Revitalizing Auto Communities Environmental Response Trust et al v. National Grid USA et al

Filing 573

MEMORANDUM DECISION and ORDER: It is ORDERED that 1. Defendant Verizon's motion to dismiss plaintiffs' second amended complaint (Dkt. No. 443) is DENIED; 2. Defendant B&B Family's motion to dismiss plaintiffs' second amended comp laint (Dkt. No. 452) is DENIED; 3. Defendant Honeywell's motion to dismiss plaintiffs' second amended complaint (Dkt. No. 454) is DENIED; 4. Defendant Western Electric's motion to dismiss plaintiffs' second amended complaint (Dkt. No. 456) is DENIED; 5. Defendant Nokia's motion to dismiss plaintiffs' second amended complaint (Dkt. No. 457) is DENIED; 6. Thompson Defendants' motion to dismiss plaintiffs' second amended complaint (Dkt. No. 470) is DENIED; 7. Plaintiffs' motion for default judgment against United States Hoffman Machinery Corporation (Dkt. No. 543) is GRANTED as to the issue of liability; and 8. Plaintiffs' motion to dismiss certain non-appearing defendants with prejudice (Dkt. No. 546) is GRANTED; and 9. The moving defendants (Dkt. Nos. 443, 452, 454, 456, 457, 470) are directed to file and serve an ANSWER to plaintiffs' second amended complaint on or before December 6, 2024. The Clerk of the Court is directed to terminate the pending motions, set an answer deadline, and terminate the dismissed defendants in Dkt. No. 546. IT IS SO ORDERED. Signed by Judge David N. Hurd on 11/22/2024. (tll)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------RACER PROPERTIES LLC, and EPLET,
LLC, not individually but solely in its
representative capacity as Administrative
Trustee of Revitalizing Auto Communities
Response Trust,
Plaintiffs,
-v-

5:18-CV-1267

NATIONAL GRID USA, NIAGARA
MOHAWK POWER CORPORATION,
CARRIER CORPORATION, RTX
CORPORATION, CARLYLE AIR
CONDITIONING COMPANY INC.,
GENERAL ELECTRIC COMPANY,
BRISTOL-MEYERS SQUIBB COMPANY,
NEW PROCESS GEAR CORPORATION,
MAGNA POWERTRAIN USA, INC.,
SOLVENTS AND PETROLEUM
SERVICE, INC., THOMPSON CORNERS,
LLC, METALICO SYRACUSE REALTY,
INC., METALICO NEW YORK, INC.,
ALERIS PARTNERS, LLC, GARDNER
DENVER, INC., ONX1 LLC, ONONDAGA
POTTERY COMPANY, INC., AMPARIT
INDUSTRIES, LLC, 6181 THOMPSON
ROAD, LLC, CARRIER CIRCLE
BUSINESS COMPLEX, LLC, VERIZON
NEW YORK, INC., WESTERN ELECTRIC
COMPANY, INCORPORATED, FULTON
IRON & STEEL CO., INC., SYRACUSE
LEPAGE, LLC, LENNOX INDUSTRIES,
INC., SYRACUSE DEERE ROAD
ASSOCIATES, LLC, JAGAR ENTERPRISES,
INC., BURKO CORPORATION, EMPIRE
PIPELINE CORPORATION, CALOCERINOS

AND SPINA, C & S ENGINEERS, INC.,
JOHN DOES, B&B FAMILY LIMITED
PARTNERSHIP, HAULER’S FACILITY,
LLC, HONEYWELL INTERNATIONAL,
INC., LOCKHEED MARTIN
CORPORATION, NEW PROCESS GEAR,
INC., NOKIA OF AMERICA
CORPORATION, NORTH MIDLER
PROPERTIES, LLC, NORTHEAST
MANAGEMENT SERVICES, INC.,
NORTHERN INDUSTRIAL HOLDINGS,
LLC, OLD CARCO LIQUIDATION TRUST,
OLD CARDO LLC F/K/A CHRYSLER LLC,
THOMPSON LAW, LLC, THOMPSON NW,
LLC, UNITED STATES HOFFMAN
MACHINERY CORPORATION, and
OLD ELECTRIC, INC.,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

LYNN D’ELIA TEMES
& STANCZYK
Attorneys for Plaintiffs
449 S. Salina Street, 2nd Floor
Syracuse, NY 13202

DAVID C. TEMES, ESQ.

PRETI FLAHERTY BELIVEAU
& PACHIOS, LLP
Attorneys for Plaintiffs
P.O. Box 9546
Portland, ME 04112

JEFFREY A. THALER, ESQ.
KEVIN C. OSANTOWSKI, ESQ.
DAVID B. VAN SLYKE, ESQ.

WHITEMAN, OSTERMAN LAW FIRM
Attorneys for Moving Defendant
Verizon New York, Inc.
One Commerce Plaza, Suite 1900
Albany, NY 12210

PHILIP H. GITLEN, ESQ.
ARTHUR A. NIX, ESQ.
JON E. CRAIN, JR., ESQ.

-2-

TALARICO LAW FIRM
Attorneys for Moving Defendant
B&B Family Limited Partnership
6832 East Genesee Street
Fayetteville, NY 13066

JOSEPH R. TALARICO, II, ESQ.

ARNOLD & PORTER
KAYE SCHOLER LLP
Attorneys for Moving Defendant
Honeywell International, Inc.
601 Massachusetts Avenue NW
Washington, D.C. 20001

TYLER L. BURGESS, ESQ.
LAUREN COLE DANIEL, ESQ.

ALSTON & BIRD LLP
Attorneys for Moving Defendants
Western Electric Company, Inc.
and Nokia of America Corp.
90 Park Avenue
New York, NY 10016

DAVID VENDERBUSH, ESQ.
HILLARY SANBORN, ESQ.
MEAGHAN G. BOYD, ESQ.

RUPP PFALZGRAF LLC
Attorneys for Moving Defendants
Thompson Corners, LLC, 6181
Thompson Road, LLC, Thompson
Law, LLC, and Thompson NW, LLC
1600 Liberty Building
424 Main Street
Buffalo, NY 14202

JOHN T. KOLAGA, ESQ.

DAVID N. HURD
United States District Judge

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DECISION and ORDER
I. INTRODUCTION
On October 26, 2018, plaintiffs EPLET, LLC, 1 the administrative trustee
of the Revitalizing Auto Communities Environmental Response (“RACER”)
Trust, and Racer Properties, LLC (collectively “RACER” or “plaintiffs”), a pair
of entities created to finance the cleanup of decades’ worth of environmental
contamination along a stretch of Ley Creek in the Onondaga Lake region of
Syracuse, New York, filed this civil action pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”) and
related state law.
Broadly speaking, RACER’s complaint sought recovery of costs or, in the
alternative, contribution, against a laundry list of defendants who allegedly
contributed to polluting an expanded territory that plaintiffs claim they have
been charged with cleaning up. Dkt. No. 1. After plaintiffs amended their
pleading, Dkt. No. 157, defendants moved to dismiss, Dkt. No. 255, 295.
On May 12, 2020, this Court concluded that plaintiffs’ claims were unripe
and dismissed the amended complaint without prejudice to renew. Dkt. No.
312; Revitalizing Auto Cmtys. Env’t Response Trust v. Nat’l Grid USA
(“RACER I”), 2020 WL 2404770 (N.D.N.Y.). Plaintiffs took an appeal and a

1 EPLET, LLC, the Administrative Trustee of the RACER Trust, was not originally a named

plaintiff. It was later substituted because the Trust itself lacks capacity to sue.
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panel of the Second Circuit reversed. Revitalizing Auto Cmtys. Env’t
Response Trust v. Nat’l Grid USA (“RACER II”), 10 F.4th 87 (2d Cir. 2021).
On November 17, 2021, following remand of this action, plaintiffs filed a
second amended complaint, Dkt. No. 334, which drew a second round of preanswer motion practice, Dkt. No. 346. This time around, the Court granted
defendants’ motion, dismissed plaintiffs’ CERCLA claims on the merits, and
declined to exercise supplemental jurisdiction over the remaining state-law
claims. Racer Props., LLC v. Nat’l Grid USA (“RACER III”), 610 F. Supp. 3d
451 (N.D.N.Y. July 8, 2022). Plaintiffs took a second appeal and the Second
Circuit again reversed. Revitalizing Auto Cmtys. Env’t Response Trust v.
Nat’l Grid USA (“RACER IV”), 92 F.4th 415 (2d Cir. 2024).
On remand, most of the defendants decided to answer the second amended
complaint, assert counterclaims, and head into discovery. Dkt. Nos. 427, 428,
431, 432, 433, 434, 435, 436, 437, 440, 441, 442, 444, 445, 446, 448, 449, 450,
451, 453, 455, 468, 471. A few defendants have failed to appear in this action
to defend themselves. Plaintiffs have moved for default judgment against one
of the non-appearing defendants, Dkt. No. 543, and to dismiss their claims
against eight of the other non-appearing defendants, Dkt. No. 546.
Finally, six defendants or groups of defendants have again moved to
dismiss: (1) Verizon New York, Inc. (“Verizon”); (2) B&B Family Limited
Partnership (“B&B Family”); (3) Honeywell International, Inc. (“Honeywell”);
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(4) Western Electric Company, Inc. (“Western Electric”); (5) Nokia of America
Corporation (“Nokia”); and (6) Thompson Corners, LLC, 6181 Thompson
Road, LLC, Thompson Law, LLC, and Thompson NW, LLC (collectively the
“Thompson Defendants”). Dkt. Nos. 443, 452, 454, 456, 457, 470.
All of the pending motions have been fully briefed and will be considered
on the basis of the submissions without oral argument.
II. DISCUSSION
As the Second Circuit noted in RACER IV, this Court is well-familiar with
the “complex factual and procedural background” of the parties’ disputes and
the underlying legal issues presented by the second amended complaint. 92
F.4th at 450. In light of that familiarity, and mindful of the fact that we are
still in something of a pre-answer posture on what is now a six-year-old case,
the Court has sought to streamline and simplify this round of motion practice
by omitting a belabored recitation of the operative complaint’s lengthy factual
allegations and CERCLA’s complex legal framework in favor of a narrower
focus on the parties’ specific arguments. 2
Briefly stated, though, the Second Circuit summarized what lies at the
heart of this litigation in RACER IV:

2 The ambitious reader should review RACER I (31 pages at Dkt. No. 312), RACER II (42 pages

at Dkt. No. 321), RACER III (47 pages at Dkt. No. 373), RACER IV (74 pages at Dkt. No. 382) and
the second amended complaint (86 pages excluding exhibits at Dkt. No. 334) before wading any
further into these dark waters.
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The pivotal issue before us is whether the 2011
Settlement Agreement did, in fact, resolve RACER’s
liability as to the area in question. Although this
question is primarily a legal one—it’s a matter of
contract interpretation—understanding the issues
requires a deep dive into the facts. We ultimately
conclude that the 2011 Settlement Agreement did not
definitively resolve RACER’s liability as to the entire
area in dispute; it only resolved its liability as to the
site of the IFG Plant and pollutants that migrated or
emanated from that site. Whether and to what extent
the response costs for which GM seeks recovery arise
from pollution that migrated or emanated from the
Plant site, as opposed to pollution that arrived in the
disputed area through other means, requires factual
determinations that we cannot make in the context of
this motion to dismiss.
RACER IV, 92 F.4th at 424.
A. Defendants’ Motions to Dismiss
First, there are six motions to dismiss pending by defendants: (1) Verizon;
(2) B&B Family; (3) Honeywell.; (4) Western Electric; (5) Nokia; and (6) the
Thompson Defendants. Defendants have each brought their motions
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual
allegations must be enough to elevate the plaintiff’s right to relief above the
speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So
while legal conclusions can provide a framework for the complaint, they must
be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

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662, 679 (2009). In short, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
To assess this plausibility requirement, the court must accept as true all of
the factual allegations contained in the complaint and draw all reasonable
inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94
(2007). In doing so, the court generally confines itself to the facts alleged in
the pleading, any documents attached to the complaint or incorporated into it
by reference, and matters of which judicial notice may be taken. Goel v.
Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.
v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
1. Verizon
Verizon has moved to dismiss RACER’s second amended complaint for
failure to state any plausible claims for relief. Verizon Mem., Dkt. No. 443-1
at 8–16. 3 In particular, Verizon argues that: (1) it should be dismissed from
this action because plaintiffs concede that Verizon neither caused nor
contributed to the contamination in the expanded territory; (2) CERCLA
preempts plaintiffs’ common law claims for restitution, contribution, and
indemnification; (3) plaintiffs cannot bring claims under New York State
Navigation Law because Verizon is not responsible for remediating petroleum

3 Pagination corresponds to CM/ECF header.

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contamination in the expanded territory since no petroleum could have
originated from a source over which Verizon exercises control; (4) plaintiffs’
state law negligence and public nuisance claims are time-barred; and (5)
plaintiffs’ request for a declaration that Verizon is “jointly and severally
liable” for contamination costs must be dismissed because there is no legal
basis on which to hold Verizon liable. Verizon Mem. at 8–16.
In opposition, RACER contends that (1) the Second Circuit’s decision in
RACER IV does not preclude plaintiffs from seeking contribution or cost
recovery from Verizon related to the expanded territory; (2) they have
plausibly shown that at least some of the contaminants in the expanded
territory emanated from a facility under Verizon’s control; (3) determining
whether plaintiffs’ state law claims are preempted by CERCLA would be
premature at this procedural posture; (4) they have plausibly alleged their
claims under the state Navigation Law by alleging that Verizon discharged
petroleum into the expanded territory, (5) their negligence and public
nuisance claims are not time-barred; and (6) they can pursue declaratory
relief under the governing law. Pls.’ Opp’n, Dkt. No. 514 at 4–15. Plaintiffs
contend they should be permitted to proceed to discovery. Id. at 4, 9, 10, 13.
Upon review, defendant’s motion to dismiss will be denied because
plaintiffs’ operative complaint has plausibly alleged claims that would give
rise to relief under the governing law. In fact, a review of the parties’ briefing
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reveals that these arguments implicate questions of fact that are better left to
the discovery process. The same is true of about the viability of plaintiff’s
state-law claims: it depends upon the resolution of factual issues related to
the CERCLA claims. In short, the Court is satisfied that plaintiffs have
plausibly alleged each of the causes of actions that remain asserted in the
operative pleading. Accordingly, Verizon’s motion to dismiss will be denied.
2. B&B Family
B&B Family has also moved to dismiss. B&B Family Mem., Dkt. No. 4522 at 10–23. B&B Family argues that (1) plaintiffs’ second amended
complaint fails to state a CERCLA claim that could result in cost recovery
against B&B Family; (2) plaintiffs’ claims under New York State Navigation
Law for costs associated with contamination are preempted by CERCLA; (3)
plaintiffs’ New York State Navigation Law § 181 claim should be dismissed
because it only applies to faultless owners and plaintiffs are not faultless; (4)
plaintiffs’ common law claims for negligence and public nuisance are
duplicative; (5) plaintiffs’ state negligence and public nuisance claims are
time-barred; (6) plaintiffs’ state law claim for negligence fails because B&B
Family does not owe plaintiffs a duty of care; (7) plaintiffs’ claims for
restitution, contribution, and indemnity are preempted by CERCLA; and (8)
plaintiffs’ claim for declaratory relief should be dismissed because it is not
based on a valid independent cause of action. B&B Family Mem. at 8–18.
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In opposition, RACER contends that (1) plaintiffs have pleaded sufficient
factual information to state a prima facie claim against B&B Family under
CERCLA; (2) plaintiffs have sufficiently pleaded non-duplicative claims
under New York’s Navigation Law; (3) plaintiffs have plausibly alleged a
claim under New York’s Navigation Law § 181(5) because they are not a
responsible party and are entitled to recovery; (4) plaintiffs’ state law claims
for negligence and public nuisance are not preempted by CERCLA; (5)
plaintiffs’ state law negligence and public nuisance claims are not timebarred; (6) plaintiffs’ negligence claims can be sustained even in the absence
of damage to plaintiffs’ property; (7) it would be premature to conclude that
plaintiffs’ common law claims are preempted by CERCLA; and (8) plaintiffs
should be permitted to proceed with their claim for declaratory judgment
until all other claims under federal and state law are dismissed or rejected on
the merits. Pls.’ Opp’n, Dkt. No. 513 at 5–15. Plaintiffs assert they should
proceed to discovery on these claims. Id. at 1, 5, 13.
Upon review, B&B Family’s motion to dismiss will be denied because
plaintiffs’ operative complaint has plausibly alleged claims that would give
rise to relief under the governing law. In fact, a review of the parties’ briefing
reveals that these arguments implicate questions of fact that are better left to
the discovery process. The same is true of about the viability of plaintiff’s
state-law claims: it depends upon the resolution of factual issues related to
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the CERCLA claims. In short, the Court is satisfied that plaintiffs have
plausibly alleged each of the causes of actions that remain asserted in the
operative pleading. Accordingly, B&B Family’s motion to dismiss will be
denied.
3. Honeywell
Honeywell has moved to dismiss. Honeywell Mem., Dkt. No. 454 at 10–27.
In particular, Honeywell argues that (1) RACER’s claims against Honeywell
were released in a 2013 settlement agreement and should therefore be
dismissed; 4 (2) plaintiffs’ contribution claims against Honeywell are timebarred; (3) plaintiffs’ claim for cost recovery under CERCLA § 107 fails
because it is foreclosed by the contribution claim brought under CERCLA
Section § 113; (4) the Court should decline to exercise supplemental
jurisdiction over plaintiffs’ state law claims; (5) plaintiffs’ claims under New
York State’s Navigation Law are preempted by CERCLA; (6) plaintiffs’ claim
under New York State’s Navigation Law § 181 fail because plaintiffs are not
“faultless” owners; (7) plaintiffs’ common law negligence and public nuisance
claims are preempted by CERCLA; (8) plaintiffs’ common law negligence and
public nuisance claims are time-barred; (9) plaintiffs’ common law negligence

4 Honeywell requests, in the alternative, that if the Court believes that consideration of the

release of claims should not be considered on a motion to dismiss, that the Court should, pursuant to
Fed. R. Civ. P. 12(d), convert the motion to a summary judgment motion and dismiss RACER’s
claims against them as they are entitled to judgment as a matter of law. Def’s Mem. at 4.
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claim fails because plaintiffs do not control the expanded territory at issue;
(10) plaintiffs’ claims for restitution, contribution, and indemnity are
preempted by CERCLA; and (11) plaintiffs’ claim for declaratory relief must
be dismissed because it is not an independent cause of action. Honeywell
Mem. at 4–20.
In opposition, RACER contends that (1) Honeywell’s settlement agreement
did not abrogate plaintiffs’ rights to seek cost recovery and/or contribution
from Honeywell pursuant to CERCLA; (2) plaintiffs’ CERLCA § 113 claims
are not time-barred and have been plausibly alleged; (3) plaintiff’s claim for
cost recovery under CERCLA § 107 is not foreclosed; (4) the Court has
supplemental jurisdiction over plaintiffs’ state law claims because they
originate from the same controversy as their sufficiently pleaded CERCLA
claims; (5) plaintiffs’ claims under Navigation Law §§ 176 and 181 are
sufficiently pleaded and are not preempted; (6) Honeywell’s argument that
plaintiffs are not faultless owners fails because RACER are not successors to
the environmental liabilities at issue; (7) it is premature to conclude that
plaintiffs’ common law negligence and public nuisance claims are preempted
by CERCLA; (8) plaintiffs’ common law claims for negligence and public
nuisance are not time-barred; (9) plaintiffs’ common law negligence claim is
plausibly alleged because Honeywell owns adjacent land and property
relevant to the issue; and 10) plaintiffs’ claim for declaratory relief should be
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permitted to proceed unless and until all other claims under federal and state
law are either dismissed or rejected. Pls.’ Opp’n, Dkt. No. 515 at 5–25.
Upon review, Honeywell’s motion to dismiss will be denied because
plaintiffs’ operative complaint has plausibly alleged claims that would give
rise to relief under the governing law. In fact, a review of the parties’ briefing
reveals that these arguments implicate questions of fact that are better left to
the discovery process. The same is true of about the viability of plaintiff’s
state-law claims: it depends upon the resolution of factual issues related to
the CERCLA claims. In short, the Court is satisfied that plaintiffs have
plausibly alleged each of the causes of actions that remain asserted in the
operative pleading. As to Honeywell’s request to convert this motion to
dismiss into a motion for summary judgment, there are still outstanding
issues of fact that preclude a determination of this issue even if the Court
were to consider extraneous evidence. Accordingly, Honeywell’s motion to
dismiss will be denied.
4. Western Electric
Western Electric has moved to dismiss. Western Electric Mem., Dkt. No.
456-1. In particular, Western Electric argues that (1) RACER has failed to
plausibly allege owner-and-operator liability under CERCLA; (2) plaintiffs
have failed to establish Western Electric’s liability for cost recovery or
contribution under New York’s Navigation Law §§ 181 and 176; (3) plaintiffs
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have failed to state plausible common law claims for negligence, public
nuisance, restitution, and/or indemnification; (4) plaintiffs’ common law
negligence and public nuisance claims are time-barred; and (5) plaintiffs’
request for declaratory relief cannot serve as an independent cause of action.
Western Electric Mem. at 6–18.
In opposition, RACER contends that (1) plaintiffs have pleaded sufficient
factual allegations that Western Electric discharged or released hazardous
substances and other contaminants into the expanded territory; (2) plaintiffs
have plausibly alleged claims under New York’s Navigation Law by alleging
facts that Western Electric, inter alia¸ discharged petroleum into New York
waters and engaged in operations involving PCB oils; (3) plaintiffs have
plausibly alleged their common law claims against Western Electric; and (4)
plaintiffs’ common law negligence and public nuisance claims against
Western Electric are not time-barred. Pls.’ Opp’n, Dkt. No. 518 at 4–10.
Upon review, Western Electric’s motion to dismiss will be denied because
plaintiffs’ operative complaint has plausibly alleged claims that would give
rise to relief under the governing law. In fact, a review of the parties’ briefing
reveals that these arguments implicate questions of fact that are better left to
the discovery process. The same is true of about the viability of plaintiff’s
state-law claims: it depends upon the resolution of factual issues related to
the CERCLA claims. In short, the Court is satisfied that plaintiffs have
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plausibly alleged each of the causes of actions that remain asserted in the
operative pleading. Accordingly, Western Electric’s motion to dismiss will be
denied.
5. Nokia
Nokia has moved to dismiss. Nokia Mem., Dkt. No. 457-1 at 10–20.
Specifically, Nokia argues that (1) RACER has failed to plausibly allege that
Nokia violated CERCLA because plaintiffs have not demonstrated Nokia
owned or operated any facility at which relevant hazardous substances were
disposed; (2) plaintiffs have failed to state plausible claims for cost recovery
or contribution under New York’s Navigation Law because they have failed to
plausibly allege that Nokia discharged petroleum; (3) plaintiffs’ common law
claims for negligence, public nuisance, restitution, and indemnification all
fail because they have not plausibly alleged that Nokia was involved in any
activities which would entitle plaintiffs to relief; (4) if Nokia were to bear any
successor liability, it would only have assumed the successor liability of
Western Electric, which has demonstrated in its own motion papers that
Western Electric bears no CERCLA liability to plaintiffs; (5) plaintiffs’
common law public nuisance and negligence claims are time-barred; and (6)
plaintiffs’ claim for declaratory relief is not an independent cause of action.
Nokia Mem. at 6–16.

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In opposition, RACER contends that (1) plaintiffs have sufficiently pleaded
factual allegations to support claims under CERCLA §§ 107 and 113 because
they have demonstrated that Western Electric discharged pollutants in the
expanded territory and that Nokia has assumed liability for Western
Electric’s operations; (2) plaintiffs have plausibly alleged that Nokia is liable
under the Navigation Law by pleading with particularity that Western
Electric discharged contaminants into the expanded territory; (3) plaintiffs’
common law claims for negligence, nuisance, restitution, and indemnification
are plausible because they have established their standing as an affected
party and Western Electric’s contribution to the contamination; and (4) their
negligence and public nuisance claims are not time-barred. Pls.’ Opp’n, Dkt.
No. 516 at 4–12.
Upon review, Nokia’s motion to dismiss will be denied because plaintiffs’
operative complaint has plausibly alleged claims that would give rise to relief
under the governing law. In fact, a review of the parties’ briefing reveals that
these arguments implicate questions of fact that are better left to the
discovery process. The same is true of about the viability of plaintiff’s statelaw claims: it depends upon the resolution of factual issues related to the
CERCLA claims. In short, the Court is satisfied that plaintiffs have
plausibly alleged each of the causes of actions that remain asserted in the
operative pleading. Accordingly, Nokia’s motion to dismiss will be denied.
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6. Thompson Defendants
The Thompson Defendants have moved to dismiss. Thompson Defendants
Mem., Dkt. No. 470-4 at 5–15. In particular, the Thompson Defendants
argue that (1) the Second Circuit has limited potential liability for the
contamination at issue to two theories, which means this Court is bound to
focus solely on these two theories; (2) as a result, under the available
theories, plaintiffs have not plausibly alleged any CERCLA claims against
the Thompson Defendants; (3) plaintiffs have failed to plausibly allege
CERCLA or New York Navigation Law claims against the Thompson
Defendants because they neither allege that the Thompson Defendants hold
title to real property anywhere a CERCLA release or Navigation Law
discharge is occurring nor that the Thompson Defendants disposed of
hazardous substances at any time during past ownership of relevant real
property; (4) the argument that the Thompson Defendants are liable under
CERCLA or New York Navigation Law for a 2015 petroleum spill from their
property fails because plaintiffs concede that the spill was the result of
vandalism; (5) that plaintiffs’ common law contribution claims are
duplicative of their CERCLA contribution claims; and (6) plaintiffs’ common
law negligence and public nuisance claims are time-barred. Thompson
Defendants Mem. at 5–13.

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In opposition, RACER contends that (1) the Second Circuit’s Mandate did
not restrict plaintiffs’ claims to the transportation of hazardous substances
under two theories of liability and the Thompson Defendants assertion to the
contrary is inaccurate and oversimplified; (2) plaintiffs have plausibly alleged
that the Thompson Defendants violated CERCLA because they bear potential
liability as an owner or operator; (3) the Thompson Defendants cannot assert
they are “faultless owners” as an affirmative defense to plaintiffs’ CERCLA
claims; (4) vandalism or sabotage is not a valid defense under CERCLA; (5) a
preemption finding would be premature at this juncture; and (6) plaintiffs’
common law negligence and nuisance claims are not time-barred under the
“two-injury rule.” Pls. Opp’n, Dkt. No. 517, 7–17.
Upon review, the Thompson Defendants’ motion to dismiss will be denied
because plaintiffs’ operative complaint has plausibly alleged claims that
would give rise to relief under the governing law. In fact, a review of the
parties’ briefing reveals that these arguments implicate questions of fact that
are better left to the discovery process. The same is true of about the
viability of plaintiff’s state-law claims: it depends upon the resolution of
factual issues related to the CERCLA claims. In short, the Court is satisfied
that plaintiffs have plausibly alleged each of the causes of actions that
remain asserted in the operative pleading. Accordingly, the Thompson
Defendants’ motion to dismiss will be denied.
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B. Plaintiffs’ Motion for Default Judgment
As noted supra, RACER has moved for default judgment against nonappearing defendant United States Hoffman Machinery Corporation. Pl’s.
Mot. for Default Judgment, Dkt. No. 543 at 1–2. Plaintiffs seek a default
judgment on the issue of liability under § 107(a), the cost recovery provision
of CERCLA, “relating to environmental contamination at OU-2 and the
Expanded Territories in Syracuse, New York[,] identified in the Second
Amendment Complaint dated November 17, 2021.” Pl’s. Prop. Order for
Default Judgment, Dkt. No. 543-6 at 1–2.
Rule 55 of the Federal Rules of Civil Procedure provides a two-step process
for obtaining a default judgment against a defaulting party. FED. R. CIV. P.
55(a)–(b). The first step is to obtain an entry of default from the Clerk of the
Court. FED. R. CIV. P. 55(a). The second step is to seek a default judgment,
which must ordinarily be reviewed by the court unless the claim is for a sum
certain. FED. R. CIV. P. 55(b)(1)–(2).
“[A] party’s default is deemed an admission of all well pleaded allegations
of liability.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
155, 158 (2d Cir. 1992). But it is not an admission of damages. Id. And “it
remains for the court to consider whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not admit conclusions

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of law.” LaBarbera v. ASTC Lab’ys Inc., 752 F. Supp. 2d 263, 270 (E.D.N.Y.
2010) (cleaned up).
Upon review, RACER’s motion for default judgment against United States
Hoffman Machinery Corporation must be granted as to the issue of liability.
However, plaintiffs have not sought default judgment as to damages, and the
presently available submissions would be an insufficient basis on which to
award them. See, e.g., Antoine v. Brooklyn Maids 26, Inc., 489 F. Supp. 3d
68, 90 (E.D.N.Y. 2020) (noting damages must be supported with “an adequate
basis” and be ascertained “with reasonable certainty”); Cement & Concrete
Workers Dist. Council Welfare Fund v. Metro Found. Contr., Inc., 699 F.3d
230, 234 (2d Cir. 2012) (explaining damages can be substantiated based on
evidence at a hearing or upon detailed review of affidavits and documentary
evidence). Further proceedings, such as an evidentiary hearing or inquest on
damages, against this defaulting defendant will be stayed pending resolution
of plaintiffs’ claims. 5 Accordingly, plaintiffs’ motion for default judgment will
be granted as to liability.
C. Plaintiffs’ Motion to Dismiss
As a final matter, RACER has moved to dismiss eight defendants: (1) New
Process Gear Corporation; (2) Old Carco Liquidation Trust; (3) Old Carco,

5 RACER has not sought the entry of partial final judgment under FRCP 54(b) and therefore the

Clerk will not be directed to enter a judgment at this time.
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LLC formerly known as Chrysler, LLC; (4) Old Electric, Inc.; (5) Burko
Corporation; (6) Empire Pipeline Corporation; (7) Fulton Iron & Steel Co.;
and (8) Aleris Partners, LLC. Dkt. No. 546.
Rule 41 of the Federal Rules of Civil Procedure governs the voluntary
dismissal of actions. As relevant here, “an action may be dismissed at the
plaintiff’s request . . . on terms that the court considers proper.” FED. R. CIV.
P. 41(a)(2). None of the eight defendants have opposed plaintiffs’ request for
dismissal or otherwise responded to plaintiffs’ motion. Accordingly, plaintiffs’
motion to dismiss these defendants will be granted.
IV. CONCLUSION
Therefore, it is
ORDERED that
1. Defendant Verizon’s motion to dismiss plaintiffs’ second amended
complaint (Dkt. No. 443) is DENIED;
2. Defendant B&B Family’s motion to dismiss plaintiffs’ second amended
complaint (Dkt. No. 452) is DENIED;
3. Defendant Honeywell’s motion to dismiss plaintiffs’ second amended
complaint (Dkt. No. 454) is DENIED;
4. Defendant Western Electric’s motion to dismiss plaintiffs’ second
amended complaint (Dkt. No. 456) is DENIED;

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5. Defendant Nokia’s motion to dismiss plaintiffs’ second amended
complaint (Dkt. No. 457) is DENIED;
6. Thompson Defendants’ motion to dismiss plaintiffs’ second amended
complaint (Dkt. No. 470) is DENIED;
7. Plaintiffs’ motion for default judgment against United States Hoffman
Machinery Corporation (Dkt. No. 543) is GRANTED as to the issue of
liability; and
8. Plaintiffs’ motion to dismiss certain non-appearing defendants with
prejudice (Dkt. No. 546) is GRANTED; and
9. The moving defendants (Dkt. Nos. 443, 452, 454, 456, 457, 470) are
directed to file and serve an ANSWER to plaintiffs’ second amended
complaint on or before December 6, 2024.
The Clerk of the Court is directed to terminate the pending motions, set
an answer deadline, and terminate the dismissed defendants in Dkt. No. 546.
IT IS SO ORDERED.

Dated: November 22, 2024
Utica, New York.

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