Abbott et al v. Tonawanda Coke Corporation et al

Filing 34

DECISION AND ORDER GRANTING Plaintiffs' 12 Motion to Remand; DENYING as moot Defendant James Donald Crane's 18 Motion to Dismiss the Amended Complaint; DENYING as moot Defendant Tonawanda Coke Corporation's 19 Motion to Partially Dismiss the Amended Complaint; DIRECTING the Clerk of the Court to transfer this case to the New York State Supreme Court, County of Erie; DIRECTING the Clerk of the Court to take the steps necessary to close this case.Signed by William M. Skretny, Chief Judge U.S.D.C. on 1/7/2012. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JENNIFER L. ABBOTT, ET AL.,
Plaintiffs,
v.

DECISION AND ORDER
11-CV-549S

TONAWANDA COKE CORPORATION; JAMES
DONALD CRANE (a/k/a J.D. Crane or J. Donald
Crane); and DOES 1 through 100,

Defendants.

I. INTRODUCTION
Plaintiffs commenced this action on June 6, 2011 by filing a Summons and
Complaint in the Supreme Court for the State of New York, Erie County, seeking, inter alia,
damages for their exposure to toxic chemicals while living, traveling or working in and
around Tonawanda, New York. In their Complaint, Plaintiffs asserted causes of action for
negligence, negligence per se, trespass, battery, nuisance, intentional/negligent infliction
of emotional distress, wrongful death, strict liability for abnormally dangerous activities, and
equitable and injunctive relief. The named Defendants removed the action to this Court,
alleging that federal subject matter jurisdiction existed because the Complaint raised
substantial questions of federal law. Each of the named Defendants then filed a motion
to dismiss all or part of the Complaint.

Plaintiffs subsequently filed an Amended

Complaint, and also moved to remand the matter to state court. The named Defendants
again moved to dismiss all or part of the Amended Complaint. Presently before this Court
are Plaintiffs’ Motion to Remand (Docket No. 12), Defendant Tonawanda Coke
Corporation’s Motion to Dismiss the second and fifth causes of action and to strike

immaterial portions of the Amended Complaint (Docket No. 19), and Defendant James
Donald Crane’s Motion to Dismiss the Amended Complaint in its entirety as against him.
(Docket No. 18.) These motions are fully briefed and the Court finds that oral argument
is not necessary. For the reasons stated below, Plaintiffs’ Motion to Remand is granted on
the ground that this Court lacks subject matter jurisdiction, thus rendering the named
Defendants’ motions to dismiss moot.

II. FACTUAL BACKGROUND
This is the latest in a series of lawsuits resulting from the adverse impact of toxic
emissions from Defendant Tonawanda Coke Corporation, a coke facility in Tonawanda,
New York, that “utilizes a process for the destructive distillation of coal and separation of
gaseous and liquid distillates from the carbon residue or coke.” (Amended Complaint,
Docket No. 10, ¶¶ 180, 192, 197-198, Ex 2 ¶20; see e.g. DeLuca v. Tonawanda Coke
Corp., No. 10-CV-859S, 2011 WL 3799985 (W.D.N.Y Aug. 26, 2011)). Defendant James
Donald Crane is Tonawanda Coke Corporation’s owner and CEO. (Amended Complaint
¶ 182). The fictitious Defendants “are the agents, employees, manufacturers, distributors,
facilitators, environmental consultants, contractors, [and] haulers” who contributed to the
contamination or concealment thereof. (Amended Complaint ¶ 190).
In the original Complaint, Plaintiffs alleged, inter alia, that Defendant Tonawanda
Coke Corporation, owned by Defendant Crane since 1978, “has generated toxic waste
products throughout its existence.” (Complaint ¶¶ 187, 188, 191, 192).
Defendants have violated State and Federal laws regarding controlling the
emissions of chemicals and dust containing chemicals into the air, soil and
water. In fact, Defendants have violated State and Federal Clean Air, Clean
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Water and hazardous and toxic waste storage, disposal and discharge laws
and ha[ve] been determined to have violated various environmental laws by
the New York State Attorney General’s Office.
(Complaint ¶ 192). Plaintiffs further asserted that an evaluation conducted by the New
York State Department of Environmental Conservation (“DEC”) revealed that the facilitywide emissions from Defendant Tonawanda Coke Corporation resulted in higher than
acceptable levels of toxin concentrations in the surrounding environment. (Complaint ¶¶
196-203). As a result, the United States Environmental Protection Agency (“EPA”) issued
a series of notices and orders citing Defendant Tonawanda Coke Corporation for violations
of, inter alia, the Clean Air Act. (Complaint ¶¶ 199-201).
Plaintiffs asserted in their original Complaint causes of action for negligence,
negligence per se, trespass, battery, nuisance, intentional/negligent infliction of emotional
distress, wrongful death, strict liability for abnormally dangerous activities, and equitable
and injunctive relief. (Complaint ¶¶ 209-268). As alleged therein, Defendants committed
negligence by breaching their duty to operate the Tonawanda Coke facility in a reasonable,
safe and prudent manner. (Complaint ¶¶ 209-217). Plaintiffs similarly alleged in their
negligence per se cause of action that, inter alia, Defendants failed to safely and properly
remove, discharge and remediate hazardous and toxic wastes and emissions from the
Tonawanda Coke facility. (Complaint ¶¶ 218-221).
In fact, [D]efendants have been notified by the New York State Attorney
General and Federal Environmental Protection Agency that they have been
and continue to violate the Clean Air Act, Clean Water Act and Resource
Conservation and Recovery Act on numerous occasions. The notices of
violation cited are too numerous to attach to this Complaint.
(Complaint ¶ 219). Plaintiffs did attach to this Complaint, however, the criminal complaint
in which Mark L. Kamholz, Manager of Environmental Control for Defendant Tonawanda
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Coke Corporation and a non-party to this action, was charged with violations of the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§
9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901
et seq.), and the Clean Air Act (42 U.S.C. §§ 7401 et seq.). (Complaint, Ex 1 ¶¶ 7-8,15-16,
20-21, 32).
The Amended Complaint, filed in this Court following removal of the matter by the
named Defendants (hereinafter “Defendants”) and service of their motions to dismiss,
differs from the original in that the intentional/negligent infliction of emotional distress claim
has been replaced with one for willful misconduct, and there is no separate cause of action
for “equitable and injunctive relief.” (Complaint ¶¶ 238-242, 258-268; Amended Complaint
¶¶ 338-358). These causes of action are supported by largely identical allegations to those
summarized above. (Docket No. 10). Additionally, Plaintiffs further allege that:
Upon information and belief, Tonawanda Coke has generated toxic waste
products throughout its existence. Defendants have violated the following
State and Federal laws regarding controlling the emissions of chemicals and
dust containing chemicals into the air, soil and water: 6 N.Y.C.R.R § 202-1.5,
6 N.Y.C.R.R § 211.1, 6 N.Y.C.R.R § 214.4 (c), 6 N.Y.C.R.R § 214.5 (a), 6
N.Y.C.R.R § 257-1.4 (a), 6 N.Y.C.R.R § 214.8 (b), 6 N.Y.C.R.R § 257-1.4 (b),
6 N.Y.C.R.R § 750-2.5, Resource Conservation and Recovery Act, Clean Air
Act and Clean Water Act. In fact, Defendants have been determined to have
violated various environmental laws by the New York State Attorney
General’s Office.
(Amended Complaint ¶ 201).

Attached to the Amended Complaint are notices,

correspondence, and administrative orders evidencing Plaintiffs’ allegation that
“Defendants have been cited or informed by environmental agencies on numerous
occasions that they are in violation of State and Federal Law.” (Amended Complaint ¶ 202,
Exs 1-6). Plaintiffs’ negligence per se cause of action in the Amended Complaint contains
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no reference to the Clean Air Act, Clean Water Act or Resource Conservation and
Recovery Act (compare Amended Complaint ¶¶ 241-267 with Complaint ¶ 219), but
instead alleges continued violations of the New York State regulations listed above.
(Amended Complaint ¶ 243).

III. DISCUSSION
Because Plaintiffs’ Motion to Remand requires determination of this Court’s subject
matter jurisdiction, this motion will be considered first.1 See Rhulen Agency, Inc. v.
Alabama Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir 1990). A civil action commenced in
a state court may be removed to a federal district court having original jurisdiction over the
matter. 28 U.S.C. § 1441 (a). As relevant here, federal courts have jurisdiction over “civil
actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §
1331 “A case ‘aris[es] under’ federal law within the meaning of § 1331 . . .

if ‘a

well-pleaded complaint establishes either that federal law creates the cause of action or
that the plaintiff's right to relief necessarily depends on resolution of a substantial question
of federal law.’ ” Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 689-690, 126
S.Ct. 2121, 165 L.Ed.2d 131 (2006), quoting Franchise Tax Bd. of Cal. v. Construction
Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27–28, 103 S.Ct. 2841, 77 L.Ed.2d
420 (1983); see Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)(relevant question is whether “a state-law

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In support of this m otion, Plaintiffs filed a Mem orandum of Points and Authorities (Docket No.
12), which was filed concurrently with Plaintiff’s First Am ended Com plaint (Docket No. 10, includes
Exhibits 1-6), and a Reply Mem orandum of Law (Docket No. 26). The nam ed Defendants subm itted a
Mem orandum of Law in opposition (Docket No. 22).

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claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which
a federal forum may entertain without disturbing any congressionally approved balance of
federal and state judicial responsibilities”). In the face of a plaintiff’s motion to remand, it
is the removing defendant’s burden to establish that federal subject matter jurisdiction is
proper. United Food & Commercial Workers Union, Local 919, AFL-CIO v CenterMark
Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir 1994); Crazy Eddie, Inc. v Cotter,
666 F.Supp 503, 508 (S.D.N.Y. 1987).
Plaintiffs contend that Defendants have failed to establish that the original Complaint
includes a substantial federal question giving rise to this Court’s original jurisdiction. (Pls.
P. & A., Docket No.12, at 3-4). Plaintiffs argue that the parties do not disagree over the
meaning or application of the federal statutes referenced in the original Complaint and the
attachment thereto, and “with one arguable exception,” Plaintiffs’ causes of action are not
predicated on violations of federal law. (Id. at 5). Although the negligence per se cause
of action in the original Complaint describes Defendants’ alleged “violations of both State
and Federal environmental laws”, Plaintiffs argue that resolution of this claim does not
require any unique interpretation of federal laws, and mere reference to federal
environmental statutes is insufficient to confer jurisdiction. (Id. at 8-9). Plaintiffs contend
that, in any event, the references to federal law contained in the negligence per se claim
in the original Complaint have been removed from the Amended Complaint (Id. at 9-10).
Defendants respond that Plaintiffs cannot manipulate the forum for this case by
strategically amending their Complaint , and argue that the original Complaint addresses
conduct and conditions at the Tonawanda Coke facility in relation to federal environmental
law. (Defs. Resp. Mem. of Law, Docket No. 22, at 2-3, 5-8). Defendants argue that
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Plaintiffs’ claims as alleged in either complaint “are indisputably grounded on federal
statutes and regulations and contain embedded federal issues.” (Id. at 2, 8-11).
Notably, as Defendants argue and Plaintiffs do not dispute (Pls. Reply Mem. of Law,
Docket No. 26, at 4), a determination whether remand is required due to the lack of subject
matter jurisdiction is based upon the complaint as it existed at the time the notice of
removal was filed. See Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed.
334 (1939); Vera v. Saks & Co., 335 F.3d 109, 116 n 2 (2d Cir. 2003). This Court
concludes that, based upon the allegations in the original Complaint, it lacks subject matter
jurisdiction over this case because none of the causes of action asserted therein raises a
substantial question of federal law. Empire Healthchoice Assur., Inc., 547 U.S. at 689-690;
Franchise Tax Bd. of Cal., 463 U.S. at 27–28.
Contrary to Defendants’ contention that the original Complaint “is fundamentally
premised on a series of alleged federal violations and requirements,” (Defs. Mem of Law
in Opposition, at 3-4), Plaintiffs allege that Defendants violated both state and federal
environmental laws (Complaint ¶ 192), and the asserted causes of action, including
negligence, negligence per se, trespass, nuisance, and intentional or negligent infliction
of emotional distress, sound in state law. The fact that the original Complaint “is also
peppered with allegations that the [D]efendants violated various federal statutes and
regulations” is insufficient to raise a federal question. Caggiano v. Pfizer Inc., 384
F.Supp.2d 689, 690 (S.D.N.Y. 2005). Plaintiffs alleged in connection with their negligence
per se claim that Defendants violated “laws that were meant to protect human health and
the environment,” and that Defendants “had been notified” by state and federal authorities

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specifically of the violations of the Clean Air Act, the Clean Water Act, and the Resource
Conservation and Recovery Act on numerous occasions. ( Complaint ¶¶ 218-223). These
referenced “federal standards merely inform the content of classically state-law duties such
as avoiding negligence,” and any alleged violations thereof are therefore insufficient in this
case to confer “federal question jurisdiction over garden-variety state-law claims.”
Caggiano, 384 F.Supp.2d at 691; see Grable & Sons Metal Prods., Inc., 545 U.S. at 318319 (noting that violations of federal statutes are frequently given negligence per se effect
in state court, nonetheless “exercising federal jurisdiction over state claims resting on
federal mislabeling and other statutory violations” would invite “a potentially enormous shift
of traditionally state cases into federal courts”).
Further, “Plaintiffs’ alternative theory of negligence per se is not ‘essential’ to their
negligence theory, [and as such] no federal subject matter jurisdiction exists.” Mulcahey
v Columbia Organic Chem. Co., 29 F.3d 148, 154 (4th Cir. 1994); see Broder v
Cablevisions Sys. Corp., 418 F3d 187, 194 (2d Cir. 2005)(a federal issue presented as
only one of multiple theories that could support a particular claim is insufficient to create
federal jurisdiction); cf. Grable & Sons Metal Prods., Inc., 545 U.S. at 314-315 (federal
jurisdiction warranted where meaning of federal statute was not only in dispute, “it
appear[ed] to be the only legal or factual issue contested”). The remaining references to
Defendants’ unspecified “continued violations of environmental laws and safety,” whether
federal or state, (see e.g. Complaint ¶¶ 192, 196, 228, 232, 237, 242), are merely
contextual allegations insufficient to create federal jurisdiction. See Segal v Varonis Sys.,
Inc., 601 F.Supp.2d 551, 554-55 (S.D.N.Y. 2009); DeLuca v Tonawanda Coke Corp., No.
10-CV-859S, 2011 WL 3799985, *6 (W.D.N.Y Aug. 26, 2011). This Court therefore
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concludes that it is without subject matter jurisdiction to hear this case, and Plaintiffs’
Motion to Remand will be granted.
Moreover, even assuming arguendo that the negligence per se claim in the original
Complaint did raise a substantial federal question creating federal jurisdiction here, remand
to the state court would nonetheless be appropriate. This Court:
has discretion to remand to state court a removed case involving pendent
claims upon a proper determination that retaining jurisdiction over the case
would be inappropriate. The discretion to remand enables district courts to
deal with cases involving pendent claims in the manner that best serves the
principles of economy, convenience, fairness, and comity which underlie the
pendent jurisdiction doctrine.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988);
see 28 U.S.C. § 1367 (c)(3). Plaintiffs timely filed the Amended Complaint as a matter of
course following Defendants’ service of their respective Motions to Dismiss the original
Complaint.2 (Docket Nos. 5, 6, 8, 10; see Fed.R. Civ. P. 12 (b), (f); 15 (a)(1)(B)). The
Amended Complaint added two additional Plaintiffs (¶ 65), modified the causes of action
alleged, and, as conceded by Plaintiffs, “any reference to, and any real or imputed reliance
on” federal statutes has been deleted from the cause of action for negligence per se. (Pls.
P. & A. at 9; compare Complaint ¶¶ 218-223 with Amended Complaint ¶¶ 241-267).
Defendants are correct that, in exercising that discretion, a relevant factor is whether
Plaintiffs have amended their complaint in an attempt to manipulate the forum. CarnegieMellon Univ., 484 U.S. at 357. In the instant case, although the negligence per se claim
in the original Complaint specifically referenced only alleged federal law violations

2

This original Com plaint, having been superseded by the Am ended Com plaint, is “of no legal
effect.” Int’l Controls Corp. v. Vesco, 556 F2d 665, 668 (2d Cir. 1977), cert denied 434 U.S. 1014 (1978).

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(Complaint ¶¶ 218-223), Plaintiffs alleged elsewhere in the original Complaint that
Defendants “violated State and Federal laws,” including “State and Federal Clean Air,
Clean water and hazardous and toxic waste storage, disposal and discharge laws and
ha[ve] been determined to have violated various environmental laws by the New York State
Attorney General’s Office.” (Complaint ¶ 192). Plaintiffs’ Amended Complaint expands on
these general allegations by specifying the New York environmental conservation
regulations allegedly violated by Defendants. (Amended Complaint ¶¶ 201, 243). Notably,
the notices of violation and administrative orders attached to the Amended Complaint were
each issued by the EPA, however, all but one of these documents references Defendants’
obligations under a state environmental regulatory scheme, which the EPA has the
authority to enforce pursuant to 42 U.S.C. § 7413 (a)(1). See generally 42 U.S.C. 7410
(detailing requirements for state implementation plans for environmental controls). Further,
although a violation of a state regulation may constitute only evidence of negligence, see
generally Elliott v. City of New York, 95 N.Y.2d 730, 734-735 (2001)(although violation of
a State statute can constitute negligence per se, violation of a municipal ordinance
constitutes only evidence of negligence), as concluded above, the fact that a federal issue
may form the basis of one of multiple theories supporting a particular claim is insufficient
to create federal jurisdiction. See Broder, 418 F3d at 194; Mulcahey, 29 F.3d at 154.
Finally, Plaintiffs’ amendments to the Complaint have made more specific, although
not precise, what were previously general allegations of state and federal law violations.
Plaintiffs also used the amendment to make substantive changes to the state law claims
asserted. This Court does not therefore conclude that Plaintiffs used this amendment
solely “to manipulate their forum without any reasonable or fair justification.” Payne v
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Parchester North Condos., 134 F.Supp.2d 582, 586 (S.D.N.Y. 2001). Indeed, this Court
has already remanded no less than 15 related cases to the New York state court on the
ground that there was no subject matter jurisdiction. See e.g. DeLuca v Tonawanda Coke
Corp., 10-CV-859S, 2011 WL 3799985 (W.D.N.Y Aug. 26, 2011). Remand would therefore
also serve “the principles of economy, convenience, fairness and comity which underlie the
pendent jurisdiction doctrine.” Carnegie-Mellon Univ., 484 U.S. at 357.

IV. CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to Remand this case to the New
York Supreme Court, County of Erie, is granted on the ground that this Court lacks subject
matter jurisdiction. In light of this conclusion, the named Defendants’ motions to dismiss
the Amended Complaint are denied without prejudice.

V. ORDERS
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (Docket No. 12) is
GRANTED;
FURTHER, that Defendant James Donald Crane’s Motion to Dismiss the
Amended Complaint (Docket No. 18) is DENIED as moot;
FURTHER, that Defendant Tonawanda Coke Corporation’s Motion to Partially
Dismiss the Amended Complaint (Docket No. 19) is DENIED as moot;
FURTHER, that the Clerk of the Court is directed to transfer this case to the New
York State Supreme Court, County of Erie;

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FURTHER, that the Clerk of the Court is directed to take the steps necessary to
close this case.
SO ORDERED.
Dated: January 7, 2012
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Judge

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