D'Amico v. Waste Mgmt. of N.Y., LLC

• Decision Date: 25 March 2019
• Docket Number: 6:18-CV-06080 EAW
• Parties: JAMES W. D'AMICO, on behalf of himself and all others similarly situated, Plaintiff, v. WASTE MANAGEMENT OF NEW YORK, LLC, Defendant.
• Court: U.S. District Court — Western District of New York

JAMES W. D'AMICO, on behalf of himself and all others similarly situated, Plaintiff, v. WASTE MANAGEMENT OF NEW YORK, LLC, Defendant.

6:18-CV-06080 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 25, 2019

DECISION AND ORDER

INTRODUCTION

Plaintiff James W. D'Amico ("Plaintiff") brings this putative class action, on behalf of himself and all others similarly situated, against Defendant Waste Management of New York, LLC ("Defendant"), alleging common law claims for nuisance, negligence, and gross negligence, arising from Defendant's operation of the High Acres Landfill and Recycling Center (the "Landfill") in Fairport, New York. (Dkt. 4). Specifically, Plaintiff alleges that Defendant's operation of the Landfill has caused noxious odors to be emitted into the surrounding environment, resulting in property damage to himself and the owner/occupants and renters in the surrounding area. (Id. at 2-5).

Presently before the Court is Defendant's motion to dismiss. (Dkt. 13). For the following reasons, Defendant's motion is granted in part and denied in part.

BACKGROUND¹

Defendant operates the Landfill on a 1,100-acre site and "accepts municipal solid waste, industrial and special waste, construction and demolition debris, and other waste for disposal." (Dkt. 4 at ¶¶ 4, 6). As the waste decomposes at the Landfill, it creates "odorous landfill gas, leachate, and other byproducts." (Id. at ¶ 7). Defendant is obligated to control odorous emissions by, among other things, "following proper landfilling practices, utilizing adequate landfill cover, and installing, operating, and maintaining a sufficient landfill gas collection system to capture and destroy landfill gas." (Id. at ¶ 10). In order to effectively maintain the landfill gas collection system (the "Collection System"), Defendant must prevent "excess liquid" from entering the system and interfering with its operation. (Id. at ¶ 11).

Defendant has allegedly failed to satisfactorily control the odors emitted from the Landfill. (Id. at ¶ 12). Specifically, Plaintiff claims that Defendant has failed to properly operate the Collection System and has allowed it to become "watered in." (Id.). This alleged operating failure is due to inadequate drainage systems, Defendant's reliance upon vertical gas wells, insufficient preparation for wet weather conditions, an "inadequate wellhead vacuum," the failure to properly monitor the system and use a proper "cover and covering practices," and the "inadequate use of odor neutralizing systems and products." (Id.).

As a result, Defendant has allegedly released "odorous emissions . . . onto the property of Plaintiff and the class on occasions too numerous to recount individually." (Id. at ¶ 13). The odors are "offensive" and have interfered with Plaintiff's and the putative class members' use and enjoyment of their property. (Id. at ¶ 14). Plaintiff claims that "Defendant's emissions are especially injurious to the Class as compared with the public at large, given the impacts to their homes." (Id. at ¶ 15). In particular, these emissions have caused a diminution in the value of Plaintiff's and the putative class members' property. (Id. at ¶ 16).

Numerous individuals have filed complaints with the New York State Department of Environmental Conservation ("NYSDEC") detailing the noxious odors in the community. (Id. at ¶ 17). "[M]ore than 180 households have contacted Plaintiffs' counsel documenting the odors they attribute to" the Landfill. (Id. at ¶ 18).

Plaintiff seeks to certify the following putative class: "All (a) owner/occupants and (b) renters of residential property residing within two and one-half (2.5) miles of the Defendant's Landfill." (Id. at ¶ 20). Plaintiff also claims that "there are over three thousand (3,000) households within the 2.5-mile radius that are being impacted." (Id. at ¶ 21).

PROCEDURAL HISTORY

On January 26, 2018, Plaintiff commenced this putative class action, on behalf of himself and all others similarly situated, seeking compensatory and punitive damages as well as injunctive relief under theories of common law nuisance, negligence, and gross negligence. (Dkt. 1). On April 27, 2018, Plaintiff filed an Amended Complaint, which removed Waste Management, Inc. as a defendant. (Dkt. 4). The Amended Complaint remains the operative pleading in this matter. On July 23, 2018, Defendant filed a motion to dismiss. (Dkt. 13). Plaintiff opposed Defendant's motion to dismiss (Dkt. 14), and Defendant submitted reply papers in further support of its motion (Dkt. 16). The Court held oral argument on Defendant's motion on December 7, 2018, and reserved decision. (Dkt. 27).

DISCUSSION

I. Legal Standard

"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016), cert. denied, 137 S. Ct. 2279 (2017). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.'" Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555).

II. Plaintiff's Cause of Action for Nuisance Fails to State a Claim

A. General Principles

"There are two types of nuisance actions in New York State, public nuisance and private nuisance." Hicksville Water Dist. v. Philips Elecs. N. Am. Corp., No. 2:17-CV-04442 (ADS)(ARL), 2018 WL 1542670, at *7 (E.D.N.Y. Mar. 29, 2018). "Public and private nuisance bear little relationship to each other. Although some rules apply to both, other rules apply to one but not the other." State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir. 1985). "A public nuisance under New York law exists when there is a substantial interference with a public right." Johnson v. Bryco Arms, 304 F. Supp. 2d 383, 390 (E.D.N.Y. 2004). By contrast, "[a] private nuisance threatens one person or a relatively few, an essential feature being an interference with the use or enjoyment of land." Copart Indus., Inc. v. Consol. Edison Co. of N.Y., 41 N.Y.2d 564, 568 (1977); see Scribner v. Summers, 84 F.3d 554, 559 (2d Cir. 1996) (same). "A nuisance is the actual invasion of interests in land, and it may arise from varying types of conduct." 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 292 (2001). Generally speaking, a landowner "is subject to liability for either a public or private nuisance on its property upon learning of the nuisance and having a reasonable opportunity to abate it." Shore Realty Corp., 759 F.2d at 1050 (footnote omitted).

Although Plaintiff's Amended Complaint does not specifically identify whether he asserts a claim under theories of private nuisance, public nuisance, or both, at oral argument Plaintiff's counsel agreed that he has alleged only a public nuisance cause of action. Accordingly, the Court will review the sufficiency of Plaintiff's allegations under a public nuisance theory of liability.

B. Public Nuisance

"A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons." 532 Madison Ave., 96 N.Y.2d at 292. "It is uncontested that the historical purpose of the doctrine of public nuisance was primarily to protect the public from harm or danger; the same is equally true of the modern tort of public nuisance." N.A.A.C.P. v. AcuSport, Inc., 271 F. Supp. 2d 435, 481 (E.D.N.Y. 2003). For this reason, a public nuisance is considered "an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency." Copart Indus., Inc., 41 N.Y.2d at 568. "The State has standing to bring actions for public nuisance as a matter of course in its role as 'guardian of the environment.'" Chase Manhattan Bank N.A. v. T & N plc, 905 F. Supp. 107, 125 (S.D.N.Y. 1995) (quoting Shore Realty Corp., 759 F.2d at 1051).

"Generally, '[a] public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large.'" Janki Bai Sahu v. Union Carbide Corp., 528 F. App'x 96, 102 n.4 (2d Cir. 2013) (quoting 532 Madison Ave., 96 N.Y.2d at 292); see Johnson, 304 F. Supp. 2d at 392 ("A private plaintiff does not have standing to bring a public nuisance cause of action unless he or she shows some harm different from that suffered by the public generally."). "In this way, a private wrong may be distinguished from a common injury to the public, and a private right of...