Source: Law360, January 16, 2013
By: Sean McLernon
A New Jersey federal judge on Tuesday allowed property developers to add a new plaintiff and additional claims in a $20 million environmental cleanup suit against Honeywell International Inc., finding that the allegations are timely and relate back to the original complaint.
U.S. Magistrate Judge Douglas E. Arpert ruled that remedial activity at a former roofing and paving materials factory allegedly owned by Honeywell predecessor Warren Chemical and Manufacturing Co. in 1985 and 2000 did not trigger the Comprehensive Environmental Response, Compensation and Liability Act’s six-year statute of limitations for claims. The judge also said the new claims relate to the same conduct alleged in the original complaint and can move forward.
Queens West Development Corp. asked the court to replace the now-dissolved Avalon Riverview II LLC with AvalonBay Communities Inc. in the suit seeking to force Honeywell to pay the estimated $20 million the developers are spending to clean up the Long Island City, N.Y., site. Failing to initially include AvalonBay was an “inadvertent discrepancy” for which they should not be penalized, the developers said.
Honeywell argued that omitting AvalonBay from the initial suit prevents the new claims from relating back to the original allegations, but Judge Arpert said that the developers are not trying to “do an end run around the statute of limitations,” and are merely substituting a corporate parent for its subsidiary. The cases cited by Honeywell in arguing against AvalonBay’s inclusion only deal with complaints in which there was no error in selecting plaintiffs, according to the ruling
“Unlike a mistake, the putative plaintiffs in those cases had made an affirmative choice not to join the lawsuits in the outset,” the judge said. “In addition, unlike this case, the parties seeking to be added were entirely different parties, with interests independent from the other plaintiffs.”
The judge also allowed AvalonBay to include restitution claims in the amended complaint. Honeywell had argued the claims are preempted by CERCLA. Noting that U.S. District Judge Paul G. Sheridan had already addressed the issue regarding the other plaintiffs and found that the claims can remain in the suit, Judge Arpert said there was “no reason to find differently” for AvalonBay.
Honeywell had also claimed that early activity at the site started the clock on the six-year statute of limitations, highlighting monitoring and sampling wells that were installed at the site in 1985. The company also said that the demolition of pre-existing buildings and installation of fencing in 2000 would also make the allegations time-barred. Judge Arpert disagreed, finding that that developers presented sufficient evidence that the activities were merely preliminary.
Judge Arpert did prevent the developers from including additional theories of successor liability in the amended complaint, agreeing with Honeywell that answering new factual allegations would be an unfair burden.
“Proposed amendments to pleadings that amplify or supplement factual allegations based on recent discovery serve little or no purpose,” the judge said. “This is especially true in light of the defendant’s concession that the plaintiffs’ pleadings satisfy the general notice requirements of the rules (both as to the factual allegations and damage claims).”
The developers are voluntarily remediating the contaminated site, with plans to build a library, park and high-rise apartment building. They sued Honeywell in September 2010 for both recovery and contribution claims under CERCLA, as well as common law nuisance and restitution.
Honeywell spokeswoman Victoria Streitfield said the company takes remediation of sites very seriously, but insisted it is not responsible for the damage at issue in the suit.
“Based on the information available to us, we do not believe our predecessor company ever owned the Queens site or the business, which was sold in 1899,” Streitfield said.
Counsel for the plaintiffs was not immediately available for comment Wednesday.
The plaintiffs are represented by Paul D. Casowitz of Sive Paget & Riesel PC.
Honeywell is represented by Eric Magnelli, John M. Agnello and Melissa E. Flax of Carella Byrne Cecchi Olstein & Agnello PC.
The case is Queens West Development Corp. et al. v. Honeywell International Inc., case number 3:10-cv-04876, in the U.S. District Court for the District of New Jersey.
–Additional reporting by Rachel Slajda. Editing by John Quinn.