United States District Court, E.D. New York
ROSALIE ROMANO, PATRICIA GLUECKERT, WILLIAM P. GLUECKERT, FRANCISCO PASTOLERO, MARIA SPICER, JOHN VARGHESE, JAYNE MANN, DENISE FLORIO, ROSS MEADOW, ARLENE MEADOW, JACOB KHOLODNY, BELLA KHOLODNY, FLO RAUCCI, DANIEL GALLANTE and JENNIFER GALLANTE, individually and on behalf of all others similarly situated, Plaintiffs,
NORTHROP GRUMMAN CORPORATION, NORTHROP GRUMMAN SYSTEMS CORPORATION, and TOWN OF OYSTER BAY, Defendants.
Plaintiffs: Napoli Shkolnik PLLC 360 Lexington Ave., 1st
Floor New York, New York 10017 By: Hunter Shkolnik, Esq. Paul
J. Napoli, Esq, Imbesi Law P.C. 450 Seventh Avenue, 14th
Floor New York, New York 10123 By:Brittany Weiner, Esq.
Vincent Imbesi, Esq.
Defendants Northrop Grumman Corp. and Northrop Grumman
Sys.Corp. Hollingsworth LLP 1350 I Street, N.W. Washington,
D.C. 20005 By:Frank Leone, Esq. Donald W. Fowler, Esq.
Morrison & Foerster LLP 250 West 55th Street New York,
New York 10019 By:Grant Esposito, Esq. Jessica Kaufman, Esq.
Defendant Town of Oyster Bay: Milber Makris Plousadis &
Seiden LLP 1000 Woodbury Road, Suite 402 Woodbury, New York,
11797 By:Peter Tamigi, Esq.
MEMORANDUM & ORDER
R. HURLEY, UNITED STATES DISTRICT JUDGE.
purpose of this memorandum is to address the motion of
plaintiffs to remand this case back to state court.
putative class action was filed on September 13, 2016, in
Nassau County Supreme Court on behalf of current and former
residents and property owners of Bethpage, New York
(“Plaintiffs” or the “Class”)
asserting various state law causes of action against
defendants Northrop Grumman Corporation (“NG”)
and Northrop Grumman Systems Corporation (“NGSC”)
(collectively “Northrop”) for injuries and
damages allegedly suffered as a result of the release of
hazardous substances from its former site of approximately
635 acres in East-Central Nassau County, formerly known as
the Grumman-Aerospace-Bethpage Facility Site (“the
Site”), as well as 18 acres of land donated by
Grumman to the Town of Oyster Bay and currently known as
Bethpage Community Park (the
“Park”). The Site includes the Northrop
Grumman-Bethpage Facility, the Naval Weapons Industrial
Reserve Plant -Bethpage (“NWIRP”), and the
Grumman Steel Lose Site. (See Compl. ¶¶
1-66.) According to the Complaint, “[o]ver its almost
six decade existence, Grumman, an airplane, weapons and
satellite manufacturer with significant U.S. Department of
Defense contracts, generated, stored, and disposed of toxic
contaminants and manufacturing byproducts . . . at its
facilities and at landfills . . . . These practices resulted
in extensive pollution at or emanating from Grumman
Facilities identified in [the] Complaint.” (Compl.
October 14, 2016, Northrop filed a Notice of Removal, setting
forth the following bases for removal: (1) there exists
complete diversity under 28 U.S.C. § 1332(a); (2) the
Class Action Fairness Act (“CAFA”), 28 U.S.C.
§§ 1332(d), 1453, 1711-15, confers original
jurisdiction and (3) actions taken by Northrop Grumman
satisfy the federal-officer removal statute under 28 U.S.C.
§ 1442(a)(B). That same day Northrop also filed its
November 4, 2016, Plaintiffs filed an amended complaint
(“AC”). As relevant to the current motion, the
amended complaint added the Town of Oyster Bay
(“Town” or “Oyster Bay”) as a
Defendant. With respect to the Town, the amended complaint
alleges that the Town is the current owner and operator of
the Park, within which is an area of approximately 3.75 acres
which formerly contained “Grumman Settling Ponds”
which was used to dispose of various wastes generated by
industrial operations at the Site resulting in the releases
of PCBs into the surrounding soil. (AC ¶¶ 59-62.)
Pursuant to a March 18, 2005 Administrative Consent Order
with the New York State Department of Environmental
Conservation (“NYDEC”), the Town was
“required and obligated to develop and implement a
remedial program to undertake a clean-up of Park property
because of the presence of hazardous waste and
contamination” at the Park. (AC ¶ 64.) In July
2005 the Town entered into an order for an interim remedial
measure to investigate and remediate 7 acres of the Park.
Thereafter the Town “was formally identified as a
potential responsible party (PRP) and has been responsible
for continued contamination emanating from the Park . . .
.” (AC ¶ 65.) It is alleged that despite the
foregoing orders, the groundwater from the Park has continued
to migrate resulting in volatile organic compounds
(“VOCS”) seeping into the groundwater and have
moved into the soil vapor of Plaintiffs, affecting the indoor
air quality. (AC ¶ 66.)
allegations in the amended complaint against Northrop are
essentially unchanged from those in the complaint.
the filing of the amended complaint, Plaintiffs filed the
instant motion to remand, arguing that (1) removal is not
appropriate because the adverse parties are not completely
diverse; (2) the Home State and Local Controversy exceptions
to CAFA mandate that this Court abstain from exercising
jurisdiction; and (3) Northrop does not satisfy the
requirements of the Federal Officer Removal Statute. Both
Northrop and the Town oppose the motion. Because, as
discussed below, the Court finds jurisdiction exists under
CAFA, it need not address the other bases asserted for
courts are courts of limited jurisdiction, and “removal
jurisdiction exists in a given case only when that
jurisdiction is expressly conferred on the courts by
Congress.” Bedminster Fin. Grp., Ltd. v. Umami
Sustainable Seafood, Inc., 2013 WL 1234958, at *2
(S.D.N.Y. Mar. 26, 2013) (quoting Fed. Ins. Co. v. Tyco
Int'l Ltd., 422 F.Supp.2d 357, 367 (S.D.N.Y. 2006)).
Under 28 U.S.C. § 1441, removal is permitted for any
civil action, commenced in a state court, over which a
federal court has original jurisdiction. 28 U.S.C. §
1441(a); Bounds v. Pine BeltMental Health Care
Res., 593 F.3d 209, 215 (2d Cir. 2010). Where, as here,
jurisdiction is asserted by a defendant in a ...