The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this environmental remediation action filed by T & K Realty, LLC ("Plaintiff") are (1) three separate motions to dismiss the Complaint for lack of subject-matter jurisdiction and/or failure to state a claim upon which relief can be granted, filed by Chambers Environmental Group, Inc., Keuka Construction Corporation, and Doug Gross Construction, Inc. ("Moving Defendants") (Dkt. Nos. 30, 38, 39), (2) a motion to amend the Complaint filed by Plaintiff (Dkt. No. 44), and (3) a motion to transfer venue to the United States District Court for the Western District of New York filed by Plaintiff (Dkt. No. 44). For the reasons set forth below, Moving Defendants' motions are denied, and Plaintiff's motions are granted.
Generally, liberally construed, Plaintiff's Complaint alleges that Defendants contaminated property owned by Plaintiff in violation of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq, and related New York State laws. More specifically, Plaintiff's Complaint asserts the following claims: (1) strict liability under 42 U.S.C. § 9607(a) against all Defendants, except Bates Consulting, Inc. ("Bates"); (2) contribution under 42 U.S.C. § 9613(b) against all Defendants, except Bates; (3) liability under Article 37 of the New York Environmental Conservation Law ("ECL") against all Defendants, except Bates; (4) negligence against all Defendants; (5) breach of contract against Defendants Teeter Environmental Services, Inc. ("Teeter Environmental") and Keuka Construction Corporation ("Keuka"); (6) private nuisance against all Defendants, except Bates; (7) common law indemnification or contribution against all Defendants, except Bates; (8) contribution under Section 178(8) of the New York State Navigation Law against all Defendants, except Bates; and (9) strict liability under Section 181(1) of the New York State Navigation Law against all Defendants, except Bates. (See generally Dkt. No. 1 [Plf.'s Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
B. Moving Defendants' Motions
Generally, in support of their motions to dismiss, Moving Defendants argue as follows:
(1) Plaintiff's CERCLA claims against Defendants Keuka and Chambers Environmental Group, Inc. ("Chambers") must be dismissed, because, based on the allegations of the Complaint, these Defendants are "covered persons" as required under CERCLA, and therefore these Defendants are not subject to a CERCLA suit; (2) Plaintiff's CERCLA § 107 claims must be dismissed because (a) Plaintiff's Complaint alleges that the contamination of Plaintiff's property involved petroleum and petroleum constituents only, which are explicitly excluded from CERCLA, and (b) the Complaint does not allege that Plaintiff has incurred "clean-up costs"; (3) Plaintiff's contribution claim pursuant to CERCLA § 113 must be dismissed because (a) the Complaint fails to allege that a CERCLA action was brought against Plaintiff, and (b) the Complaint fails to allege that the Consent Order that Plaintiff entered into with the Department of Environmental Conservation ("DEC") resolved Plaintiff's CERCLA liability; (4) Plaintiff's New York State Navigation Law claims must be dismissed because Plaintiff was responsible for the discharge;*fn1 and (5) Plaintiff's remaining state-law claims must be dismissed because, once Plaintiff's CERCLA claims are dismissed, the Court lacks jurisdiction over these claims. (See generally Dkt. No. 30, Attach. 4 [Def.'s Memo. of Law], Dkt. No. 38, Attach. 6 [Def.'s Memo. of Law], Dkt. No. 39, Attach. 2 [Def.'s Memo. of Law].)
In its response to Moving Defendants' motions to dismiss, Plaintiff argues as follows: (1) Plaintiff has pleaded a valid claim under 42 U.S.C. § 9607(a); (2) Plaintiff has pleaded a valid contribution claim under 42 U.S.C. § 9613; and (3) Plaintiff has pleaded a valid Navigation Law claim. (See generally Dkt. No. 44 [Plf.'s Response Memo. of Law].) In addition, Plaintiff requests that the Court (1) grant it leave to amend its Complaint, and (2) transfer venue of this action to the United States District Court for the Western District of New York. (Id.)
In their reply, in addition to reiterating their previous arguments, Moving Defendants argue, inter alia, as follows: (1) Plaintiff failed to refute Defendant Chambers' argument that Plaintiff's CERCLA claims should be dismissed pursuant to 12(b)(1); (2) the cases relied on by Plaintiff are distinguishable; and (3) Plaintiff's cross-motion to amend its Complaint should be denied because (a) the proposed Amended Complaint contains the same pleading deficiencies as does the Complaint, and (b) allowing leave to amend would result in undue delay and prejudice.. (See generally Dkt. No. 48 [Def.'s Reply Memo. of Law], Dkt. No. 50 [Def.'s Reply Memo. of Law]
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Motions to Dismiss for Failure to State a Claim
For the sake of brevity, the Court will not recite, in this Decision and Order, the well-known legal standard governing dismissals for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), but will direct the reader to the Court's recent decision in Wade v. Tiffin Motorhomes, Inc., 05-CV-1458, 2009 WL 3629674, at *3-5 (N.D.N.Y. Oct. 27, 2009) (Suddaby, J.).
B. Legal Standard Governing Motions to Dismiss for Lack of Subject Matter Jurisdiction
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12[b] ). "In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court... may refer to evidence outside the pleadings." Makarova, 210 F.3d at 113 (citation omitted). "A plaintiff asserting ...