their recurrence." Eastman Kodak, 933 F.2d at 128. The Second Circuit remanded to the district court for consideration of whether there was a "realistic prospect" that Eastman Kodak would continue to violate the Clean Water Act as alleged in the complaint, and instructed that the action be dismissed as moot if no such prospect exists. Id. at 128.
The instant case presents a scenario which from a strictly legal standpoint is indistinguishable from Eastman Kodak. Pan American's mootness argument raises the issue of whether there is a reasonable expectation that its discharges will continue. Having reviewed this argument as well as plaintiffs' opposition (or lack thereof), the court finds that plaintiffs have presented no evidence to indicate a "realistic prospect of continuing violations." Cf. Eastman Kodak, 933 F.2d at 128; see also Gwaltney, 484 U.S. at 66 ("absolutely clear that the allegedly wrongful behavior (cannot) reasonably be expected to recur") (emphasis and citation omitted). Accordingly, plaintiffs' action has become moot and Pan American is entitled to judgment as a matter of law.
Finally, at oral argument plaintiffs cited for the first time the Eleventh Circuit's decision in Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir. 1990) to argue that even if this case is moot with respect to its claim for injunctive relief, it remains viable as to their claim to recover civil penalties for discharges that occurred after the complaint was filed. The court in Tyson Foods held that the Gwaltney mootness standard applies only to claims for injunctive relief and does not affect claims to recover damages for justiciable violations. 897 F.2d at 1134-35. In fact, this court utilized the same rationale in Friends of the Earth v. Archer Daniels Midland Co., No. 84-CV-413, cited in Friends of the Earth, 780 F. Supp. 95, 97 (N.D.N.Y. 1992), to hold that Gwaltney mootness does not affect claims for civil penalties.
Any doubt as to whether the Gwaltney mootness standard applies with equal force in this circuit to claims for civil penalties was laid to rest in the 1991 Eastman Kodak decision. There, the Second Circuit gave specific instructions that the entire suit-- which includes claims for injunctive relief as well as "civil damages in the maximum statutory amount"-- should be dismissed on remand if there is no realistic prospect that Kodak will continue to violate the Act. See Eastman Kodak, 933 F.2d at 128. The Second Circuit drew no distinction between mootness of claims for injunctive relief versus claims for monetary relief: all claims would be moot. See id. In sum, the Tyson Foods/Friends of the Earth distinction between injunctive and monetary relief was effectively rejected by the Second Circuit in Eastman Kodak, a holding to which this court is bound.
B. Remaining arguments and motions
The fact that this case has become moot deprives this court of jurisdiction over plaintiffs' claims and requires summary judgment of plaintiffs' complaint. See, e.g., R.C. Bigelow, Inc., 867 F.2d at 105. Therefore, the court need not address defendant's alternative arguments for summary judgment. Indeed, without jurisdiction, the court is not empowered to consider plaintiffs' motion for summary judgment. Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. 454 U.S. 464, 471-73, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982).
Defendant has presented evidence indicating that it is absolutely clear that its allegedly wrongful behavior could not reasonably be expected to recur, and plaintiffs have offered no evidence to rebut defendant's proof. Defendant has therefore demonstrated that plaintiffs' suit is moot. Accordingly, defendants' motion for summary judgment is granted.
IT IS SO ORDERED.
DATED: May 27, 1992
Syracuse, New York
Neal P. McCurn
Chief, U.S. District Judge