc. was later sold for $44,320,000.00 in cash and 2,375,000 shares of preferred stock, and 276,105 shares of common stock in Wundies Industries, Inc. After the sale, the third and final distribution of Panex’s assets, including the proceeds of the Wundies, Inc. sale, was made to Panex shareholders. The shareholders received $23.00 per share, as well as one share of preferred stock, and .15 shares of common stock, in Wundies Industries, Inc. for each share held in Panex. See Lazare Dep. at 62, 82. The initial balance of the Panex Trust, which was formed on September 12, 1985, was $6 million. The Trust further distributed to its beneficial interest holders (the former Panex shareholders), on July 10, 1987, $3.00 per unit, after which the Trust had a principal balance of $1,150,000.00. The Trust was to terminate after the expiration of Delaware’s three-year limitations period for claims against dissolved corporations, but the Trustees elected to continue the Trusts’s existence beyond 1988. By letter dated March 16, 1988 from the New York Department of Environmental Conservation (“DEC”), the Trustees of the Panex Trust received notice that Panex was considered a PRP because of Rochester Button’s alleged contamination of the Wellsville-Andover landfill. An additional letter concerning the contamination at the Wellsville facility was sent by the DEC on August 8, 1988. C. Procedural Background In 1989, several groups of plaintiffs filed the first complaints in this ease, alleging that the PRPs were responsible for the chemical contamination of the water wells in the Tutu aquifer region. Some of these defendants in turn assumed the roles of third-party plaintiffs and filed third-party complaints against parties known collectively and colloquially as “the Laga defendants” in 1992. They alleged that Laga was responsible, as a result of its on-site dry-cleaning operations, for the contamination of the Tutu aquifer and sought, inter alia, CERCLA contribution and cost recovery. Later that year, the Laga defendants moved to dismiss on several grounds, including the dissolved corporations’ lack of capacity to be sued. Their motion was granted as to the common law claims (except those against Laga itself), but denied as to the CERCLA claims. See In re Tutu Wells Contamination Litig., 846 F.Supp. 1243, 1283 (D.Vi.1993). In 1993, the parties agreed to sever and stay all CERCLA claims and related discovery until a cleanup remedy could be selected, at which point the parties could better ascertain the potential costs to be recovered under CERCLA. Laga then moved for summary judgment in February 1994 with respect to the common law claims pending against it, asserting that it lacked the capacity to be sued and that there was insufficient evidence that Laga had discharged any contaminants into the Tutu aquifer. In June 1994, faced with competing and potentially unsatisfiable obligations in this case and in other, unrelated actions, the Trustees filed a petition for instructions in the Delaware Court of Chancery to determine how to allocate the Trust’s remaining assets. The Trustees argued that the Court of Chancery was the only forum capable of resolving all of the competing claims against the Trust in a way that would bind all interested parties and thus provide satisfactory protection for the Trustees. In July of 1994, several defendants moved for a temporary restraining order, (“TRO”) enjoining the Trust and its Trustees from proceeding with the Delaware petition and from disbursing any Trust assets.. These movants feared that the Trust would terminate upon distribution of its last assets and that the former corporations would thereby lose their capacity to be sued before the parties could litigate the severed and stayed CERCLA claims. Some of the Laga defendants opposed the motion on several grounds, asserting that the former corporations already lacked the capacity to be sued and that the Trust and the Trustees lyere not parties to the lawsuit. The Court granted a TRO in August 1994, but did not enjoin the Trustees from disbursing Trust assets. See In re Tutu Water Wells Contamination Litig., 157 F.R.D. 367, 379-80 (D.Vi.1994). The movants in that action filed a motion for permanent injunction in October 1994, seeking only to stay the Delaware petition. Certain of the Laga defendants again opposed the motion on similar grounds as before. In its April 1995 order, the Court stayed the Delaware proceeding and enjoined the disbursement of Trust assets. In July 1995 the Court modified the injunction so that the Trustees could disburse assets from the Trust, but only for certain categories of expenses and only with prior judicial approval. The Trustees were explicitly enjoined from making any disbursement that would deplete fully the Trust’s assets, thereby terminating the Trust. 1. The Third Circuit Opinion The U.S. Court of Appeals for the Third Circuit affirmed this Court’s finding that the dissolved corporations had no capacity to be sued on the common law claims. In re Tutu Wells Contamination Litig., 74 F.3d 1228, 1995 WL 769119, slip op. at 9 (3d Cir.1995). The Third Circuit, however, reversed this Court’s granting of the injunction and remanded with instructions to dismiss Laga, Duplan and Panex on the ground that they lacked the capacity to be sued, and to dismiss Gal and Lazare, in their capacities as former officers or directors of those three corporations, on the ground that Ho judgment could be obtained against the dissolved corporations and that therefore no claims could be maintained against their former officers or directors. Id. slip op. at 17. The Third Circuit applied V.I.CODE ANN. tit. 13, § 285, which provides for the same three-year limitations period as DEL.CODE ANN. tit. 8, § 278, and opined that Laga has been without capacity to be sued since 1984 (it having been dissolved in 1981). Id. at 10-11. The reason for such incapacity was that V.I.CODE ANN. tit. 13, § 344(b), modeled on DEL.CODE ANN. tit. 8, § 325(b), states that “[n]o suit may be brought against any officer, director or stockholder for any debt or liability of a corporation, of which he is an officer, director or stockholder, until judgment be obtained therefor against the corporation____” In re Tutu Wells Contamination Litig., slip op. at 12. Just as common law claims against Duplan and Panex warranted dismissal, so too did those against Laga, and against Gal and Lazare in their capacities as former officers or directors of Laga. Id. at 11. The Third Circuit’s most important holding for purposes of this opinion is that as with common law claims, the CERCLA claims against Gal and Lazare in their capacities as former officers and directors of the dissolved corporations also had to be dismissed because no judgment could be obtained against the former corporations. Id. at 15. In so doing, the Court of Appeals made a point of discussing a case upon which the parties in the instant dispute rely heavily, City Investing Co. Liquidating Trust v. Continental Cas. Co., 624 A.2d 1191 (Del.1993). In that case, the Delaware Supreme Court explained what effect the existence of a liquidating trust had on the capacity of a dissolved corporation to be sued under Delaware law., City Investing Company (“City”) filed a certificate of dissolution in 1985. In order to achieve significant tax savings by complying with former § 337 of the Internal Revenue Code, City endeavored to distribute all of its assets within one year but was unable to do so. City therefore created a liquidating trust (“City Trust”) so that it could take advantage of the tax savings but still keep some money on hand to complete the winding up of the corporation. City Trust explicitly assumed the liabilities of City. City Trust was set to terminate in 1988, after the three-year winding-up period expired, but City Trust was unable to wind up City’s affairs that quickly. Continental Casualty Company (“Continental”), a City creditor, filed a claim against City Trust in 1991. City Trust filed a complaint in Delaware Chancery Court, seeking a declaratory judgment that neither City nor City Trust was liable to suit after the expiration of the three-year period imposed by § 278 of the Delaware General Corporation Law. The Vice Chancellor held that the corporation (City) was not amenable to suit after the three-year period had expired. The liquidating trust was, on the other hand, a separate legal entity capable of being sued because it was not a corporation subject .to the limitations imposed by § 278. The Delaware Supreme Court affirmed. The court explained that the liquidating trust was created for the purpose of achieving tax savings while winding up the affairs of a dissolved corporation. It was a separate legal entity — neither a corporation, nor a business trust, but a simple trust. The trust, therefore, could be sued so long as it existed, and the trust was obligated to discharge all liabilities of the predecessor corporation as provided in the trust agreement. The court stated: “A liquidating trust is formed to wind up the predecessor corporation’s affairs and operates in the same manner as a dissolving corporation.” Id. at 1197 (internal quotation marks omitted). Interpreting City Investing, the Third Circuit found that the case also stood for the proposition that a dissolved corporation itself cannot be sued whether or not the trust continues. Id. slip op. at 15. Moreover, a party cannot sue a dissolved corporation after the three-year period has expired in order to reach the assets of the trust because the dissolved corporation has lost its capacity to be sued. Id. Following the Third Circuit’s decision, this Court granted Esso’s motion for leave to file an Amended Third-Party Complaint “against the appropriate entities and/or individuals related to the Laga defendants.” Mar. 25, 1996 Order. Esso filed its Amended Third-Party Complaint on April 2, 1996 naming Goldman, Sachs; First Manhattan Co., Firmanco Associates, and Daniel Rosenbloom (collectively the “First Manhattan parties”); Andreas Gal and Paul Lazare; Panex Co., and Panex Industries, Inc. Stockholders Liquidating Trust. Esso’s Third-Party Amended Complaint was joined by the Texaco parties, Western Auto, and the Virgin Islands Department of Education. After timely service of the third-party complaints, counsel for third-party defendants Gal, Lazare, Panex Co., and the Panex Trust filed a motion to dismiss the third-party complaints and for summary judgment. In response, Esso filed its own motion for summary judgment. The parties exchanged responsive pleadings and the Court heard oral argument on these motions in April 1997. 2. Activity of Other Courts Affecting this Litigation Decisions by this and other courts which have come before, and those which have been handed down during the pendency of the these motions, necessarily shape how the Court will reach its decision today. The Court cannot decide the motions in a vacuum based solely on the formal briefs submitted. Fortunately, the parties have not hesitated to apprise the Court of these newly minted decisions by way of informal letter briefs and memoranda. The tenor of these submissions has at times been heated, as the parties have disagreed about the meaning to be attached to these decisions. Therefore, the Court deems it a useful exercise to review these more recent decisions as a means of ascertaining their meaning in the grand scheme of this complex litigation, incorporating additional procedural facts in its discussion. 3. The Duplan Bankruptcy Revisited After service of the third-party complaints in the Spring of 1996, counsel for Goldman, Sachs and the First Manhattan parties entered their appearances and sought extensions of time in which to file responsive pleadings. The parties appeared to reach an agreement on such an extension in anticipation of a management conference scheduled by the Court in the Virgin Islands for July 10,1996, at which time the agreementwas to be memorialized in a court order. But before this occurred, Goldman, Sachs and the First Manhattan parties obtained an Order to Show Cause from the United States District Court for, the Southern District of New York. That court required Esso and Texaco to show cause why they should not be enjoined from proceeding against Goldman, Sachs and the First Manhattan parties by reason of the injunction contained in the Final Decree entered in the Duplan bankruptcy proceedings on June 27,1983. Nevertheless, Esso negotiated a stipulation and scheduling order regarding the Order to Show Cause with Goldman, Sachs and the First Manhattan parties (both sometimes referred to herein as “Panex distributees”) that provided, inter alia, that the time for the filing of responsive pleadings to Esso’s Amended Third-Party Complaint would be extended until “thirty days after determination of the injunction motion.” This order was not entered by the district court in New York, but all parties apparently abided by its terms. This Court accepted the stipulation and did not require, responsive pleadings to be filed until the entering of the Fifth Case Management Order (“Fifth CMO”), which ordered that Goldman and the First Manhattan parties “shall have only until July 15,1997, to file responsive pleadings ...” (Fifth CMO, June 4,1997). The Panex distributees’ foray into New York did not prove a fruitful enterprise. On June 11, 1997 Judge Cornelius Blackshear of the Bankruptcy Court for the Southern District of New York concluded that in seeking their ex parte order in New York the Panex distributees were “forum-shopping” in the hopes of finding a court that would rule in their favor. In re The Duplan Corp., 209 B.R. 324, 330 (Bankr.S.D.N.Y.1997). Despite the fact that an action was first filed in the Virgin Islands, the bankruptcy court did not abstain from deciding the merits of the Panex distributees’ argument that CERCLA claims propounded by the third-party plaintiffs were barred by the 1983 bankruptcy decree. Id. “[T]he possibility of inconsistent decisions in the many jurisdictions where Duplan operated manufacturing facilities warrants a final decision by this Court,” the court reasoned. Id. Moreover, “... bankruptcy courts are in the best position to interpret and enforce their own orders.” Id. (citing cases). The issue before Judge Blackshear was whether the Final Decree in the 1983 Duplan bankruptcy action discharged the debtors from all of their “debts and liabilities” and whether the Decree would enjoin any suits based upon “any right, claim or interest” against the debtor or Panex by “the Oil Companies” under CERCLA Id. Judge Blackshear noted that the Discharge in the Final Decree only discharged claims that arose “prior to the filing” of the debtor’s petition. Id. at 331. Since CERCLA. claims could not have arisen until 1980, the year of CERCLA’s enactment, therefore, these claims wére not discharged in bankruptcy. Id. at 331-32. A The Delaware Proceedings In March 1996, the trustees of the Panex Trust filed an Amended and Supplemental Petition for instructions in the Court of Chancery of the State of Delaware. The petitioners sought an order determining, inter alia: (5) That the Trust shall be terminated and the trustees discharged upon compliance with the provisions of the Order of this Court; (6) That the recipients of distributions from the Trust or from Panex are not liable to the Trust or others for recoupment or reimbursement of their distributions; (7) That the acts of the company and trustees in making distributions and the anticipated payments hereunder are and were proper in all respects.... (Amended Petition, Exh. A to Lehman Certification). If the Chancery Court had granted the relief requested, the court would have eliminated any successor entity against which Esso and others could have pursued CERCLA claims. Esso, joined by Texaco, elected to file claims in the Chancery Court seeking a stay of any effort to eliminate the Panex Trust. They further sought an order creating a successor entity against which they could pursue CERCLA claims and the appointment of a new trustee to evaluate and bring recoupment claims to marshal Trust assets. After two oral arguments, Vice Chancellor Myron T. Steele granted the relief sought by Esso and the Texaco parties, announcing his ruling from the bench on August 27, 1997. The written order reads, in relevant part: ... [T]he Successor Panex Trust shall be established as a successor entity to the Panex Trust and Panex, Inc---- 2. Trust Purpose and Capacity a. The purpose and capacity of the Successor Panex Trust is (1) to serve as the successor entity to the Panex Trust and Panex, Inc. and to succeed to and accept the assets, liabilities, rights, interests, and standing of the Panex Trust and Panex, Inc., except as provided in ¶ 2(b) below; (2) to serve as the successor entity to the Panex Trust and Panex, Inc. in continuing to litigate, defend against, have judgment entered against it on, and/or settle claims brought against it by Petitioning Claimants in the Environmental Litigations; (3) to make provision for the payment to the Claimants identified herein for claims arising from liabilities of Panex, Inc. and/or the Panex Trust with respect to the Environmental Litigations, and in furtherance of said purpose, to investigate, evaluate, institute, assert and/or settle litigation at the expense of and on behalf of the Successor Panex Trust against the insurers of Panex, Inc., Du-plan Corporation, and/or the Panex Trust; to investigate, evaluate and, if desirable, to institute, assert and/or settle litigation at the expense of and on behalf of the Successor Panex Trust for recoupment of distributions made by Panex, Inc. to its shareholders prior to creation of the Panex Trust in the amount of approximately $64 million, and distributions made by the Panex Trust to the former stockholders of the then dissolved Panex, Inc. in the amount of approximately $4.5 million; to make distribution of any Trust Funds (as defined below) to Claimants as provided for herein; and to make distribution of any Trust Funds unneeded for these purposes to the former stockholders of Panex, Inc. or their successors. b. Notwithstanding the provisions of this paragraph, the Successor Panex Trust is not the successor entity to Panex, Inc. and the Panex Trust regarding any claim against the Successor Panex Trust filed after September 12, 1997, by any entity not already named herein as a Claimant. (Order of Vice Chancellor Steele, Exh. C to Lehman Certification). The Vice Chancellor appointed Michael DeBaecke, Esquire, a member of the Delaware Bar, as the successor trustee, assuming full authority and responsibility for the Successor Panex Trust. Id. He has accepted this assignment. Further clarifying the proceedings, Vice Chancellor Steele stated from the bench: The entity that succeeds the current liquidating trust, regardless of how you wish to characterize it, or what appellation you put upon it, will be an entity that for the related CERCLA litigation in whatever jurisdiction will serve as a successor for the purpose of having judgment, if there be one against it, which may be used by the claimants for the purpose of satisfying judgment. That will include whatever appropriate claims or recoupment can be made by way of that vehicle. Exh. B to Lehman Certification at 4. Based on the third-party plaintiffs’ version of events, the proceedings in Delaware have “resolved a major issue.” Esso Br. in Support of Cross-Motion for Voluntary Dismissal (Esso Br. at 7). According to the third-party plaintiffs, the order of the Vice Chancellor has created “a successor entity to the Panex Trust against which Esso [and other third-party plaintiffs] can pursue its CERCLA contribution claims in this litigation.” Id. Hence, third-party plaintiffs have filed a motion for voluntary dismissal. See Discussion, infra, at 11(A). 5. The Buffalo Litigation At about the same time last year when the bankruptcy action was pending before Judge Blackshear in the Southern District of New York, related litigation against parties named in the third-party complaints in this case was pending on the other side of the state in Buffalo, before Judge Elfvin of the Western District of New York. In that ease, captioned State of New York v. Panex Industries, Inc., No. 94-0400E(H) slip. op. filed Oct. 6, 1997 (W.D.N.Y.1997) (hereinafter “Panex I ”), plaintiffs alleged CERCLA and common law claims for nuisance and restitution stemming from an alleged dumping of hazardous waste at a landfill in Wellsville, New York between 1964 and 1988. Id. at 2. In their amended complaint, plaintiffs argued that First Manhattan Co.; Firmanco Associates; Daniel Rosenbloom; Goldman, Sachs; and Lazare and Gal (collectively “the Panex distributees”) are former shareholders of Panex and were thus derivatively liable for whatever judgment might be obtained against Panex or the Panex Trust and that they have received and held distributed assets in trust for the State of New York. Id. at 3-4. Defendants, in turn, filed motions pursuant to FED.R.CIV.P. 12(b), asserting plaintiffs had failed to state claims upon which relief could be granted and for lack of subject-matter jurisdiction. Id. Without addressing the applicability of § 325(b) of the ever-present Delaware Code, plaintiffs instead founded their claims against the Panex distributees on the “trust fund doctrine,” which provides an equitable claim for creditors of a corporation that is unable to pay its debts because of asset distributions made, without consideration, to shareholders or other third parties. Id. at 5. Under this theory, no showing of fraud, unconscionability, or unfairness is required. Id. (citing cases). Judge Elfvin noted that in a previous order of June 21, 1996, he ruled that Panex could be sued under CERCLA because the Act preempts § 278 of the Delaware Code (three-year statutory period in which dissolved corporation has capacity to be sued). Id. at 6 n. 1. However, the court uncovered no cases applying the plaintiffs’ proffered trust fund doctrine to a dissolved corporation after the expiration of the statutory three-year winding-up period. Id. at 7. The Court also noted the older trust fund doctrine had been superseded by state statutes. Id. at 7-8 (citing state cases). The court reasoned that allowing the trust fund doctrine to be asserted against shareholders after the expiration of a statutory winding-up period would impermissibly render such subsequent corporate statutes ineffective, allowing dissolved corporations to survive indefinitely through their shareholders. Id. at 8. Judge Elfvin thus held that “the trust fund doctrine is inapplicable to a dissolved Delaware corporation subsequent to the three-year period provided in section 278 and that the State’s action under CERCLA against the Panex distributees is barred by section 325(b).” Id. (footnote omitted). Unlike principles such as alter ego and successor liability (which have been adopted into federal common law), which were created to address abuses of and changes in the corporate form, the trust fund doctrine was instead conceived as a substantive principle of equity much like the doctrines of constructive trust and quasi-contract. Id. at 11-12. The Court therefore declined to adopt the trust fund doctrine as federal common law under CERCLA, finding that the doctrine is “no longer ... settled law in the corporate dissolution setting.” Id. at 13. Plaintiffs soon filed a motion for reconsideration of the court’s decision. In a recent memorandum decision, Judge Elfvin affirmed his prior ruling. See State of New York v. Panex Industries, Inc., No. 94-0400E(H), slip op., 1997 WL 805419 (W.D.N.Y. dated Dec. 30, 1997) (Panex II). Plaintiffs asserted that Vice Chancellor Steele’s September 30, 1997 order creating successor Panex Trust constituted “new evidence” which would warrant a change or modification of the court’s prior opinion and order. Id. at 2. The court declined to so hold, noting that “the September 30th Order makes no finding with respect to the substance of the plaintiffs’ claims against Panex, the Panex Trust or the Successor Trust.” Id. at 4. In Panex II, the Western District of New York reiterated its finding that “no trust fund doctrine claim against the Panex distributees would lie under Delaware law.” Id. at 5. The court found no authority for plaintiffs’ proposition that under Delaware law suit may be brought directly against shareholders without first obtaining judgment against the corporation where, as here, a liquidating trust had been formed in order to satisfy claims against the dissolved corporation. Id. Furthermore, the court found that, where a liquidating trust has insufficient assets, § 325(b) does not apply, allowing claimants to sue shareholders directly. Id. at 5-6. The court made some final observations. First, the court’s June 24, 1996 order simply applied the principle enunciated in City Investing that a liquidating trust could be sued after the three-year winding-up period, instead of plaintiffs’ reading that the three-year statutory period of § 278 is rendered ineffective or is indefinitely extended whenever a liquidating trust is formed after a corporation’s dissolution. Id. at 7. Finally, the court interpreted § 278 as barring actions against former shareholders of dissolved corporations after the three-year period. Id. Thus, § 278, not preempted by CERCLA, would control. Id. II. Motions by Third-Party Defendants Goldman, Sachs, First Manhattan, Firmanco Associates, and Rosenbloom for Dismissal for Lack of Jurisdiction and Motions by Third-Party Plaintiffs for Voluntary Dismissal Since the filing of the first complaints in July 1989, this litigation has taken on a life of its own. It has been characterized by a conundrum of more complaints, amended complaints, discovery and discovery abuses, multiple case management orders, and a series of opinions by the Court. All the while, the Court has attempted to either achieve what has become an illusive global settlement or prepare this case for a final trial at which liability for the Tutu aquifer’s contamination and costs for its cleanup would be assessed. Yet even as the Court decides multiple motions to determine which parties will be left standing for the final CERCLA trial in this matter, the saga still appears poised to continue beyond the final resolution of this case. Indeed, this case is akin to the generations-long odyssey in the Chancery Court, Jamdyce v. Jamdyce, of Bleak House fame: And thus, through years and years, and lives and lives, everything goes on, constantly beginning over and over again, and nothing ever ends. And we can’t get out of the suit on any terms, for we are made parties to it, and must be parties to it, whether we like it or not. CHARLES DICKENS, BLEAK HOUSE 146 (Penguin 1971) (emphasis in original). Dickens’s lament notwithstanding, the Court address the task at hand: deciding the motions presently before it, taking into account the relevant decisions which have been handed down by other courts during the pendency of these motions. In so doing, the litigation landscape hopefully will be clarified. The most recent motions in this case are by third-party defendant Goldman, Sachs & Co., joined by third-party defendants First Manhattan Co., Firmanco Associates, and Daniel Rosenbloom (again collectively referred to herein as the “First Manhattan parties”), to dismiss the third-party complaints filed by Esso, Texaco, VIDE, and Western Auto and/or for summary judgment. Counsel for Goldman, Sachs and counsel for the First Manhattan parties, in separate briefs in support of these motions, assert multiple arguments contending that the Court lacks subject matter and personal jurisdiction over the third-party defendants. Filed with these briefs were supporting affidavits of James B. McHugh and of third-party defendant Daniel Rosenbloom, a general partner of First Manhattan Co. Rosenbloom’s affidavit detailed, inter alia, the lack of contacts for jurisdictional purposes these particular third-party defendants have with the Virgin Islands. Upon review of the affidavit, the third-party plaintiffs apparently agreed that the Court indeed lacked any kind of jurisdiction over the third-party defendants. In their subsequent reply memoranda, the third-party plaintiffs cross-moved for voluntary dismissal of their claims without prejudice pursuant to FED.R.CIV.P. 41(a)(2), Esso Br. at 7, which reads, in relevant part: By Order of Court____ [A]n action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper ... Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. At oral argument, counsel for Goldman, Sachs stated, on the issue of whether the third-party plaintiffs’ claims should be dismissed with or without prejudice: “... I’m going to tell the Court very candidly we don’t feel strongly about it ... It’s not a big deal to us.” Tr. of Nov. 12, 1997 Hr’g at 8. He further conceded: “If the Court wants to dismiss on a without prejudice basis we really have no objection to that.” Id. at 8-9. Counsel for the First Manhattan parties joined in this sentiment. The Court, however, must review the standards governing Rule 41(a)(2) dismissal. In so doing, the Court will look to case law mainly from district courts within the Third Circuit, as the Court has uncovered no cases decided by the District Court of the Virgin Islands on the subject. Whether a dismissal should be granted on a Rule 41(a)(2) motion indeed lies within the sound discretion of the district court. Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir.1974); Ockert v. Union Barge Line Corp., 190 F.2d 303, 304-5 (3d Cir.1951); 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2364 at 161. The purpose of the Rule is primarily to prevent voluntary dismissals which will prejudice the opposing party, and to permit the court to impose curative conditions to ameliorate such prejudice. Id. at 165; Shulley v. Mileur, 115 F.R.D. 50, 51 (M.D.Pa.1987) (quotation marks omitted) (citing John Evans Sons, Inc. v. Majik-Ironers, Inc., 95 F.R.D. 186, 190 (E.D.Pa.1982)). Generally, courts have followed the principle that dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. See Westinghouse Elec. Corp. v. United Elec. Radio and Mach. Workers of Am., 194 F.2d 770, 771 (3d Cir.1952); Bosteve Ltd. v. Marauszwki, 110 F.R.D. 257, 259 (E.D.N.Y.1986); 9 Charles A. Wright & Arthur R. Miller, § 2365 at 165. In addressing a Rule 41(a)(2) motion, a court must weigh the relevant equities and do justice between the parties in each ease. Pouls v. Mills, .1993 WL 308645, *2 (E.D.Pa.1993), aff'd, 27 F.3d 558 (3d Cir.1994) (citation and quotation marks omitted). The apparent spirit of cooperation exhibited among the parties in calling for voluntary dismissal, however, is little more than a mirage. This is because, as third-party plaintiffs and third-party defendants well understand, any financial prejudice to third-party defendants can be alleviated by conditioning a voluntary dismissal on the payment of appropriate costs. Citizens Sav,, 120 F.R.D. at 26; Louis, 92 F.R.D. at 461. As stated by Esso’s counsel, the “real issue” now is whether costs should be awarded against the third-party plaintiffs. Tr. at 19. The “costs,” characterized as “fees,” Tr. at 21, should not be awarded, argue third-party plaintiffs, because., if third-party defendants wanted to raise the jurisdictional arguments they now proffer, they could have made a motion — “a very simple application” — much earlier. Id. at 21-2 As such, any costs incurred “are the result[] of self-inflicted wounds,” Id. at 21. Goldman, Sachs and the First Manhattan parties counter that the Court, in its discretion, should award costs in connection with the defense of the third-party complaints which were devoid of merit due to jurisdictional infirmities. Id. at 8-9. They assert that the third-party defendants’ insufficiency of contacts with the Virgin Islands would have been evident had the third-party plaintiffs made even “the most rudimentary investigation.” Id. at 23. Despite their recognition that they could have been sued instead in New York, counsel for third-party defendants claim that they were required to read multiple opinions and numerous documents because they were unexpectedly made parties to this litigation in the Virgin Islands. Id. There is no question that Rule 41(a)(2) authorizes a court to award costs and attorney fees as a condition of voluntary dismissal, and numerous courts have done so where a voluntary dismissal has been granted without prejudice. John Evans Sons, Inc. v. Majik-Ironers, Inc., 95 F.R.D. 186, 191 (E.D.Pa. 1982) (citing 9 Charles A. Wright & Arthur R. Miller, § 2366; 5 Moore’s Federal Practice, 1141.06 and cases cited therein). Ordinarily, the purpose of the awards in such cases is to compensate the defendant for having incurred the expense of trial preparation without the benefit of a final determination of the controversy. Id.; see also Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947) (plaintiff traditionally has an unqualified right upon payment of costs to take a nonsuit in order to file a new action after further preparation unless defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit). Since the issue of whether voluntary dismissal in this case will be with or without .prejudice is not a cause for significant dispute, the Court must now look at the facts of this case and determine the appropriateness of an award of costs to the third-party defendants. Then and only then can the Court find that third-party plaintiffs’ cross-motion for voluntary dismissal under FED.R.CIV.P. 41(a)(2) should be granted. Courts .will generally consider as factors in determining the appropriateness of an award of costs and attorney fees to a defendant: (1) any excessive- and duplicative expense of a second litigation; (2) the effort and expense incurred by a defendant in preparing for trial; (3) the extent to which the pending litigation has progressed; (4) and the claimant’s diligence in moving to dismiss. Citizens Sav. Ass’n v. Franciscas, 120 F.R.D. 22, 25 (M.D.Pa.1988). That the pending litigation is at an advanced stage, however, does not preclude a dismissal. While the award of costs and fees is often necessary for the protection of the defendant, Puerto Rico Maritime Shipping Auth. v. Leith, 668 F.2d 46, 51 (1st Cir.1981), and it may be commonplace, Shulley, 115 F.R.D. at 52 (citing Pittsburgh Jaycees v. United States Jaycees, 89 F.R.D. 454 (W.D.Pa.1981)), it is not always a prerequisite for voluntary dismissal. After careful review of the background and posture of this ongoing litigation, the Court in its discretion concludes that an award of costs to these third-party defendants is not appropriate. Clearly, by dismissing this action under Rule 41(a)(2), Goldman, Sachs and the First Manhattan parties will suffer no plain legal prejudice other than the mere prospect of a second lawsuit, which, standing alone, is not dispositive. As counsel for Esso noted at oral argument, “We could have gone to New York and sued them.” Tr. at 22. In that case, third-party plaintiffs clearly would have had much stronger jurisdictional arguments. Thus, third-party defendants would have been required to prepare to defend their clients and read roughly the same amount of material to get up to speed on the issues in this case and properly advise their clients on the appropriate litigation strategy. The Court can only speculate as to what the costs would have been — whether they would have been lesser or greater. Nonetheless, the third-party defendants would have had to do no duplicative or excessive work. The forum would have been either-in the Virgin islands or in New York. This is also not a case where third-party defendants had to prepare for trial and were deprived of the benefit of a final determination of the controversy.. This case will most likely not be ready for, trial in the immediate future due to what will surely be an extended period of discovery. Thus, there are no typical Rule 41 concerns about forcing an unwilling party to prepare for trial. Significantly, the third-party defendants have only been parties to this litigation since April of 1996. Compared to other, more war-weary veterans of this litigation, they are certainly newcomers who are not in the late stages of this case. Moreover, dismissal of the third-party complaints gives to Goldman, Sachs and the First Manhattan parties what they anticipate to be a final determination in this controversy. Goldman, Sachs and the First Manhattan parties were also not passive litigants that were forced to do wholly unnecessary work in the Virgin islands case. Instead, they took the offensive and incurred costs by filing an action in U.S. Bankruptcy Court in the Southern District of New York, seeking a determination that third-party plaintiffs’ CERCLA claims were extinguished by the Duplan bankruptcy determination. Had third-party plaintiffs made good on their intention to alternatively bring suit against them in New York, seeking relief in the bankruptcy court also would have been a viable option for Goldman, Sachs and the First Manhattan parties. Moreover, once it became apparent that the third-party defendants were being “dragged” into this litigation, Tr. at 9, a natural and typical strategic defense posture for an unwitting defendant would have been to file a motion to dismiss for lack of personal jurisdiction. Information supporting this motion could have been obtained by counsel by conferring with their clients at a much earlier date — before they were required to review seven years of documents in a complex environmental contamination file. Reply Br. of Western Auto in Support of Cross-Motion for Voluntary Dismissal at 6 n. 2. In all likelihood, the nature of the contacts Goldman, Sachs and the First Manhattan parties had with the Virgin Islands are no different now with the submission of the affidavits than they were many months ago when the third-party complaints were first filed. Assuming that what these affidavits say is true — and the Court has no reason to doubt their veracity — third-party defendants’ jurisdictional arguments are simple and straightforward. As counsel for Western Auto correctly points out, legal work done by these thirdparly defendants on issues which did not affect the motions on jurisdictional issues, and which were not in response to any discovery propounded on these parties, would never have been necessary if the third-party defendants had immediately moved on their jurisdictional arguments. Id. While it is unclear at this point whether the Successor Trustee will move against Goldman, Sachs and the First Manhattan parties with claims similar to those pled in the instant action, some of the same arguments, which are well-developed and fully set forth in their initial briefs, may be used in defense of such an action. Additionally, these arguments overlap with the third-party defendants’ theories necessary in defending their clients in- the lawsuit filed in the Western District of New York. Bound up with a consideration of the third-party defendants’ diligence in making their jurisdictional arguments is an understanding of what occurred proeedurally in this case. The third-party complaints were filed in the Spring of 1996. After were served, Goldman, Sachs and the First Manhattan parties sought from third-party plaintiffs an extension of time in which to file their responsive papers. The two sides, in anticipation of a case management conference scheduled by the Court for July 10, 1996, apparently agreed on this extension and hoped to memorialize this agreement in an order. Yet before this could be done, the third-party defendants sought and obtained their order to show cause from the bankruptcy court. This proceeding, as pointed out by counsel for Texaco, was for all intents and purposes one which went substantively to the merits and viability of the third-party plaintiffs’ CERCLA and RCRA claims. Tr. at 31. These same issues are argued in these third-party defendants’ briefs in support of dismissal for lack of personal jurisdiction or alternatively for summary judgment. For whatever reason, it appears that they interposed their jurisdictional arguments, though in compliance with the Court’s briefing schedule, only after they failed to have the instant third-party claims substantively thrown out in another forum. Given the lack of a serious dispute as to the form of the dismissal, the Court will accommodate the parties and dismiss the third-party complaints against Goldman, Sachs and the First Manhattan parties without prejudice pursuant to FED.R.CIV.P. 41(a)(2). And having applied the four factors set forth in Citizens Sav. Ass’n to the procedural facts and history of this case, the Court in its discretion concludes that Goldman, Sachs and the First Manhattan parties will not be sufficiently prejudiced by this voluntary dismissal to warrant an award of costs and fees as a condition thereto. III. Motions of Gal, Lazare, Panex Co., and Panex Trust for 12(b)(6) Dismissal and Summary Judgment and Third-Party Plaintiffs’ Motions for Summary Judgment A Introduction Following the Third Circuit’s decision in this case, this Court granted certain of the parties to this litigation leave to file third-party complaints. The Court will set forth the allegations contained therein. Third-party plaintiffs Esso Virgin Islands, Inc. and Esso Standard Oil Co. (P.R.) (collectively referred to singularly hereinafter as “Esso”) have brought several claims against third-party defendants Andreas Gal, Paul Lazare, Panex Co., and Panex Industries, Inc. Stockholders Liquidating Trust (“the Panex Trust”). Esso first contends that these third-party defendants (sometimes the “Laga defendants”) are strictly and jointly and severally liable to Esso under § 1 07(a)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a)(2)(B), for all necessary response costs Esso has incurred and will incur as part of its own remediation of the Tutu Wells site. First Amended Third-Party Complaint of Esso (“Esso Compl.”) at Count I, ¶ 64. Moreover, certain of the remaining third-party defendants, “as distributees of the assets of Panex and the Panex Trust, are derivatively liable for the CERCLA claims of Esso, hold such distributions in equitable trust for the creditors of Panex, including Esso, and are liable to the extent of such distributions for Esso’s claims ... pursuant to the terms and conditions of such distributions and the equitable doctrines of recoupment and restitution.” Id. at Count I, ¶ 65. In Count II of its Complaint, Esso brings another claim for response costs, coupled with the same derivative liability and equitable theories, under § 107(a)(3) of CERCLA 42 U.S.C. § 9607(a)(3)(B). Id. at Count II, ¶¶ 66-73. Next, Esso pleads a claim for contribution under § 113(f)(1), 42 U.S.C. § 9613(f)(1) for past and future response costs, coupled with its derivative liability and equitable theories. Id. at Count III, ¶¶ 74-83. In Count IV, Esso seeks “declaratory judgment pursuant to § 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2) and 28 U.S:C. § 2201(a) as to the rights and duties of the parties and, in particular, a determination that the third-party defendants are liable to Esso under § 113(f)(1) of CERCLA 42 U.S.C. § 9613(f)(1) for contribution of all response costs incurred by Esso with respect to the Laga facility and Tutu Wells facility, including but not limited to, costs of contamination assessment, containment, removal, remediation, EPA administrative or oversight and/or attorneys fees and costs.” Id. at Count IV, ¶ 90. Under Count IV, Esso also seeks declaratory judgment that its CERCLA claims may be enforeéd against the Laga defendants to the extent that any of them received distributions from the assets of Panex Co. and Panex Trust under derivative liability and equitable theories. Id. at ¶ 91. Finally, Esso brings claims under §§ 7002 and 7003 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6972 and 6973, to abate imminent and substantial endangerment to the health and environment of the affected area. Id. at Count V, ¶¶ 92-97. The third-party complaint on behalf of Texaco alleges, under the guise of “Count I,” joint and several and strict liability under § 107 (without specifying which subdivision); contribution under § 11 3(f); “contribution liability” under § 113(g)(2); and declaratory • judgment pursuant to 28 U.S.C. § 2201(a). Texaco Compl., Count I, ¶¶ 43-55. Next, and again without mentioning which sections, Texaco alleges a claim under RCRA seemingly styled after Esso’s claim under §§ 7002 and 7003. Id. at Count II, ¶¶ 56-61. Texaco finally alleges common-law causes of action under strict liability, Count III, ¶¶ 62-67, and equitable disgorgement, Count TV, ¶¶ 68-71. The third-party complaint of VIDE, the current owner of the old Laga facility, almost precisely tracks Texaco’s complaint. Similarly, the third-party complaint of L’Henri, which was filed but never served, also alleges CERCLA claims under § 107(a)(2), § 107(a)(3), § 113(f)(1), § 113(g)(2) and 28 U.S.C. § 2201(a), and RCRA §§ 7002 and 7003. Finally, Western Auto alleges a generalized CERCLA cause of action which mentions § 107, § 113(f), § 113(g)(2) and 28 U.S.C. § 2201(a); a RCRA count; and common-law claims of strict liability (Count III) and equitable disgorgement (Count IV). In response to the third-party complaints the Laga defendants have filed a motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6) for failure to state a claim upon which relief can be granted and for summary judgment under FED.R.CIV.P. 56. Br. in Support of Dismissal and Summ. J. (“Panex Br.”) at 1. Esso, in turn, filed its own summary judgment motion as to the individual liabilities of Gal and Lazare. In support of these motions, both sides have submitted numerous affidavits, results of investigations, documents of title, stacks of transcripts, and countless other items for the Court’s consideration. In moving for dismissal pursuant to Rule 12(b)(6) and alternatively for summary judgment under Rule 56(c), the Laga defendants have submitted so much supplemental material, and so enmeshed their legal arguments with their factual arguments, that the Court has had no choice but to review it. FED.R.CIV.P. 12(b) provides that if, on a motion to dismiss under Rule 12(b)(6), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. See also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 at 493 (noting that “[o]nee the court decides to accept matters outside the pleading, it must convert the motion to dismiss into one for summary judgment”). It is, however, also well established that prior to converting a motion to dismiss into a motion for summary judgment, the district court must provide adequate notice to the parties. Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989); see also 5A Charles A. Wright & Arthur R. Miller, supra, § 1366 at 501 (“It is important that the court give the parties notice of the changed status of the motion and a ‘reasonable opportunity to present all material made pertinent to such a motion by Rule 56’ ”). “Certainly, the nonmoving party must have adequate notice and time to present to the district court material relevant to [its] claim in order to demonstrate that there is a genuine issue of material fact that renders summary disposition of the case inappropriate.” Hilfirty v. Shipman, 91 F.3d 573, 578 (3d Cir.1996). The Court finds that the parties in this litigation had adequate notice that a conversion from Rule 12(b)(6) to Rule 56(c) might have occurred. These motions have been pending for some time; they were last argued back in April of 1997. The Court has long accepted without objection all of the parties’ supporting materials, and the parties have not hesitated to provide the Court with just about every piece of material outside of the pleadings they could uncover. No party has objected to what has become a veritable free-for-all of submissions outside of the pleadings. In addition, Esso has filed its own summary judgment motion. Two out of three motions now before the Court are thus motions for summary judgment. The Court concludes that the parties indeed had adequate notice and will therefore treat the motions before it, with their attendant legal arguments, as cross-motions for summary judgment. Summary judgment is appropriately granted when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” FED. R.CIV.P. 56(c) (cited in Hilfirty, 91 F.3d at 577). If however, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., ATI U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), summary judgment shall not be granted. The nonmoving party is entitled to have all reasonable inferences drawn in its favor. Hilfirty, 91 F.3d at 577 (citation omitted). B. Third-Party Defendants’ Motion for Summary Judgment 1. Viability of RCRA Claims Before addressing the viability of the third-party plaintiffs’ CERCLA claims, and third-party defendants’ argument