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CATSKILL MTN. CHAP. OF TROUT UNLIMITED v. NEW YORK CITY
June 27, 2002
CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED INC.; THEODORE GORDON FLYFISHERS, INC; CATSKILL-DELAWARE NATURAL WATER ALLIANCE INC.; AND RIVERKEEPER, INC., PLAINTIFFS,
V.
CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION; AND JOEL A. MIELE, SR., COMMISSIONER OF DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, V. STATE OF NEW YORK; NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; AND ERIN M. CROTTY, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THIRD-PARTY DEFENDANTS AND COUNTER-CLAIMANTS.
The opinion of the court was delivered by: Randolph F. Treece, U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending is a motion by Plaintiffs to strike the third-party
complaint filed and served by defendants City of New York and New York
City Department of Environmental Protection (collectively referred to as
the "City Defendants"). Docket Nos. 54-56. The City opposes the
motion. Docket Nos. 63 & 64.*fn1 Also pending is a motion by the State
Defendants to realign the parties. Docket Nos. 59 & 60. By letter dated
June 19, 2002, Plaintiffs informed the Court that it does not oppose the
motion to realign the parties. Docket No. 73.*fn2 For the reasons that
follow, Plaintiffs motion is granted and the State Defendant's motion is
denied.
Plaintiffs brought this action as a citizen suit pursuant to the Clean
Water Act ("CWA"), 33 U.S.C. § 1365, seeking to enjoin Defendants
from polluting the Esopus Creek, a world-class trout stream, with highly
turbid, muddy water from the Shandaken Tunnel, and for civil penalties
for past violations. By order dated June 4, 2002, Chief U.S. District
Judge Frederick J. Scullin, Jr. granted partial summary judgment for
Plaintiffs on the issue of liability. Docket No. 66. Therefore, the only
issues remaining are what, if any, penalties and/or injunctive relief
should be granted to Plaintiffs. Judge Scullin also directed the parties
to contact the undersigned to discuss how this action can be expedited to
ensure that a trial on the issue of damages can be scheduled as soon as
possible. Id. at pp. 3-4. On June 18 and 19, 2002, a telephonic
conference call was held with all the parties and the Court. Following
the conference, the discovery and trial ready deadlines were set for
October 15, 2002, with no further extensions. Docket No. 74.
Still pending, is the City Defendants' third-party complaint seeks
indemnification and contribution from the State Defendants for any
penalties imposed by the Court. The third-party complaint also seeks
declaratory relief stating that the State's release requirements are
preempted by the CWA.*fn3
A. Procedure for Filing a Third-Party Complaint
Initially, Plaintiffs contend that the third-party complaint should be
stricken because the City Defendants failed to seek leave to file the
complaint by way of motion as required by Fed. R. Civ. P. 14(a).
Fed.R.Civ.P. 14(a) requires a proposed third-party plaintiff to seek
leave by motion
to file and serve a third-party complaint after ten days
have elapsed since the filing of the original answer. Here, the
Pre-Trial Scheduling Order also required a motion for joinder of a
party, including impleader, to be filed and served on or before April 30,
2002. Docket No. 39. The City Defendants filed and served a third-party
complaint on April 30, 2002, without first seeking leave of court.
Docket No. 43. The City Defendants, however, did not seek leave by
motion upon verbal assurances from this Court that a motion was not
required. Therefore, the motion to strike the third-party complaint
should not be granted on this ground. Nonetheless, fairness to
Plaintiffs dictates that the standard that would have applied if the City
Defendants had sought leave by motion to file the third-party complaint
be utilized here.
Impleader should be freely granted "unless to do so would prejudice the
plaintiff [and the third-party defendant], unduly complicate the trial, or
would foster an obviously unmeritorious claim." Fashion-In-Prints, Inc.
v. Salon, Marrow & Dyckman, L.L.P., 97 CIV 340, 1999 WL 500149, at *6
(S.D.N.Y. July 15, 1999) (citation omitted). Courts should also consider
"whether the movant deliberately delayed or was derelict in filing the
motion. . . ." Id. Finally, the Second Circuit has held that Rule 14(a)
requires "that the impleader action must be dependent on, or derivative
of, the main . . . claim." Bank of India v. Trendi Sportswear, Inc.,
239 F.3d 428, 437-38 (2d Cir. 2000).*fn4
B. Indemnification and Contribution
The City Defendants seek indemnification and contribution from the
State Defendants for any penalties imposed by the Court. In order for
the City Defendants to assert their claims for indemnification and
contribution, they must have a viable claim under the CWA against the
State Defendants and the State Defendants must in turn share the City
Defendants' liability to the Plaintiffs. See National Union Fire Ins.
Co. of Pittsburgh, PA v. F.D.I.C., 887 F. Supp. 262, 264 (D.Kan. 1995)
(citation omitted); see also Patten v. Knutzen, 646 F. Supp. 427, 429
(D.Colo. 1986). The City Defendants are strictly liable to the
Plaintiffs for violation of the CWA. See Order (Docket No. 66), p. 2
(citing Connecticut Fund for the Env't Inc. v. Upjohn Co.,
660 F. Supp. 1397, 1409 (D.Conn. 1987). The City Defendants contend that
since state regulations require the release of water from the Shandaken
Tunnel, the State Defendants may be liable for some or all of the
penalties incurred by the City Defendants. The Second Circuit, however,
has held that the citizen suit provisions of the CWA do not abrogate
state sovereign immunity. See Burnette v. Carothers, 192 F.3d 52, 57 (2d
Cir. 1999). Since the State Defendants cannot be held liable under the
CWA for monetary damages, the City Defendants do not have a viable claim
for indemnification and contribution under the CWA.
The City Defendants' third-party complaint also seeks declaratory
judgment stating that the state release requirements are preempted by the
CWA and the Supremacy Clause. However, whether the state release
requirements are preempted by the CWA and the Supremacy Clause is
irrelevant to the issue of liability, which has already been determined
by the Court. Further, it may be relevant that the City Defendants
violated the CWA because of state regulations in determining what, if
any, penalties should be imposed. Nonetheless, what penalties should be
imposed because the City Defendants were acting at the direction of the
State Defendants' is not dependent on, or derivative of, the Plaintiffs
action against the City Defendants. Any relevant information the State
Defendants could provide on the remaining issue of relief can be
presented through affidavits and/or testimony at trial. Finally, any
declaratory relief regarding ...