The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiffs commenced this action on June 6, 2011 by filing a Summons and Complaint in the Supreme Court for the State of New York, Erie County, seeking, inter alia, damages for their exposure to toxic chemicals while living, traveling or working in and around Tonawanda, New York. In their Complaint, Plaintiffs asserted causes of action for negligence, negligence per se, trespass, battery, nuisance, intentional/negligent infliction of emotional distress, wrongful death, strict liability for abnormally dangerous activities, and equitable and injunctive relief. The named Defendants removed the action to this Court, alleging that federal subject matter jurisdiction existed because the Complaint raised substantial questions of federal law. Each of the named Defendants then filed a motion to dismiss all or part of the Complaint. Plaintiffs subsequently filed an Amended Complaint, and also moved to remand the matter to state court. The named Defendants again moved to dismiss all or part of the Amended Complaint. Presently before this Court are Plaintiffs' Motion to Remand (Docket No. 12), Defendant Tonawanda Coke Corporation's Motion to Dismiss the second and fifth causes of action and to strike immaterial portions of the Amended Complaint (Docket No. 19), and Defendant James Donald Crane's Motion to Dismiss the Amended Complaint in its entirety as against him. (Docket No. 18.) These motions are fully briefed and the Court finds that oral argument is not necessary. For the reasons stated below, Plaintiffs' Motion to Remand is granted on the ground that this Court lacks subject matter jurisdiction, thus rendering the named Defendants' motions to dismiss moot.
This is the latest in a series of lawsuits resulting from the adverse impact of toxic emissions from Defendant Tonawanda Coke Corporation, a coke facility in Tonawanda, New York, that "utilizes a process for the destructive distillation of coal and separation of gaseous and liquid distillates from the carbon residue or coke." (Amended Complaint, Docket No. 10, ¶¶ 180, 192, 197-198, Ex 2 ¶20; see e.g. DeLuca v. Tonawanda Coke Corp., No. 10-CV-859S, 2011 WL 3799985 (W.D.N.Y Aug. 26, 2011)). Defendant James Donald Crane is Tonawanda Coke Corporation's owner and CEO. (Amended Complaint ¶ 182). The fictitious Defendants "are the agents, employees, manufacturers, distributors, facilitators, environmental consultants, contractors, [and] haulers" who contributed to the contamination or concealment thereof. (Amended Complaint ¶ 190).
In the original Complaint, Plaintiffs alleged, inter alia, that Defendant Tonawanda Coke Corporation, owned by Defendant Crane since 1978, "has generated toxic waste products throughout its existence." (Complaint ¶¶ 187, 188, 191, 192).
Defendants have violated State and Federal laws regarding controlling the emissions of chemicals and dust containing chemicals into the air, soil and water. In fact, Defendants have violated State and Federal Clean Air, Clean Water and hazardous and toxic waste storage, disposal and discharge laws and ha[ve] been determined to have violated various environmental laws by the New York State Attorney General's Office. (Complaint ¶ 192). Plaintiffs further asserted that an evaluation conducted by the New York State Department of Environmental Conservation ("DEC") revealed that the facility-wide emissions from Defendant Tonawanda Coke Corporation resulted in higher than acceptable levels of toxin concentrations in the surrounding environment. (Complaint ¶¶ 196-203). As a result, the United States Environmental Protection Agency ("EPA") issued a series of notices and orders citing Defendant Tonawanda Coke Corporation for violations of, inter alia, the Clean Air Act. (Complaint ¶¶ 199-201).
Plaintiffs asserted in their original Complaint causes of action for negligence, negligence per se, trespass, battery, nuisance, intentional/negligent infliction of emotional distress, wrongful death, strict liability for abnormally dangerous activities, and equitable and injunctive relief. (Complaint ¶¶ 209-268). As alleged therein, Defendants committed negligence by breaching their duty to operate the Tonawanda Coke facility in a reasonable, safe and prudent manner. (Complaint ¶¶ 209-217). Plaintiffs similarly alleged in their negligence per se cause of action that, inter alia, Defendants failed to safely and properly remove, discharge and remediate hazardous and toxic wastes and emissions from the Tonawanda Coke facility. (Complaint ¶¶ 218-221).
In fact, [D]efendants have been notified by the New York State Attorney General and Federal Environmental Protection Agency that they have been and continue to violate the Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act on numerous occasions. The notices of violation cited are too numerous to attach to this Complaint. (Complaint ¶ 219). Plaintiffs did attach to this Complaint, however, the criminal complaint in which Mark L. Kamholz, Manager of Environmental Control for Defendant Tonawanda Coke Corporation and a non-party to this action, was charged with violations of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.), and the Clean Air Act (42 U.S.C. §§ 7401 et seq.). (Complaint, Ex 1 ¶¶ 7-8,15-16, 20-21, 32).
The Amended Complaint, filed in this Court following removal of the matter by the named Defendants (hereinafter "Defendants") and service of their motions to dismiss, differs from the original in that the intentional/negligent infliction of emotional distress claim has been replaced with one for willful misconduct, and there is no separate cause of action for "equitable and injunctive relief." (Complaint ¶¶ 238-242, 258-268; Amended Complaint ¶¶ 338-358). These causes of action are supported by largely identical allegations to those summarized above. (Docket No. 10). Additionally, Plaintiffs further allege that:
Upon information and belief, Tonawanda Coke has generated toxic waste products throughout its existence. Defendants have violated the following State and Federal laws regarding controlling the emissions of chemicals and dust containing chemicals into the air, soil and water: 6 N.Y.C.R.R § 202-1.5, 6 N.Y.C.R.R § 211.1, 6 N.Y.C.R.R § 214.4 (c), 6 N.Y.C.R.R § 214.5 (a), 6 N.Y.C.R.R § 257-1.4 (a), 6 N.Y.C.R.R § 214.8 (b), 6 N.Y.C.R.R § 257-1.4 (b), 6 N.Y.C.R.R § 750-2.5, Resource Conservation and Recovery Act, Clean Air Act and Clean Water Act. In fact, Defendants have been determined to have violated various environmental laws by the New York State Attorney General's Office. (Amended Complaint ¶ 201). Attached to the Amended Complaint are notices, correspondence, and administrative orders evidencing Plaintiffs' allegation that "Defendants have been cited or informed by environmental agencies on numerous occasions that they are in violation of State and Federal Law." (Amended Complaint ¶ 202, Exs 1-6). Plaintiffs' negligence per se cause of action in the Amended Complaint contains no reference to the Clean Air Act, Clean Water Act or Resource Conservation and Recovery Act (compare Amended Complaint ¶¶ 241-267 with Complaint ¶ 219), but instead alleges continued violations of the New York State regulations listed above. (Amended Complaint ¶ 243).
Because Plaintiffs' Motion to Remand requires determination of this Court's subject matter jurisdiction, this motion will be considered first.*fn1 See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir 1990). A civil action commenced in a state court may be removed to a federal district court having original jurisdiction over the matter. 28 U.S.C. § 1441 (a). As relevant here, federal courts have jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331"A case 'aris[es] under' federal law within the meaning of § 1331 . . . if 'a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.' " Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 689-690, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006), quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27--28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); see Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)(relevant question is whether "a state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities"). In the face of a plaintiff's motion to remand, it is the removing defendant's burden to establish that federal subject matter jurisdiction is proper. United Food & Commercial Workers Union, Local 919, AFL-CIO v CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir 1994); Crazy Eddie, Inc. v Cotter, 666 F.Supp 503, 508 (S.D.N.Y. 1987).
Plaintiffs contend that Defendants have failed to establish that the original Complaint includes a substantial federal question giving rise to this Court's original jurisdiction. (Pls. P. & A., Docket No.12, at 3-4). Plaintiffs argue that the parties do not disagree over the meaning or application of the federal statutes referenced in the original Complaint and the attachment thereto, and "with one arguable exception," Plaintiffs' causes of action are not predicated on violations of federal law. (Id. at 5). Although the negligence per se cause of action in the original Complaint describes Defendants' alleged "violations of both State and Federal environmental laws", Plaintiffs argue that resolution of this claim does not require any unique interpretation of federal laws, and mere reference to federal environmental statutes is insufficient to confer jurisdiction. (Id. at 8-9). Plaintiffs contend that, in any event, the references to federal law contained in the negligence per se claim in the original Complaint have been removed from the Amended Complaint (Id. at 9-10). Defendants respond that Plaintiffs cannot manipulate the forum for this case by strategically amending their Complaint , and argue that the original Complaint addresses conduct and ...