United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
On January 28, 2014, Volunteers of America of Western New York, Inc. ("VOA" or "Plaintiff") filed its Third Amended Complaint [#184]. Rochester Gas & Electric Corporation ("RG&E" or "Defendant") filed a Motion to Dismiss [#188] Counts Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, and Fifteen of the TAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("F.R.C.P."). VOA filed a memorandum of law in opposition [#191], and RG&E filed a reply [#193]. The matter is now fully submitted and ready for decision. For the reasons discussed below, RG&E's motion is granted in part and denied in part.
II. Factual Background and Procedural History
VOA's allegations concerning the use and contamination of the Site are summarized in the Court's January 12, 2000 decision [#17], Volunteers of America v. Heinrich , 90 F.Supp.2d 252 (W.D.N.Y. 2000). On January 12, 2000, the Court granted in part and denied in part the defendants-property owners' joint-motion to dismiss VOA's initial Complaint for failure to state a claim. In particular, the Court found that CERCLA did not preempt VOA's state law environmental claims because VOA's initial Complaint alleged that the Site was contaminated with petroleum, and VOA's claims based on petroleum contamination were not duplicative of VOA's claims brought under CERCLA. See Heinrich , 90 F.Supp.2d at 258 ("Because plaintiff has alleged conduct which may fall under CERCLA's petroleum exclusion' (such as releases of unadulterated gasoline), ... the plaintiff may have claims for damages which are not identical to the damages available under CERCLA. Therefore, to the extent that plaintiff's common law causes of action seek recovery for damages that are different than the damages available under CERCLA, the common law claims are not preempted."). Following Heinrich, VOA settled with all of the defendants except RG&E and its "John Doe" insurers.
On January 28, 2014, VOA filed its Third Amended Complaint ("TAC") [#184] asserting sixteen causes of action. Under the supervision of various state agencies, RG&E and VOA supported an extensive remedial investigation into the contamination at the Site. TAC, ¶ 29 (first of two paragraphs numbered "29"). This investigation was documented in the Remedial Investigation Report ("RIR") [#174-14], issued in December 2011 and revised in May 2012, which found that the investigation had adequately characterized the nature and extent of surface soil, subsurface soil, and groundwater conditions at the Site. The RIR concluded that "[p]etroleum contamination was not found." TAC, ¶ 30; see also id., ¶ 194 (alleging, under fifth claim based on the New York State Navigation Law, that "[u]pon information and belief, there is no petroleum contamination on the Site").
RG&E, on February 24, 2014, filed a Motion to Dismiss Certain Causes of Action in the Third Amended Complaint [#188]. The causes of action at issue in RG&E's motion to dismiss are as follows: liability under New York Navigation Law § 181(5) (Count Five), indemnification or contribution and a declaratory judgment under Article 12 of the New York Navigation Law, including § 176(8) (Count Six), breach of contract (Count Seven), promissory estoppel (Count Eight), negligence (Count Nine), negligence per se (Count Ten), strict liability for ultrahazardous activities (Count Eleven), public nuisance (Count Twelve), indemnification under Article 27, Title 13 of the New York State Superfund Law (Count Thirteen), equitable or implied indemnification (Count Fourteen), and restitution (Count Fifteen).
III. Preliminary Matters
Prior to filing its TAC, VOA had filed a Motion for a Declaratory Judgment in its favor as to its claims of breach of contract and promissory estoppel. On July 14, 2014, the Court issued a Decision and Order denying VOA's request for a declaratory judgment, and granting RG&E's Cross-Motion for a Declaratory Judgment as to these counts. In light of the Court's July 14, 2014 Decision and Order, RG&E's request to dismiss these causes of action, denominated as Count Seven and Count Eight in the TAC, is moot. See Dujardin v. Liberty Media Corp. , 359 F.Supp.2d 337, 357 (S.D.N.Y. 2005) ("[S]ubsequent to the conclusion of briefing on the instant motion to dismiss, the arbitration proceeding was resolved and Defendant Livewire has conceded liability with respect to Count V of the Complaint. Thus, Defendants' motion to dismiss is denied as moot as to Count V of the Complaint.").
With regard to Counts Eleven and Thirteen, VOA conceded in its opposition brief that they should be dismissed but has not voluntarily withdrawn them. See Plaintiff's Memorandum of Law ("Pl's Mem.") [#191] at 2. See Advanced Portfolio Technologies, Inc. v. Advanced Portfolio Technologies Ltd., No. 94 Civ. 5620(JFK), 1999 WL 64283, at *7 (S.D.N.Y. Feb. 8, 1999) ("APT/NY has voluntarily withdrawn [certain] [c]ounts, therefore, APT/UK's motion [to dismiss] is denied as moot as it pertains to these counts."). Therefore, RG&E's request to dismiss them is not mooted.
IV. Summary of the Parties' Arguments
RG&E, in its Memorandum of Law ("Def's Mem.") [#188-1], argues that the state law environmental claims (Counts Five, Six, Nine, Ten, Twelve, Fourteen, and Fifteen) must be dismissed as preempted under CERCLA, based upon VOA's admission that there is no petroleum contamination on the Site. RG&E contends that Heinrich, supra, which found that VOA's state law environmental claims were not preempted by CERCLA solely to the extent they alleged petroleum contamination, compels a finding that the state law environmental claims are preempted by CERCLA now that VOA concedes that there is no petroleum contamination at the Site.
VOA asserts that RG&E has ignored relevant allegations in the TAC, and contends that it permissibly pleaded petroleum contamination in the alternative. See TAC, ¶¶ 195, 196 (alleging that "[i]n the unlikely event that petroleum contamination does exist", RG&E "is strictly liable for the investigation, remediation, cleanup, and removal of the Petroleum Contamination, and all of plaintiff's associated direct and indirect damages" pursuant to N.Y. Nav. Law §181(5)). VOA contends that this alternative pleading is prudent given the facts pleaded elsewhere in the TAC referring to RG&E's historic use of petroleum on the Site. Pl's Mem. at 23 (citing TAC, ¶ 18 (RG&E arranged for coal to be transported to and from the Site "by a diesel powered railroad")).
In its Reply Memorandum of Law ("Reply") [#193], RG&E asserts, for the first time, the issue of lack of standing. The Court notes that VOA did not seek permission to file a sur-reply, and did not move to ...