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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.
I. BACKGROUND
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
II. MOTION TO STRIKE
A. Procedure for Filing a Third-Party Complaint
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.

Accordingly, Plaintiffs motion to strike the third-party complaint's claims for indemnification and contribution is granted.*fn5

C. Preemption Claim
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 ...

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