Cooper Crouse-Hinds, LLC v. City of Syracuse, New York et al

Filing 214

MEMORANDUM-DECISION AND ORDER denying 205 Motion for Reconsideration re and denying 206 First MOTION for Reconsideration: The Court hereby ORDERS that Defendant County's motion for reconsideration (Dkt. No. 205) is DENIED; and the C ourt further ORDERS that Defendant City's motion for reconsideration and/or clarification (Dkt. No. 206) is DENIED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules.Signed by U.S. District Judge Mae A. D'Agostino on 2/4/22. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
COOPER CROUSE-HINDS, LLC, COOPER
INDUSTRIES, LLC,
Plaintiffs,
vs.
5:16-cv-1201
(MAD/ATB)
CITY OF SYRACUSE, NEW YORK, COUNTY OF
ONONDAGA, NEW YORK,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

SQUIRE PATTON BOGGS LLP
1211 Avenue of the Americas, 26th Floor
New York, New York 10112
Attorneys for Plaintiffs

BRIAN D. STARER, ESQ.
VICTOR GENECIN, ESQ.

SQUIRE PATTON BOGGS LLP
41 S. High Street, Suite 2000
Columbus, Ohio 43215
Attorneys for Plaintiffs

D. REES ALEXANDER, ESQ.
DANELLE M. GAGLIARDI, ESQ.
REBEKAH M. SINGH, ESQ.
VINCENT ATRIANO, ESQ.

HANCOCK ESTABROOK, LLP
1800 AXA Tower I
100 Madison Street
Syracuse, New York 13202
Attorneys for Defendant City of Syracuse

JOHN G. POWERS, ESQ.
MARY L. D'AGOSTINO, ESQ.

CITY OF SYRACUSE
LAW DEPARTMENT
233 East Washington Street
300 City Hall
Syracuse, New York 13202
Attorneys for Defendant City of Syracuse

TODD M. LONG, ESQ.

ONONDAGA COUNTY
DEPARTMENT OF LAW
John H. Mulroy Civic Center

BENJAMIN M. YAUS, ESQ.

1

421 Montgomery Street, 10th Floor
Syracuse, New York 13202
Attorneys for Defendant Onondaga County
THE WLADIS LAW FIRM, PC
6312 Fly Road
East Syracuse, New York 13057
Attorneys for Defendant Onondaga County

KEVIN C. MURPHY, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs Cooper Crouse-Hinds ("CCH") and Cooper Industries ("CI") initiated this action
on October 4, 2016, against Defendants City of Syracuse and County of Onondaga for claims
under the Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA"). See Dkt. No. 1. On October 25, 2021, this Court denied Defendant County's
motion for summary judgment, granted in part and denied in part Defendant City's motion for
summary judgment, and granted Plaintiffs' motion for partial summary judgment with respect to
liability. See Dkt. No. 204. Each Defendant has filed a motion for reconsideration. See Dkt.
Nos. 205, 206. For the following reasons, Defendants' motions are denied.
II. BACKGROUND
For a complete recitation of the relevant background, the parties are referred to the Court's
October 25, 2021 Memorandum-Decision and Order. See Dkt. No. 204.
III. DISCUSSION
Motions for reconsideration proceed in the Northern District of New York under Local
Rule 60.1. "In order to prevail on a motion for reconsideration, the movant must satisfy stringent
requirements." In re C-TC 9th Ave. P'ship v. Norton Co., 182 B.R. 1, 2 (N.D.N.Y. 1995). Such

2

motions "will generally be denied unless the moving party can point to controlling decisions or
data that the court overlooked — matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). The prevailing rule "recognizes only three possible grounds upon which motions for
reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the
availability of new evidence not previously available, or (3) the need to correct a clear error of
law or prevent manifest injustice." In re C-TC 9th Ave. P'ship, 182 B.R. at 3 (citation omitted).
"[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate
an issue already decided." Shrader, 70 F.3d at 257. Thus, a motion for reconsideration is not to
be used for "presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a 'second bite at the apple.'" Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d
Cir. 1998).
Here, there is no intervening change in controlling law, nor is there new evidence not
previously available. Therefore, Defendants' motion for reconsideration is seeking to prevent
manifest injustice. Both Defendants assert that the Court incorrectly determined that Plaintiff
CCH incurred a response cost within the meaning of CERCLA. Defendant City argues that the
Court failed to address whether Plaintiff may recover costs that were incurred by non-party
corporate entities. Defendant City also requests clarification regarding the Court's statement that
"in 1964, Defendant City dredged Ley Creek to obtain cover material for its landfill wastes." Dkt.
No. 204 at 41. And lastly, Defendant County also argues that the Court failed to address an
alternative statute of limitation argument. Each of these are address in turn below.
A.

Whether Plaintiff CCH Incurred a Response Cost

3

In order to establish a prima facie case of liability under CERCLA, a plaintiff is required
to demonstrate that it incurred a response cost. Price Trucking Corp. v. Norampac Indus., Inc.,
748 F.3d 75, 80 (2d Cir. 2014). The term "incur" is not defined by CERCLA. In its October 25,
2021 Memorandum Decision and Order, this Court held that "to incur" means a "legal obligation
to pay a specific response cost." Dkt. No. 204 at 32. Additionally, the Court noted that which
party actually paid the response was not the relevant consideration. See id. (citing Andres v. Town
of Wheatfield, No. 1:17-CV-00377, 2020 WL 7764833, *6 (W.D.N.Y. Dec. 30, 2020) ("A party
may be found to have incurred a cost without having actually paid for it and a finding that a cost
has been incurred may be based upon an existing legal obligation")).
Accordingly, the Court identified an invoice from NYSDEC which named Plaintiff CCH
as the "Applicant/Respondent/Volunteer" for $14,601.34. Dkt. No. 145-4 at 13. The Court found
that Plaintiff CCH had a legal obligation to pay the invoice and therefore incurred a response cost.
See Dkt. No. 204 at 32.
Defendants assert that the Court erred in two ways. First, Defendants argue that Plaintiff
CCH did not actually pay the invoice because it was paid for by a separate non-party entity, CBE
Services, Inc. As discussed above and in the October 25, 2021 Memorandum-Decision and
Order, the "relevant inquiry is who assumed a legal obligation to pay." Id. at 31. Accordingly,
the Court found a legal obligation to pay at least one invoice, without concern for which entity
actually paid the invoice. Id. at 32. Defendants' argument that CBE Services actually paid the
invoice, therefore, is misplaced.
Second, Defendants argue that Plaintiff CCH did not have a legal obligation to pay the
invoice identified by the Court. Defendants argue that, although the invoice identifies Plaintiff
CCH as the "Applicant/Respondent/Volunteer," the invoice was directed to Nelson M. Olavarria,

4

who was listed with the title of Director of Environmental Remediation & Assessment at Eaton
Cooper. Therefore, Defendants argue, Eaton Cooper had the legal obligation to pay the invoice,
not Plaintiff CCH.
The 2011 Consent Order states that "Within forty-five (45) Days after receipt of an
itemized invoice from the Department, Respondent1 shall pay to the Department a sum of
money…." Dkt. No. 144-17 at 8. "Such invoices," the Consent Order then states, "shall be sent
to Respondent at the following address":
Nelson M. Olavarria
Director, Environmental Assessment & Remediation
Cooper US, Inc.
600 Travis, Suite 5600
PO Box 4446
Houston, Texas 77210
Id.
The clear and obvious reading of the 2011 Consent Order and the invoice is that Plaintiff
CCH had a legal obligation to pay the invoice and chose Mr. Olavarria to receive its invoices.
The Court does not understand the relevance of where Plaintiff CCH directed their invoices. The
2011 Consent Order clearly states that the invoices "shall be sent to the Respondent," which is
Plaintiff CCH, at Mr. Olavarria's business address. Id. The Consent Order states that Plaintiff
CCH "shall pay to the Department" the amount of the invoice, and does not impose a similar
obligation on Mr. Olavarria, Cooper US, Inc., or Eaton Cooper. Id.
Accordingly, Defendants' motions for reconsideration regarding whether Plaintiff CCH
incurred a response is denied. As stated in its October 25, 2021 Memorandum-Decision and

1

The 2011 Consent Order defines "Respondent" as Plaintiff CCH. Dkt. No. 144-17 at 1.
5

Order, Plaintiff CCH had incurred a response cost because it had a legal obligation to pay at least
one invoice relating to the response action from NYSDEC.
B.

Response Costs Incurred by Non-Entities
Defendant City moves for reconsideration because the Court did not address its argument

that certain damages should be excluded because the costs were incurred by corporate non-parties
other than Plaintiffs. Dkt. No. 206-1 at 16. Separate from whether these damages were
"incurred" within the meaning of CERCLA, as discussed above, Defendant City argues that
partial summary judgment on the issue of damages is appropriate because "[s]eparate corporate
parties, even if affiliated, may not sue in the name of, or seek damages for injuries to, separate
corporate parties, even if they are somehow affiliated." Dkt. No. 155-12 at 23. Defendant City
identified $422,097.83 that it argues were paid for by non-parties. See Dkt. No. 206-1 at 16.
The Court agrees that a plaintiff cannot recover for damages that it did not suffer. This
basic principle applies to corporate affiliates in the CERCLA context. See, e.g., S. Pac. Transp.
Co. v. Voluntary Purchasing Grps. Inc., No. 94-CV-2477, 1997 WL 457510, *7 (N.D. Tex. Aug.
7, 1997) (holding that a corporate party may not recover response costs incurred by affiliate
corporations under CERCLA); United States v. Bestfoods, 524 U.S. 51, 62 (1998) (recognizing
corporate distinctions under CERCLA unless the standard for piercing the corporate veil is met).
The Court, however, notes that Defendant City is incorrect that a corporation may not pierce its
own corporate veil in the CERCLA context. See Rochester Gas & Elec. Corp. v. GPU, Inc., 355
Fed. Appx. 547, 551 (2d Cir. 2009)
At this stage, the Court declines to exclude any specific damages. CERCLA cases are
often bifurcated into a liability phase and a damages phase. See United States v. Alcan Aluminum
Corp., 990 F.2d 711, 720 (2d Cir. 1993). Whether to bar certain damages "is a damages phase

6

issue." Price Trucking Corp. v. Norampac Indus., Inc., No. 09CV990A, 2010 WL 4069223, *8
(W.D.N.Y. June 17, 2010), report and recommendation adopted, 2011 WL 767702 (W.D.N.Y.
Feb. 25, 2011). Indeed, what response costs Plaintiffs incurred "is more appropriately addressed
when liability has been established." Town of New Windsor v. Tesa Tuck, Inc., 919 F. Supp. 662,
674 (S.D.N.Y. 1996).
The Court also notes that Plaintiffs have argued that costs were "allocated against the
environmental remediation liabilities on CCH's books." Dkt. No. 161-1 at 18; Dkt. No. 165 at ¶
7. "[T]he City's assertion that it can determine who 'paid' an invoice by evaluating the entity
listed on the invoice itself is nonsensical," Plaintiffs argue. Dkt. No. 161-1 at 18. Based on the
evidence at this stage, the Court is unable to determine whether this includes the $422,097.83
Defendant City has identified.
Accordingly, Defendant City's motion for partial summary judgment with regards to
$422,097.83 is denied as premature.
C.

Whether Defendant City Dredged Ley Creek
In its October 25, 2021 Memorandum-Decision and Order, this Court held that Defendant

City, in 1964, "dredged Ley Creek to obtain cover material for its landfill wastes." Dkt. No. 204
at 41. Defendant City now requests reconsideration or clarification because, it argues, "there is a
question of material fact as to this contention." Dkt. No. 206-1 at 19. Defendant City correctly
acknowledges that "[t]he assertion was not necessary for the Court's ruling on whether the City
was an 'arranger' under CERCLA." Id. at 23. To the extent Defendant City seeks reconsideration,
that motion is denied. Because Defendant City, "by its own admission, is not seeking to 'alter the
conclusion reached by the court,' its motion must be denied." RJE Corp. v. Northville Indus.

7

Corp., No. 02-CV-1440, 2002 WL 1750763, *1 (E.D.N.Y. July 29, 2002) (quoting Shrader, 70
F.3d at 257).
In addition to reconsideration, Defendant City also requests clarification. "Unlike a
motion for reconsideration, a motion for clarification is not intended to alter or change a court's
order, but merely to resolve alleged ambiguities in that order." Metcalf v. Yale Univ., No. 15-CV1696, 2019 WL 1767411, *2 (D. Conn. Jan. 4, 2019). "[A] motion for clarification is not
intended to alter or change a court's order, but merely to resolve alleged ambiguities in that
order." Bank of New York Mellon, London Branch v. Cart 1, Ltd., No. 18-CV-6093, 2021 WL
2358695, *1 (S.D.N.Y. June 9, 2021). Defendant City, however, has identified no ambiguity or
difficulty understanding the Court's holding. Rather, Defendant City is simply expressing its
disagreement. The motion for clarification, therefore, is denied. See, e.g., Alston v. Pafumi, No.
3:09-cv-1978, 2012 WL 6093893, *2 (D. Conn. Dec. 7, 2012) ("The Ruling speaks for itself.
Accordingly, the motion for clarification is denied").
D.

Statute of Limitations
A suit under Section 107(a) must be commenced within three years after the completion of

a "removal action" and within six years after the initiation of a "remedial action." 42 U.S.C. §
9613(g)(2). In its October 25, 2021 Memorandum-Decision and Order, the Court held that the
statute of limitations on Plaintiff CI's Section 107(a) claim did not expire because the construction
of a perimeter fence, check dams, and observation wells, constituted removal actions. See Dkt.
No. 204 at 20-29. Defendant County, however, also argued that even if the response actions were
removals, the statute of limitations nonetheless expired. The Court did not address whether the
statute of limitations expired for the removal actions. Now, Defendant County reasserts its

8

argument, stating that removal actions were "completed" in 2005, 2006, 2007, and 2009, and
therefore, this action is untimely. Dkt. No. 205-1 at 15.
Defendant County is mistaken that removal actions are completed when physical
construction of a structure is completed. First, the removal action continues while the structure
performs its function; the date it is erected is irrelevant. See, e.g., New York v. Next Millenium
Realty, LLC, 732 F.3d 117, 126 (2d Cir. 2013); Am. Premier Underwriters Inc. v. Gen. Elec. Co.,
866 F. Supp. 2d 883, 898 (S.D. Ohio 2012). Second, the construction of the perimeter fence,
check dams, and observation wells were all part of the same, singular, removal action. "[C]ourts
have generally held that there can be only one removal and one remedial action per facility,
regardless of the number of phases in which the clean-up occurs." New York State Elec. & Gas
Corp. v. FirstEnergy Corp., 766 F.3d 212, 236 (2d Cir. 2014); see also Colorado v. Sunoco, 337
F.3d 1233, 1241 (10th Cir. 2003) ("In our view, this language [of the statute] indicates there will
be but one 'removal action' per site or facility, as well as a single 'remedial action' per site or
facility").
For example, in Next Millenium Realty, 732 F.3d at 126, the plaintiff constructed an air
stripper tower, which was completed in 1997. NYSDEC issued the Record of Decision, which
outlined the remedial design, in 2003, and the lawsuit was initiated in 2006, nine years after the
completion of the air stripper tower. Id. at 123. The Second Circuit held that the three-year
statute of limitations is triggered by the "completion of the removal." Id. "Because the removal
measures cannot be deemed to have been completed in any sense before the State's adoption of a
remediation plan that incorporated them … the statute of limitations had not run as of the time
this action was commenced." Id. at 126.

9

Accordingly, Defendant County's argument that the three-year statute of limitations began
to run when the perimeter fence, monitoring wells, or check dams were constructed is misplaced.
Because Defendant County provides no evidence or argument for the completion of the removal
action beyond the dates of the physical construction, the Court denies its motion for
reconsideration regarding whether the Section 107(a) claim is timely.
IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant County's motion for reconsideration (Dkt. No. 205) is
DENIED; and the Court further
ORDERS that Defendant City's motion for reconsideration and/or clarification (Dkt. No.
206) is DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 4, 2022
Albany, New York

10