as indicated on the proposed schedule, and physical construction
was nearly complete by the end of April. See AR Item 42
(Pre-construction notification indicating a February 10, 1998
Plaintiffs did not file their complaint in this case until
March 30, 1998, more than eight months after the issuance of the
wetlands permit by the Corps. Although plaintiffs had filed the
complaint, they failed to serve a copy of the summons and
complaint on Linden until April 20, 1998 and on the federal
defendants until April 22, 1998. By that time, the existing
wetlands had been filled as planned and the construction of the
new wetland system was 95% complete. Wetland plantings were
installed by early June, 1998 and the wetland system was
operational when the instant motions were filed.
Linden has expended a great deal of money on the wetlands
project. Linden donated the $44,000 for offsite wetlands
mitigation on April 17, 1998, prior to being served with the
summons and complaint. Linden asserts that when the instant
motion was filed it had already spent approximately $114,656 on
the filling of the existing wetlands and on the design,
construction and planting relating to the wetland system. As of
the most recent submissions to the court, Linden represents that
it has spent over $1 million on the entire project.
Even after issue was joined in this action, plaintiffs
continued to delay. For example, although plaintiffs expressed an
intent to file a motion for injunctive relief, they never did so.
Finally, Magistrate Judge Jonathan Feldman entered an order on
November 5, 1998 (Dkt.# 14), directing motions for summary
judgment and plaintiffs' motion for preliminary injunctive relief
to be filed on or before November 9, 1998. Plaintiffs failed to
comply with that order. Plaintiffs neither filed any summary
judgment motion nor any motion for preliminary injunction.
Indeed, they have not filed any motion since that date, and no
stipulation or order has been entered that expressly extends
plaintiffs' time to file a summary judgment motion or motion for
Although this court's motion scheduling order required
plaintiffs' responses to defendants' summary judgment motions to
have been filed by December 9, 1998 (Dkt.# 23), plaintiffs filed
nothing until after that date, and they did not file any
memorandum of law (as required by Local Rule 7.1[e]) until May
21, 1999, well over six months after defendants filed their
motions for summary judgment, and after the court's letter order,
entered April 27, 1999 (Dkt.# 29), which advised the parties of
their failure to comply with Local Rules 7.1(e) and 56.
Notwithstanding the court's letter order, plaintiffs have never
filed a Local Rule 56 statement of facts in dispute.*fn2
Defendants now move for summary judgment on the ground that
plaintiffs are barred from maintaining this action by the
equitable doctrine of laches.
A. Summary Judgment — General Standards
On a motion for summary judgment, "a court's responsibility is
to assess whether there are any factual issues to be tried."
Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d
Cir. 1991), citing, Knight v. United States Fire Ins. Co.,
804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107
S.Ct. 1570, 94 L.Ed.2d 762 (1987). Summary judgment will be
granted if the record demonstrates that "there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c);
Chambers v. TRM
Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). A genuine
issue of material fact exists only if the record, taken as a
whole, could lead a reasonable trier of fact to find in favor of
the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The burden of demonstrating the absence of any genuine issue of
material fact rests on the moving party, Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986), and all ambiguities and inferences that may be reasonably
drawn from the facts must be viewed in the light most favorable
to the non-moving party. Coach Leatherware Co. v. AnnTaylor,
Inc., 933 F.2d at 167. To defeat summary judgment, the
non-moving party must go beyond the pleadings and "must do more
than simply show that there is some metaphysical doubt as to the
material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.
Rather, it "must come forward with `specific facts showing that
there is a genuine issue for trial.'" Id. at 587, 106 S.Ct.
1348, quoting FED.R.CIV.P. 56(e) (alteration in original).
In support of the pending motions for summary judgment, all
defendants maintain that judgment should be entered in their
favor based on principles of laches, because (1) although
plaintiffs knew of the construction schedule for the wetlands,
they did not commence this action until over eight months after
the Nationwide Permit was issued and over six weeks after the
existing wetlands were filled and construction of the new wetland
system was nearly complete; and (2) the defendants and the
public's interest would be subjected to substantial prejudice if
this action is allowed to continue after construction is
Laches is based on the maxim, "vigilantibus non dormientibus
aequitas subvenit."*fn3 Ikelionwu v. United States,
150 F.3d 233, 237 (2d Cir. 1998). "It is an equitable defense that `bars a
plaintiff's equitable claim where he is guilty of unreasonable
and inexcusable delay that has resulted in prejudice to the
defendant.'" Id. (internal quotation marks and citations
omitted). A party asserting the defense of laches must establish
that: (1) plaintiffs knew of defendants' misconduct; (2)
plaintiffs inexcusably delayed in taking action; and (3)
defendants were prejudiced by the delay. Id. Rulings on laches
must be based upon the equitable principles relating to the
peculiar circumstances of each case. Stone v. Williams,
873 F.2d 620, 623-624 (2d Cir.), cert. denied, 493 U.S. 959, 110
S.Ct. 377, 107 L.Ed.2d 362 (1989), vacated on other grounds,
891 F.2d 401 (2d Cir. 1989).
1. Plaintiffs' Knowledge
I need not tarry long on the first factor — plaintiffs' prior
knowledge of defendants' alleged misconduct. Indeed, plaintiffs
do not dispute their knowledge of Linden's development plans well
before work commenced (and even prior to Linden's application for
the Nationwide Permit). Notably, plaintiffs attended the
pre-construction meeting, received a copy of the authorization
for the Nationwide Permit, obtained information through FOIA
requests, and even saw the site daily because they resided
nearby. Yet, plaintiffs waited until after construction was
commenced and nearly completed before they served their
2. Plaintiffs' Delay
The court agrees with defendants that plaintiffs have not been
diligent in seeking federal judicial review of the challenged
agency action. Plaintiffs had been aware of the Project and had
repeatedly claimed it was ill-considered and illegal. In their
complaint, it is alleged that certain named plaintiffs have
attended meetings on the development of the site since as early
as 1994, four years prior to the commencement of this action.
Indeed, the Corps received correspondence on the issue from
plaintiff Kevin Parker in March 1994. AR Item 1. Other
submissions by Mr. Parker or on his behalf followed in 1994. AR
Item 3-4. Plaintiffs have followed virtually every step of
Linden's attempt to develop Linden Tech Park. In fact, the record
is replete with evidence of plaintiffs' vociferous opposition to
Linden's development of the site.*fn4 Plaintiffs' have contacted
numerous governmental agencies and legislators, voicing their
opposition to the proposed Project.*fn5
Plaintiffs commenced their opposition to the wetlands work even
before Linden actually sought the Corps' permission to use the
Nationwide Permit at Linden Tech Park. AR Items 1, 3, 4, 7.
Plaintiffs further provided extensive adverse comment opposing
use of the Nationwide Permit, and were copied on the July 23,
1997 correspondence effectively authorizing Linden to proceed. AR
Items 35, 39. Moreover, the Corps responded to FOIA requests made
by plaintiffs on several occasions (AR Items 13 and 18), and kept
plaintiffs informed in general on the Project. See AR Items 19,
26 — indicating "regular contact" and an "open communication
channel." Finally, plaintiffs requested recission of the Corps'
authorization during the time when grading appears to have been
actually begun on the Project, but before the complaint was
filed. AR Item 44.
Nevertheless, plaintiffs did not initiate this federal action
to obtain judicial review of the Corp's decision to authorize
reliance on the Nationwide Permit — the issuance of which is at
the heart of plaintiffs' complaint — until eight months after it
was issued, and the wetlands work was nearly completed.
Although plaintiffs' substantial delay before they commenced
this action is sufficient for successful application of the
laches defense, I note that plaintiffs' post-filing delay
further supports my finding that plaintiffs have inordinately
delayed their prosecution of this action. After the complaint was
filed, plaintiffs never moved for a preliminary injunction to
stop construction. If a party seeks immediate relief, Rule 65 of
the Federal Rules of Civil Procedure ("FRCP") requires the filing
of a motion. See, e.g., Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE, § 2949 (1995)
("[t]he appropriate procedure for requesting a preliminary
injunction is by motion . . ."); James Luterbach Constr. Co. v.
Adamkus, 781 F.2d 599, 603 (7th Cir. 1986) ("[i]n addition to
the demands of good practice, Rule 65(a)(2) of the Federal Rules
of Civil Procedure seems to require a separate motion for
temporary relief when it refers to `an application for a
preliminary injunction'"); Bascom Food Products Corp. v. Reese
Finer Foods, Inc., 715 F. Supp. 616, 624 (D.N.J. 1989) ("[i]t has
always been the rule that the movant bears the burden of
persuasion to establish the situation meets the standard for a
preliminary injunction, and must offer proof beyond the
unverified allegations of the pleadings"); Thermex Co. v.
Lawson, 25 F. Supp. 414 (E.D.Ill. 1938) (plaintiff may not rely
upon unverified complaint to request
preliminary injunction). The fact that plaintiffs never took
any action in this case to stay the activities about which they
complain is significant and warrants consideration. As previously
discussed, plaintiffs ignored Magistrate Judge Jonathan Feldman's
scheduling order for filing a motion for a preliminary
injunction.*fn6 Nor did plaintiffs even cross-move for
preliminary relief once the defendants' summary judgment motion
was filed. To this day, plaintiffs have taken no affirmative
steps in this case to stop the construction.*fn7 At this late
stage, Linden has its construction permit, has received all of
the requisite approvals, and is entitled to proceed until ordered
not to do so by a court of competent jurisdiction. Yet,
plaintiffs have chosen not to request the cessation of such work
in any formal manner in this case. To allow such a tardy
application at this time would severely prejudice defendants.
3. Prejudice to Defendants
In order to prevail on the affirmative defense of laches,
defendants must prove that they have been prejudiced by
plaintiffs' unreasonable delay in bringing the action. See
Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir.
1996); Tri-Star Pictures, Inc. v. Leisure Time Productions,
B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co.
v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980). A defendant has
been prejudiced by a delay when the assertion of a claim
available some time ago would be "inequitable" in light of the
delay in bringing that claim. See id. Specifically, prejudice
ensues when a "defendant has changed his position in a way that
would not have occurred if the plaintiff had not delayed."
Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 808, n. 17
(8th Cir. 1979) (quoting Tobacco Workers Int'l Union, Local 317
v. Lorillard Corp., 448 F.2d 949, 958-59 (4th Cir. 1971)),
cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267
(1980). The evaluation of prejudice in the laches analysis is
integrally related to the inquiry regarding delay. "Where there
is no excuse for delay, defendants need show little prejudice; a
weak excuse for delay may, on the other hand, suffice to defeat a
laches defense if no prejudice has been shown." Stone v.
Williams, 873 F.2d at 625; see also Larios v. Victory Carriers,
Inc., 316 F.2d 63, 67 (2d Cir. 1963).
In this instance, I find that plaintiffs' inordinate delay has
prejudiced defendants. The projects at issue here are now
virtually complete. Plaintiffs delayed even as contracts for work
were awarded and construction commenced. Construction on the site
has progressed well beyond the preparatory stage. The landscape
has been substantially and irreversibly altered. By the time the
complaint was served, the wetlands had been filled and the new
drainage system had been nearly completed, involving substantial
expenditures of money. In short, Linden has expended considerable
time, effort, and money in reliance on the governmental approvals
of its plans. By waiting to assert its present claim, plaintiffs
precluded the possibility that Linden could effectively adopt an
development plan for its land. Linden has been prejudiced by
plaintiffs' delay. See Conopco, Inc. v. Campbell Soup Co., 95
F.3d at 192. The federal defendants have also been prejudiced by
plaintiffs' delay. The integrity of the permit process and the
value of Corps review and approval is substantially undermined if
challenges may be mounted indefinitely, as plaintiffs seek to do
I also reject plaintiffs' contention that Linden has not
expended enough money, in their estimation, to constitute the
requisite prejudice for a successful laches defense. Plaintiffs'
assertion that only a small portion of Linden's wetlands system
constitutes illegal filling, and, therefore, only "several"
thousand dollars worth of "illegal fill" work had been done when
the suit was filed is equally unavailing.
Plaintiffs' argument that as early as the summer of 1997 Linden
knew that plaintiffs "intended" to sue before work began does not
compel a different result. To the contrary, it clearly shows
plaintiffs' knowledge and delay in finally filing this action.
Moreover, no party should be held hostage merely by the threat of
litigation. Plaintiffs also fault the Linden principals for not
contacting plaintiffs before commencing work consistent with the
Permit. This is irrelevant. Neither Linden nor the other
defendants had any obligation to do so.
In response to defendants' motions, plaintiffs argue in their
papers*fn8 for the first time that this is not merely an action
in equity under the APA, but also a citizen suit under the CWA
for which a laches defense is unavailable because a statute of
limitations applies to CWA claims. Baric Aff., Dkt. # 27, paras
1-20. I initially note that nowhere in plaintiffs' complaint is
there any reference to a citizen suit. The complaint alleges
federal question jurisdiction and jurisdiction pursuant to the
APA, but not the CWA. However, plaintiffs now appear to have
abandoned this claim. At oral argument, plaintiffs' counsel
instead asserted that while the action was one to enforce the
CWA, it was not a citizen suit under section 505(a) of the CWA.
But, even if plaintiffs' persisted in their belated attempt to
characterize the suit as a citizen suit, dismissal would still be
warranted for a variety of reasons, namely, because plaintiffs
failed to meet the procedural 60 day notice requirements for such
an action, see 33 U.S.C. § 1365(b); because plaintiffs failed
to name the Administrator of the EPA with respect to allegations
that there may have been a failure to perform an act under the
CWA that is not discretionary, see 33 U.S.C. § 1365(a)(2);
because the Corps has not waived sovereign immunity in this area;
and, finally, because permit decisions are discretionary and not
mandatory duties that are subject to a citizen suit. See Sun
Enterprises, Ltd. v. Train, 532 F.2d 280, 288 (2d Cir. 1976).
With respect to plaintiffs' suggestion that a laches defense
does not apply in those instances where the applicable statute
involves a statute of limitations, I find this action to be one
in equity rather than one in law. Cf. Conopco, Inc. v. Campbell
Soup Co., 95 F.3d 187, 191-194 (2d Cir. 1996) (in actions in
equity, a laches defense remains available even if the action was
commenced within the most closely analogous state statute of
limitations). As previously noted, the complaint does not allege
jurisdiction under the CWA. In addition, plaintiffs do not seek
civil penalties, but rather only a declaratory judgment and
injunctive relief, lending support to the notion that this is an
action in equity rather than one at law. Lastly, plaintiffs
themselves admit that in actions brought
under the APA, as here, "laches may be raised as an equitable
defense." Plaintiffs' Memorandum of Law, Dkt # 32, p. 3; see
also Baric Aff., Dkt # 27, para. 10. Although the burden of
proof remains with defendants, the defense of laches is available
in this action.
Indeed, in Stow v. United States, 696 F. Supp. 857 (W.D.N Y
1988), this court recognized a laches defense in a factually
similar environmental case. There, citizen plaintiffs positioned
much like plaintiffs here challenged the construction of a dam
and the relocation of a highway. Like plaintiffs here, the Stow
plaintiffs had long opposed the construction project. The Stow
plaintiffs commenced their lawsuit "seven months after the 404
permit was issued," and "nearly two months after the construction
work had begun." Id. at 863. Although the work at issue was
only 50% completed, the court dismissed the action because of
laches. In the present case, the work authorized by the
Nationwide Permit was largely completed before plaintiffs managed
to serve their complaint.
Plaintiffs' attempts to justify their prolonged delay are not
at all persuasive. "A point arrives when a plaintiff must either
assert her rights or lose them." Stone v. Williams, 873 F.2d at
623-624. When a plaintiff has not slept on his rights, but has
been prevented from asserting them based, for example, on
justified ignorance of the facts constituting a cause of action,
personal disability, or because of ongoing settlement
negotiations, the delay is reasonable and the equitable defense
of laches will not bar an action. See id. There is no such
reasonable excuse in this case.
Although application of the laches doctrine in environmental
cases is disfavored, given the strong public interest in
effecting compliance with CWA, cf. Steubing v. Brinegar,
511 F.2d 489, 495 (2d Cir. 1975), the court finds that plaintiffs'
unreasonable delay and the substantial prejudice to defendants
warrants application of the doctrine in this case. There is ample
precedent for finding that plaintiffs have slept on their claims
to such an extent that they are barred by laches. See, e.g.,
Environmental Defense Fund, Inc. v. Alexander, 614 F.2d 474 (5th
Cir. 1980); Save Our Wetlands, Inc. v. United States Army Corps
of Engineers, 549 F.2d 1021 (5th Cir.), cert. denied,
434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977); Stow v. United States,
696 F. Supp. 857 (W.D.N.Y. 1988); Sierra Club v. Alexander,
484 F. Supp. 455 (N.D.N.Y. 1980), aff'd, 633 F.2d 206 (2d Cir.
1980); Clark v. Volpe, 342 F. Supp. 1324 (E.D.La.), aff'd,
461 F.2d 1266 (5th Cir. 1972).
As the Second Circuit has noted:
the underlying value of the laches doctrine, as with
statutes of limitations, is that of repose. Even
assuming that appellant's claims are meritorious, the
availability of the laches defense represents a
conclusion that the societal interest in a correct
decision can be outweighed by the disruption its
tardy filing would cause. Thus, courts, parties and
witnesses `ought to be relieved of the burden of
trying stale claims when a plaintiff has slept on his
Stone v. Williams, 873 F.2d at 626 (quoting Burnett v. New
York Central R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13
L.Ed.2d 941 (1965)).
The myriad allegations that plaintiffs level at defendants
concerning dam permits, water quality certifications, or
individual permits do not alter that result. Succinctly stated,
plaintiffs' delays both in bringing and in prosecuting this
action have sufficiently prejudiced defendants that laches
applies in this instance. Accordingly, plaintiffs' claims for
relief are barred by laches.
Defendants' motions for summary judgment (Dkt. Nos.15, 18) are
granted. The complaint is dismissed with prejudice.
Linden Associates' motion for costs and attorneys' fees is
IT IS SO ORDERED.