United States District Court, S.D. New York
OPINION & ORDER
NELSON S. ROMN, District Judge.
Plaintiff White Plains Housing Authority ("Plaintiff') commenced this action by complaint filed September 6, 2013 (dkt. no. 1), as amended October 22, 2014 (dkt. no. 7) and January 21, 2014 (dkt. no. 26), against Getty Properties Corporation ("Getty Properties"), Tyree Environmental Corporation ("Tyree"), Michael C. Kenny, and Kenneth C. Seus (collectively, the "Getty Defendants"), and against Singer Real Estate Group LLC (incorrectly named as "Singer Real Estate Group, LLC") ("Singer, " and together with the Getty Defendants, "Defendants").
The complaint asserts claims under: the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., for both cost recovery and declaratory relief; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq.; the New York State Navigation Law§ 181(1); and New York state law regarding private nuisance, trespass, strict liability, and negligence. These claims stem from purported gasoline discharge into the environment from a former gasoline filling station located in White Plains, New York. The operative complaint asserts each claim against each of the Defendants, with the exception that the RCRA claim is not asserted against Singer.
Defendants now move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted, and 12(b)(1), for lack of supplemental jurisdiction over the state law claims. The two pending motions to dismiss (dkt. nos. 34, 36) are consolidated for purposes of this opinion and order. For the following reasons, the Court GRANTS the motions in part, and DENIES the motions in part.
A. Plaintiff's Motion to Strike
As a threshold matter, Plaintiff challenges the Getty Defendants' submission of an affidavit and voluminous exhibits. See Affidavit of Paul Hatcher (the "Hatcher Affidavit") (dkt. no. 41). The materials submitted with the Hatcher Affidavit, and the facts in the affidavit, pertain primarily to the RCRA claim. The Getty Defendants seek to establish that substantial dialogue and diligence have occurred as between Getty Properties and Tyree, on one hand, and the New York State Department of Environmental Conservation (the "DEC"), on the other. The Getty Defendants argue that well-documented past and ongoing remediation of the environmental contamination at issue undercuts the RCRA claim.
The Getty Defendants argue that the Court should take judicial notice of the information in the Hatcher Affidavit and the exhibits, analogizing these materials to an administrative agency "consent decree mandating investigation and remediation of [sic] hazardous waste site." Getty Mem. at 3 n. 1 (citing Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 602 (D. Md. 2011)). In the alternative, they argue, "under Rule 12(d), the Court can consider matters outsite [sic] the pleadings on a Rule 12(b)(6) motion." Id. 
In response, Plaintiff points out that there is no agency consent decree among the materials submitted. Plaintiff argues that the Hatcher Affidavit is objectionable and should be disregarded. See Plaintiff's Mem. at 8-9.
Plaintiff is correct that "[i]n adjudicating a motion to dismiss, a court may consider only the complaint, a written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies." Geron v. Seyfarth Shaw LLP (In re Thelen LLP), 736 F.3d 213, 219 (2d Cir. 2013). Equally true, "matters judicially noticed by the District Court are not considered matters outside the pleadings." Id. (citing Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008)).
Courts in this circuit routinely take judicial notice of complaints and other publicly filed documents. See, e.g., Rothstein v. Balboa Ins. Co., No. 14-cv-1112, 2014 U.S.App. LEXIS 16567, at *1-2 (2d Cir. June 25, 2014) (taking judicial notice of other complaints filed with federal courts); Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of other complaint "as a public record"). Courts also take judicial notice of information readily accessible in the public domain, the significance of which is not subject to reasonable dispute. See, e.g., Staehr, 547 F.3d at 426 (taking judicial notice of information in the public domain, albeit not for its truth, in assessing whether there was inquiry notice of alleged fraud); accord Fed. R. of Evid. 201 (court may judicially notice a fact not subject to reasonable dispute because it is generally known within the jurisdiction or is supported by sources beyond question).
Here, the Getty Defendants would have the Court go quite a bit further. Appended to the Hatcher Affidavit are voluminous materials, including remediation reports, studies, work plans, and letter and email correspondence among the relevant parties. The Getty Defendants represent that these materials are part of the DEC file and are accessible through a Freedom of Information Law request. See Getty Mem. at 3 n.1.
That may be true, but the materials' presence in the DEC file does not necessarily compel judicial notice. See Rothstein, 2014 U.S.App. LEXIS, at *1-2 (denying motion seeking judicial notice of certain documents made public by state agency under New York's Freedom of Information Law, while granting the motion as to complaints filed in other federal courts). The materials submitted are not formal, filed pleadings or routine regulatory filings. They are, rather, an assortment of discovery materials reflecting environmental remediation efforts and related correspondence with a state agency. Some of the documents are informal emails. Others are letters or reports. The parties differ in their characterization of the information reflected in these documents, as it relates to the question of whether there has been diligent remediation of environmental contamination.
The Court finds that these materials are not appropriate for judicial notice on a Rule 12(b)(6) motion where the analysis turns primarily on what is between the four corners of the complaint. Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor). The information in the Hatcher Affidavit and its significance are the subject of much dispute, and the information is not generally known or supported by sources beyond question.
Perhaps expecting such a ruling, the Getty Defendants argue that nevertheless "the facts matter and should be considered, " and they urge the Court to convert the motion to a motion for summary judgment. See Getty Reply Mem. at 5-7. The Court declines to do so here. Although the Court permitted the Getty Defendants orally to join in Singer's motion for leave to file a dispositive motion (and to file the dispositive motion), Singer had sought leave to file a motion to dismiss pursuant to Rule 12(b)(6). See dkt. nos. 4, 24. Having reviewed pre-motion letters and the colloquy at the pre-motion hearing, the Court disagrees with the Getty Defendants' characterization that there was adequate notice that the motion to dismiss might be converted to a motion for summary judgment. When counsel for Singer sought clarification at the pre-motion hearing, the Court differentiated between a motion to dismiss and a summary judgment motion and indicated that the former was expected. Additionally, the mere fact that Plaintiff enclosed a remediation report with its opposition brief does not mean Plaintiff had adequate notice of possible conversion. Plaintiff presumably bolstered its submission with this report as a way to respond to the Getty Defendants' voluminous filing, and Plaintiff formally objected to the Hatcher Affidavit by letter before filing any opposition briefing. See dkt. no. 33.
The Court denies the Getty Defendants' application to convert their motion to a motion for summary judgment. The Court strikes the Hatcher Affidavit and all materials appended thereto because they are inappropriate for consideration under Rule 12(b)(6). The Court has not considered or relied upon those materials in issuing this decision. Likewise, the Court strikes and has not considered or relied upon the remediation report accompanying the Declaration of Norman W. Bernstein, submitted with opposition briefing, notwithstanding references to that report in the complaint. See dkt. no. 40. The Court also strikes and has not considered or relied upon the document accompanying the Reply Affidavit of Paul Hatcher, submitted with reply briefing. See dkt. no. 46.
Should this matter reach the summary judgment stage, the parties (and specifically, the Getty Defendants) are directed to follow the Court's individual rules of practice in civil cases. Those rules require that the Getty Defendants submit a pre-motion letter seeking leave to file a dispositive motion. See Individual Practice Rule 3(A)(ii). That pre-motion practice tends to narrow the issues and clarify the nature of the relief sought, and should eliminate any further confusion on the Getty Defendants' part as to what motion is anticipated. Provided the Court ultimately grants leave to file a summary judgment motion in this case, the Getty Defendants are, of course, free to resubmit the Hatcher Affidavit then.
The complaint alleges that Plaintiff is a municipal housing authority that owns and operates a five apartment building, residential housing complex known as Winbrook apartments, in downtown White Plains, New York. See Second Amended Complaint ("Compl.") ¶¶ 7, 9. One of the five buildings is "Building 159, " which is located at 159 South Lexington Avenue. Id. ¶ 10.
Getty Properties operated a retail gasoline filling station, Getty Station No. 00369, at 26 East Post Road, White Plains, New York ("Getty Station"), which is adjacent to Plaintiff's building complex. Id. ¶ 13. Getty Station was in use from approximately 1973 to 1988. Id. ¶ 14. Gasoline was stored at Getty Station during that time. Id. ¶ 114.
Gasoline is a "fraction" of petroleum and crude oil, i.e., its properties are indigenous to petroleum and crude oil and are created through the distillation and refining process. See id. ¶¶ 110-11, 113. Benzene is another indigenous subcomponent of petroleum, and of gasoline, but no pure Benzene was stored at Getty Station, only gasoline containing benzene and other constituent chemicals. See id. ¶ 112.
2. Gasoline Discharge and Residual Contamination
Plaintiff alleges that at some point while Getty Properties owned and operated Getty Station, gasoline was released into the environment. Id. ¶ 114. Once in the ground under Getty Station, that gasoline (chemically, a "mixture") separated into its constituent parts, one of which was benzene. Id. ¶¶ 114-15. Benzene is toxic and water soluble, and it does not tend to adhere to soil. Id. The benzene from the gasoline discharge therefore traveled more quickly through surrounding groundwater than did other constituent parts of the gasoline. Id. Eventually, the benzene, and to a lesser extent, other volatile organic compounds (ethyl-benzene and toluene), migrated away from Getty Station to the space underneath a parking lot adjacent to Plaintiff's Building 159. Id. ¶¶ 33, 52-52, 119. The parking lot is Plaintiff's property as well. Id.
As noted, Building 159 is residential in nature. There are underground conduits such as ducts and pipes which enter the building. Id. ¶ 58. Presently, there is a "groundwater plume" of benzene and other chemicals contaminating Plaintiff's property and continuing to migrate toward Building 159. Id. ¶ 78.
Because of its toxicity, the benzene in the plume "may present an imminent and substantial endangerment to human health and the environment." Id. ¶ 83. Additionally, Plaintiff has begun a $350 million renovation project, which would make the five building complex energy efficient. Id. ¶ 84. Plaintiff broke ground on that project on January 15, 2014. Id. ¶ 85. The plume may prevent or interfere with financing for the project, at least some of which is contingent public financing, because federal and state regulations prohibit the development of contaminated properties. Id. ¶¶ 92-94.
3. Property Ownership
Getty Station is no longer an operating gas station, and ownership of the underlying property has changed hands over the years. Individual defendant Kenny purchased the property in 1994 and held it until 2011. Id. ¶¶ 24, 27-28. From 2005 to 2011, Kenny held the property as co-owner with individual defendant Seus. Id. From 1994 through 2011, additional "hazardous wastes" (presumably, additional gasoline or residue thereof) were released into the environment from Getty Station, and gasoline constituents continued to migrate onto Plaintiff's ...