Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SOLOW BUILDING COMPANY v. ATC ASSOCIATES

September 28, 2005.

SOLOW BUILDING COMPANY., LLC AND SOLOVIEFF REALTY CO., LLC Plaintiffs,
v.
ATC ASSOCIATES, INC. AND SAFEWAY ENVIRONMENTAL CORP. Defendants.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

MEMORANDUM AND ORDER

Plaintiffs, Solow Building Company, LLC and Solovieff Realty Co., LLC (collectively, "Solow" or "plaintiffs"), brought this action against defendants, ATC Associates, Inc. ("ATC") and Safeway Environmental Corp. ("Safeway") (collectively, "defendants") alleging two causes of action in the amended complaint. In the first plaintiffs bring a civil action under 42 U.S.C. § 7604 for defendants' alleged violations of the Clean Air Act, 42 U.S.C. § 7401 et seq. (1990) ("CAA"). The second asks for a declaratory judgment under 28 U.S.C. § 2201, requesting indemnification against potential future claims brought against plaintiffs by people injured as a result of defendants' violations of the CAA. Defendants now move under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the second claim of plaintiffs' amended complaint for lack of subject matter jurisdiction and failure to state a claim. For the reasons set forth below, defendants' motion is granted and the plaintiffs' second cause of action is dismissed for lack of subject matter jurisdiction.

Background

  (1)

  Plaintiffs own a building located at 9 West 57th Street in Manhattan, New York (the "Solow Building"). (Pl.'s First Am. Compl. ("Am. Compl.") 1). Morgan Guaranty Trust Co. ("Morgan"), a tenant in the Solow Building, hired ATC to conduct air testing and monitoring, and Safeway to do asbestos abatement work on its rented floors which Morgan was obligated under the lease to demolish and renovate. (Am. Compl. 5).

  Plaintiffs assert that before beginning work in late 1998, defendants did not adequately inspect the area for asbestos. (Am. Compl. 5). Defendant Safeway also failed to appropriately wet the asbestos material. Id. Then, during the asbestos abatement work, Safeway attached duct tape or pressure-fitted lumber directly to the asbestos material. Id. When Safeway removed the tape and lumber it released asbestos into the air. Id. These actions resulted in fiber counts outside the containment area that exceeded .01 fibers per cc. (Am. Compl. 6).

  Defendants allegedly attempted to cover up Safeway's improper actions. Safeway altered their work logs for the job by changing the date when they removed certain tape from the asbestos fireproofing. (Am. Compl. 6-7). The work logs also purportedly contained alterations pertaining to the asbestos-worker certifications required by state and local laws. (Am. Compl. 7). Additionally, ATC attempted to hide from plaintiffs its failure to seal batches of air-test samples. Id.

  Plaintiffs claim that these actions constitute violations of regulations promulgated by the Environmental Protection Agency under the CAA. Furthermore, these activities were contrary to the procedures and regulations plaintiffs established regarding asbestos handling. (Am. Compl. 6).

  The abatement work was completed in 1999. Since that time no party has come forward claiming to have been injured by defendants' actions, and plaintiffs are not requesting relief from any damages they suffered as a direct result of defendants' actions. Instead, plaintiffs request a declaration, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, "that [d]efendants must indemnify [p]laintiffs for any damages or penalties they are obligated to pay arising out of the violations of the Clean Air Act or underlying conduct of [d]efendants . . . for liability to workers and other third parties for exposure to asbestos pursuant to state or federal common law." (Am. Compl. 11).

  (2) Solow originally brought this action in 2001. In 2003, defendants moved for dismissal. At that time the parties were ordered to first complete discovery in order to preserve any evidence which might not be available if a potential asbestos injury claim is asserted against Solow. Since that time significant discovery has taken place and both sides report that the majority of discovery is now complete. (Pl.s' Mem. of Law in Opp'n to Def.s' Mot. to Dismiss ["Pl. Opp'n Mem."] 13; Reply Mem. of Law in Further Supp. of Safeway Env't Corp.'s Mot. to Dismiss 1, 5).

  Discussion

  (1)

  Ripeness Standard in Declaratory Judgment Actions

  As with any federal case, the party seeking declaratory judgment has the burden to prove subject matter jurisdiction. E.R. Squibb & Sons, Inc. v. Lloyd's & Co., 241 F.3d 154, 177 (2d Cir. 2001). A case must be ripe for adjudication for the court to have subject matter jurisdiction. See Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967) (the "basic rational [for ripeness] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements."). A request for declaratory judgment is ripe only if "there is a substantial controversy, . . . of sufficient immediacy and reality." Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 17 (2d Cir. 1993) (citing Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)); see also 28 U.S.C. § 2201(a) ("In a case of actual controversy . . . any court of the United States . . . may declare the rights and other legal relations of any interested party"). Whether a matter is sufficiently immediate and real is a question that prohibits a single rule or answer, but rather requires a case-by-case analysis. Kidder, Peabody & Co. Inc. v. Maxus Energy Corp., 925 F.2d 556, 562 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.