Honeywell International Inc. v. R.R. Donnelley & Sons Company et al

Filing 68

DECISION AND ORDERIT IS HEREBY ORDERED, that Third-Party Defendant City of Niagara Falls' Motion to Dismiss the Third-Party Complaint (Docket No. 52) is GRANTED.IT IS FURTHER ORDERED, that Third-Party Defendant Niagara Moh awk Power Corporation's Motion to Dismiss the Third-Party Complaint (Docket No. 53) is GRANTED.IT IS FURTHER ORDERED, that this case remains referred to Magistrate Judge Foschio for conducting pretrial proceedings, including setting a Case Management/Scheduling Order for the remaining parties and claims.SO ORDERED.Signed by William M. Skretny, United States District Judge on 7/7/2020. (JCM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HONEYWELL INTERNATIONAL INC.,
Plaintiff,
v.

DECISION AND ORDER
16CV969S

R.R. DONNELLY & SONS COMPANY,
LSC COMMUNICATIONS, INC.,
DONNELLY FINANCIAL SOLUTIONS, INC.,
Defendants.

R.R. DONNELLY & SONS COMPANY,
LSC COMMUNICATIONS, INC.,
DONNELLY FINANCIAL SOLUTIONS, INC.,
Third-Party Plaintiffs,

v.
NIAGARA COMMUNITY ACTION
PROGRAM, INC.; TRACT II BETTERMENT,
INC.; CITY OF NIAGARA FALLS; and
NIAGARA MOHAWK POWER
CORPORATION,
Third-Party Defendants.

I.

Introduction

Before this Court are the motions of Third-Party Defendants City of Niagara Falls
(Docket No. 52) (or the “City”) and Niagara Mohawk Power Corporation (Docket No. 53)
(or “NiMo”) to dismiss the Third-Party Complaint. Responses to these motions were due
by September 29, 2017 (Docket No. 55), which Defendant-Third-Party Plaintiffs

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R.R. Donnelley & Sons and affiliates1 (collectively “Third-Party Plaintiffs”) duly filed
(Docket No. 58), and replies were due by October 6, 2017 (Docket No. 55), which
movants each filed (Docket Nos. 59 (City), 60 (NiMo)). These motions then were deemed
submitted without oral argument.
For the reasons stated herein, Defendant City’s Motion (Docket No. 52) to dismiss
the Third-Party Complaint is granted and Defendant NiMo’s Motion (Docket No. 53) for
the same relief is granted.
II.

BACKGROUND

A. Complaint and Third-Party Complaint
This

is

a

CERCLA

action,

Comprehensive

Environmental

Response,

Compensation, and Liability Act, 42 U.S.C. §§ 9601, et seq. (“CERCLA”), by owners of a
parcel in Niagara Falls, New York, to recover $7.9 million in unreimbursed past
remediation costs (as well as declaration of entitlement to recover future costs) for that
parcel from the other owners or successors of owners of that parcel. Plaintiff Honeywell
International Inc. described this parcel, the Tract II site, 3001 and 3123 Highland Avenue,
Niagara Falls, New York, as 19.25± acres north of Beech Avenue between Highland
Avenue and 17th Street up to the former Power City Warehouse property in Niagara Falls
(Docket No. 19, Am. Compl. ¶¶ 2, 3; see Docket No. 38, Am. Third-Party Compl. ¶ 17).
Plaintiff (or its predecessors) owned an 11.5-acre portion of Tract II identified as the
“Honeywell Parcel” (Docket No. 19, Am. Compl. ¶ 4; see Docket No. 38, Am. Third-Party

1The

other Defendants/Third-Party Plaintiffs, LSC Communications and Donnelley Financial
Solutions, are spun off entities from R.R. Donnelley, Docket No. 19, Am. Compl. ¶ 40; Docket No. 23, Ans.
to Am. Compl. ¶ 40.

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Compl. ¶ 18).

The remaining 6.5 acres of Tract II constitutes the “Moore Parcel,”

3001 Highland Avenue (Docket No. 19, Am. Compl. ¶¶ 2, 20; see Docket No. 38, Am.
Third-Party Compl. ¶ 19). Plaintiff alleges that from 1902 to 1971, several buildings and
structures were situated on the Moore Parcel used for business forms production and
manufacturing (Docket No. 19, Am. Compl. ¶ 21; see Docket No. 38, Am. Third-Party
Compl. ¶ 20). Plaintiff and later the Third-Party Plaintiffs recount the ownership for the
Moore Parcel since 1902, leading to corporations acquired by R.R. Donnelley & Sons
(Docket No. 19, Am. Compl. ¶¶ 21-39; see Docket No. 38, Am. Third-Party Compl. ¶¶ 2124). Plaintiff also recounts the development of the Moore Parcel during this same period
(Docket No. 19, Am. Compl. ¶¶ 45-48), stating that the printing operations there used
lead-based printing plates on site (id. ¶¶ 49-50; see Docket No. 38, Am. Third-Party
Compl. ¶ 25). Plaintiff alleges that these operations resulted in release of hazardous
materials on site, such as lead, polyaromatic hydrocarbons, petroleum, polychlorinated
biphenyls and friable asbestos (Docket No. 19, Am. Compl. ¶¶ 52-56; see Docket No. 38,
Am. Third-Party Compl. ¶¶ 26-27).
In 2003, the New York State Department of Environmental Conservation (“DEC”)
issued a record of decision that required remediation at the Moore Parcel (Docket No. 38,
Am. Third-Party Compl. ¶ 28). The DEC identified Plaintiff and R.R. Donnelley & Sons
as potential responsible parties (or “PRPs”) for contamination at the Tract II site. The
DEC also identified now Third-Party Defendants City and NiMo as PRPs because of their
title ownership of the site. (Docket No. 19, Am. Compl. ¶ 5.) Plaintiff cooperated with the
DEC and remediated Tract II, reimbursing the DEC for certain investigation and
remediation costs, incurring approximately $7.9 million on the Moore Parcel and a total

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of $19.9 million in site costs (id. ¶¶ 6-8, 76; see Docket No. 38, Am. Third-Party Compl.
¶¶ 30-33). Plaintiff seeks to recoup the unreimbursed costs for remediation of the Moore
Parcel from Third-Party Plaintiffs as well as a declaratory judgment of Plaintiff’s
entitlement to recover future costs (Docket No. 19, Am. Compl. ¶¶ 79-92, 94-102, 10406).
The Third-Party Plaintiffs answered (Docket No. 23), asserting as an affirmative
defense that any hazardous substances on the Moore Parcel were due solely to the acts
or omissions of Plaintiff and Third-Party Defendants Niagara Community Action Program,
Inc., the City, and NiMo (id. Second Affirmative Defense), the other title owners of the
Moore Parcel. The Third-Party Plaintiffs also asserted counterclaims against Plaintiff (id.
at pages 22-25). Plaintiff answered the Third-Party Plaintiffs’ counterclaims (Docket
No. 33).
Meanwhile, this case was referred to Magistrate Judge Leslie Foschio for pretrial
proceedings on May 24, 2017 (Docket No. 25). Magistrate Judge Foschio scheduled a
Scheduling Conference for July 19, 2017 (Docket No. 26), which was not held (as
discussed below).
On June 2, 2017, the Third-Party Plaintiffs filed their Third-Party Complaint (Docket
No. 27) and on July 13, 2017, they amended that pleading (Docket No. 38), seeking in
both pleadings contribution for the equitable portion of liability attributable to Third-Party
Defendants City, NiMo, and two non-for-profit corporations (Niagara Community Action
Program and Tract II Betterment, Inc.) that have yet to appear in this action. The ThirdParty Plaintiffs repeat Plaintiff’s allegations that Plaintiff owned the Tract II site (Docket
No. 38, Am. Third-Party Compl. ¶¶ 17-18). They also allege that on or about November 9,
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1971, Moore Business Forms, Inc., deeded the Moore Parcel to Niagara Community
Action Program and that not-for-profit was record owner until February 28, 1972, when it
deeded that parcel to another non-profit, Tract II Betterment (id. ¶¶ 34-35). Either nonprofit authorized E.M. Business Forms, Inc., to engage in printing and other business
activities at the Moore Parcel (id. ¶ 36) as they later authorized Consolidated Fibres Inc.
to conduct warehouse operations there (id. ¶ 37). In May 1976, there was a fire on the
property destroying the business operations of E.M. Business Forms and Consolidated
Fibres, leading to the demolition and earthmoving on the Moore Parcel and alleged
dispersal of hazardous substances (id. ¶¶ 38-39).
The City then acquired title to the Moore Parcel through tax foreclosure in 1984
(id. ¶ 40). Sometime in the 1990s, the City demolished the remaining structures on the
Moore Parcel, including sitewide earthmoving; the Third-Party Plaintiffs allege that
hazardous substances may have been dispersed with the disturbed subsoil during that
operation (id. ¶ 41). NiMo acquired the right of way for the unopened 15th Street that runs
into the Moore Parcel (id. ¶ 42). NiMo used that right of way to perform work and engaged
in earthmoving with possible dispersal of hazardous materials (id.).
The Third-Party Plaintiff alleges that the Third-Party Defendants owned or
operated a facility or arranged for disposal of hazardous substances within meaning of
CERCLA § 107(a)(2), (3) (id. ¶ 49).
Upon the filing of the original Third-Party Complaint, Magistrate Judge Foschio
adjourned the July 29, 2017, Scheduling Conference until after the filing of Answers to
the Third-Party Complaint (Docket No. 32).

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B. Motions to Dismiss the Third-Party Complaint (Docket Nos. 52, 53)
Instead of answering the Third-Party Complaint, the City (Docket No. 52) and NiMo
(Docket No. 53) separately move to dismiss it. The City contends that the pleading does
not plausibly allege a contribution claim against it (Docket No. 52, Niagara Falls Memo.).
The City denies being an owner or operator of the Moore Parcel for CERLCA liability (id.
at 4, 5-9). The City also denied being an “arranger” for purposes of CERCLA (id. at 910). NiMo asserts that it the Third-Party Plaintiffs made “speculative assertions” that fail
to state a plausible claim (Docket No. 53, Niagara Mohawk Memo. at 5).
Third-Party Plaintiffs first respond that the Third-Party Complaint under CERCLA
needs to be evaluated on a more relaxed standard than plausibility (Docket No. 58, ThirdParty Pls. Memo. at 9-11, 18-19).

Alternatively, they contend that the Third-Party

Complaint plausibly alleges contribution claims against the Third-Party Defendants (id. at
12-16, 16-18, 18-20), at least for four of five elements for a CERCLA contribution claim
(id. at 11-12). As for the City’s motion and whether the City was an owner or operator or
an arranger for disposal of hazardous substances, the Third-Party Plaintiffs argue that
the City remains liable (despite its involuntary acquisition through tax foreclosure)
because it caused or contributed any release of a hazardous substance from the facility
(at 16-18). As for NiMo’s contention that they did not establish that NiMo released any
hazardous materials, the Third-Party Plaintiffs argue that they plausibly allege that
release from NiMo’s operations in the right-of-way in the Moore Parcel (id. at 12-16).
The City replies that the Third-Party Plaintiffs failed to plead plausibly a CERCLA
contribution claim against the City (Docket No. 59, Niagara Falls Reply Memo. at 1-3).
They speculate whether the City’s demolition activities released hazardous substances
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without specifying details of the demolition or the earthwork performed (id. at 2). Noting
that the Third-Party Plaintiffs had three opportunities to plead this (in the Third-Party
Complaint, its amendment, and the opposition papers), “underscores the reality that
R.R. Donnelly has no factual information to back up its speculative narrative” (id. at 2-3).
The Third-Party Plaintiffs provided (upon information and belief) only the barebone
allegation of City release of hazardous substances that was not sufficient to plausibly
allege a CERCLA claim (see id. at 3, 5).
NiMo also replies that there is no relaxed pleading standard for a Third-Party
CERCLA Complaint contrasted with the original pleading (Docket No. 60, Niagara
Mohawk Reply Memo. at 4). Citing (as discussed below) other courts rejecting similar
CERLCA contribution allegations on plausibility grounds, NiMo contends that this ThirdParty pleading also fails (id. at 5).
III.

DISCUSSION

A. APPLICABLE STANDARDS
1. Motion to Dismiss, Rule 12(b)(6)
Third-Party Defendants have moved to dismiss the Third-Party Complaint on the
grounds that it states a claim for which relief cannot be granted (see Docket No. 52,
Niagara Falls Notice of Motion; Docket No. 53, Niagara Mohawk Notice of Motion). Under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court cannot dismiss a
Complaint unless it appears “beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 4546 (1957). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
554 (2007), a Complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state
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a claim upon which relief can be granted if it does not plead “enough facts to state a claim
to relief that is plausible on its face,” id. at 570 (rejecting longstanding precedent of
Conley, supra, 355 U.S. at 45-46); Hicks v. Association of Am. Med. Colleges, No. 0700123, 2007 U.S. Dist. LEXIS 39163, at *4 (D.D.C. May 31, 2007). To survive a motion
to dismiss, the factual allegations in the Complaint “must be enough to raise a right to
relief above the speculative level,” Twombly, supra, 550 U.S. at 555; Hicks, supra,
2007 U.S. Dist. LEXIS 39163, at *5. As reaffirmed by the Court in Ashcroft v. Iqbal,
556 U.S. 662 (2009),
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ [Twombly, supra, 550 U.S.] at 570 . . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
Id., at 556 . . . . The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’ Id., at 557 . . . (brackets
omitted).”
Iqbal, supra, 556 U.S. at 678 (citations omitted).
A Rule 12(b)(6) motion is addressed to the face of the pleading. The pleading is
deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any
document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059 (2d Cir.
1985). In considering such a motion, the Court must accept as true all of the well pleaded
facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass,
754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general
legal conclusions necessary to prevail on the merits and are unsupported by factual

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averments will not be accepted as true. New York State Teamsters Council Health and
Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002).
This pleading standard applies to a Third-Party Complaint, Fed. R. Civ.
P. 14(a)(2)(A); see Fed. R. Civ. P. 7(a)(5) (Third-Party Complaint is pleading) (see Docket
No. 60, Niagara Mohawk Reply Memo. at 4-5). Upon a Third-Party Defendant’s objection
that the pleading fails to comply with Rule 8(a)(2), the Third-Party Complaint will be
dismissed if it does not meet the Iqbal/Twombly standard, 6 Charles A. Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure—Civil § 1455, at 506 (2010).
2. CERCLA
To allege CERCLA §113(f)(1), 42 U.S.C. § 9613(f)(1), contribution liability claim,
the claimant must show the defendant fits under one of four categories of responsible
parties under CERCLA § 107: as an owner or operator of a facility; any person who at
the time of disposal owned or operated any facility; a person who by contract arranged
for disposal or treatment of hazardous substances; or any person who accepted
hazardous substances, see 42 U.S.C. § 9607(a)(1), (2), (3), (4). That claimant also has
to allege that the site was a facility; that there was a release or threatened release of
hazardous substances at the facility; the claimant incurred costs responding to the
release or threatened release; and the costs and response actions conform to the
National Oil and Hazardous Substances Pollution Contingency Plan. Buffalo Color Corp.
v. Alliedsignal, Inc., 139 F. Supp. 2d 409, 415-16 (W.D.N.Y. 2001) (Curtin, J.) (see Docket
No. 52, Niagara Falls Memo. at 4-5).

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Third-Party Plaintiffs argue that establishing liability under CERCLA is more
relaxed, thus they conclude that pleading those claims are also under a relaxed basis
(Docket No. 58, Third-Party Pls. Memo. at 9-11, citing, e.g., New York v. Solvent Chem.
Co., 218 F. Supp. 2d 319, 348 n.13 (W.D.N.Y. 2002) (Curtin, J.)). But the cases noting
this CERCLA liability relaxation applied this at the proof required to show an opponent is
a PRP and at the damage phase of a case (cf. Docket No. 58, Third-Party Pls. Memo.
citing Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 130-31 (2d
Cir. 2010); Asarco LLC v. NI Industries, 106 F. Supp. 3d 1015, 1025-26 (E.D. Mo. 2015);
there are no cases cited for applying a relaxed standard at pleading.
B. CITY OF NIAGARA FALLS MOTION (DOCKET NO. 52)
The City denies that it was an “owner or operator” of a facility for CERCLA liability,
since that phrase does not include local governments which acquire ownership of the
affected property through tax delinquency (Docket No. 52, Niagara Falls Memo. at 5),
42 U.S.C. § 9601(20)(D).
“Owner or operator” in CERCLA’s definition does not include local governments
which acquire property through tax delinquency, 42 U.S.C. § 9601(20)(D); United States
v. Occidental Chem., 965 F. Supp. 408, 413 (W.D.N.Y. 1997) (Curtin, J.). Judge Curtin
distinguished the City of Niagara Falls acquiring Love Canal parcels for parks in that case
from involuntary acquisition such as tax foreclosure that would exempt it from the “owner
or operator” CERCLA definition, id.

Municipal immunity from CERCLA arises for

involuntarily acquired properties, see U.S. Envtl. Prot. Agency, Office of General Counsel,
“Municipal Immunity from CERCLA Liability for Property Acquired Through Involuntary

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State Action,” 1995 WL 18237778 (E.P.A.G.C.), at *2 (Oct. 20, 1995) (Docket No. 52,
Niagara Falls Memo. at 5-6).
To allege arranger liability under CERCLA, a claimant must allege that the
opponent took intentional steps to dispose of a hazardous substance, Burlington N. &
S.F. Ry. v. United States, 556 U.S. 599, 611 (2009) (Docket No. 52, Niagara Falls Memo.
at 10). One district held that the plaintiffs there had to show that the arranger arranged
for transportation of hazardous material, Transportation Leasing Co. v. State of Cal.
(CalTrans), 861 F. Supp. 931, 961 (C.D. Cal. 1993). For liability under the arranger
subsection there must be “a sufficient nexus present between the municipality and the
hazardous substances, one that does not exist in cases where the governmental unit is
responsible only for promulgating disposal regulations or for permitting disposal facilities”;
a nexus exists “by managing the disposal activities,” B.F. Goodrich v. Murtha, 958 F.2d
1192, 1199 (2d Cir. 1992); Carson Harbor Village, Ltd. v. Unocal Corp., 287 F. Supp. 2d
1118, 1192 (C.D. Cal. 2003).
The Third-Party Plaintiffs allege that the City acquired the Moore Parcel by tax
foreclosure (Docket No. 38, Third-Party Compl. ¶ 40). On this basis alone, the City is
immune from CERCLA contribution liability. The Third-Party Plaintiffs argue that they
state a claim from the City’s activities on the property after its involuntary acquisition of
the Moore Parcel.
The Third-Party Plaintiffs allege that the City caused or contributed to the release
or theoretical release of hazardous substances at the Moore Parcel when it demolished
structures on that site in the 1990s (Docket No. 58, Third-Party Pls. Memo. at 17),
regardless how the City acquired the parcel. The only purported action alleged against
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the City was this 1990s demolition, which Third-Party Plaintiffs asserting upon information
that earthmoving activities relative to that demolition disturbed sub-surface soil and
dispersed unspecified hazardous substances in Tract II and the Moore Parcel (Docket
No. 38, Third-Party Compl. ¶ 41). The Third-Party Plaintiffs have not alleged that the City
intended to dispose of hazardous substances in this demolition. The pleading does not
specify when the demolition(s) occurred, or the substances exposed and (re)deposited
on the Moore Parcel to create contributory liability. The Amended Complaint, in fact,
alleges that the City conducted remedial investigations of Tract II and the Moore Parcel
from 1998-2000 (Docket No. 19, Am. Compl. ¶ 52), which the Third-Party Plaintiffs (as
Defendants) lacked knowledge and thus denied this allegation (Docket No. 23, Ans. to
Am. Compl ¶ 52). At least one court has noted that the exemption for being an involuntary
acquirer of a parcel can be lost if that owner caused or contributed to a release of
hazardous substances, see Transportation Leasing, supra, 861 F. Supp. at 960-61; In re
Sundance Corp., Inc., 149 B.R. 641, 656 (Bankr. Ct. E.D. Wash. 1993) (holding that, due
to judicial immunity and the ambiguous nature of definition of “person” under CERCLA,
42 U.S.C. § 9601(21), owner or operator liability did not extend to a court and a courtappointed receiver, In re Sundance Corp., supra, 149 B.R. at 658-61).
As for arranger liability, one court held that a municipality was not a CERCLA
“arranger” merely for having an ordinance dictating the removal of abandoned vehicles
from public and private property where that municipality was not alleged to have
benefitted financially from the transactions involving the hazardous substances or directly
caused or contributed to the release, Lincoln v. Republic Ecology Corp., 765 F. Supp.
633, 635 (C.D. Cal. 1991); Carson Harbor Village, supra, 287 F. Supp. 2d at 1191, holding

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that City of Pasadena was not an arranger for exercising “‘minimal or involuntary control
over the disposition of hazardous substances,’ particularly given that the city was
‘engaged in legitimate sovereign, as opposed to proprietary or commercial, functions,’”
Carson Harbor Village, supra, 287 F. Supp. 2d at 1191 (quoting Lincoln, supra, 765 F.
Supp. at 637-38).
In this case, the Third-Party Plaintiffs do not allege the reason for the City’s 1990s
demolition of the remaining structures on the Tract II and the Moore Parcel (cf. Docket
No. 38, Third-Party Compl. ¶ 41). Presumably, the demolition might have been an
exercise of police power (public safety, abating nuisance) which would be sovereign
functions of the City.

Third-Party Plaintiffs have not alleged that the City acted in

commercial or proprietary function which might make the City a CERCLA arranger despite
how it obtained title originally. Absent such an allegation, however, these litigants have
not plausibly alleged CERCLA liability for the City under an arranger theory.
Therefore, Third-Party Defendant City of Niagara Falls’ Motion (Docket No. 52) to
dismiss the Third-Party Complaint is granted.
C. NIAGARA MOHAWK MOTION (DOCKET NO. 53) AND RULE 12
PLEADING
NiMo argues that the Third-Party Plaintiffs failed to allege plausibly CERCLA
contribution liability against the utility (Docket No. 53, Niagara Mohawk Memo. at 5-8; see
also Docket No. 52, Niagara Falls Memo. at 6-8). The Third-Party Plaintiffs respond that
CERCLA’s relaxed proof standard extends to mere liberal pleading rather than what they
term heightened pleading under Iqbal (Docket No. 58, Third-Party Pls. Memo. at 9-11).

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The Third-Party Plaintiffs argue that CERCLA has a relaxed proof standard
therefore pleading those allegations also should be more relaxed than the Twombly/Iqbal
probability standard (Docket No. 58, Third-Party Memo. at 9-11, citing, e.g., New York v.
Solvent Chem., supra, 218 F. Supp. 2d at 348 n.13). The issue here is the pleading
requirement for CERCLA claims. Twombly and Iqbal require pleadings (including ThirdParty Complaints, see Fed. R. Civ. P. 7(a)(5) (see Docket No. 60, Niagara Mohawk Reply
Memo. at 4-5)) be plausible, regardless of the claim alleged.
The Third-Party Plaintiffs depend upon Judge Curtin’s reliance on Rule 8 liberal
pleading rule in the New York v. Solvent Chemical decision from 2002, New York v.
Solvent Chem., supra, 218 F. Supp. 2d at 348 n.13 (W.D.N.Y. 2002) (Curtin, J.). This
decision predated Twombly and Iqbal and the requirement generally under Rule 8 as
presently construed by the Supreme Court for heightened pleading to plausibly allege a
claim, see Twombly, supra, 550 U.S. at 560-63; Iqbal, supra, 556 U.S. at 677-78 (Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).
The Third-Party Plaintiffs have not sited a post-Twombly/Iqbal CERCLA case in which the
allegation like theirs here survived a plausibility challenge.
NiMo cites cases after those two Supreme Court precedents that dismissed
CERCLA claims for failing to meet the heightened pleading requirement (Docket No. 60,
Niagara Mohawk Reply Memo. at 5, citing Town of Islip v. Dater, No. 16-CV-2156, 2017
U.S. Dist. LEXIS 45634, at *60-64, 61 (E.D.N.Y. Mar. 28, 2017) (CERCLA complaint did
not plausibly allege that Church defendants were owners or operators of site); Chubb
Custom Ins. Co. v. Space Sys./Loral, Inc., No. C-0904485, 2010 U.S. Dist. LEXIS 15624,
at *12-15 (N.D. Cal. Feb. 23, 2010) (applying Twombly and Iqbal, holding that factual
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allegations failed to establish one defendant was a CERCLA operator); Voggenhaler v.
Maryland Square, LLC, No. 2:08-CV-1618-RCJ-GWF, 2010 U.S. Dist. LEXIS 74232, at
*21-26 (D. Nev. July 22, 2010) (complaint lacked sufficient factual content to raise the
right to relief above the speculative level, applying Twombly/Iqbal standard, at *18)). In
Chubb, plaintiff alleged liability against former owner Sun Microsystems, merely alleging
“that ‘[t]here were releases of hazardous substances from [the location
owned/operated by Sun] during Sun Mircrosystem's period of ownership
and/or operation.’ (Complaint P 13.) Similarly, Paragraph 28 of the
complaint alleges that ‘[t]he presence of hazardous substances, including
but not limited to, PCE and TCE, in the soil and groundwater at the Site
constitute a release or threatened release of hazardous substances into the
Environment.’ (Id. at P 28 (citation omitted),”
Chubb Custom Ins. Co., supra, 2010 U.S. Dist. LEXIS 15624, at *13. The United States
District Court for the Northern District of California found this language was “insufficient
to establish that Sun is an owner or operator under the statute,” id.
In this case, the Third-Party Plaintiffs make a vague reference to NiMo’s earthwork
on the Moore Parcel which, upon information and belief, may have disturbed subsoil and
thus added hazardous substances on the right of way NiMo has within the Moore Parcel.
Without more, they have not plausibly alleged CERLCA liability for NiMo’s contribution.
Their allegation here is essentially the unadorned defendant-done-me-wrong accusation,
see Iqbal, supra, 556 U.S. at 678, that NiMo did unspecified earthwork on its right-of-way
within the Moore Parcel, digging subsoil and disturbing hazardous substances. The
Third-Party Plaintiffs need to allege more than this to state a CERCLA contribution claim,
even if the former owner’s responsibility may be slight.

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IV.

CONCLUSION

Third-Party Defendants’ motions (Docket Nos. 52, 53) to dismiss raise different
pleading objections to the Third-Party Complaint. Both motions are granted. The ThirdParty action remains against the non-profit corporate Third-Party Defendants, which had
yet to appear in this action.
Given the referral of this case to Magistrate Judge Foschio (Docket No. 25), the
absence of a Scheduling Order due to the Third-Party Complaint and these motions (see
Docket No. 32), and present resolution of these motions, the next matter is setting a
Scheduling Order (cf. Docket Nos. 26, 32).
V.

ORDERS

IT IS HEREBY ORDERED, that Third-Party Defendant City of Niagara Falls’
Motion to Dismiss the Third-Party Complaint (Docket No. 52) is granted.
IT IS FURTHER ORDERED, that Third-Party Defendant Niagara Mohawk Power
Corporation’s Motion to Dismiss the Third-Party Complaint (Docket No. 53) is granted.
IT IS FURTHER ORDERED, that this case remains referred to Magistrate
Judge Foschio for conducting pretrial proceedings, including setting a Case
Management/Scheduling Order for the remaining parties and claims.

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Case 1:16-cv-00969-WMS-LGF Document 68 Filed 07/07/20 Page 17 of 17

SO ORDERED.

Dated:

Dated: July 7, 2020
Buffalo, New York

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

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