Donavan v. Saint-Gobain Performance Plastics Corp. et al

Filing 41

MEMORANDUM-DECISION AND ORDERED, that Defendants motion to dismiss (Dkt. No. 22) is GRANTED; and it is further ORDERED, that Donavans property damage claims are DISMISSED with leave to amend for failure to state a claim upon which relief may be grant ed; and it is further ORDERED, that if Donavan wishes to amend his Complaint to allege claims for property damage, he must file a signed amended complaint that cures the pleading defects identified above in this Memorandum-Decision and Order within thirty (30) days from its filing date (by 10/04/17). Signed by Senior Judge Lawrence E. Kahn on September 5, 2017. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES DONAVAN,
Plaintiff,
-against-

1:16-CV-924 (LEK/DJS)

SAINT-GOBAIN PERFORMANCE
PLASTICS CORP., et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
This action is one of several in this District stemming from the contamination of

groundwater with perfluorooctanoic acid (“PFOA”) in the Village of Hoosick Falls, New York.
Dkt. No. 1 (“Complaint”) ¶¶ 1–2. In his Complaint, plaintiff James Donavan alleges that
defendants Saint-Gobain Performance Plastics Corp. and Honeywell International Inc.
contaminated the Village’s groundwater by discharging PFOA from one or more manufacturing
facilities they operated within the Village. E.g., id. ¶¶ 1–7. As a result of this contamination,
Donavan claims that the drinking water of Hoosick Falls became nonpotable, causing a
“significant decline in value” of the home he owns with his wife. Id. ¶ 145. Additionally, he
alleges that consumption of PFOA-contaminated water has caused him to suffer serious health
problems. E.g., id. ¶¶ 126–27.
Presently before the Court is Defendants’ motion to dismiss Donavan’s property damage
claims for failure to state a claim. Dkt. Nos. 22 (“Motion”), 22-1 (“Memorandum”). Donovan

opposes the Motion, and has moved for leave to amend his Complaint if it is dismissed. Dkt.
No. 28 (“Opposition”). For the reasons that follow, both motions are granted.
II.

BACKGROUND
The following facts are taken from the allegations in the Complaint, which are assumed

to be true when deciding a motion to dismiss for failure to state a claim. Bryant v. N.Y. State
Educ. Dep’t, 692 F.3d 202, 210 (2d Cir. 2012).
A. PFOA
PFOA is a man-made chemical that was originally manufactured by the 3M Company.
Compl. ¶¶ 19–20. It has been used “to make fabrics water and stain resistant,” and “was a key
component in the manufacture of Teflon” and “the production of Gore-Tex.” Id. ¶¶ 23–25.
According to Donavan, “[t]here are a number of health risks associated with chronic
exposure to PFOA, and these risks are present even when PFOA is ingested at, seemingly, very
low levels.” Id. ¶ 28. In fact, “PFOA has the potential to be more of a health concern because it
can stay in the environment and in the human body for long periods of time.” Id. ¶ 29. Donavan
alleges that PFOA exposure is “associated with increased risk of testicular cancer, kidney cancer,
thyroid disease, high cholesterol, ulcerative colitis, and pregnancy-induced hypertension.” Id.
¶ 33.
In 2016, the U.S. Environmental Protection Agency (“EPA”) issued a health advisory for
drinking water with levels of PFOA over seventy parts per trillion (or ppt). Id. ¶ 37. The health
advisory level (70 ppt) suggests that individuals should avoid ingesting drinking-water with
greater levels of PFOA and is based on the EPA’s “review of the best available peer-reviewed
studies at the time.” Id. “The EPA noted that peer-reviewed studies indicate that ‘exposure to
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PFOA over certain levels may result in adverse health effects, including developmental effects to
fetuses during pregnancy or to breastfed infants (e.g., low birth weight, accelerated puberty,
skeletal variations), cancer (e.g., testicular, kidney), liver effects (e.g., tissue damage), immune
effects (e.g., antibody production and immunity), thyroid effects and other effects (e.g.,
cholesterol changes).’” Id. ¶ 38.
B. The Contamination of Hoosick Falls
Hoosick Falls is a village of approximately 3,500 residents. Id. ¶ 61. Since around 1955,
manufacturing facilities in and around the Village used PFOA. Id. ¶ 45. Donavan alleges that a
factory at 14 McCaffrey Street is the primary source of Hoosick Falls’s PFOA contamination. Id.
¶¶ 4, 39. In 1986, the McCaffrey Street facility came to be owned by AlliedSignal, which later
adopted Honeywell’s name after a merger. Id. ¶¶ 14, 41. Saint-Gobain acquired the facility in
1999, and owns it to this day. Id. ¶ 42.
Defendants manufactured water- and stain-resistant fabric at the McCaffrey Street site,
applying a PFOA solution to the fabric in large trays. Id. ¶¶ 43–47. Defendants’ employees
recovered most of this solution at the end of each shift. Id. ¶ 47. However, employees also
washed the trays and poured the resulting discharge down floor drains in the facility. Id. ¶ 48. As
a result of this practice, PFOA flowed into the soil and ultimately the aquifer. Id.
Saint-Gobain and Honeywell also used solid PFOA to manufacture Teflon-coated
materials and other products in large ovens at the McCaffrey Street site. Id. ¶¶ 51–55. In
connection with this activity, Defendants’ employees again discharged PFOA down storm drains,
causing it to migrate into the soil and aquifer. Id. ¶ 58. Donavan also alleges that Defendants
“discharged PFOA into the environment in other ways.” Id. ¶ 59.
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Approximately 95% of Hoosick Falls residents receive drinking water from the Village’s
municipal water system, which gathers its water from production wells, one of which is
approximately 500 yards from the McCaffrey site. Id. ¶¶ 63–66. Other residents receive drinking
water from private wells. Id. ¶ 72.
In June 2015, the Village conducted several tests showing high levels of PFOA in its
municipal wells. Id. ¶¶ 68–71. These tests showed PFOA concentrations ranging from 151 to
662 ppt. Id. ¶ 71. As noted above, the EPA has advised against using water supplies with
concentrations greater than 70 ppt. Id. ¶ 37. Tests of private wells revealed PFOA concentrations
of some private wells as high as 252 ppt. Id. ¶ 73.
In November 2015, the EPA recommended that Hoosick Falls residents use an alternative
water source rather than drink or cook with contaminated groundwater. Id. ¶ 74. It repeated this
recommendation in December 2015. Id. ¶ 76. Shortly thereafter, Saint-Gobain began to provide
free bottled water to Village residents and agreed to fund the installation of a filter system on the
municipal supply. Id. ¶ 77.
On January 14, 2016, the New York Department of Environmental Conservation
(“DEC”) requested that the EPA investigate the origin of the contamination and add Hoosick
Falls to the National Priorities List under the federal Superfund program. Id. ¶¶ 78–79. On
January 27, 2016, Governor Andrew Cuomo directed state agencies to designate the McCaffrey
Street facility as a state Superfund site, and announced that the State was classifying PFOA as a
hazardous substance. Id. ¶¶ 82–83. The next day, the EPA recommended that all homeowners
with private wells drink bottled water if their wells had PFOA concentrations of 100 ppt or

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higher. Id. ¶ 84. The agency further urged all homeowners with private wells to use bottled water
until their wells had been tested for PFOA. Id.
In February 2016, the DEC identified Defendants as the parties responsible for the
Village’s PFOA contamination. Id. ¶ 91. The same month, the New York Department of Health
(“DOH”) began offering free blood testing to residents of Hoosick Falls. Id. ¶ 95. The testing
revealed that Village residents, on average, had PFOA blood concentrations that were eleven
times higher than the national average. Id.
In early 2016, it became clear that the PFOA contamination would have additional effects
on homeowners in Hoosick Falls. Local banks “indicated that they would not advance funds for a
mortgage for the purchase or refinance of a home in Hoosick Falls.” Id. ¶ 85. One bank official
declared that his bank would not provide financing for any property connected to the Village’s
municipal water supply, noting that “lenders typically require that homes have access to potable
water before financing is approved.” Id. The same bank official explained that homes with
private wells would only be eligible for financing if testing confirmed the absence of PFOA. Id.
¶ 86.
C. Donavan’s Injuries
Donavan brings two causes of action against Defendants, negligence and gross
negligence. Id. ¶¶ 133–56. He alleges two main sources of harm: personal injury from his
ingestion of PFOA and property damage. Id. ¶ 147. Because Defendants have moved to dismiss
only the property damage claims, Mem. at 1, the Court discusses those injuries below.

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Donavan and his wife own a home in Hoosick Falls, and obtain their water from a private
well. Compl. ¶¶ 128–29, 145.1 The home is “within walking distance” of the McCaffrey Street
facility, id. ¶ 128, and testing has revealed PFOA in the wells of several neighbors, id. ¶ 130.
However, Donavan’s own well has tested negative for PFOA, id., and he does not allege that his
property has been deprived of potable water. Nor does he allege PFOA ever contaminated the
soil at his home or otherwise entered his property. Nonetheless, he alleges that his home “has
experienced a significant decline in value due to the discovery of PFOA in the local aquifer and
the designation of the local area as a State Superfund Site.” Id. ¶ 145.2
D. Defendants’ Motion
Defendants argue that Donavan’s “property damage claims must be dismissed because
they fail to allege a physical injury and seek to recover only for economic harm.” Mem. at 3.
Because Donavan “specifically alleges that PFOA has not been detected in the groundwater at his
home,” and “seek[s] to recover for economic harm on a theory of alleged ‘stigma,’” Defendants
claim he has failed to state a claim for property damage under New York law. Id.
III.

LEGAL STANDARD

1

The Complaint does not specify when Donavan and his wife purchased their home, but
when he first moved to Hoosick Falls in 1992, he lived in a different home and obtained water
from the municipal water supply. Compl. ¶¶ 96–98.
2

Importantly, the Village itself was not designated a Superfund site. Both the EPA and
New York State have classified the McCaffery facility, not Hoosick Falls itself, as a Superfund
site. Compl. ¶ 82; Press Release, EPA, EPA Adds Saint-Gobain Performance Plastics Site in
Hoosick Falls, N.Y. to the Federal Superfund List (July 31, 2017),
https://www.epa.gov/newsreleases/epa-adds-saint-gobain-performance-plastics-site-hoosick-falls
-ny-federal-superfund-list.
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To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as
true the factual allegations contained in a complaint and draw all inferences in favor of the
plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006). Plausibility, however,
requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of
[the alleged misconduct].” Twombly, 550 U.S. at 556.
The plausibility standard “asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading standard
Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S.
at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct
based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the
action is subject to dismissal. Id. at 678–79.
IV.

DISCUSSION
A. Donavan’s Property Damage Claims
The familiar elements of negligence under New York law are duty, breach, causation, and

injury. E.g., Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 177 (2d Cir. 2013);
Pasternack v. Lab. Corp. of Am. Holdings, 59 N.E.3d 485, 490 (N.Y. 2016). In moving to
dismiss, Defendants primarily focus on the injury prong. They argue that Donavan fails to allege

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a cognizable injury to property, and so his property damage claims must be dismissed. Mem.
at 3–5.
In Baker v. Saint-Gobain Performance Plastics Corp., 232 F. Supp. 3d 233 (N.D.N.Y.
2017) (Kahn, J.), which concerned a putative class action stemming from the same contamination
Donavan challenges, the Court rejected Defendants’ argument that property owners who alleged
diminished home value due to drinking water contamination failed to state a claim for negligence
under New York law. Id. at 246. Applying Baker, the Court reached the same conclusion in
Benoit v. Saint-Gobain Performance Plastics Corp., No. 16-CV-930, 2017 WL 3316132
(N.D.N.Y. Aug. 2, 2017) (Kahn, J.), which involved sixteen individual actions arising from the
Hoosick Falls contamination. Id. at *8–9.
At first blush, those decisions would seem to compel the same result here. Indeed, “[t]o
the extent the Court finds that property owners stated cognizable property damages in the Baker
action, Donavan suggests that a similar finding would also apply to this action.” Opp’n at 6 n.5.
But there are important differences between the allegations in Baker and Benoit and those raised
here. As explained below, those differences are fatal to Donavan’s property-based claims.
Unlike the plaintiffs in Baker and Benoit, Donavan does not allege that his drinking water
supply has been contaminated with PFOA or that his property has been deprived of potable
water. Defendants argue that his “property damage claims must be dismissed because they fail to
allege a physical injury and seek to recover only for economic harm.” Mem. at 3. Donavan
responds that he “pleads that Defendants’ PFOA has contaminated his property, along with the
property of his neighbors and those in his community.” Opp’n at 7. Notably, he does not cite a
specific paragraph of the Complaint to support this claim. Donavan’s alleged property injury is
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based on the fact that his home “is not only nearby the McCaffery Superfund site, but it is also in
the midst of properties whose wells have tested positive for PFOA.” Id. at 8 n.6. Because he has
not alleged contamination of his drinking water or the presence of PFOA on his property, the
Court agrees with Defendants that Donavan has not adequately pleaded a claim of negligence or
gross negligence for property damages. The Court reaches this conclusion because Donavan has
not satisfied the duty prong, not, as Defendants urge, Mem. at 3, for failure to allege injury.
As an initial matter, the Court rejects Defendants’ contention that Donavan “fails to state
a claim in tort for property damage under New York law” because he “seek[s] to recover for
economic harm on a theory of alleged ‘stigma.’” Id. Courts applying New York law have
concluded that loss-of-value damages constitute a sufficient injury in contamination suits when
the plaintiff’s property is directly affected by the defendant’s conduct. As the Court noted in
Benoit, “[w]hat Defendants dismiss as ‘stigma damages have been recognized as a valid category
of damages by the New York courts in environmental cases.’” 2017 WL 3316132, at *9 (quoting
87th Street Owners Corp. v. Carnegie Hill–87th Street Corp., 251 F. Supp. 2d 1215, 1223
(S.D.N.Y. 2002); see also Cottonaro v. Southtowns Indus., Inc., 625 N.Y.S.2d 773, 774 (App.
Div. 1995) (“Damages from the diminished market value of real property as a result of public
fear of exposure to a potential health hazard constitute consequential damages.”). Donavan
contends that his home has suffered a “significant decline in value” as a result of the widespread
PFOA contamination in Hoosick Falls. Compl. ¶ 145. At this juncture, the Court does not doubt
the seriousness of the economic injury Donavan alleges. As noted above, a plaintiff must allege
more than injury to state a claim for negligence in New York. Because Donavan does not

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sufficiently allege the breach of a duty Defendants owed to him, his property damage claims are
subject to dismissal.
In 532 Madison Avenue Gourmet Foods, Inc v. Finlandia Center, Inc., 750 N.E.2d 1097
(N.Y. 2001), the New York Court of Appeals clarified the scope of tortfeasors’ duty. There,
several shopkeepers and business owners in midtown Manhattan sued after construction
collapses blocked access to their buildings. Id. at 1099–1100. The issue was whether the
plaintiffs, whose property was not itself damaged by the collapses, could state a claim for
negligence in an attempt to recover for lost business and other economic damages. Id.
at 1100–01. The Court of Appeals found that they could not, and limited recovery to those
plaintiffs who “suffered personal injury or property damage” as opposed to those who suffered
only a reduction in profits. Id. at 1103.
As the Court explained in Baker, “532 Madison did not . . . announce a talismanic
requirement for plaintiffs to allege physical injury to their property (with courts left to determine
what constitutes a physical injury). Instead, the decision concerned the existence of a legal duty
between the plaintiffs and defendants.” 232 F. Supp. 3d at 245 (citing 532 Madison, 750 N.E.2d
at 1101); accord Benoit, 2017 WL 3316132, at *8. The 532 Madison court recognized that “[a]
landowner who engages in activities that may cause injury to persons on adjoining premises
surely owes those persons a duty to take reasonable precautions to avoid injuring them,” but
concluded that extending this duty to protect additional shopkeepers who lost profits due to road
closures—shopkeepers whose properties were not themselves reached by the collapse—would
unreasonably expand the scope of negligence. 750 N.E.2d at 1102–03.

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The Court of Appeals in 532 Madison described how courts should determine the extent
of this duty:
The existence and scope of a tortfeasor’s duty is, of course, a legal
question for the courts, which “fix the duty point by balancing factors,
including the reasonable expectations of parties and society generally,
the proliferation of claims, the likelihood of unlimited or insurer-like
liability, disproportionate risk and reparation allocation, and public
policies affecting the expansion or limitation of new channels of
liability.”
Id. at 1101 (quoting Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1060 (N.Y. 2001));
accord In re September 11 Litig., 280 F. Supp. 2d 279, 290 (S.D.N.Y. 2003). Such a duty “do[es]
not rise from mere foreseeability of the harm,” Hamilton, 750 N.E.2d at 1062 (citing Pulka v.
Edelman, 358 N.E.2d 1019, 1022–23 (N.Y. 1976)), but instead comes from an analysis “of the
wrongfulness of a defendant’s action or inaction” combined with “an examination of an injured
person’s reasonable expectation of the care owed,” Palka v. Servicemaster Mgmt. Servs. Corp.,
634 N.E.2d 189, 192 (N.Y. 1994) (citing Turcotte v. Fell, 502 N.E.2d 964, 967 (N.Y. 1986)).
In Baker, the Court held that “this policy determination must include a duty not to pollute
a plaintiff’s drinking water. Society has a reasonable expectation that manufacturers avoid
contaminating the surrounding environment, an expectation that extends to the pollution of an
area’s water supply.” 232 F. Supp. 3d at 245 (collecting cases). “It is sensible public policy to
require that manufacturers avoid polluting the drinking water of the surrounding community, and
nothing in 532 Madison prevents a person whose water supply was contaminated by such
conduct from recovering in tort, even if she seeks economic damages.” Id. at 245–46. The Court
therefore denied Defendants’ motions to dismiss in Baker and Benoit.

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Donavan’s property damage claims are premised on his allegation that Defendants
breached their duties to “take all reasonable measures to ensure that PFOA Solution would be
effectively contained and not discharged into the surrounding environment,” Compl. ¶ 139, and
“to ensure that the manufacturing processes they chose to employ did not unreasonably endanger
the drinking water relied upon by residents of Hoosick Falls and the surrounding area,” id. ¶ 140.
Applying 532 Madison, the Court concludes that Defendants do not owe such a duty to plaintiffs
like Donavan, who allege that their drinking water and property have not been contaminated.
Although, the Court notes that Donavan now claims to possess sufficient facts to allege that his
property has been contaminated through air emissions, Opp’n at 2–3 n.1, and that his soil has
been contaminated, id. at 6. As explained below, either allegation would likely state a plausible
claim for property damages under New York law.
Donavan points to Abbo-Bradley v. City of Niagara Falls, No. 13-CV-487, 2013 WL
4505454 (W.D.N.Y. Aug. 22, 2013), to argue that “community-wide property contamination”
has “long been recognized by the New York courts as a basis for recovery from parties found to
be responsible for . . . property damage occurring a result of the release of toxic chemical wastes
or other hazardous substances into the environment.” Opp’n at 5 (alteration in original) (quoting
Abbo-Bradley, 2013 WL 4505454, at *7). But Abbo-Bradley concerned plaintiffs who alleged
“contamination of their properties,” and sought, among other remedies, “remediation of the
contamination within, around, and under [their] properties.” 2013 WL 4505454, at *1. Indeed,
New York cases addressing groundwater contamination each involve just that: contamination of
the plaintiffs’ drinking water supply. See, e.g., Ivory v. Int’l Bus. Machs. Corp., 983 N.Y.S.2d
110, 114–15, 117 (App. Div. 2014) (affirming denial of a motion to dismiss negligence claims
12

based on “contaminated groundwater entering the property and soil owned by [plaintiffs]”);
Murphy v. Both, 922 N.Y.S.2d 483, 484–85 (App. Div. 2011) (affirming denial of summary
judgment on negligence claims based on water contamination caused by defendant’s
underground fuel tank); Fetter v. DeCamp, 600 N.Y.S.2d 340, 342 (App. Div. 1993) (“[T]he rule
has evolved that for negligence liability to ensue in cases involving the pollution of underground
waters, the plaintiff must demonstrate that the defendant failed to exercise due care in conducting
the allegedly polluting activity or in installing the allegedly polluting device, and that he or she
knew or should have known that such conduct could result in the contamination of the plaintiff’s
well.” (emphasis added)).
Donavan argues that his theory of property damages is viable because “New York courts
have recognized that lost property value due to stigma is an appropriate measure of damages.”
Opp’n at 9. He relies on Criscuola v. Power Authority of State of New York, 621 N.E.2d 1195
(N.Y. 1993), where the plaintiffs successfully argued that “‘cancerphobia’ and the public’s
perception of a health risk from exposure to electromagnetic emissions from power lines
negatively impact[ed] . . . the market value of their property.” Id. at 1195. But in that case, the
power lines at issue ran “across” the plaintiffs’ property, not near it. Id. at 1197; see also Scribner
v. Summers, 138 F.3d 471, 473 (2d Cir. 1998) (“Criscuola held that a land owner in a
condemnation proceeding may recover the decrease in value due to the public’s fear of
something on the land . . . even if the fear is unreasonable. However, the case did not involve fear
persisting after the cause was removed.”). Moreover, as Defendants note, Dkt. No. 31 (“Reply”)
at 8, the “sole issue” in Criscuola was “whether the property owners were required to show the
reasonableness of the public’s fear concerning high voltage towers in order to recover
13

consequential damages for the taking,” Merrick Gables Ass’n, Inc. v. Town of Hempstead, 691
F. Supp. 2d 355, 360 (E.D.N.Y. 2010).
The Court is unaware of any New York case where a plaintiff alleged property damages
based on contamination without claiming actual pollution of his drinking water or property. New
York courts have engaged in “[p]olicy-driven line-drawing,” and “limit[ed] the scope of
defendants’ duty to those who have” suffered actual contamination. 532 Madison, 750 N.E.2d
at 1103. Therefore, the Court concludes that Donavan’s claim for property damages premised on
the contamination of his neighbors’ water supply “fall[s] beyond the scope of the duty owed
[him] by [D]efendants and should be dismissed.” Id.
B. Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure allows a plaintiff to amend his complaint
more than twenty-one days after service of a motion to dismiss “only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Courts “should freely give leave
when justice so requires.” Id. “In the absence of any apparent or declared reason—such as 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 amendment, etc.—the leave sought should, as the rules require, be
‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Aetna Cas. & Sur. Co. v.
Aniero Concrete Co., 404 F.3d 566, 603–04 (2d Cir. 2005) (“[A] Rule 15(a) motion ‘should be
denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps
most important, the resulting prejudice to the opposing party.” (quoting Richardson Greenshields
Securities, Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987))); Dunn v. Albany Med. Coll.,
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No. 09-CV-1031, 2010 WL 2326127, at *8 (N.D.N.Y. June 7, 2010) (Kahn, J.) (“Leave to amend
a complaint is not automatic, and a court may deny a motion to amend for good cause ‘such as
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 the allowance of the amendment, futility of amendment, etc.’” (quoting Foman, 371 U.S.
at 182)).
Donavan argues that he should be allowed to his Complaint if the Court finds he has
inadequately pleaded a property damage claim. Opp’n at 14. “An amendment is considered futile
if the amended pleading fails to state a claim or would be subject to a successful motion to
dismiss on some other basis.” Cowles v. Yesford, No. 99-CV-2083, 2001 WL 179928, at *3
(N.D.N.Y. Feb. 22, 2001) (quoting Chan v. Reno, 916 F. Supp. 1289, 1302 (S.D.N.Y. 1996)).
Donavan claims that he now possesses sufficient facts to allege that his property has been
contaminated through air emissions. Opp’n at 2–3 n.1. He also suggests that his soil may have
been contaminated with PFOA. Id. at 6. It is possible for Donavan to allege sufficient facts to
state a claim for negligence based on air and soil contamination, and so such an amendment
would not be futile. Further, there is no indication that Donavan has unduly delayed or engaged
in bad faith, and Defendants do not claim they would be prejudiced if he were to amend the
Complaint.
The Court therefore finds that justice requires allowing Donavan to amend the Complaint.
V.

CONCLUSION
Accordingly, it is hereby:

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ORDERED, that Defendants’ motion to dismiss (Dkt. No. 22) is GRANTED; and it is
further
ORDERED, that Donavan’s property damage claims are DISMISSED with leave to
amend for failure to state a claim upon which relief may be granted; and it is further
ORDERED, that if Donavan wishes to amend his Complaint to allege claims for
property damage, he must file a signed amended complaint that cures the pleading defects
identified above in this Memorandum-Decision and Order within thirty (30) days from its filing
date; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties pursuant to the Local Rules.
IT IS SO ORDERED.

DATED:

September 05, 2017
Albany, New York

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