The opinion of the court was delivered by: Skretny, District Judge.
Defendant Union Carbide Corporation ("Union Carbide") brings
this motion pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), for
an order dismissing plaintiff's First through Seventh Claims
for Relief. In support of its motion, Union Carbide submits the
affidavit of Thomas E. Reidy, Esq. and the Exhibits annexed
thereto ("Reidy affidavit"), a memorandum of law dated October
15, 1990 and a supplemental memorandum of law dated December
Defendant Niagara Vest, Inc. ("Niagara Vest") joins in Union
Carbide's motion and also brings a separate motion pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6), for an order dismissing
plaintiff's complaint in its entirety. In support of its
motion, Niagara Vest submits the affidavit of Mark R. McNamara,
Esq. and the Exhibits annexed thereto ("McNamara affidavit")
and the reply affidavit of Mark R. McNamara, Esq. and the
Exhibits annexed thereto ("McNamara Reply affidavit").
In opposition to the motions, plaintiff Alloy Briquetting
Corporation submits the affidavit of Richard G. Collins, Esq.,
the affidavit of John J. DelMonte, Esq. and the Exhibits
annexed thereto ("DelMonte affidavit"), the affidavit of Donald
W. Vickrey and a memorandum of law dated December 3, 1990.*fn1
I have also considered oral argument heard on December 17,
Conclusion: For the reasons discussed below, Union Carbide's
motion for an order dismissing plaintiff's First through Fifth
and Seventh Claims for Relief is GRANTED in part and DENIED in
part, and as to the Sixth Claim for Relief, summary judgment is
GRANTED, as limited and as more fully set forth herein; and
Niagara Vest's motion for an order dismissing plaintiff's
complaint in its entirety as to the First through Fifth and
Seventh Claims for Relief is GRANTED in part and DENIED in
part, as to the Sixth Claim for Relief, summary judgment is
GRANTED as limited herein, and as to the Eighth Claim for
Relief, summary judgment is DENIED.
Plaintiff commenced this action on August 1, 1990, seeking to
recover, under various federal and state law theories, the
costs plaintiff allegedly has incurred or will incur to clean
up the alleged chemical contamination of certain property
located in Niagara Falls, New York (the "Site"). Jurisdiction
is predicated on 28 U.S.C. § 1331, § 113(b) of the
Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. § 9613(b), and this Court's
Plaintiff's complaint alleges that it currently leases the
Site from Niagara Vest, the current owner of the Site.
Plaintiff's alleged status as lessee arises pursuant to two
instruments: (1) an Agreement of Sale between plaintiff and
Niagara Vest, dated July 1, 1988 (the "Agreement"), copies of
which are attached to the DelMonte affidavit as Exhibit A, the
McNamara affidavit as Exhibit A and the McNamara Reply
affidavit as Exhibit B, and (2) a Lease between plaintiff and
Niagara Vest, undated, (the "Lease"), copies of which are
attached to the DelMonte affidavit as Exhibit B, the McNamara
affidavit as Exhibit B and the McNamara Reply affidavit as
Exhibit C. The Site is comprised of the combined tract of land
which is the subject of the Agreement and the Lease.
Pursuant to the Agreement, Niagara Vest agreed to sell and
plaintiff agreed to purchase "Building 24" and "Building 1
Extension," along with certain vacant land on a tract of land
which was formerly the Union Carbide Republic Plant. However,
the transaction contemplated in the Agreement could not close
until Niagara Vest obtained appropriate subdivision approval.
Until Niagara Vest could do so, the Agreement was to be
converted to, and act as*fn2, a Lease Agreement pursuant to
paragraph 6 thereof, under which plaintiff was permitted to
occupy the subject premises as a tenant and was obliged to pay
rent on a monthly basis, until such time as Niagara Vest
obtained the subdivision approval and the closing was
completed, up to a period of ten years. Apparently, Niagara
Vest never obtained the subdivision approval, and the Agreement
has been operating as a Lease Agreement, pursuant to paragraph
6 of the Agreement.
Pursuant to the Lease instrument, plaintiff leased from
Niagara Vest for a period of one year "Building 23 & 1B" of the
former Union Carbide Republic Plant.
Defendants dispute plaintiff's status as lessee and argue in
support of their motions that plaintiff was evicted from the
Site in May 1990 for failure to pay rent and taxes in violation
of both the Agreement and the Lease. The circumstances and
import of this alleged eviction are more fully discussed
Plaintiff alleges eight Claims for Relief, seven against both
defendants and one against Niagara Vest alone. Three of the
claims common to both defendants arise under federal law. Those
claims, (the First, Second and Sixth Claims respectively), seek
(1) recovery from defendants, pursuant to § 107(a) of CERCLA,
42 U.S.C. § 9607(a), of all past, present and future response
costs; (2) contribution from defendants, pursuant to § 113(f)
of CERCLA, 42 U.S.C. § 9613(f), for all necessary response
costs incurred by plaintiff; and (3) a declaratory judgment,
pursuant to 28 U.S.C. § 2201(a), setting forth "the rights and
obligations of the parties with the [sic] regard to the
hazardous substance contamination," (Complaint, ¶ 47), and the
liabilities of defendants with regard to response costs
incurred and to be incurred by plaintiff.
The four remaining counts common to both defendants allege
state law claims for: (4) negligence (Third Claim); (5) strict
liability (Fourth Claim); (6) common law restitution (Fifth
Claim); and (7) "equitable indemnity" (Seventh Claim).
Plaintiff's Eighth Claim, asserted against Niagara Vest
alone, alleges fraud in violation of state law.
Neither defendant has answered the complaint, but rather,
both have moved for dismissal pursuant to Fed.R.Civ.P. 12(b).
Plaintiff alleges that both defendants are liable under
CERCLA because they owned or operated the Site at the time
hazardous substances were released, and "[a]s a direct and
proximate result of the releases," plaintiff "has incurred and
will continue to incur costs for testing, investigation, and
remediation of the releases into the soil, subsoil, surface
water, and ground water . . ." (Complaint, ¶¶ 23 & 25).
Defendants allege that this fails to state a CERCLA claim
because plaintiff "fails completely to allege . . . the costs
it incurred, or the actions it took in response to the
allegedly hazardous conditions at the Site." Defendants also
argue that plaintiff should be required to plead the dates on
which it incurred the alleged costs. (Union Carbide's Memo at
Plaintiff must allege as an element of its prima facie case
under § 107 of CERCLA that it incurred response costs. However,
plaintiff "need not particularize the costs" that it incurred.
State of New York v. General Electric Co., 592 F. Supp. 291, 298
(N.D.N.Y. 1984). In General Electric, 592 F. Supp. at 298, an
allegation that plaintiff "has incurred and will continue to
incur expenses and costs . . ." sufficiently alleged
recoverable response costs. See also Ascon Properties, Inc. v.
Mobil Oil Co., 866 F.2d 1149, 1156 (9th Cir. 1989) (an
allegation in the complaint that plaintiff had "been forced to
incur response costs and in fact spent substantial amounts
toward the clean-up, removal and remedial action" at a
particular site sufficiently alleged response costs). But see
McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39 (6th
Cir. 1988) (plaintiff's complaint was insufficient because it
did not allege either the costs incurred, or the action taken
in response to the hazardous condition).
A pleading should only be dismissed for failure to state a
claim if "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, 45-46, 78 S.Ct. 99,
101-102, 2 L.Ed.2d 80 (1957). I find that plaintiff has alleged
that it incurred response costs with sufficient specificity to
survive defendants' motion to dismiss. However, it is to be
noted that in light of my holding, infra, regarding plaintiff's
Sixth Claim for Relief for a declaratory judgment, I find that
in order to survive defendants' motion to dismiss, plaintiff
must amend its complaint to allege the dates on which it
incurred response costs. Therefore, defendants, motion to
dismiss plaintiff's First Claim for Relief is denied but
plaintiff is directed to amend its First Claim for Relief to
allege the dates on which it incurred response costs.
Plaintiff seeks contribution from defendants pursuant to
§ 113(f)(1) of CERCLA, 42 U.S.C. § ...