Obg Technical v. Northrop Grumman Space & Mission

• Decision Date: 30 August 2007
• Docket Number: No. 3:06cv1850 (MRK).,3:06cv1850 (MRK).
• Citation: 503 F.Supp.2d 490
• Court: U.S. District Court — District of Connecticut
• Parties: OBG TECHNICAL SERVICES, INC., Plaintiff, v. NORTHROP GRUMMAN SPACE & MISSION SYSTEMS CORP., as successor in interest to TRW, Inc., and Best Friends, Inc., Defendants.

Page 490

503 F.Supp.2d 490

OBG TECHNICAL SERVICES, INC., Plaintiff, v. NORTHROP GRUMMAN SPACE & MISSION SYSTEMS CORP., as successor in interest to TRW, Inc., and Best Friends, Inc., Defendants.

No. 3:06cv1850 (MRK).

United States District Court, D. Connecticut.

August 30, 2007.

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Athena S. Cheng, David W. Kiefer, Loryn P. Riggiola, Philip R. White, Sills Cummis Epstein & Gross, P.C., Newark, NJ, Karen Ann Mignone, Michael Ryan Patrick, Pepe & Hazard, Southport, CT, for Plaintiff.

Elizabeth C. Barton, Sharon M. Seligman, Day Pitney LLP, Hartford, CT, John E. Hall, Thomas E. Hogan, Covington & Burling, LLP, Washington, DC, for Defendants.

MEMORANDUM OF DECISION

KRAVITZ, District Judge.

This case involves land (the "Plainville Site") that Defendant Northrop Grumman Space & Mission Systems Corp. ("Northrop Grumman") owned until it divided the site into three parcels and sold one parcel to Defendant Best Friends, Inc. ("Best Friends") in 1988 and the remaining parcels to Plaintiff OBG Technical Services, Inc. ("OBG") in 1990. The Plainville Site had been used for many decades for various industrial purposes, and those operations resulted in contamination of the soil and groundwater as well as a lagoon located on the site. In this action, OBG sues Northrop Grumman and Best Friends in an eleven-count complaint, alleging that the Defendants failed to disclose the true extent of pollution on their properties and failed to prevent pollution on Best Friends' parcel from migrating onto OBG's parcel. OBG also asserts various contract-based claims related to the agreement between OBG and Northrop Grumman by which OBG acquired its portion of the Plainville Site.

OBG is an environmental consulting firm and was Northrop Grumman's environmental consultant regarding remediation of contamination on the Plainville Site. OBG acquired the parcels at issue in this case after preparing a site investigation report that state officials used to approve a remediation plan for the site. In return for assuming responsibility for the required remediation work on the site, OBG received both the parcels and a payment of approximately $10.5 million from Northrop Grumman "[i]n recognition of the inherent potential liabilities associated with the [site]." Purchase Agreement, Art. VI., Second Am. Compl. [doc. # 43] Ex. A ("Purchase Agreement"). OBG hoped to clean up the site and sell it for a nice profit. However, the contamination on the site proved to be more extensive than OBG thought, the clean-up took longer, and the State later imposed new environmental regulations that will require further cleanup, and more expense, if OBG wants to sell its property. As a consequence, while OBG thought it had made a good deal when it acquired the property, with the benefit of hindsight, it turns out it was not. In this case, however, the hindsight is from a rather distant point in time, for OBG acquired the parcel from Northrop Grumman in 1991, about fifteen years before OBG filed this action in November 2006. As discussed below, it is simply far too late in the day for OBG to pursue its second thoughts.

After OBG filed its complaint, Defendants moved to dismiss it, raising a number of statute of limitations issues. After OBG amended its complaint in an effort to address the motions to dismiss, Defendants Northrop Grumman and Best Friends renewed their motions to dismiss. In addition, Northrop Grumman moved, in the alternative, for summary judgment as to all of OBG's claims alleged against Northrop Grumman. For the reasons discussed below, the Court GRANTS Northrop Grumman's and Best Friends' Motions to Dismiss [does. ## 50, 52] and DENIES WITHOUT PREJUDICE Northrop Grumman's Motion for Summary Judgment [doc. # 53].

I.

The Court will briefly recite the facts here and discuss them in greater detail as it evaluates each of OBG's claims. In summarizing the facts, the Court "accept[s] as true all factual statements alleged in the complaint and draw[s] all reasonable inferences in favor of OBG. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007); see Desiano v. Warner-Lambert Co., 326 F.3d 339, 347 (2d Cir.2003). On a Rule 12(b) motion, "[a] complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (internal citations and quotation marks omitted); see also Collier v. Aksys Ltd., No. 3:04CV 1232(MRK), 2005 WL 1949868, at *1 (D.Conn. Aug.15, 2005), aff'd, 179 Fed. Appx. 770 (2d Cir.2006). A document is integral to the complaint "where the complaint relies heavily upon its terms and effect." Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006). As the Second Circuit stated in Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002), "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Thus, in its description of the facts and analysis of OBG's complaint, the Court relies not only on OBG's Second Amended Complaint [doc. # 43], but also on the 1991 Purchase Agreement between OBG and Northrop Grumman, which OBG attached to the complaint, see Second Am. Compl. [doc. # 43] Ex. A ("Purchase Agreement"), and the Consent Order Plan that is referred to in the complaint, see id. ¶¶ 28, 30, 35, 41, 83. Although OBG did not attach the Consent Order Plan to the complaint, the Court finds that it may consider the Consent Order Plan because: (1) the Consent Order Plan is "integral" to the complaint; (2) "no dispute exists regarding the authenticity or accuracy" of the Consent Order Plan; and (3) "no material disputed issues of fact [exist] regarding the relevance" of the Consent Order Plan. Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

As noted previously, this case involves the Plainville Site, which OBG acquired from Northrop Grumman on December 20, 1990. Four years earlier, in 1986, Northrop Grumman had retained OBG¹ as an environmental clean-up contractor to conduct "environmental remediation of the [Plainville Site]," Second Am. Compl. [doc. # 43] ¶ 17, and in particular, to remove underground storage tanks on the site and to analyze soil samples from around the tanks to determine the extent to which oil and grease from the tanks had contaminated the surrounding soil. At or around this time, Northrop Grumman also subdivided the Plainville Site into parcels A, B, and C. Relevant to this litigation, the underground storage tanks that OBG removed for Northrop Grumman were located on parcel A, while a lagoon contaminated with industrial waste products was located on parcel B; parcels B and C are located on a downward gradient from parcel A.

In July 1988, Best Friends acquired parcel A.² Apparently at or around the time that Best Friends acquired parcel A, Northrop Grumman entered into negotiations with the Connecticut Department of Environmental Protection ("DEP"), regarding remediation of contamination on the Plainville Site. Northrop Grumman and the DEP discussed a remediation plan (eventually titled the "Consent Order Plan"), under which Northrop Grumman would be responsible for removing contaminants from the Plainville Site. As part of its negotiations with the DEP, Northrop Grumman hired OBG to "conduct[] investigations at the [Plainville Site]," Second Am. Compl. [doc. # 43] ¶ 23, and prepare a Site Investigation Report that would be presented to the DEP on behalf of Northrop Grumman. OBG's Site Investigation Report described "the extent and degree of soil and ground water pollution resulting from the waste waters discharged on-site, the leaking fuel oil storage tanks and the disposal of ... solid waste on the [Plainville Site]." Northrop Grumman's Motion to Dismiss [doc. # 52], Aff. of Thomas Hogan, Ex. 6 ("Consent Order Plan") ¶ 7. OBG submitted its Site Investigation Report to the DEP in 1989, and the Report was later approved by the DEP as part of the Consent Order Plan for the Plainville Site. See id.

Following submission of the Site Investigation Report to the DEP, OBG and Northrop Grumman began to discuss OBG's acquisition of parcels B and C. On December 20, 1990, OBG and Northrop Grumman entered into a Purchase Agreement to transfer parcels B and C to OBG (the "Property"). See Purchase Agreement. Under the terms of the Purchase Agreement, OBG agreed to take full responsibility for all remediation work required of Northrop Grumman by the DEP in connection with its approval of the Consent Order Plan. In return, OBG would receive title to the Property in addition to cash payments from Northrop Grumman totaling approximately $10.5 million. The payments were stated in the Purchase Agreement to be "[i]n recognition of the inherent potential liabilities associated with the Site which will be assumed by Purchaser upon passage of title to Purchaser, and Purchaser's agreements to perform the Work as well as develop the Site for sale or other disposition." Purchase Agreement, Art. VI (emphasis added). Notably, the Purchase Agreement contained no representations or warranties by Northrop Grumman regarding environmental conditions on the Plainville Site.

At the time OBG and Northrop Grumman executed the Purchase Agreement, Northrop Grumman, OBG, and the DEP had nearly (but not yet) finalized the Consent Order Plan stating precisely what remediation efforts would be required on the Plainville Site. Thus, the Purchase Agreement stated that OBG "shall acquire and take title to [the Property] within thirty days, or as soon as practicable thereafter, following DEP's approval of a Consent Order Plan acceptable to [Northrop...