Murtaugh v. New York, No. 5:08–CV–1168 (GTS/GHL).

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Writing for the Court: GLENN T. SUDDABY
• Citation: 810 F.Supp.2d 446
• Parties: Gail MURTAUGH, Individually and d/b/a Crosby Hill Auto Recycling; Richard R. Murtaugh; Murtaugh Recycling Corp.; Richard O. Murtaugh; and Flood Drive Props., Inc., Plaintiffs, v. State of NEW YORK; Pete Grannis, Comm'r of Envtl. Conservation; Cnty. of Oswego; Benjamin Conlon; Richard Brazell; Maureen Leary; Op–Tech Envtl. Servs., Inc.; William Simpson; and Adm'r Andrea Rhonda Miller, Defendants.
• Decision Date: 16 August 2011
• Docket Number: No. 5:08–CV–1168 (GTS/GHL).

810 F.Supp.2d 446

Gail MURTAUGH, Individually and d/b/a Crosby Hill Auto Recycling; Richard R. Murtaugh; Murtaugh Recycling Corp.; Richard O. Murtaugh; and Flood Drive Props., Inc., Plaintiffs,
v.
State of NEW YORK; Pete Grannis, Comm'r of Envtl. Conservation; Cnty. of Oswego; Benjamin Conlon; Richard Brazell; Maureen Leary; Op–Tech Envtl. Servs., Inc.; William Simpson; and Adm'r Andrea Rhonda Miller, Defendants.

No. 5:08–CV–1168 (GTS/GHL).

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

Aug. 16, 2011.

[810 F.Supp.2d 454]

Law Office of Richard J. Brickwedde, of Counsel: Richard J. Brickwedde, Esq., Syracuse, NY, for Plaintiffs Gail Murtaugh, Richard R. Murtaugh and Murtaugh Recycling Corp.

The Wladis Law Firm, PC, of Counsel: Kevin C. Murphy, Esq., Syracuse, NY, for Plaintiffs Richard O. Murtaugh and Flood Dr.

Petrone & Petrone, PC, of Counsel: Lori E. Petrone, Esq., Utica, NY, for Defendant County of Oswego.Hancockestabrook, of Counsel: Doreen A. Simmons, Esq., James P. Youngs, Esq., Syracuse, NY, for Defendants Simpson and Op–Tech Envtl. Servs.Eric T. Schneiderman, Attorney General for the State of New York, of Counsel: Charles Quackenbush, Esq., Shoshanah Bewlay, Esq., Assistant Attorneys General, Albany, NY, for Defendants New York, Grannis, Conlon, Brazell, Leary, and Miller.MEMORANDUM–DECISION and ORDER GLENN T. SUDDABY, District Judge.

Currently before the Court in this environmental action filed by Gail Murtaugh, Richard R. Murtaugh, Murtaugh Recycling Corp., Richard O. Murtaugh, and Flood Drive Properties, Inc. (“Plaintiffs”) are the following three motions: (1) a motion to dismiss for lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join indispensable parties, filed by Oswego County (hereinafter “County Defendant”) (Dkt. No. 56, Attach. 30); (2) a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, filed by New York State, New York State Department of Environmental Conservation Commissioner Pete Grannis, Benjamin Conlon, Richard Brazell, Maureen Leary, and Andrea Rhonda Miller (hereinafter “State Defendants”) (Dkt. No. 59, Attach. 2); and (3) a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, filed by Op–Tech Environmental Services and William Simpson (hereinafter “Corporate Defendants”) (Dkt. No. 60, Attach. 3). For the reasons set forth below, County Defendant's motion is granted in part and denied in part; State Defendants' motion is granted; and Corporate Defendants' motion is granted.

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                ¦TABLE OF CONTENTS ¦
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I. RELEVANT BACKGROUND 456
                

 A. Plaintiff's Claims 456
                 B. Defendants' Motions 457
                

 1. County Defendant's Motion 457
                 2. State Defendants' Motion 459
                 3. Corporate Defendants' Motion 462
                

II. RELEVANT LEGAL STANDARDS 463
                

 A. Standard Governing Dismissals for Failure to State a Claim 463
                 Standard Governing Dismissals for Lack of Subject–Matter
                 B. Jurisdiction 464
                 Standard Governing Dismissals for Failure to Join
                 C. Indispensable Party 464
                 D. Standards Governing Plaintiffs' Claims 465
                

III. ANALYSIS 465
                

 A. Murtaugh Plaintiffs' CWA Claim 465
                

 Whether Murtaugh Plaintiffs' Claim Should Be Dismissed on
                 the Ground of Lack of Standing, “Public Policy,”
                 1. Collateral Estoppel and/or Failure to Fulfill the 465
                 Jurisdictional Notice Requirement
                 Whether, in the Alternative, Murtaugh Plaintiff s Have
                 Failed to Allege that, at the Time They Filed Their
                 2. Complaint, There Was a Continuous or Intermittent 468
                 Violation of the CWA and a Reasonable Likelihood that
                 County Defendant Would Continue to Pollute
                 Whether, in the Alternative, Murtaugh Plaintiffs' Claim
                 3. Should Be Dismissed for Failure to Join an Indispensable 469
                 Party
                

 4. Whether, in the Alternative, the Eleventh Amendment Bars 469
                 Murtaugh Plaintiffs' Claim Against Defendant Grannis
                

 B. Murtaugh Plaintiffs' RCRA Claims 471
                

 1. Claim Under 42 U.S.C. § 6972(a)(1)(A) 471
                

 Whether Murtaugh Plaintiffs' Claim Should Be Dismissed
                 a. on Grounds of Lack of Standing, “Public Policy,” 471
                 Collateral Estoppel and/or the Eleventh Amendment
                 Whether, in the Alternative, Murtaugh Plaintiffs Have
                 b. Failed to Allege that, at the Time They Filed Their 473
                 Complaint, County Defendant Was Accepting and/or
                 Introducing Waste to the City Dump
                

 2. Claim Under 42 U.S.C. § 6972(a)(1)(B) 474
                

 C. Plaintiffs' CERCLA Claim 476
                 D. Plaintiffs' Civil Rights Claims Under 42 U.S.C. § 1983 479
                

 Due Process Claims Against Defendants Conlon, Brazell, and
                 1. Leary Corporate Defendants 479
                 2. Unlawful–Search–and–Seizure Claims Against Defendants 482
                 Conlon, Brazell, and Leary and Corporate Defendants
                

 Plaintiff Gail Murtaugh's Due Process and
                 E. Unlawful–Search–and–Seizure Claims Against Defendant Leary and 483
                 Corporate Defendants
                 F. Plaintiffs' State Law Claims 485
                

 Claim for Nuisance Against Defendant New York State
                 1. Defendant Grannis, and County Defendant 485
                 Claim for Declaratory Relief Against Defendant New York
                 2. State, and Defendants Miller, Brazell, Conlon, and Leary 488
                 3. Claim for Negligence Against Corporate Defendants 488
                

 G. State Defendants' and Corporate Defendants' Abstention 489
                 Arguments
                

[810 F.Supp.2d 456]

I. RELEVANT BACKGROUNDA. Plaintiff's Claims

On October 30, 2008, Plaintiffs filed their Complaint in this action. (Dkt. No. 1.) On July 16, 2009, Plaintiffs filed an Amended Complaint. (Dkt. No. 46.) Generally, Plaintiffs' Amended Complaint asserts claims against Defendants arising from the alleged ownership and operation of the Old City of Fulton Dump (hereinafter “City Dump”), located at 40 Airport Drive, Fulton New York (hereinafter “County Property”), which allegedly has discharged, and continues to discharge, pollutants, hazardous substances and hazardous waste into the water of the United States and onto the property of Plaintiffs Gail Murtaugh and Flood Drive Properties, Inc. ( Id.)

More specifically, Plaintiff's Amended Complaint asserts the following three claims by Plaintiffs Gail Murtaugh, Richard R. Murtaugh, and Murtaugh Recycling Corp. (“Murtaugh Plaintiffs”), against County Defendant and Defendant Grannis: (1) a claim of violation of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., based on the unlawful discharge of pollutants to an unnamed tributary of the Oswego River; (2) a claim of violation of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(A), based on the maintenance of an “open dump,” which negatively impacts Murtaugh Plaintiffs and their real property and business operations; and (3) a claim of violation of RCRA, 42 U.S.C. § 6972(a)(1)(B), based on the handling, storage, treatment, transportation, or disposal of solid or hazardous waste contained on, at, or about the Old City of Fulton Dump (hereinafter “City Dump”) located at 40 Airport Drive, Fulton New York (hereinafter “County Property”). ( Id.)

In addition, Plaintiffs' Amended Complaint asserts the following claims by all Plaintiffs against County Defendant, Defendant New York State, and Defendant Grannis: (1) a claim of violation of 42 U.S.C. § 9601 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), based on the releasing or threatened releasing of hazardous substances from, at, and about the City Dump; and (2) a state law claim for nuisance, based on the City Dump's discharge and release of leachate containing pollutants, hazardous substances, and hazardous wastes onto the real property located at 180 Flood Drive in the Town of Volney, Oswego County, New York (hereinafter “the Murtaugh Property”) and the real property located at 170 Flood Drive, Town of Volney, Oswego County, New York (hereinafter the “Flood Property”). ( Id.)

Finally, Plaintiffs' Amended Complaint asserts the following five claims against certain State Defendants and all Corporate Defendants arising from their entry onto Plaintiffs' properties, and removal of certain materials: (1) a claim of violation of due process and unlawful search and seizure under the Constitution and 42 U.S.C. § 1983, asserted by all Plaintiffs against Defendants Conlon, Brazell, and Leary, and Corporate Defendants, based on those Defendants' entry onto Plaintiffs' properties and creation of an excavation, which lowered the water table and induced and enhanced the flow of leachate discharge from the upgradient City Dump; (2) a claim of violation of due process and unlawful search and seizure under the Constitution and 42 U.S.C. § 1983, asserted by Plaintiff Gail Murtaugh, individually and d/b/a Crosby Hill Auto Recycling Corp., against Defendant Leary and Corporate Defendants, based on the removal and sale of scrap metal from the Murtaugh Property; (3) a state law claim for unlawful, willful, or malicious acts or omissions, asserted by all Plaintiffs against Defendant New York State, and Defendants Miller, Leary, Conlon, and Brazell, based on actions

[810 F.Supp.2d 457]

that caused the lowering of the water table on the Murtaugh Property, which resulted in unpermitted point source discharges from the City Dump, the induced flow of pollutants and hazardous wastes, and a destruction of a portion of the property; and (4) a state law claim for negligence, asserted by all Plaintiffs against Corporate Defendants, based on actions and omissions concerning the Murtaugh Property and the Flood Property. ( Id.)

Familiarity with the factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. ( Id.)

B. Defendants' Motions1. County Defendant's Motion

Generally, in support of its motion to dismiss for lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join indispensable parties, County Defendant argues as follows: (1) the Court...