arsenic, chromium, lead and mercury were also present at the
Site. See id. at ¶ 19. The DEC concluded that the appropriate
remedy was the removal of the PCB-contaminated papers rolls, the
excavation and off-site disposal of contaminated soil, and the
excavation and dewatering of Rondout Creek to remove the
contaminated sediment. See id. at ¶ 22. This action was
commenced in 1996 and is now substantially completed. See id.
at ¶ 23. The State of New York has incurred response costs, not
including interest or enforcement, of over $20 million. See id.
at ¶ 24.
Plaintiffs claim that since Defendants*fn1 have been the
owner/operators of the Site since 1985, pursuant to sections
9607(a)(1) and 9613(g)(2) of CERCLA, they are jointly and
severally liable for all response costs the State has incurred.
See id. at ¶¶ 33-36. Plaintiffs also seek relief for unjust
enrichment from Defendants. Plaintiffs argue that Defendants
failed to perform their duties and obligations and that,
therefore, the State had to do so in order to ensure the
protection of the public health and environment. See id. at ¶¶
37-40. Plaintiffs claim that Defendants were unjustly enriched by
the State's performance of those duties owed by Defendants. The
State, therefore, seeks restitution for the expenses incurred.
See id. at ¶¶ 43-44. Finally, Plaintiffs claim that Defendants
maintained a continuing public nuisance at the Site and are,
therefore, liable to the State under the common law of public
nuisance and the New York Real Property and Proceedings Law § 841
for all costs arising from the State's abatement of this public
nuisance. See id. at ¶¶ 46-48.
Defendant Barry, in support of his motion to dismiss, brought
pursuant to Rule 12 of the Federal Rules of Civil Procedure,
asserts the following arguments: 1) improper venue pursuant to
12(b)(3);*fn2 2) failure to state a claim for which relief can
be granted pursuant to 12(b)(6); and 3) failure to join necessary
parties under Rule 19 pursuant to 12(b)(7). See Def.'s Notice
of Motion to Dismiss at 1. Defendant Barry also requests a more
definite statement pursuant to Rule 12(e) and raises the issue of
Defendant Longboat's capacity to be sued.
The Court will address Defendant Barry's arguments
A. Defendant Longboat's capacity to be subject to suit
Defendant Barry maintains that Defendant Longboat was dissolved
in 1989 and left all its assets to the State.*fn4 See Notice
of Motion to Dismiss at 2. Defendant Barry
maintains that, therefore, Defendant Longboat is not subject to
Plaintiffs respond that, even assuming arguendo, that
Defendant Longboat was properly dissolved, the company is still
subject to suit in this CERCLA action because a dissolved company
continues to exist for purposes of winding up its affairs. See
Pls.' Memorandum of Law at 4 (citing New York Business
Corporation Law § 1006). Plaintiffs claim that they are seeking
relief from Longboat for its actions beginning in 1985 before it
was dissolved. District courts have held that defunct companies
can be liable under CERCLA for their pre-dissolution activities.
See, e.g., Town of Oyster Bay v. Occidental Chem. Corp.,
987 F. Supp. 182, 201 (E.D.N.Y. 1997).
The Court, therefore, concludes that at least at this early
stage of the litigation Defendant Longboat is a proper party in
B. Defendant Barry's request for a more definite statement
Defendant Barry asserts that the complaint fails to state with
any specificity the actions he allegedly committed to warrant the
relief sought. See Notice of Motion to Dismiss at 2.
Plaintiffs maintain that the allegations of the complaint are
sufficient to put Defendant Barry on notice that his liability is
based on his status as the President of Defendant Longboat at the
time of the release of hazardous substances from the Site. The
law is clear that individual officers can be held liable as
owners and/or operators under CERCLA, see Bedford Affiliates v.
Sills, 156 F.3d 416, 431 (2d Cir. 1998), and that shareholders
can be held liable for claims against dissolved corporations.
See Hatch v. Morosco Holding Co., 50 F.2d 138, 140 (2d Cir.
1931) (finding that shareholders who received distributions of
assets from a corporation could be liable for claims against the
Having reviewed the complaint, the Court finds that it clearly
provides the requisite information to place Defendant Barry on
notice of the charges against him. The Court, therefore, denies
Defendant Barry's request for a more definite statement.
C. Whether Plaintiffs have stated a claim upon which relief can
Federal Rule of Civil Procedure 12(b)(6) provides that a cause
of action shall be dismissed if a complaint fails "to state a
claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6).
In analyzing a motion to dismiss, the facts alleged by the
plaintiff are assumed to be true and must be liberally construed
in the light most favorable to him. See, e.g., Easton v.
Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991). While a court
need not accept mere conclusions of law, it should accept the
pleader's description of what happened along with any conclusions
that can reasonably be drawn therefrom. See Murray v. City of
Milford, 380 F.2d 468, 470 (2d Cir. 1967).
Furthermore, when a party makes a Rule 12(b)(6) motion, a court
will limit its consideration to the facts asserted on the face of
the complaint. See Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.
1989) (citation omitted). "A complaint will not be dismissed for
failure to state a claim unless it appears, beyond a reasonable
doubt, that a plaintiff cannot prove any set of facts entitling
him or her to relief." Kimball Assoc. P.A. v. Homer Cent. Sch.
Dist., No. 00-CV-897, 2000 WL 1720751, *2 (N.D.N.Y. Nov. 9,
2000) (citation omitted). With this standard in mind, the Court
turns to the sufficiency of Plaintiffs' claims.
Defendant Barry maintains that Defendants were innocent
purchasers of the Site. See Notice of Motion to Dismiss at 3.
In fact, Defendants purchased the land from Ulster County,
apparently unaware that it was contaminated. Defendant Barry
a party unconnected to any pollution, who purchased
from a government entity for a residential purchase,
and operated nothing on this property in equity
should be protected from draconian strict liability,
especially after it did the ethical, decent and moral
thing in transferring all its asserts to the State of
Plaintiffs correctly construe Defendant Barry's argument to be
that he is an "innocent purchaser" of the Site and, therefore,
ought not be held liable. CERCLA does indeed recognize such an
affirmative defense, but the defendant bears the burden of proof
to establish such a defense. Plaintiffs, therefore, are not
required to plead facts showing the absence of such a defense.
See Pls.' Memorandum of Law at 7 (citing Black v. Coughlin,
76 F.3d 72, 75 (2d Cir. 1996)).
Alternatively, Defendant Barry maintains that he is not the
current owner or operator of the Site because in 1989 Longboat
dissolved and transferred all of its assets to the State.
On a motion to dismiss, the Court's consideration is limited to
the allegations in the complaint. After discovery Defendants may
be able to establish Longboat was either an innocent purchaser of
the Site or that Defendants are not the current owners/operators
of the Site. However, at this stage of the litigation, the Court
cannot conclude that Plaintiffs will not be able to prove any set
of facts entitling them to relief. The Court, therefore, denies
Defendant Barry's motion to dismiss the complaint for failure to
state a claim.
D. Failure to join necessary parties under Rule 19
Defendant Barry cites to a long list of companies that occupied
the Site prior to him which probably had some involvement in the
contamination of the property. See Notice of Motion to Dismiss
at 4. He maintains that proceeding without these parties would be
prejudicial to his case.
Defendant Barry's argument is flawed for two reasons. First,
CERCLA does not require that the State sue all potentially
responsible parties in a cost recovery action. See United States
v. Consolidation Coal Co., Civ. A. No. 89-2124, 1991 WL 333694,
*5 (W.D.Pa. July 5, 1991) (citations omitted). Second, if
Defendant Barry believes other parties are responsible for
contamination of the Site, he may seek contribution from those
parties either by joining them as third-party defendants or
commencing a separate action against them. See
42 U.S.C. § 9613(f)(1). The Court, therefore, denies Defendant Barry's
motion to dismiss on the ground that Plaintiffs have failed to join
necessary parties under Rule 19 of the Federal Rule of Civil
E. Entitlement to a jury trial
Finally, Defendant Barry mentions in his reply papers that he
has a right to a jury trial. He asks that the Court decide that
he has properly made a demand for a jury trial pursuant to Rule
38(b) of the Federal Rules of Civil Procedure. Defendant Barry
did, in fact, request a jury trial in his answer. See Def.
Barry's Answer at 4.
Although the Second Circuit has not directly ruled on this
issue, it has noted that the overwhelming weight of authority
holds that Congress did not intend a jury trial when the
plaintiff seeks recovery of response costs. See State of New
York v. Lashins Arcade Co., 91 F.3d 353, 362 (2d Cir. 1996)
(citing Hatco Corp. v. W.R. Grace & Co.-Conn., 59 F.3d 400,
411-12 (3d Cir. 1995) (other citations omitted)). Defendant Barry
is, however, entitled to a jury trial on his state law claims.
Therefore, should this matter proceed to trial, the Court will
simultaneously hold a jury trial on the state law claims and a
bench trial on the CERCLA claim. See, e.g., Prisco v. A & D
Carting Corp., et. al., 168 F.3d 593, 598 (2d Cir. 1999).
After carefully reviewing the file, the parties' submissions,
and the relevant law, and for the reasons stated herein, it is
ORDERED that Defendant Barry's Motion to Dismiss is DENIED;
and it is further
ORDERED that the parties are to contact Magistrate Judge
Sharpe to schedule a Rule 16 Conference.
IT IS SO ORDERED.