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