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Gail Murtaugh v. State of New York; Pete Grannis

August 16, 2011

GAIL MURTAUGH, INDIVIDUALLY AND D/B/A CROSBY HILL AUTO RECYCLING; RICHARD R. MURTAUGH; MURTAUGH RECYCLING CORP.; RICHARD O. MURTAUGH; AND FLOOD DRIVE PROPS., INC., PLAINTIFFS,
v.
STATE OF NEW YORK; PETE GRANNIS, COMM'R OF ENVTL. CONSERVATION; CNTY. OF OSWEGO; BENJAMIN CONLON; RICHARD BRAZELL; MAUREEN LEARY; OP-TECH ENVTL. SERVS., INC.; WILLIAM SIMPSON; AND ADM'R ANDREA RHONDA MILLER, DEFENDANTS,



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court in this environmental action filed by Gail Murtaugh, Richard R. Murtaugh, Murtaugh Recycling Corp., Richard O. Murtaugh, and Flood Drive Properties, Inc. ("Plaintiffs") are the following three motions: (1) a motion to dismiss for lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join indispensable parties, filed by Oswego County (hereinafter "County Defendant") (Dkt. No. 56, Attach. 30); (2) a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, filed by New York State, New York State Department of Environmental Conservation Commissioner Pete Grannis, Benjamin Conlon, Richard Brazell, Maureen Leary, and Andrea Rhonda Miller (hereinafter "State Defendants") (Dkt. No. 59, Attach. 2); and (3) a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, filed by Op-Tech Environmental Services and William Simpson (hereinafter "Corporate Defendants") (Dkt. No. 60, Attach. 3). For the reasons set forth below, County Defendant's motion is granted in part and denied in part; State Defendants' motion is granted; and Corporate Defendants' motion is granted.

TABLE OF CONTENTS

I. RELEVANT BACKGROUND.................................................................................................5

A. Plaintiff's Claims..........................................................................................................5

B. Defendants' Motions.....................................................................................................7

1. County Defendant's Motion.............................................................................7

2. State Defendants' Motion...............................................................................11

3. Corporate Defendants' Motion.......................................................................17

II. RELEVANT LEGAL STANDARDS.....................................................................................20

A. Standard Governing Dismissals for Failure to State a Claim.....................................20

B. Standard Governing Dismissals for Lack of Subject-Matter Jurisdiction..................20

C. Standard Governing Dismissals for Failure to Join Indispensable Party....................21

D. Standards Governing Plaintiffs' Claims.....................................................................22

III. ANALYSIS.............................................................................................................................23

A. Murtaugh Plaintiffs' CWA Claim..............................................................................23

1. Whether Murtaugh Plaintiffs' Claim Should Be Dismissed on the Ground of Lack of Standing, "Public Policy," Collateral Estoppel and/or Failure to Fulfill the Jurisdictional Notice Requirement.....................23

2. Whether, in the Alternative, Murtaugh Plaintiffs Have Failed to Allege that, at the Time They Filed Their Complaint, There Was a Continuous or Intermittent Violation of the CWA and a Reasonable Likelihood that County Defendant Would Continue to Pollute........................................29

3. Whether, in the Alternative, Murtaugh Plaintiffs' Claim Should Be Dismissed for Failure to Join an Indispensable Party....................................29

4. Whether, in the Alternative, the Eleventh Amendment Bars Murtaugh Plaintiffs' Claim Against Defendant Grannis.................................................30

B. Murtaugh Plaintiffs' RCRA Claims............................................................................32

1. Claim Under 42 U.S.C. § 6972(a)(1)(A)........................................................32

a. Whether Murtaugh Plaintiffs' Claim Should Be Dismissed on Grounds of Lack of Standing, "Public Policy," Collateral Estoppel and/or the Eleventh Amendment.........................................32

b. Whether, in the Alternative, Murtaugh Plaintiffs Have Failed to Allege that, at the Time They Filed Their Complaint, County Defendant Was Accepting and/or Introducing Waste to the City Dump...............................................................................37

2. Claim Under 42 U.S.C. § 6972(a)(1)(B)........................................................37

C. Plaintiffs' CERCLA Claim..........................................................................................41

D. Plaintiffs' Civil Rights Claims Under 42 U.S.C. § 1983..............................................46

1. Due Process Claims Against Defendants Conlon, Brazell, and Leary Corporate Defendants....................................................................................46

2. Unlawful-Search-and-Seizure Claims Against Defendants Conlon, Brazell, and Leary and Corporate Defendants...............................................51

E. Plaintiff Gail Murtaugh's Due Process and Unlawful-Search-and-Seizure Claims Against Defendant Leary and Corporate Defendants.....................................53

F. Plaintiffs' State Law Claims.........................................................................................56

1. Claim for Nuisance Against Defendant New York State, Defendant Grannis, and County Defendant....................................................................56

2. Claim for Declaratory Relief Against Defendant New York State, and Defendants Miller, Brazell, Conlon, and Leary......................................62

3. Claim for Negligence Against Corporate Defendants....................................62

G. State Defendants' and Corporate Defendants' Abstention Arguments......................63

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

On October 30, 2008, Plaintiffs filed their Complaint in this action. (Dkt. No. 1.) On July 16, 2009, Plaintiffs filed an Amended Complaint. (Dkt. No. 46.) Generally, Plaintiffs' Amended Complaint asserts claims against Defendants arising from the alleged ownership and operation of the Old City of Fulton Dump (hereinafter "City Dump"), located at 40 Airport Drive, Fulton New York (hereinafter "County Property"), which allegedly has discharged, and continues to discharge, pollutants, hazardous substances and hazardous waste into the water of the United States and onto the property of Plaintiffs Gail Murtaugh and Flood Drive Properties, Inc. (Id.)

More specifically, Plaintiff's Amended Complaint asserts the following three claims by Plaintiffs Gail Murtaugh, Richard R. Murtaugh, and Murtaugh Recycling Corp. ("Murtaugh Plaintiffs"), against County Defendant and Defendant Grannis: (1) a claim of violation of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq., based on the unlawful discharge of pollutants to an unnamed tributary of the Oswego River; (2) a claim of violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(A), based on the maintenance of an "open dump," which negatively impacts Murtaugh Plaintiffs and their real property and business operations; and (3) a claim of violation of RCRA, 42 U.S.C. § 6972(a)(1)(B), based on the handling, storage, treatment, transportation, or disposal of solid or hazardous waste contained on, at, or about the Old City of Fulton Dump (hereinafter "City Dump") located at 40 Airport Drive, Fulton New York (hereinafter "County Property"). (Id.)

In addition, Plaintiffs' Amended Complaint asserts the following claims by all Plaintiffs against County Defendant, Defendant New York State, and Defendant Grannis: (1) a claim of violation of 42 U.S.C. § 9601 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), based on the releasing or threatened releasing of hazardous substances from, at, and about the City Dump; and (2) a state law claim for nuisance, based on the City Dump's discharge and release of leachate containing polluntants, hazardous substances, and hazardous wastes onto the real property located at 180 Flood Drive in the Town of Volney, Oswego County, New York (hereinafter "the Murtaugh Property") and the real property located at 170 Flood Drive, Town of Volney, Oswego County, New York (hereinafter the "Flood Property"). (Id.)

Finally, Plaintiffs' Amended Complaint asserts the following five claims against certain State Defendants and all Corporate Defendants arising from their entry onto Plaintiffs' properties, and removal of certain materials: (1) a claim of violation of due process and unlawful search and seizure under the Constitution and 42 U.S.C. § 1983, asserted by all Plaintiffs against Defendants Conlon, Brazell, and Leary, and Corporate Defendants, based on those Defendants' entry onto Plaintiffs' properties and creation of an excavation, which lowered the water table and induced and enhanced the flow of leachate discharge from the upgradient City Dump; (2) a claim of violation of due process and unlawful search and seizure under the Constitution and 42 U.S.C. § 1983, asserted by Plaintiff Gail Murtaugh, individually and d/b/a Crosby Hill Auto Recycling Corp., against Defendant Leary and Corporate Defendants, based on the removal and sale of scarp metal from the Murtaugh Property; (3) a state law claim for unlawful, willful, or malicious acts or omissions, asserted by all Plaintiffs against Defendant New York State, and Defendants Miller, Leary, Conlon, and Brazell, based on actions that caused the lowering of the water table on the Murtaugh Property, which resulted in unpermitted point source discharges from the City Dump, the induced flow of pollutants and hazardous wastes, and a destruction of a portion of the property; and (4) a state law claim for negligence, asserted by all Plaintiffs against Corporate Defendants, based on actions and omissions concerning the Murtaugh Property and the Flood Property. (Id.)

Familiarity with the factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Defendants' Motions

1. County Defendant's Motion

Generally, in support of its motion to dismiss for lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join indispensable parties, County Defendant argues as follows: (1) the Court lacks subject-matter jurisdiction over Plaintiffs' CERCLA claim and/or Plaintiffs' have failed to state a CERCLA claim because (a) Plaintiffs are admitted polluters of their property, (b) the County is not a "covered person" under CERCLA, (c) Plaintiffs have not suffered an injury in fact from anyone's actions, (d) this claim is barred by the doctrine of collateral estoppel because the issues giving rise to this claim have been fully litigated in, and are inextricably intertwined with, prior New York State court decisions, and (e) any claim arising out of 42 U.S.C. § 9613(f)(1) based on inadequate notice of reclassification of the City Dump is barred by the governing three-year statute of limitations; (2) the Court lacks subject-matter jurisdiction over Plaintiffs' RCRA claim and/or Plaintiffs' have failed to state a RCRA claim because (a) a citizen suit cannot be used to enforce RCRA's permitting and/or operating regulations or standards, (b) 40 C.F.R. § 258.1 specifically exempts municipal solid waste landfills from liability under the RCRA, (c) a necessary element of a RCRA claim is that the dump pose an imminent and substantial endangerment to health or the environment, and here the City Dump does not present a significant threat to the public health or environment (because it has been classified as a Class 3 site), (d) County Defendant is not a "contributor" under 42 U.S.C. § 6972(a)(1)(B) of the RCRA, and (e) this claim is barred by the doctrine of collateral estoppel in that the issues giving rise to this claim have been fully litigated and are inextricably intertwined with prior New York Sate court decisions; (3) the Court lacks subject-matter jurisdiction over Murtaugh Plaintiffs' CWA claim and/or Murtaugh Plaintiffs have failed to state a CWA claim because (a) the results of the numerous proceedings mentioned in the Amended Complaint found that the former City Dump did not impact Plaintiffs' premises,

(b) a necessary element of a CWA claim is that the dump pose an imminent and substantial endangerment to health or the environment, and here the City Dump does not present a significant threat to the public health or environment (in that it has been classified as a Class 3 site), (c) this claim is barred by the doctrine of collateral estoppel because the issues giving rise to this claim have been fully litigated and are inextricably intertwined with prior New York State court decisions, and (d) Plaintiff's Notice of Intent to the County was inadequate because it did not inform the County what pollutant it was being attributed to releasing;*fn1 (4) Plaintiffs' nuisance claim should be dismissed because (a) it is barred by the governing statute of limitations, (b) the Court should not exercise supplemental jurisdiction over Plaintiffs' state law claims after dismissing their federal claims, and (c) Plaintiffs failed to timely serve a notice of this claim; (5) Plaintiffs are not entitled to injunctive relief because they cannot show irreparable harm to themselves or the public caused by others; and (6) Plaintiffs have failed to join the parties that they identified in their Notice of Intent to Sue, who they acknowledge contributed to the past and present contamination and alleged imminent endangerment to health or the environment, and who are therefore indispensable. (See generally Dkt. No. 56, Attach. 30 [County Def.'s Memo. of Law].)

In their response to County Defendants' motion, Murtaugh Plaintiffs argue as follows:

(1) because the County Defendant's motion does not comply with Fed. R. Civ. P. 7, 8, and 12(b), the Court should decline to consider any of the evidence submitted by County Defendant; (2) County Defendant's argument that Murtaugh Plaintiffs lack standing is without merit; (3) Plaintiffs have alleged facts plausibly suggesting that County Defendant, through State and Corporate Defendants, accepted and/or introduced waste (or other hazardous substances) to the City Dump; (4) Murtaugh Plaintiffs are not barred by the doctrine of collateral estoppel from bringing this action; (5) the Amended Complaint states a cause of action under the CWA; (6) Plaintiffs' CERCLA claim should not be dismissed because (a) they have pled a prima facie case of liability, (b) the fact that Murtaugh Plaintiffs have admitted to contaminating the Murtaugh Property does not preclude them from bringing this action to recover costs for past releases and continuing releases of leachate, acetone and other pollutants that flow from the City Dump onto the Murtaugh Property, (c) the existence of past, and the threat of future, releases has not already been adjudicated in New York State court, (d) the issue of whether the County acquired the City Dump involuntarily or is an "owner or operator" involves a question of fact, and is therefore not a basis for dismissal under Fed. R. Civ. P. 12(b), and (e) whether the alleged release was the result of acts or omissions by third parties involves a question of fact, and is therefore not a basis for dismissal under Fed. R. Civ. P. 12(b); (7) Plaintiffs' claim under § 6972(a)(1)(A) of the RCRA should not be dismissed because (a) County Defendant is subject to regulation pursuant to 40 C.F.R. § 257, (b) Plaintiffs have alleged facts plausibly suggesting that County Defendant owns or operates the City Dump, which is an "open dump," and (c) Plaintiffs have alleged facts plausibly suggesting that the City Dump has one or more regular ongoing or intermittent point source discharges of leachate, acetone and other pollutants into waters of the United States, and those discharges are without the benefit of the necessary permits; (8) Plaintiffs' claim under § 6972(a)(1)(B) of the RCRA should not be dismissed because they have alleged facts plausibly suggesting the occurrences of continued discharges of leachate subsequent to 2005, and uncontrolled discharges of pollutants in volumes sufficient to saturate the Flood Property and turn significant portions orange in color; (9) Plaintiffs' state law nuisance claim should not be dismissed because (a) federal causes of action should remain in this case, (b) the notice of claim was proper, and (c) the statute of limitations had not expired when this claim was brought; and (10) County Defendant's argument that Plaintiffs failed to name an indispensable party is without merit. (See generally Dkt. No. 66 [Response Memo. of Law].)

In their response to County Defendants' motion, Richard O. Murtaugh, and Flood Drive Properties, Inc. ("Flood Plaintiffs") argue as follows: (1) County Defendant's argument that Plaintiffs lack standing is without merit; (2) Plaintiffs' CERCLA claim should not be dismissed because (a) they have pled a prima facie case of liability, (b) the fact that Murtaugh Plaintiffs have admitted to contaminating the Murtaugh Property does not preclude Flood Plaintiffs from bringing this action to recover costs for past releases and continuing releases of leachate, acetone and other pollutants which flow from the City Dump onto the Flood Property, (c) the existence of past, and the threat of future, releases has not already been adjudicated in New York State court, (d) the issue of whether the County acquired the City Dump involuntarily or is an "owner or operator" involves a question of fact, and is therefore not a basis for dismissal under Fed. R. Civ. P. 12(b), and (e) whether the alleged release was the result of acts or omissions by third parties involves a question of fact, and is therefore not a basis for dismissal under Fed. R. Civ. P. 12(b); (3) Plaintiffs' state law nuisance claim should not be dismissed because (a) federal causes of action should remain in this case, (b) the notice of claim was proper, and (c) the statute of limitations had not expired when this claim was brought; and (4) County Defendant's argument that Plaintiffs failed to name an indispensable party is without merit. (See generally Dkt. No. 68 [Response Memo. of Law].)

In its reply, County Defendant essentially reiterates previously advanced arguments. (See generally Dkt. No. 72 [County Def.'s Reply Memo. of Law].)

2. State Defendants' Motion

Generally, in support of their motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, State Defendants argue as follows: (1) the Court should abstain from exercising jurisdiction over this action because (a) litigation was fully underway in New York State court before this action was commenced, (b) Plaintiffs' claim that governmental officials have derelicted their obligations under relevant statutes and regulations implicates an important state interest, and (c) New York State courts will afford the parties a full and fair opportunity to litigate the claims/issues presented in the Amended Complaint; (2) the Court should alternatively abstain from exercising jurisdiction over this action because New York State has a compelling interest in deciding litigation challenging its authority to regulate and remediate contaminated property, and abstention avoids disturbing state efforts to establish a coherent policy with respect to a matter of substantial public concern; (3) the Court should decline to exercise jurisdiction over Plaintiffs' claims pursuant to the Rooker-Feldman doctrine because the relief that Plaintiffs seek would effectively void or reverse a related ruling in New York State court; (4) Plaintiffs' claims are barred by the doctrine of collateral estoppel because all issues raised in this action have been briefed, argued, adjudicated and rejected in New York State Supreme Court; (5) State Defendants are immune from suit under the doctrine of sovereign immunity because the claims asserted against the individual State Defendants are actually claims asserted against them in their official capacity and Plaintiffs have failed to establish that New York State waived its sovereign immunity; (6) individual State Defendants are entitled to qualified immunity because their actions did not violate any clearly established rights, and were not objectively unreasonable, in light of the authority granted to them by an administrative law judge and the New York State courts to conduct investigative and remedial activities on Plaintiffs' properties; (7) Plaintiffs' claims under 42 U.S.C. § 1983 should be dismissed because (a) they have failed to allege facts plausibly suggesting that State Defendants interfered with a constitutionally cognizable property interest, (b) Plaintiffs have failed to allege facts plausibly suggesting that State Defendants' efforts to investigate and remediate Plaintiffs' environmental violations were "arbitrary," such that Plaintiffs may succeed on their substantive due process claim, and (c) Plaintiffs have failed to allege facts plausibly suggesting that State Defendants' actions constitute a "taking" because (i) Plaintiffs have no cognizable right to carry on with their auto dismantling/recycling business, and no legitimate property interest in the scrap metal and contaminated junk removed from their property, (ii) a New York State court has already concluded that the contamination on Plaintiffs' properties predated any remediation efforts by New York State, and (iii) the allegation that State Defendants caused pollution damage to Plaintiffs' properties by engaging in remedial work and/or failing to eradicate the adjacent landfill is conclusory and unsupported by any other factual allegations; (8) Plaintiffs lack standing to assert causes of action under CERCLA, the CWA, and the RCRA because the New York State Department of Environmental Conservation ("NYS DEC") and New York State courts have determined that Plaintiffs contaminated their own property, and it would violate public policy to allow such culpable parties to invoke federal environmental statutes against the agency which sought to investigate, curtail and remediate the pollution; (9) Plaintiffs' claim under the CWA must be alternatively dismissed because (a) they failed to fulfill the jurisdictional notice requirement of the CWA, and (b) they have failed to allege facts plausibly suggesting a claim under the CWA; (10) Plaintiffs' claim under § 6972(a)(1)(A) of the RCRA must alternatively be dismissed because (a) Defendant Grannis is not the "owner" or "operator" of the City Dump, and his authority to decide whether and how to investigate environmental complaints cannot serve as a jurisdictional basis for a citizen suit under the RCRA, (b) Defendant Grannis cannot plausibly be in violation of any "permit, standard, regulation, condition, requirement, prohibition, or order" involving the City Dump because the landfill was closed before the RCRA was enacted, (c) the City Dump cannot be an "open dump," violative of the RCRA, because the statute expressly excludes sanitary landfills and facilities which are disposal facilities for hazardous waste; (11) Plaintiffs' claim under § 6972(a)(1)(B) of the RCRA must alternatively be dismissed because (a) the City Dump has been, and continues to be, regulated as a Class 3 site on the New York State Inactive Hazardous Waste Site Registry, and therefore it does not present an "imminent and substantial endangerment" as a matter of law, and (b) Plaintiffs have failed to allege facts plausibly suggesting that they have been the "innocent victims" of contamination that has caused, or has the real potential to cause, an "imminent and substantial endangerment"; (12) Plaintiffs' claim under CERCLA must alternatively be dismissed because (a) they have failed to allege facts plausibly suggesting that they have engaged in any remedial activities at the former City Dump, or on their own property, and (b) Plaintiffs have failed to allege facts plausibly suggesting that Defendant Grannis had anything to do with the City Dump prior to its closure in 1974; and (13) Plaintiffs' state law claims should be dismissed because (a) no federal cause of action should survive this motion, and therefore it would be improper for the Court to exercise jurisdiction over the pendent claims, (b) Plaintiffs have already litigated and lost their state law claims in New York State court, (c) to the extent Plaintiffs' pendent claims remain pending in New York State court, the Court should abstain from considering these claims pursuant to the Younger, Burford, and Rooker-Feldman doctrines, and (d) Plaintiffs' pendent claims must fail under the doctrine of qualified immunity. (See generally Dkt. No. 59, Attach. 2 [State Defs.' Memo. of Law].)

In their response to State Defendants' motion, Murtaugh Plaintiffs argue as follows: (1) because State Defendants' motion does not comply with Fed. R. Civ. P. 7, 8, and 12(b), the Court should decline to consider any of the evidence submitted by State Defendants; (2) the Court should not abstain from exercising jurisdiction over this action because none of the abstention doctrines are applicable; (3) Plaintiffs' notice of intent satisfied the jurisdictional requirements of the CWA; (4) State Defendants are not entitled to qualified immunity; (5) none of the individual State Defendants are immune from suit under the Eleventh Amendment, and (with regard to the claims asserted against New York State) New York State has waived its Eleventh Amendment immunity; (6) State Defendants Leary and Conlon are not entitled to prosecutorial immunity; (7) Murtaugh Plaintiffs are not barred by the doctrine of collateral estoppel from bringing this action; (8) the Amended Complaint states a cause of action under the CWA; (9) Plaintiffs' CERCLA claim should not be dismissed because (a) despite not receiving solid or hazardous waste since 1974, the City Dump has never been closed, (b) Defendant Grannis is subject to liability as the Commissioner of the NYS DEC, responsible for overseeing the City Dump, (c) Plaintiffs have pled a prima facie case of liability, and (d) the existence of past, and the threat of future, releases has not already been adjudicated in New York State court; (10) Plaintiffs' claim under § 6972(a)(1)(A) of the RCRA should not be dismissed because (a) Plaintiffs have alleged facts plausibly suggesting that the City Dump is an "open dump" as opposed to a "sanitary landfill," and (b) Plaintiffs have alleged facts plausibly suggesting that an ongoing violation of the RCRA exists at the City Dump; (11) Plaintiffs' claim under § 6972(a)(1)(B) of the RCRA should not be dismissed because they have alleged facts plausibly suggesting (a) occurrences of continued discharges of leachate, and (b) that the City Dump contains both solid waste and hazardous waste; (12) Plaintiffs' state law nuisance claim should not be dismissed because federal causes of action should remain in this case; and (13) Plaintiffs' claims under 42 U.S.C. §§ 1983, 1985, and 1988 should not be dismissed because Plaintiffs have alleged facts plausibly suggesting that certain Defendants violated Plaintiffs' constitutional rights by excavating materials and removing scrap from their properties, and whether the scrap might have been abandoned by Plaintiffs (if not for the removal) involves a question of fact. (See generally Dkt. No. 66 [Response Memo. of Law].)

In their response to State Defendants' motion, Flood Plaintiffs argue as follows: (1) the Court should not abstain from exercising jurisdiction over this action because (a) Flood Plaintiffs were never and are not now parties to any litigation, action, or proceeding that would support abstention, and (b) none of the abstention doctrines are applicable; (2) Flood Plaintiffs' claim under 42 U.S.C. § 1983 should not be dismissed because (a) Flood Plaintiffs have a cognizable property interest in the Flood Property, and have a right to have this property free of flooding by contaminated waste that originated from the City Dump, and the actions taken by Corporate and State Defendants violated this right, and (b) whatever rights the Summary Abatement Order ("SAO") afforded Defendants,*fn2 it did not authorize State and Corporate Defendants to flood and contaminate Plaintiffs' properties; (3) Flood Plaintiffs are not barred from bringing this action by the doctrine of collateral estoppel because they were not parties to the SAO, hearing, or subsequent litigation; (4) State Defendants are not entitled to qualified immunity; (5) none of the individual State Defendants are immune from suit under the Eleventh Amendment, and, with regard to the claims asserted against New York State, it has waived its Eleventh Amendment immunity; (6) State Defendants Leary and Conlon are not entitled to prosecutorial immunity; (7) Plaintiffs' CERCLA claim should not be dismissed because (a) despite not receiving solid or hazardous waste since 1974, the City Dump has never been closed, (b) Defendant Grannis is subject to liability as the Commissioner of the NYS DEC, responsible for overseeing the City Dump, (c) Plaintiffs have pled a prima facie case of liability, and (d) Plaintiffs have alleged facts plausibly suggesting that they incurred costs related to responding to the flows of water and leachate on their own property; (8) Plaintiffs' state law nuisance claim should not be dismissed because federal causes of action should remain in this case; and (9) Plaintiffs' state law claim for a declaration that State Defendants engaged in negligence, gross negligence, or reckless, wanton, or intentional misconduct in their actions and omissions occurring on Plaintiffs' properties should not be dismissed because none of the federal causes of action should be dismissed. (See generally Dkt. No. 68 [Response Memo. of Law].)

In their reply, State Defendants essentially reiterate previously advanced arguments. (See generally Dkt. No. 74 [State Defs.' Reply Memo. of Law].)

3. Corporate Defendants' Motion

Generally, in support of their motion to dismiss for failure to state a claim upon which relief can be granted and for lack of subject-matter jurisdiction, Corporate Defendants argue as follows: (1) Plaintiffs' claims against them under 42 U.S.C. § 1983 must be dismissed because

(a) Corporate Defendants were acting solely at the direction and under the supervision of state officials, and therefore they cannot be held liable as "state actors," and (b) it is contrary to "good public policy" to hold a government contractor liable for damages; (2) even if Corporate Defendants could be held liable for the actions undertaken pursuant to State directives, Plaintiffs' claims should be dismissed because the complained-of conduct is properly addressed in New York State court; and (3) the Court should decline to ...


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