Honeywell Int'l Inc. v. Citgo Petroleum Corp.

• Decision Date: 08 December 2021
• Docket Number: 5:18-CV-646 (FJS/ML) (Lead Case), 5:19-CV-1219 (FJS/ML) (Member Case)
• Citation: 574 F.Supp.3d 76
• Parties: HONEYWELL INTERNATIONAL INC., Plaintiff, v. CITGO PETROLEUM CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of New York

574 F.Supp.3d 76

HONEYWELL INTERNATIONAL INC., Plaintiff,

v.CITGO PETROLEUM CORPORATION, Defendant.¹

5:18-CV-646 (FJS/ML) (Lead Case), 5:19-CV-1219 (FJS/ML) (Member Case)

United States District Court, N.D. New York.

Signed December 8, 2021

OF COUNSEL: BRIAN D. ISRAEL, ESQ., GEOFFREY J. MICHAEL, ESQ., LAUREN C. DANIEL, ESQ., ARNOLD & PORTER KAYE SCHOLER LLP, 601 Massachusetts Avenue N.W., Washington, D.C. 20001, Attorneys for Plaintiff.

OF COUNSEL: DALE A. DESNOYERS, ESQ., ALLEN & DESNOYERS LLP, 90 State Street, Suite 1009, Albany, New York 12207, Attorneys for Plaintiff.

OF COUNSEL: KAREN LEE PRENA, ESQ., KAREN LEE PRENA P.C., 3100 North Sheridan Road, Suite 4d, Chicago, Illinois 60657, Attorneys for Defendant.

AMENDED MEMORANDUM-DECISION AND ORDER

SCULLIN, Senior Judge

I. INTRODUCTION

Pending before the Court is Defendant's motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 15.

II. BACKGROUND

In its 53-page, 360-paragraph complaint, Plaintiff asserts claims against Defendant "pursuant to CERCLA, the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. §§ 2701 et seq. , and New York State law for costs incurred and to be incurred as a result of releases of petroleum, petroleum-related hazardous substances, and non-petroleum-related hazardous substances by [Defendant] and/or its predecessors into Onondaga Lake, its tributaries, and onto land areas which drain into Onondaga Lake." See Dkt. No. 1, Complaint, at ¶ 1.

Specifically, Plaintiff asserts the following six causes of action in its complaint:

(1) a CERCLA cost recovery claim for SYW-12 response costs pursuant to § 107(a) of CERCLA, 42 U.S.C. § 9607(a) ;

(2) a claim for contribution related to response costs at the Onondaga Lake Bottom Site, pursuant to § 113(f) of CERCLA, 42 U.S.C. § 9613(f) ;

(3) a claim for contribution related to natural resource development ("NRD") costs pursuant to § 113(f) of CERCLA, 42 U.S.C. § 9613(f) ;

(4) a claim for contribution related to oil-related removal costs incurred at the Onondaga Lake Bottom Site and SYW-12, pursuant to OPA, 33 U.S.C. § 2702 ;

(5) a contribution claim related to petroleum discharges at the Onondaga Lake Bottom Site and SYW-12 pursuant to New York Navigation Law, N.Y. Nav. Law §§ 176(8), 181 ; and

(6) a claim for contribution for contamination of Onondaga Lake that resulted in and will result in Plaintiff's incurrence of costs pursuant to New York State common law and N.Y. C.P.L.R. § 1401.

See, generally, Complaint.

Among other things, Plaintiff seeks declaratory judgment defining Defendant jointly and severally liable for response, removal and/or cleanup costs and NRD costs that Plaintiff has incurred or will incur. See id.

III. DISCUSSION

A. Standard of review

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the plaintiff's claim for relief. See Patane v. Clark , 508 F.3d 106, 111-12 (2d Cir. 2007). When considering the legal sufficiency of a claim, the court must accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in the plaintiff's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption, however, does not apply to legal conclusions. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Generally, when considering dismissal pursuant to Rule 12(b)(6), the court only considers matters within the four corners of the complaint; however, it may, in addition, consider matters outside the complaint if those matters consist of (1) documents attached to the complaint or answer; (2) documents incorporated by reference in the complaint, and provided by the parties; (3) documents that, although not incorporated by reference, are "integral" to the complaint; or (4) any matter of which the court can take judicial notice for the factual background of the case. See L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 422 (2d Cir. 2011) (quotations omitted). Moreover, even if a document is not incorporated by reference in the complaint, the court may still consider it when the complaint " ‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.... However, ‘even if a document is "integral" to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document.’ ... ‘It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.’ ..." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010) (internal quotations omitted).

To survive a motion to dismiss, a plaintiff need only plead "a short and plain statement of the claim[,]" Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to ‘sho[w] that the [plaintiff] is entitled to relief[.]’ " Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation omitted). Under this standard, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level," id. at 555, 127 S.Ct. 1955 (citation omitted), and present claims that are "plausible on [their] face," id. at 570, 127 S.Ct. 1955. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). Furthermore, "[t]he Twombly plausibility standard, ... does not prevent a plaintiff from ‘pleading facts alleged "upon information and belief’ " where the facts are peculiarly within the possession and control of the defendant, see, e.g., Boykin v. KeyCorp , 521 F.3d 202, 215 (2d Cir. 2008), or where the belief is based on factual information that makes the inference of culpability plausible, see Iqbal , 129 S. Ct. at 1949 ("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.")." Arista Records LLC v. Doe 3 , 604 F.3d 110, 120 (2d Cir. 2010) (internal citation omitted). Finally, this plausibility standard " ‘simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal[ity].’ " Id. (quoting [ Twombly ], 550 U.S. at 556, 127 S. Ct. 1955 ).²

B. Plaintiff's OPA claim

Defendant moves to dismiss Plaintiff's OPA claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because Plaintiff did not present that claim to Defendant prior to filing this action. However, because the Court finds, as did Magistrate Judge Lovric in Honeywell Int'l Inc. v. Buckeye Partners, L.P. , 18-CV-646, that "OPA presentment is a mandatory condition precedent and not a jurisdictional requirement[,]" Buckeye Partners, L.P., 18-CV-646, Dkt. No. 201 at 35 (citing In re Oil Spill by Oil Rig DEEPWATER HORIZON the Gulf of Mexico, on April 20, 2010 , 10-4182, 10-4183, 10-3059, 11-0516, 2011 WL 5520295, *9 (E.D. La. Nov. 14, 2011) (citing Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 434-442, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ; Leboeuf v. Texaco , 9 F. Supp. 2d 661, 665 (E.D. La. 1998) )), the Court will treat Defendant's motion as one to dismiss for failure to state a claim pursuant to Rule 12(b)(6).

Pursuant to Rule 9(c) of the Federal Rules of Civil Procedure, "[i]n pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed." Fed. R. Civ. P. 9(c). OPA's presentation provision provides, in pertinent part, as follows:

(a) Presentation

Except as provided in subsection (b) [delineating presentation to the Fund], all claims for removal costs or damages shall be presented first to the responsible party or guarantor ....

(c) Election

If a claim is presented in accordance with subsection (a) and –

(1) each person to whom the claim is presented denies all liability for the claim, or

(2) the claim is not settled by any person by payment within 90 days after the date upon which (A) the claim was presented, or (B) advertising was begun pursuant to section 2714(b) of this title [delineating the claims clearing house procedures], whichever is later, the claimant may elect to commence an action in court against the responsible party or guarantor or to present the claim to the Fund....

33 U.S.C. § 2713.

"OPA defines a ‘claim’ as ‘a request, made in writing for a sum certain, for compensation for damages or removal costs resulting from an incident.’ " Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., Inc. , 51 F.3d 235, 237-38 (11th Cir. 1995) (quoting 33 U.S.C.A. § 2701(3) ). "The OPA does not define the term ‘sum certain.’ However, the Seventh Circuit has addressed what is needed to satisfy the requirements for a ‘sum certain’ in the context of the Federal Tort Claims Act." Nodine v. Plains All Am. Pipeline, L.P. , No. 17-CV-163-SMY-DGW, 2018 WL 4636242, *3 (S.D. Ill. Sept. 27, 2018). "In Khan v. U.S. , 808 F.3d 1169, 1172-73 (7th Cir. 2015), the Court noted, ‘[a]ll that must be specified ... is "facts plus a[ ] demand for money;" if those two things are specified, "the claim encompasses any cause of action fairly implicit in the facts.’ " " Nodine , 2018 WL 4636242, at *3 (quoting [ Khan , 808 F.3d] at 1172-73 (quoting Murrey v. United States , 73 F.3d 1448, 1452 (7th Cir. 1996) )). " ‘But as "facts plus a demand for money" must be specified, failure to ask for any damages – any money – is fatal’ " Id. (quoting [ Khan , 808 F.3d] at 1173 (quoting Smoke Shop, LLC v. United States , 761 F.3d 779, 787-88 (7th Cir. 2014) )).

In response to Defendant's argument that it had not met OPA's presentation requirement, Plaintiff filed under seal its 2013 presentation to Defendant, which it referenced in its complaint. Defenda...