Deluca v. Tonawanda Coke Corp.
| Decision Date | 25 August 2011 |
| Docket Number | 10-CV-859S |
| Parties | FRANK DELUCA and MARY DELUCA, Individually and as Class Representative Plaintiffs; MORGAN GREENE, Individually and as Class Representative Plaintiff; COLLEEN BRIGANTE, Individually and as Class Representative Plaintiff, Plaintiffs, v. TONAWANDA COKE CORPORATION; JAMES DONALD CRANE; MARK KAMHOLZ; ABC CORPORATIONS 1 through 20 (Fictitious Defendants); DEF CORPORATIONS 1 through 20 (Fictitious Defendants); JOHN DOES 1 through 20 (Fictitious Defendants), Defendants. |
| Court | U.S. District Court — Western District of New York |
Plaintiffs are representative members of a putative class consisting of residents of Tonawanda, New York. ().) The named Defendants are Tonawanda Coke Corporation ("Tonawanda Coke"), James Donald Crane, and Mark Kamholz. (Compl. ¶¶ 5-7).) This case originally was filed in the New York State Supreme Court, County of Erie, but was removed by Defendants to this Court. (Notice of Removal at 1.)
Pending before this Court is Plaintiffs' Motion to Remand this action back to the state court, along with a request for attorneys' fees.1 (Docket No. 9.) Also pending isDefendant Tonawanda Coke's motion to dismiss several counts of the Complaint and to strike several allegations within the Complaint (Docket No. 4)2 , and a motion by Defendants Crane and Kamholz to dismiss the Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).3 (Docket No. 3.)
For the reasons that follow, this Court finds that it lacks subject matter jurisdiction over this case. Accordingly, this Court will grant Plaintiffs' motion to remand. This Court declines to award attorneys' fees to Plaintiffs.
Because this Court finds it lacks subject matter jurisdiction, it is not permitted to address the merits of Defendants' motions. Accordingly, those motions are denied without prejudice.
In deciding either a motion to remand or a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must assume as true all factual allegations set forth in the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Rosenberg v. GWV Travel, Inc., 480 F.Supp. 95, 96 (S.D.N.Y. 1979).
Plaintiffs are residents of Tonawanda, New York. (Compl. ¶¶ 1-3.) Defendant Tonawanda Coke manufactures foundry coke and other products in Tonawanda. (Compl. ¶ 5.) Defendant Crane is the owner and CEO of Tonawanda Coke. (Compl. ¶ 6.) Defendant Kamholz is or was the Environmental Control Manager for Tonawanda Coke. (Compl. ¶ 7.)
The Tonawanda Coke facility has been in operation since 1917. (Compl. ¶ 12.) The site has been owned by Defendant Crane since 1978. (Compl. ¶ 16.) The facility continues to operate as a merchant producer of foundry coke twenty-four hours per day, seven days per week. (Compl. ¶ 17.)
In 2007, the New York State Department of Environmental Conservation ("NYSDEC") conducted a year-long air quality study in Tonawanda. (Compl. ¶ 34.) The NYSDEC study involved installing air quality monitors at various locations throughout the community to measure concentrations of various toxic pollutants. (Compl. ¶¶ 35-38.) A report was issued by NYSDEC in October 2009. (Compl. ¶ 40.) The study found that the concentrations of benzene and formaldehyde were higher in the study area than in other areas of New York State. (Compl. ¶ 40.) In particular, the benzene concentrations in the Town of Tonawanda were found to be up to 75 times higher than the levels recommended by state guidelines. (Compl. ¶ 45.) Tonawanda Coke was the largest known point source of benzene in the study area. (Compl. ¶ 42.)
In June and September 2009, the United States Environmental Protection Agency ("EPA") conducted two compliance inspections of Tonawanda Coke's facility under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq. ("RCRA"). (Compl. ¶ 21.) The inspections revealed Tonawanda Coke had recycled decanter tank tarsludge by using it as feedstock to produce its foundry coke. (Compl. ¶ 22.) Additionally, the EPA found tar storage tank residue in and around the remains of two abandoned tar storage tanks that had burned during a failed decommissioning attempt in 2007. (Compl. ¶ 23.) Analysis of the tar storage tank residue indicated the presence of hazardous waste in and around the burnt tanks. (Compl. ¶ 24.)
Following the inspections, the EPA issued an Information Request Letter to Tonawanda Coke under RCRA. (Compl. ¶ 28.) The EPA determined that Tonawanda Coke's practices had generated "solid waste" and "hazardous waste" and had created a situation under which hazardous waste and other materials had entered the environment and might continue to do so. (Compl. ¶¶ 31-32.)
On October 30, 2009, the EPA issued a letter to Tonawanda Coke, stating that the data collected in the EPA's inspection and in the NYSDEC study indicated that Tonawanda Coke's benzene emissions were causing or contributing to elevated benzene concentrations in the local environment. (Compl. ¶ 46.)
On December 7, 2009, the EPA issued a Notice of Violation to Tonawanda Coke for violations of the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (Compl. ¶ 47.) On December 17, 2009, the EPA issued a Water Administrative Order to Tonawanda Coke citing numerous violations. (Compl. ¶ 48.) Also in December 2009, the EPA issued a Complaint, Compliance Order and Opportunity for a Hearing to Tonawanda Coke, alleging violations of the Solid Waste Disposal Act4 in relation to its treatment of hazardous waste. (Compl. ¶ 49.)
In December 2009, federal investigators, acting under the direction of the United States Attorney for the Western District of New York, raided Tonawanda Coke's facility and later arrested Defendant Kamholz. (Compl. ¶¶ 50-51.) Defendant Kamholz was charged with numerous counts, including violations of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601-9675 ("CERCLA"), RCRA, and the Clean Air Act.5 (Compl. ¶ 51.) In April 2010, the EPA issued another Notice of Violation to Tonawanda Coke for additional violations of the Clean Air Act. (Compl. ¶ 52.)
This case originally was filed on September 27, 2010, in the New York State Supreme Court in Erie County. (Notice of Removal at 1-2.) The Complaint is styled as a "Class Action Complaint," and Plaintiffs purport to be representatives of a class of approximately 38,875 people who reside in the NYSDEC study area and have been damaged by Defendants' conduct. (Compl. ¶ 63.) The named Plaintiffs - Frank and Mary DeLuca, Morgan Greene, and Colleen Brigante - each claim to be representatives of a subclass within the larger class. (See Compl. ¶¶ 60-61.) Specifically, Frank and Mary DeLuca hold themselves out as representatives of a class whose property values have suffered (Compl. ¶ 73); Morgan Greene holds herself out as the representative of a class that has suffered loss of quality of life (Compl. ¶ 77); and Colleen Brigante holds herself out as the representative of a class that has the potential to develop medical problems. (Compl. ¶ 80.)
The Complaint states ten causes of action: (1) negligence; (2) gross negligence; (3) negligence per se; (4) strict liability; (5) absolute liability; (6) trespass; (7) nuisance; (8) unjust enrichment; (9) battery; and (10) "punitive damages." (Compl. ¶¶ 83-130.) Plaintiffs seek "compensatory, exemplary, and punitive damages" from Defendants. (Compl. at pp. 26-28.)
On October 29, 2010, the named Defendants6 removed the case to this Court on the basis that claims in the Complaint arise under federal law. (Notice of Removal at 2.) Subsequently, Defendants filed motions to dismiss some or all of the claims against them. (Docket Nos. 3, 4.)
Plaintiffs filed the pending motion to remand the case back to New York state court, contending that this Court lacks subject matter jurisdiction and that the proper forum is state court. (Docket No. 9.) Defendants respond that this Court possesses either original or supplemental subject matter jurisdiction over the entire cause of action.
IV. DISCUSSION
This Court first will address Plaintiffs' motion to remand, as it concerns the threshold question of whether this Court possesses subject matter jurisdiction over this case. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
District courts have original jurisdiction over all civil actions arising under the Constitution, treaties, or laws of the United States. 28 U.S.C. § 1331. A civil action brought in state court may be removed by a defendant to a federal district court of original jurisdiction. 28 U.S.C. § 1441.
Out of respect for states' rights and in keeping with the limited jurisdiction of federal courts, removal jurisdiction is "strictly construed," with all doubts resolved against removal. Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002); In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., 488 F.3d 112, 124 (2d Cir. 2007). The removing party bears the burden of establishing proper jurisdiction. United Food & Commercial Workers Union v. Centermark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994); Funeral Fin. Sys., Ltd. v. Solex Express, Inc., No. 01-CV-6079(JG), 2002 WL 598530, at *3 (E.D.N.Y. Apr. 11, 2002) ().
Plaintiffs contend that Defendants have failed to meet their burden of establishing removal jurisdiction because the face of the Complaint does not state any cause "arising under" federal law. (Pls.' Mem. at 8.)
In general, a claim arises under federal law...
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