The opinion of the court was delivered by: William C. Conner, Senior District Judge.
On January 4, 1993, Frank Mancuso ("Mancuso") and his wife
brought this action against defendant Consolidated Edison
Company of New York, Inc. ("Con Ed"), for personal injury to
themselves and their children and for property damage in
violation of the Clean Water Act ("CWA" or the "Act"),
33 U.S.C. § 1365, and New York State law. On December 12, 1994, Judge
Broderick of this Court granted defendant's motion to dismiss
the property damage claims as time-barred. See Mancuso v.
Consolidated Edison Co. of N.Y., Inc., No. 93 Civ. 0001, 1994
WL 702749, at *1 (S.D.N.Y. Dec. 12, 1994), aff'd on
reconsideration 905 F. Supp. 1251 (S.D.N.Y. 1995). On July 30,
1999, this Court granted defendant's motion for summary judgment
and dismissed the action with prejudice based upon plaintiffs'
failure to secure competent expert testimony
that would support their claims of personal injury. See Mancuso
v. Consolidated Edison Co. of N.Y., Inc., 56 F. Supp.2d 391
(S.D.N.Y. 1999) (the "1999 Opinion"), aff'd in part and vacated
in part, No. 99-9233, 216 F.3d 1072, 2000 WL 730417 (2d Cir.
June 5, 2000). On appeal, the Second Circuit affirmed our
dismissal of the personal injury claims but vacated our
dismissal of the CWA claim and remanded the case for
consideration of that claim without addressing the merits. See
Mancuso v. Consolidated Edison Co. of N.Y., Inc., No. 99-9233,
216 F.3d 1072, 2000 WL 730417 (2d Cir. June 5, 2000).
Plaintiffs claim that defendant has violated the CWA by
discharging pollutants into Echo Bay through contaminated drain
pipes, tunnels, conduits and cable ducts and by water runoff
from the contaminated soil at defendant's adjoining substation.
Pursuant to the CWA plaintiffs seek: (1) a declaration that
defendant is in violation of the Act; (2) an order that
defendant remedy all damage to the environment caused by its
illegal discharges; (3) civil penalties of $25,000 per day paid
to the U.S. Treasury for each day defendant violates the Act by
failing to pursue cleanup after a finding of violation by the
trier of fact; (4) attorneys fees and costs; and (5) any other
relief this Court deems just and proper.*fn1 Defendant has
renewed its motion for summary judgment, pursuant to FED. R.
Civ. P. 56(b), based upon plaintiffs lack of standing.*fn2
For the reasons stated hereinafter, the CWA claim is dismissed
In 1981, there was a fire in defendant's substation which
caused oil containing polychlorinated biphenyls ("PCB"s) to
spill from a transformer into its surrounding moat.*fn4 After
testing the soil at and around the substation, the New York
State Department of Environmental Conservation ("DEC") ordered a
cleanup, resulting in the substation's closure. There has always
been a sharp disagreement as to extent which this oil spillage
resulted in PCB contamination of the soil and water of Echo Bay
and the adjoining Echo Bay Marina.
In 1987, F. Mancuso Boatyard, Inc., a corporation owed by
Mancuso, purchased the Marina from Robert Kolasch. In the summer
of 1988, plaintiffs moved to the Marina where they resided with
their children until 1992. Mancuso owned the property until May,
1993, when it was acquired
by the City of New Rochelle at a foreclosure sale for the
non-payment of real estate taxes. (Giglio Aff. ¶ 5, Ex. A.)
Plaintiffs currently reside in Dutchess County, New York.
(Def.Sur.Mem., Ex. A.) They do not work anywhere in the vicinity
of New Rochelle. (Id.) From 1993 to 1997, Mancuso's only
contact with Echo Bay consisted of visits to acquire evidence
for this case. (Id.)
Argument on the instant motion centers around Mancuso's
contacts with Echo Bay since 1998. Initially, the motion was
based upon Mancuso's original response to defendant's third set
of interrogatories. (Giglio Aff. ¶ 5, Ex. C.) He stated that he
visited Echo Bay on May 8, 1998, in the company of his and
defendant's attorneys in order to obtain discovery in connection
with this lawsuit. Interrogatory No. 2 asked: "In the period
after May 8, 1998, has any plaintiff or any person acting on
behalf of any plaintiff been (1) at, in, on, or in sight of
Con Edison's Echo Avenue property, (2) at, in, on, or in sight
of the property formerly owned by Frank Mancuso on Echo Bay, or
(3) at, in, on or in sight of Echo Bay." (Id.) (emphasis
added). Mancuso responded in the affirmative and identified only
one visit, on January 11, 2000, when he met with environmental
groups to discuss possible remedial action. (Id.)
However, in response to the motion, Mancuso filed an affidavit
stating: that he "regularly travel[s] to Echo Bay and the marina
property and . . . ha[s] regularly observed the substation at
least once a week for the last three years to note defendant's
clean-up operations" (Mancuso Aff. at 1); that he and his family
have spent thousands of hours preparing for this case and that
on 29 occasions between January 1998 and February 1999, he took
117 photographs of defendant's substation as well as videotapes
(id. at 2); that he swam in Echo Bay as a child and sailed in
it since 1972 (id.); that he still visits Hudson Park, located
near Echo Bay, and often drives or walks by defendant's
substation (id.); that he has "always had, and continue[s] to
have, an active aesthetic and environmental interest in Echo
Bay" and therefore corresponds with state and county agencies to
discuss its condition (id. at 2-3); that he often travels to
New Rochelle to visit family and friends and to speak with
swimmers, boaters, fisherman and children about the defendant's
substation (id. at 4); and that in the summer of 2000, he and
his family attended a play and concerts in Hudson Park, located
near Echo Bay. (Id.)
When defendant, in its reply memorandum, accused Mancuso of
perjury based on contradictions between that affidavit and his
interrogatory answers, Mancuso submitted amended interrogatory
answers together with an affirmation stating that he had been
confused by the interrogatories and believed that Interrogatory
No. 2 referred only to his actual on-site visits to defendant's
substation. (Mancuso Affm. at 1.) Accordingly, he changed the
answer to state that he has visited Echo Bay on January 11, 2000
as well as:
[V]arious other dates, precise dates unknown, for
being at or near or in sight of the property. Frank
Mancuso regularly travels to Echo Bay and the marina
property and regularly observed the substation at
least once a week for the last three years to note
Con Edison's cleanup operations. Photographs and
Videos provide the dates where such film was taken.
I. Summary Judgment Standard
Summary judgment may be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show 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). The general rule is that the party invoking federal
jurisdiction bears the burden of establishing all of the
elements of standing. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).
Because standing is an "indispensable part of plaintiffs case,"
plaintiff bears the burden of providing sufficient evidence of
standing to survive a motion for summary judgment. Id., 112
S.Ct. at 2136. Plaintiff cannot rest on "mere allegations," but
must set forth "specific facts" by affidavit or other evidence.
Id., 112 S.Ct. at 2137. On a motion for summary judgment,
these facts must be accepted as true. Id., 112 S.Ct. at 2137.
II. Subject Matter Jurisdiction
Mancuso argues that defendant is collaterally estopped from
raising the standing issue because defendant has known of all
relevant facts since 1993 and that issue was raised in the
briefs submitted to the Second Circuit in connection with
plaintiffs' appeal of this Court's 1999 Opinion. Although the
Second Circuit did not comment upon whether plaintiffs had
standing under the CWA, Mancuso argues that the Court implicitly
determined that standing was present when it remanded the case
for reconsideration of the CWA claim. Therefore, according to
Mancuso, because the matter was "distinctly put in issue and
directly determined by a court of competent jurisdiction . . .
[it] cannot be disputed in a subsequent suit between the same
parties or their privies." Montana v. United States,
440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979) (citations
omitted). We reject that argument.
First, after review of the relevant portion of the appellate
briefs, we conclude that the standing issue was never raised by
the parties. The briefs concentrated on whether this Court's
dismissal with prejudice should be applied to the CWA claim.
(Pl. Cert. & Summ. Doc. Evid., Exs. 1, 2.) The Court of Appeals
did not address the merits of any issues raised by the CWA
claim. We certainly cannot infer that its silence constituted a
ruling on the issue of standing.
Second, "[f]ederal courts are not courts of general
jurisdiction; they have only the power that is authorized by
Article III of the Constitution and the statutes enacted by
Congress pursuant thereto." Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501
(1986). "The federal courts are under an independent obligation
to examine their own jurisdiction, and standing `is perhaps the
most important of [the jurisdictional] doctrines.'" FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608,
107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737,
750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)); see
generally 15 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE §
101.30 (Daniel R. Coquilette et al. eds., 3d ed. 2000).
Therefore, the issue of standing can be raised on motion of a
party or even sua sponte at any time during the litigation or
appeal; it cannot be waived. See United States v. Hays,
515 U.S. 737, 742,
115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995); Bender, 475 U.S.
at 541-42, 106 S.Ct. at 1331; Mehdi v. United States Postal
Serv., 988 F. Supp. 721, 730 n. 7 (S.D.N.Y. 1997); FED. R. Civ.
P. 12(h)(3). We therefore must determine whether plaintiffs can
invoke the power of this Court.
The CWA prohibits the discharge of pollutants into navigable
waters in order to "restore and maintain the chemical, physical,
and biological integrity of the Nation's waters."
33 U.S.C. § 1251(a), 1311(a). To achieve these goals, it provides for
citizen suits in addition to state actions. Thus, pursuant to
the CWA, "any citizen may commence a civil action on his own
behalf" against any person in violation thereof. Id. §
1365(a). The term "citizen" is defined as "a ...