own admissions -- that Wasserman transferred the farm property with actual intent to hinder the Government's ability to collect on Wasserman's impending debt to the United States, see, e.g., Scarvalone Dec. Exhs. JJ, NN, QQ, SS, UU, VV, Wasserman's opposition papers present no evidentiary rebuttal whatever. Likewise, as to the second circumstance, while the Government has adduced substantial evidence that Wasserman transferred the farm property without receiving equivalent value knowing that he would not be able to pay his impending debt to the Government, id, see also Scarvalone Dec. Exh. RR, Wasserman has offered no evidence in opposition.
Instead, the defendants argue that the transferee, Mildred Wasserman, is entitled to keep the property because she "took in good faith and for reasonably equivalent value..." 28 U.S.C. § 3307(a). But here again, while the Government has adduced substantial evidence -- based on Mildred Wasserman's own testimony - that Mildred Wasserman neither took the farm property in good faith, see citations to Mildred Wasserman Dep., Pl.'s Rule 56.1 Statement PP 121-25 and 128-29, nor gave reasonably equivalent value, see Scarvalone Dec. Exhs. EE and WW at PP 1-4, Mildred Wasserman has adduced no contrary evidence. Rather, she relies on the legal argument that a property settlement duly incorporated in a state court divorce judgment automatically satisfies the § 3307(a) defense absent a showing that the divorce itself was procured by fraud. This contention, however, has previously been rejected by other courts, see, e.g., United States ex rel. Hartigan v. Alaska, 661 F. Supp. 727, 729-30 (N.D. Ill. 1987); see also United states v. Mongelli, 857 F. Supp. 18, 20-21 (S.D.N.Y. 1994), and has attained no greater persuasiveness subsequently. As well stated by the court in Hartigan : "the dissolution of marriage 'was certainly never intended to be a vehicle to effect a fraudulent end, or to transmute that which would otherwise be fraudulent into something lawful.'" Hartigan, 661 F. Supp. at 730 (citations omitted).
Accordingly, the Government's motion to void the transfer of the farm property is hereby granted.
Finally, with respect to the liability of Epic Industries, although Wasserman's Amended Third-Party Complaint alleged three different claims for relief against that third-party defendant, Wasserman has now expressly abandoned his claims for indemnification and payment for raw materials, and has limited his claim against Epic to a claim seeking contribution. See Def. Memorandum in Opposition at 2 n. 1. Section 9613(f)(1) of CERCLA allows an action for contribution against persons potentially liable under § 9607(a). As applied to the facts alleged by Wasserman, any such liability by Epic would have to be predicated on either former-operator liability, § 9607(a)(2), or arranger liability, § 9607(a)(3). However, Wasserman's one-sentence complaint against Epic for CERCLA contribution, Amended Third-Party Complaint at P 63, fails to allege that Epic was either an operator of the Barrier facility at the time of disposal of hazardous waste or arranged for such disposal. This is in stark contrast to the case on which Wasserman places primary reliance, United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373 (8th Cir. 1989), in which the Eighth Circuit, in upholding the District Court's refusal to dismiss the Government's CERCLA claims, noted that the Complaint specifically alleged that defendants "arranged for" the disposal of hazardous waste and that several paragraphs of the Complaint recited defendants' specific activities involving generation of hazardous waste through spillage. In the absence of such allegations, Wasserman's CERCLA contribution claim against Epic must be dismissed on the pleadings, albeit without prejudice.
In sum, the Government's motion to hold Wasserman legally liable for the Government's response costs (and its correlative motion to dismiss Wasserman's affirmative defenses and counterclaims), as well as its motion to void the conveyance of the farm property, are granted in their entirety, and Wasserman's corresponding cross-motions are all denied. Epic Industries' motion to dismiss Wasserman's third-party claims against Epic is granted, the claims for indemnification and payment for raw materials being dismissed with prejudice and the claim for contribution being dismissed without prejudice.
It remains to add that third-party defendants Westinghouse Remediation Services, Inc., Scott Garpiel, Security Patrol of America, Inc., Catherine Oncher, and Hermandra Moradia have previously been dismissed from the case, and that the Court has been informed by counsel for the Government and for Wasserman that all that remains of the case-in-chief is the determination of damages as between them. On September 25, 1997, moreover, the Government and Wasserman filed a stipulation waiving their right to a trial on this issue of damages and agreeing to have this issue decided by the Court on the basis of written submissions. Accordingly, counsel for the Government and Wasserman are directed to jointly call Chambers on February 9, 1998 at 5:00 P.M. to schedule the submission of papers on the damages issue and to advise the Court of the status of any remaining proceedings in this case not otherwise disposed of by this Order or prior proceedings herein.
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
January 27, 1998