Had plaintiff stopped here, the inquiry would be at an end. Plaintiff did not so stop. Specifically, plaintiff also seeks, inter alia, to have defendants ordered to take other appropriate actions to remedy, mitigate, or offset the harm to public health caused by the alleged violations, including, but not limited to: (1) ensuring that all residential dwellings that were improperly abated are safe for human habitation; and (2) conducting medical monitoring of those residents who may be exposed to the grave health risks of lead poisoning. (Complaint, Docket No. 1, Prayer for Relief, p. 20, ¶ 3). This relief is facially at odds with what is presumed to be the essential purpose of the lawsuit — to halt allegedly improper conduct. That purpose serves plaintiff's members as a whole, and goes to the heart of a remedy like injunctive relief. This relief, on the other hand, is inconsistent with the notion that the benefit of the litigation inures to the group as a whole, in that it focuses more on individual injuries that may have been suffered by individual members.
At trial, each and every person whose home was allegedly abated improperly would not only have to testify as to the background material that their homes had work performed, which is permissible but certainly not necessary, see supra, such persons would also have to testify to their current medical condition. According to plaintiff, the number of homes abated under the program number in the hundreds. If it is assumed that more than one individual lives at most homes, that number could easily eclipse one thousand. In addition, the scope of medical monitoring will not be uniform. Each person may have been subject to different levels of exposure, and may require different types of monitoring, varying in degree and quantity. It is this type of heterogenous relief, requiring extensive individual participation, that is sought to be curtailed by the third prong of the Hunt test.
B. SCOPE OF RELIEF
Even if plaintiff's presumed contention that medical monitoring will be uniform, or that it will merely be a consequence of ordering the relief and will not require individual proof at trial, it is still relief that is beyond the scope afforded by the TSCA. The same is true of other relief sought by plaintiff, namely "[o]rder[ing] [d]efendants to remedy their violations of TSCA," and "[o]rdering [d]efendants to . . . ensur[e] that all residential dwellings that were improperly abated are safe for human habitation." (Complaint, Docket No. 1, Prayer for Relief, p. 20, ¶¶ 2, 3(a)).*fn3 All parties agree that the TSCA only authorizes citizen suits "to restrain" violations of its substantive provisions. 15 U.S.C. § 2619(a)(1)(B); (Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss, Docket No. 22, p. 15); (Def. Memo. at 17); (Reply Memorandum of Law in Support of Defendants' Motion to Dismiss, Docket No. 24, p. 9).
The injunctive relief sought by plaintiff — to permanently enjoin defendants from violating the statutory/regulatory provisions — is certainly that which is contemplated by the TSCA. To "restrain" means "[t]o control [or] check" or "[t]o limit or restrict." The American Heritage Dictionary (2d ed. 1985). Because the word is in the present tense, and you cannot control, check, limit, or restrict anything that has already stopped, it is implied in the statutory language that a citizen suit may seek "to restrain" something that is ongoing or continuous, and that may continue in the future. Thus, the injunctive relief, which seeks to restrain the alleged ongoing violations of the TSCA and any future violations of the TSCA, is permissible.*fn4
Isolating the phrase "to restrain" from its statutory text may compel the conclusion that ordering defendants to remediate any allegedly improperly abated homes and to medically monitor those whose homes were abated is also indicative of a future restraint.
However, the statute permits only restraint of violations of the TSCA, not restraints on the consequences of violations of the TSCA. To re-abate the homes and to medically monitor residents restrains people from being ill or from being exposed to lead-based paint. These are not violations of the TSCA. The TSCA is in place to serve as a procedural guide to abating homes with lead-based paint hazards.
Indeed, the relief sought does not really "restrain" anything. It is more reasonable to read it as seeking to "remedy" the alleged violations of the statute, a word plaintiff itself uses in the Complaint when describing the relief sought. The verb "remedy" means "[t]o set right or rectify (an error)." The American Heritage Dictionary (2d ed. 1985). It does not mean to stop or prevent something that is ongoing like the phrase "to restrain" does. Had the drafters of the TSCA meant to permit plaintiff to seek to not only stop statutory violations, but also have defendants take such drastic steps to right the wrongs to individual members of plaintiff, it is hoped they would have made that clear. Accordingly, that part of the relief sought by plaintiff — to order defendants to remedy the alleged violations, to order defendants to ensure that all improperly abated dwellings are made safe for habitation, and to order defendants to medically monitor all persons residing or recreating in such dwellings — is inappropriate and that part of the Complaint must be dismissed with prejudice.
It is important to note that this is not to be interpreted to mean that individual members of plaintiff, if the statutory violations are eventually proven, will not have claims that may involve remedying the improper abatements or being medically monitored. Those individual plaintiffs may well have those rights vindicated under other laws, federal and/or state. It is only concluded here that plaintiff, as an unincorporated association bringing suit on behalf of its members under the TSCA to restrain ongoing violations, cannot seek such relief.
C. CAPACITY TO SUE*fn5
In addition to the above-noted problems, the Complaint is also wrought with a capacity-related defect. Where plaintiff, like the one here, is not an individual or corporation, Fed.R.Civ.P. 17(b) provides that:
capacity to sue or be sued shall be determined by the
law of the state in which the district court is held,
except (1) that a partnership or other unincorporated
association, which has no such capacity by the law of
such state, may sue or be sued in its common name for
the purpose of enforcing for or against it a
substantive right existing under the Constitution or
laws of the United States, . . .
It is not in dispute that plaintiff is suing "for the purpose of enforcing for or against it a substantive right existing under the . . . laws of the United States." What is in dispute is whether that fact excuses plaintiff from heeding the provisions of New York State law dealing with the mechanics of a lawsuit involving an unincorporated association. In other words, it must be determined whether subsection (1) is an exception, as plaintiff terms it, to the rule immediately preceding it — that capacity to sue is to be determined by the law of the state in which the district court sits — or whether it applies only when plaintiff is seeking vindication of rights created by federal law and the law of the state in which the district court sits does not grant plaintiff capacity to sue.
It is here found that the latter interpretation controls. One need look no further than the clear language of Fed.R.Civ.P. 17(b). Immediately following "partnership or other unincorporated association" is a comma and then the phrase "which has no such capacity by the law of such state." Common rules of grammar and syntax tell us that the use of the comma and then the immediate use of the word "which" evinces an intent to have the phrase refer to the immediately preceding noun — in this case, the noun "unincorporated association." There are no words indicative of an alternative or of an intent to make the phrase optional.
Further, if plaintiff's interpretation were correct, the phrase would be mere surplusage. It would not be needed. The language would simply read "except that a partnership or other unincorporated association may sue or be sued in its common name for the purpose of enforcing for or against it a substantive a substantive right existing under the Constitution or laws of the United States." This would make the entire rule potentially inapplicable to every lawsuit which does not have its basis in diversity of citizenship. All lawsuits in federal court under the auspices of federal question jurisdiction are filed to enforce federally created rights. Essentially, such an interpretation would make state rules governing capacity to sue applicable only to suits grounded in diversity of citizenship. Had the drafters of the rule intended a conclusion so at odds with the text and notions of common sense, they would have surely drafted it differently.
It is more likely therefore that the relevant language is present to provide for those situations where state law provides no capacity to sue or be sued. Another look at the statutory language used supports this conclusion. The operative phrase — "which has no such capacity by the law of such state" — tellingly uses the words "by the law of such state." The word "such" implies that the law being referred to has already been mentioned in the text. Otherwise, the applicable state law would be explicitly mentioned in the operative phrase. The lead-in phrase prior to the subdivision (1) clause provides the answer as to which state law is being referenced by the words "by the law of such state." Specifically, it is the "law of the state in which the district court is held." This lawsuit is in the Northern District of New York, so the applicable state law is New York. Therefore, only if New York State law does not grant plaintiff capacity to sue, and plaintiff is seeking redress for the alleged violation of a federal right, does Fed.R.Civ.P. 17(b)(1) allow suit to proceed in plaintiff's name.
Capacity to sue often "depends purely upon a litigant's status." Schaffer, 84 N.Y.2d at 155. Here, plaintiff admittedly is an "unincorporated association." (See Complaint, Docket No. 1, ¶ 10: "Plaintiff . . . is an unincorporated, not-for-profit association of residents who live in the Arbor Hill neighborhood, adjacent to downtown Albany"). Pursuant to N.Y. General Associations Law § 12, an unincorporated associations is afforded the capacity to sue through its presidents or treasurer. Schaffer, 84 N.Y.2d at 155; Tibaldi v. Brezenoff, 65 N.Y.2d 710, 711, 492 N.Y.S.2d 4 (1985), or, because the statutory provision is generally viewed as "a pleading and procedural aid," Sackman v. Maritas, 595 N.Y.S.2d 655, 656 (N.Y.Sup.Ct. 1992), and not as "denying a right of action to an association lacking officers bearing such titles," Locke Associates, Inc. v. Foundation for the Support of the United Nations, 173 Misc.2d 502, 504, 661 N.Y.S.2d 691 (N.Y.C. Civ. Ct. 1997), suit can be brought in the name of "an officer who is the functional equivalent" to a president or treasurer. Id.
The instant action was filed in the name of the unincorporated association alone, and not through its president or treasurer, or officer who executes equivalent functions. Nonetheless, this defect is not fatal and can be corrected. See, e.g., Concerned Citizens of Albany-Shaker Road v. State, 528 N.Y.S.2d 230, 232 (N.Y.App.Div. 1988). Plaintiff will be permitted to file an Amended Complaint, this time in the name of the appropriate officer. If plaintiff "has a president or treasurer, title alone is statutorily determinative. The court need not inquire into their specific functions, or whether they are appropriate representative parties. [If plaintiff has] no president or treasurer, the court must examine the organization's structure to determine if the person who commenced the action is an elected or de facto officer performing equivalent functions and responsibilities" as a president or treasurer. Locke Associates, 173 Misc.2d at 504. Therefore, only in the event that plaintiff has no president or treasurer do the specific functions of the person in whose name the suit is brought require delineation in the pleadings.*fn6
D. CONDITIONAL DISMISSAL
Defendants' motion to dismiss the complaint will be granted in part and conditionally granted in part. Plaintiff may file an Amended Complaint to correct the jurisdictional and capacity-related defects in the pleadings. Specifically, plaintiff must include in the Amended Complaint, sufficient allegations that particular members of it had lead-based paint abatement work performed and are suffering a concrete and particular, and actual or imminent, injury therefrom. Plaintiff must also file the Amended Complaint in the name of its President or Treasurer, or an individual performing equivalent functions in accordance with the instructions above. In the event plaintiff cannot correct the jurisdictional and capacity-related defects by complying with the foregoing, the Complaint will be dismissed without prejudice.
That part of the Complaint relating to relief that was found to be beyond the scope of the TSCA, however, is dismissed with prejudice and must be omitted from the Amended Complaint.
On the current pleadings, plaintiff has not established standing and does not have the capacity under New York State law to maintain this suit. Plaintiff may file and serve an Amended Complaint to comply with the mandates above. Accordingly, it is
1. Defendants' motion to dismiss is GRANTED with respect to certain relief sought in the Complaint, to wit, paragraphs 2 and 3 under "Prayer for Relief" on page 20 of the Complaint, and such paragraphs are dismissed with prejudice;
2. Plaintiff is permitted to file and serve an Amended Complaint in accordance with the directives of this decision on or before April 18, 2003;
3. Upon a failure to file and serve a timely Amended Complaint — the Complaint is DISMISSED, without prejudice, and the Clerk is directed to enter judgment accordingly; and
4. Upon timely filing and service of an Amended Complaint, the defendants shall file and serve an answer or motion on or before May 16, 2003.
IT IS SO ORDERED.