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NIAGARA MOHAWK POWER CORPORATION v. CONSOLIDATED RAIL CORP.

March 3, 2004.

NIAGARA MOHAWK POWER CORPORATION, Plaintiff,
v.
CONSOLIDATED RAIL CORPORATION; THE KING SERVICE, INC.; UNITED STATES STEEL COMPANY; EDWIN D. KING; LAWRENCE KING; RICHARD B. SLOTE; CHEVRON U.S.A., INC.; PORTEC, INC.; and AMERICAN PREMIER UNDERWRITERS, INC.; Defendants; CHEVRON, U.S.A., INC., Third-party Plaintiff, vs THE COUNTY OF RENSSELAER; and THE COUNTY OF RENSSELAER SEWER DISTRICT NO. 1, Third-party Defendants



The opinion of the court was delivered by: DAVID HURD, District Judge Page 2

MEMORANDUM-DECISION and ORDER

[EDITORS' NOTE: THIS PAGE CONTAINED ATTORNEY NAMES.] Page 3

 I. INTRODUCTION

  Plaintiff Niagara Mohawk Power Corporation ("Niagara Mohawk"), brought this action under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") on July 1, 1998, seeking to recover the costs it has incurred, and will incur, to investigate and remediate manufactured gas plant hazardous wastes at the Troy Water Street Site in Troy, New York (the "Site"). The procedural history and factual background of this litigation is set forth in a Memorandum-Decision and Order dated November 6, 2003, ("MDO"), with which familiarity is assumed. See Niagara Mohawk Power Corp. v. Consolidated Rail Corp., 291 F. Supp.2d 105 (N.D.N.Y. 2003). Among other rulings, the MDO (1) granted summary judgment in favor of American Premier Underwriters, Inc. ("APU"), Consolidated Rail Corporation ("Conrail"), Portec, Inc. ("Portec"), and USX Corporation ("USX") on Niagara Mohawk's CERCLA contribution claims, (2) found King Service, Inc., Edwin D. King, and Richard B. Slote (collectively, the "King defendants") to be responsible pursuant to CERCLA as current owners and arrangers, (3) granted summary judgment in favor of Chevron on Niagara Mohawk's CERCLA contribution claim regarding Area 4 of the Site (and dismissed as moot Chevron's claims and the cross-claims against it relating to Area 4), (4) dismissed Niagara Mohawk's claims under New York Navigation Law against all Page 4 defendants, (5) dismissed Niagara Mohawk's state law claims for contribution, indemnification, and public nuisance claims against all defendants, (6) dismissed all the cross-claims asserted against USX, Conrail, APU and Portec, (7) dismissed all defendants' counterclaims for contribution under CERCLA, and (8) dismissed the third-party action brought by Chevron, U.S.A., Inc. ("Chevron") against the County of Rensselaer and the County of Rensselaer Sewer District No. 1 ("Rensselaer defendants"). The rulings result in Conrail, APU, USX, and Portec being out of the case. The King defendants filed a Notice of Appeal with the Second Circuit Court of Appeals on December 8, 2003.

  Niagara Mohawk, USX, Conrail, APU, Portec, and the King defendants (collectively "movants") move, pursuant to Federal Rule of Civil Procedure 54(b), for entry of final judgment with regard to certain rulings contained in the MDO. Specifically, the movants request that final judgment be entered as to (1) the granting of summary judgment in favor of APU, Conrail, Portec, and USX on Niagara Mohawk's CERCLA contribution claims (Count 1 of the Amended Complaint filed May 26, 1999, (the "Amended Complaint")); (2) the granting of summary judgment in favor of defendant Chevron on Niagara Mohawk's CERCLA contribution claim regarding Area 4 (Count I of the Amended Complaint); (3) the dismissal of Niagara Mohawk's claims under New York Navigation Law against all defendants (Counts II and III of the Amended Complaint); (4) the dismissal of Niagara Mohawk's state law contribution, indemnification, and public nuisance claims against all defendants (Counts IV, V and VII of the Amended Complaint); (5) the dismissal of all cross-claims asserted against USX, Conrail, APU and Portec; and (6) the dismissal of all defendants' counterclaims for contribution under CERCLA. Page 5

  Chevron opposes the entry of final judgment as to these matters. In the alternative, Chevron seeks entry of final judgment as to the dismissal of the third-party action and the dismissal of all claims and cross-claims against it relating to Area 4.

 II. DISCUSSION

  A. Legal Standard

  To avoid "the danger of hardship and the denial of justice through delay if each issue must await the determination of all issues as to all parties before a final judgment can be had" and an appeal taken, the Federal Rules of Civil Procedure permit the entry of, and thus an appeal from, a partial final judgment. Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511-12 (1950). Pursuant to Rule 54(b), a district court "may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed.R.Civ.P. 54(b). Thus, the entry of a final judgment as to some but not all claims or some but not all parties is appropriate where multiple claims or multiple parties are present; a decision of the court "finally decides" one or more, but fewer than all, claims; and the court expressly determines that there is no just reason for delay and directs the entry of judgment. Ginett v. Computer Task Group. Inc., 962 F.2d 1085, 1091 (2d Cir. 1992).

  B. Analysis

  1. Multiple Claims and Multiple Parties

  The requirement that multiple claims or multiple parties be present is satisfied where "the underlying factual bases for recovery state a number of claims which could have been separately enforced." Reiser v. Baltimore & Ohio R.R., 224 F.2d 198, 199 (2d Cir. Page 6 1955). The underlying bases for recovery alleged by Niagara Mohawk state a number of claims that could have been separately enforced. The liability of each defendant for contribution under CERCLA depends upon whether each defendant is a responsible person under CERCLA § 107(a). This determination requires an examination of facts and circumstances unique to each defendant and to each theory under which they could be found to be a responsible person under CERCLA. Similarly, for those defendants allegedly responsible for more than one area of the Site, a separate factual analysis with regard to each area is required because the underlying facts may support a finding of liability for one area but not another. In short, the underlying factual bases for recovery alleged by Niagara Mohawk state a number of claims that could have been separately enforced. Moreover, there are multiple parties, some, but not all, of whom have been dismissed from the case pursuant to the MDO.

  2. Final Decision as to some but not all Claims

  The MDO finally decides each of the claims for which Niagara Mohawk, USX, Conrail, APU, Portec, and the King Defendants seek the entry of a partial final judgment. Further, it finally decides the claims as to which Chevron seeks entry of a final judgment. The MDO "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment" with respect to (1) the granting of summary judgment in favor of APU, Conrail, Portec, and USX on Niagara Mohawk's CERCLA contribution claims; (2) the granting of summary judgment in favor of Chevron on Niagara Mohawk's CERCLA contribution claim regarding Area 4; (3) the dismissal of Niagara Mohawk's claims under New York Navigation Law against all defendants; (4) the dismissal of Niagara Mohawk's state law claims for contribution, indemnification, and public nuisance claims against all defendants; (5) the Page 7 dismissal of all the cross-claims asserted against APU, Conrail, USX, and Portec; (6) the dismissal of all defendants' counterclaims for contribution under CERCLA; (7) the dismissal ...


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