Nielsen v. Sioux Tools, Inc., Civ. No. 3:93CV152 (AVC).
| Decision Date | 30 September 1994 |
| Docket Number | Civ. No. 3:93CV152 (AVC). |
| Citation | 870 F. Supp. 435 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Borge NIELSEN, Plaintiff, v. SIOUX TOOLS, INC., Defendant. |
COPYRIGHT MATERIAL OMITTED
James S. Twaddell, Reed D. Rubinstein, Levy & Droney, P.C., Farmington, CT, R. Bartley Halloran, Alfano, Halloran & Flynn, Hartford, CT, for Borge Nielsen.
Julie Harrison, Robert A. Kappel, Jacobi, Kappel, & Case, Milford, CT, for Sioux Tools, Inc.
William C. Eustace, Jeffrey J. Vita, Anderson, Kill, Olick & Oshinsky, New Haven, CT, for William H. Joli.
William C. Eustace, Tracy Alan Saxe, Jeffrey J. Vita, Anderson, Kill, Olick & Oshinsky, New Haven, CT, for Velia R. Joli.
Joseph G. Fortner, Jr., Halloran & Sage, Hartford, CT, Valerie Gay Bataille, Norwich, CT, for Hayes Chevrolet Buick, Inc., Estate of Mary E. Hayes, Michael J. Hayes, executor for Estate of Mary E. Hayes.
Paul Ruszczyk, Dice, Maloney & Lenz, Cheshire, CT, for Philip Bauxbaum, III, Philip Bauxbaum, Jr., 22 Enterprises, Inc.
Bonnie Lynn Amendola, Pepe & Hazard, Michael A. Zizka, LeBoeuf, Lamb, Greene & MacRae, Hartford, CT, for Colchie, Inc., d/b/a Meineke Discount Mufflers, Walter J. Pappas, Pearl E. Pappas.
Philip T. Newbury, Jr., Peter J. Casey, Howd & Ludorf, Hartford, CT, Barry Cope, Martha S. Hollingsworth, Bingham, Summers, Welsh & Spilman, Indianapolis, IN, for American States Ins. Co.
RULING ON DEFENDANT'S MOTION TO DISMISS
This is an action for a declaratory judgment and damages brought pursuant to the Comprehensive Environmental Response Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"). In addition, the complaint alleges a series of common law tort actions.
The defendant moves to dismiss the plaintiff's complaint for lack of personal jurisdiction. The defendant further moves, pursuant to Fed.R.Civ.P. 12(b)(6) that counts two through eight should be dismissed for failure to state a claim upon which relief may be granted and/or because the statute of limitations has lapsed.
For the reasons discussed, infra, the motion is granted in part and denied in part.
The defendant, Sioux Tools, Inc., an Iowa Corporation, owned and operated a machine shop and distribution center (the "property") in New Milford, Connecticut, from 1966 to 1980. During this period, the defendant allegedly generated large amounts of hazardous substances, and registered with the United States Environmental Protection Agency ("EPA") as a generator of Code F001 hazardous waste.2 The plaintiff alleges that the defendant deposited this waste into an underground storage tank located on the property, and in other instances, directly onto the ground.
On October 28, 1980, the defendant sold the property to William H. Joli. The defendant did not inform Joli that it had disposed of hazardous substances on the property, or of the potential threat the hazardous waste posed to the public. After Joli purchased the property, however, he discovered the underground storage tank and cemented the tank cover shut. Joli owned the property for the next four years, and during this time neither stored nor disposed of hazardous substances on the property.
On November 30, 1984, the plaintiff purchased the property from Joli. In 1988, the plaintiff received an offer to purchase the property. Prior to closing, the plaintiff ordered an environmental assessment of the property. The assessment revealed that the underground storage tank contained hazardous material and that the tank had leaked, resulting in the contamination of both the soil and groundwater. Further tests revealed that the soil was contaminated with lead, cadmium, chromium, and an assortment of chlorohydrocarbons.3 The assessment also revealed that the groundwater was contaminated with trichloroethylene, benzene, and toluene. The plaintiff alleges that the defendant was the only owner or operator of the property to generate these hazardous substances.
On January 23, 1990, the plaintiff, in accordance with 42 U.S.C. § 9603, reported the contamination to the National Response Center. On January 24, 1992, the Connecticut Department of Environmental Protection ("DEP") issued order No. SRD-031 directing the plaintiff to take action to determine the nature and extent of the contamination, and to submit a plan of remediation. The plaintiff has incurred National Contingency Plan costs due to the release of these hazardous substances.
A motion to dismiss pursuant to Fed. R.Civ.P 12(b)(6) involves a determination as to whether the plaintiff has stated a claim upon which relief may be granted. Fischman v. Blue Cross Blue Shield, 755 F.Supp. 528 (D.Conn.1990). The motion must be decided solely on the facts alleged. Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir.1985). In deciding a motion to dismiss, a court must assume all factual allegations in the complaint to be true and must draw reasonable references in favor of the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Such motion should be granted only where no set of facts consistent with the allegations could be proven which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The issue is not whether the plaintiff will prevail, but whether he would have the opportunity to prove his claims. Id.
The defendant moves to dismiss the entire complaint on the grounds that the court lacks personal jurisdiction. Specifically, the defendant argues that in order for the court to assert jurisdiction pursuant to the Connecticut long arm statute4, the "CERCLA liability provision" upon which the count is based would have to be tantamount to the commitment of a "tortious act." Since the traditional elements for tort liability are not required to establish a CERCLA violation, the defendant argues, such a violation is not a tort. There is, therefore, no basis upon which to invoke the long arm statute.
The plaintiff contends that the court does have personal jurisdiction because of: 1) the defendant's alleged contamination of soil and groundwater; 2) the defendant's status as an owner/operator of the property; and 3) the defendant's alleged concealment and failure to remediate the contamination, which, individually, constitute "tortious conduct" within the meaning of Conn.Gen.Stat. § 33-411(c).
The first issue presented is whether the defendant's alleged contamination of property soil and groundwater may be construed as "tortious conduct" within the meaning of the Conn.Gen.Stat. § 33-411(c).
Under Connecticut law, the release of pollutants into the environment has given rise to common law tort claims. See, e.g., Kostyal v. Cass, 163 Conn. 92, 93, 302 A.2d 121 (1972) (); Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 404 A.2d 889 (1978) (). In other jurisdictions, cases hold that "the release of a hazardous substance creating an imminent danger to ... property and the environment is in the nature of a tort for purposes of establishing long arm jurisdiction." United States v. Conservation Chemical Co., 619 F.Supp. 162, 245 (D.C.Mo. 1985); See also Zands v. Nelson, 797 F.Supp. 805, 815 (S.D.Cal.1992).
In the present action, the court concludes that the defendant's alleged contamination of soil and groundwater may be construed as "tortious conduct" within the meaning of the Connecticut long arm statute. Therefore, the court need not consider the plaintiff's alternate theories for establishing "tortious conduct." Accordingly, the court denies the defendant's motion to dismiss the plaintiff's Count One.
The defendant next moves to dismiss the complaint on grounds that the court's exercise of personal jurisdiction violates the defendant's due process rights under the United States Constitution. Specifically, the defendant argues that for purposes of due process, the plaintiff must show that "at the time of service of the complaint," Connecticut Artcraft Corp. v. Smith, 574 F.Supp. 626, 530 (D.Conn.1983), the defendant had "minimum contacts" with the state of Connecticut. Since the defendant does not presently maintain an office, resident sales force, employees, telephone or business in Connecticut, the court's assertion of personal jurisdiction is unconstitutional for want of "minimum contacts" with the State of Connecticut.
Further, the defendant argues that since it physically withdrew from Connecticut thirteen years ago, has not had any significant contact with Connecticut since CERCLA was passed, and filed its Certificate of Withdrawal with the Connecticut Secretary of State's Office six years ago, the court's exercise of personal jurisdiction does not comport with "traditional notions of fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980) (citing International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).
The plaintiff contends that the defendant does have the required minimum contacts with the state of Connecticut because the defendant, by wrongfully disposing and concealing toxic waste, "caused consequences" within the state so as to trigger an expectation of being haled into court there. SEC v. Unifund Sal, 910 F.2d 1028, 1033 (2d Cir.), reh'g denied, 917 F.2d 98 (1990). Additionally, compelling the plaintiff to litigate in Iowa, as opposed to demanding that the defendant litigate in Connecticut, violates traditional notions of fair play and substantial justice.
In determining whether the exercise of personal jurisdiction in a particular case violates due...
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