17-1907-cv Bartlett v. Honeywell International Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of May, two thousand eighteen.

PRESENT: ROBERT D. SACK, DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges. _____________________________________

ROBERT BARTLETT, COLLEN BARTLETT, WILLIAM BARRINGTON, III, MICHELLE BARRINGTON, KIM CALVERASE, DANIEL DANTUONO, VERUSKA DANTUONO, DAVID DEDO, JULIETTE DEDO, TIMOTHY DELANY, SALLY DELANY, BRIAN DELLOW, TRACY DELLOW, RON GRYZLEC, BRENDA CARPENTER, DOUGLAS HART, CHARLENE HART, THOMAS KSHYNA, KIMBERLY KSHYNA, MATTHEW LICAMELI, TRACY LICAMELI, JOHN MARINELLI, KATHLEEN MARINELLI, WILLIAM MATHEWSON, STEPHANIE MATHEWSON, PETER MEDINA, JENAFER MEDINA, BRYAN MIGNONE, ELAINE EVERITT, BRIAN MURPHY, KIMBERLY MURPHY, SCOTT MUSEMECI, JILL MUSEMECI, JERRY PARZYCH, KRISTINA PARZYCH, JONATHAN PATCH, MARGARET PATCH, TIMOTHY PIEPER, SHARON PIEPER, FREDERICK PUCHTA, HEATHER PUCHTA, LYNORE DE LA ROSA, MARK DE LA ROSA, ROBERT SMITH, LORI SMITH, JOEY ST. LOUIS, ROBERT VERTUCCI, MEGAN VERTUCCI, MICHAEL WADE, LYNDA WADE, DAVID CORRENTE, GARY CORRENTE, LUCY CORRENTE, SARAH MARTINELLI, DEBORAH ROSS, individually and as the representative of the Estate of EDWARD WILBUR, THOMAS GDULA, KIMBERLY GDULA, MICHAEL KSHYNA, ALPHA KSHYNA, MCKENZIE YOST,

Plaintiffs-Appellants,

CAMILLUS CLEAN AIR COALITION,

Plaintiff-Cross-Claimant,

v. 17-1907-cv

HONEYWELL INTERNATIONAL INC.,

Defendant-Cross-Defendant- Appellee. _____________________________________

For Plaintiffs-Appellants: KENNETH F. MCCALLION (Kristian K. Larsen, on the brief), McCallion & Associates LLP, New York, New York.

For Defendant-Cross-Defendant-Appellee: BRIAN D. ISRAEL (Andrea M. Broach, Robert Leider, Kerry A. Dziubek, on the brief), Arnold & Porter Kaye Scholer LLP, Washington, District of Columbia, New York, New York.

Appeal from a judgment of the United States District Court for the Northern District of

New York (Scullin, J.) entered May 19, 2017.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-Appellants, residents and property owners living near a waste disposal area

known as “Wastebed 13” at the Onondaga Lake Superfund site (the “residents”), appeal from a

May 19, 2017 judgment of the United States District Court for the Northern District of New York

2 (Scullin, J.) granting the motion of Defendant-Cross-Defendant-Appellee Honeywell International

Inc. (“Honeywell”) to dismiss the residents’ Amended Complaint. Prior to oral argument, we

directed the parties to file supplemental briefing as to the basis of our and the district court’s subject

matter jurisdiction. This appeal turns on whether we have jurisdiction and, if so, whether the state

tort law claims alleged by the residents are preempted by the Comprehensive Environmental

Response, Compensation, and Liability Act (“CERCLA”),

Stat. 2767,

codified as amended,

et seq. The district court concluded that it had

jurisdiction and the state-law claims were preempted by CERCLA. We agree. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal, which we reference only as necessary to explain our decision to affirm.

I. SUBJECT MATTER JURISDICTION

Although the parties did not dispute our or the district court’s subject matter jurisdiction in

their original appellate briefs, “every federal appellate court has a special obligation to satisfy itself

not only of its own jurisdiction, but also that of the lower courts in a cause under review, even

though the parties are prepared to concede it.” Steel Co. v. Citizens for a Better Env’t,

(1998) (brackets omitted) (citations and internal quotation marks omitted). In earlier

proceedings, the district court concluded that it had both federal question and supplemental

jurisdiction over the residents’ claims, under

and

, respectively,

and declined to address whether it had diversity jurisdiction, under

. See

Camillus Clean Air Coal. v. Honeywell Int’l, Inc., No. 5:13-cv-365 (FJS) (DEP),

3 4774507, at *1–3 (N.D.N.Y. Sept. 4, 2013). Upon review, we conclude that we have subject

matter jurisdiction as both federal question and diversity jurisdiction are present.1

A. FEDERAL QUESTION JURISDICTION

Under

, “[t]he district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.”

(emphasis added). The Supreme Court has explained that “where a claim finds its origins in state

rather than federal law . . . we have identified a ‘special and small category’ of cases in which

arising under jurisdiction still lies.” Gunn v. Minton,

(2013) (quoting Empire

Healthchoice Assurance, Inc. v. McVeigh,

(2006)). The Gunn Court noted that

“federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2)

actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting

the federal-state balance approved by Congress.”

For substantially the reasons stated by the

district court, we agree that the issues implicated by the residents’ allegations – including whether

Honeywell has complied with a consent decree approved by a federal district court and the

1 The district court suggested, in the alternative, that even if federal question and diversity jurisdiction were absent, it could nonetheless exercise supplemental jurisdiction over the residents’ state-law claims. See Camillus Clean Air Coal.,

, at *2–3. We disagree. Our recent precedent precludes the exercise of supplemental jurisdiction where an action’s sole federal claim has been dismissed for lack of subject matter jurisdiction. See Cohen v. Postal Holdings, LLC,

(2d Cir. 2017) (“[W]hen a district court correctly dismisses all federal claims for lack of subject-matter jurisdiction . . . the district court is thereby precluded from exercising supplemental jurisdiction over related state-law claims.”);

at 399 n.5 (collecting cases demonstrating that “[e]very other federal court of appeals to have considered the issue has also so held[]”). Of course, nothing in this supplemental jurisdiction discussion alters our determination that we possess subject matter jurisdiction in this appeal on both federal question and diversity jurisdiction grounds.

4 circumstances under which CERCLA might preempt the residents’ state tort law claims – raise

disputed, substantial federal issues which are amenable to federal court resolution without

interfering with the federal-state balance approved by Congress. See Camillus Clean Air Coal.,

, at *1–2. As the district court persuasively observed, “under the circumstances

of this case, ‘a contrary holding that the district court lacks jurisdiction could allow litigants to use

the state courts as a vehicle to undermine a federal court’s ability to police its consent decrees[.]’”

at *2 n.2 (quoting United States v. City of Loveland,

(6th Cir. 2010)).

Accordingly, subject matter jurisdiction is present because we have federal question jurisdiction.

B. DIVERSITY JURISDICTION

Additionally, we have subject matter jurisdiction for the independent reason that diversity

jurisdiction’s requirements are satisfied. While the district court declined to address whether the

district court had diversity jurisdiction under

, see

at *3 n.3, we may affirm

on any ground supported in the record, see Shumway v. United Parcel Serv., Inc.,

(2d Cir. 1997). Diversity jurisdiction is present when there is complete diversity between the

parties and “the matter in controversy exceeds the sum or value of $75,000.”

(a).

Here, all the requirements for diversity jurisdiction are met. To focus first on the inception of the

lawsuit, there was complete diversity between all residents and Honeywell both at the time the

original complaint was filed on March 18, 2013 and then on April 2, 2013, when Honeywell

removed the action to federal court. All plaintiffs are and were New York citizens and Honeywell

was and remains a corporation organized under Delaware law, with its principal place of business

in Morristown, New Jersey.

5 The residents’ attempts to contend otherwise are unavailing. First, they argue that because

two plaintiffs, Charlene and Douglas Hart, moved from New York to New Jersey in January 2014

(and then back to New York around November 2015), diversity jurisdiction is defeated.

However, the move to New Jersey occurred after the original complaint was filed and after

Honeywell’s removal. And it is well established that “[j]urisdiction once acquired . . . is not

divested by a subsequent change in the citizenship of the parties.” Wichita R.R. & Light Co. v.

Pub. Utils. Comm’n of the State of Kan.,

(1922); see also OneWest Bank, N.A. v.

Melina,

(2d Cir. 2016) (per curiam).

Next, the residents contend – contrary to settled case law – that Honeywell should be

considered a citizen of New York because it uses an office in upstate New York for purposes

relating to the Consent Decree. If, as the residents urge, we were to deem Honeywell a New York

citizen, its purported New York citizenship would defeat diversity jurisdiction since every plaintiff

is a citizen of New York. However, under

(c)(1), “a corporation shall be deemed

to be a citizen of every State and foreign state by which it has been incorporated and of the State

or foreign state where it has its principal place of business.” And the Supreme Court has held that

a company’s principal place of business can be only a “single” state, Hertz Corp. v. Friend,

(2010), and “should normally be the place where the corporation maintains its

headquarters – provided that the headquarters is the actual center of direction, control, and

coordination, i.e., the ‘nerve center,’ and not simply an office where the corporation holds its board

meetings,”

Here, both the residents’ Amended Complaint and even their original complaint

allege that Honeywell is headquartered in New Jersey, not in New York. In short, because every

plaintiff is a citizen of New York and Honeywell is a citizen of Delaware (because it is

6 incorporated there) and New Jersey (because that is the location of its lone principal place of

business), complete diversity of citizenship exists between all plaintiffs and Honeywell.

As for the $75,000 jurisdictional threshold for the value of the “matter in controversy,”

(a), the residents claim that each and every plaintiff must meet the $75,000 threshold.

But the Supreme Court has explicitly rejected the precedents relied upon by the residents for this

proposition. In Exxon Mobil Corp. v. Allapattah Servs. Inc., the Supreme Court held that a

defendant must only establish a reasonable probability that one (not all) of the plaintiffs’ claims

exceeds $75,000. See

, 566–67 (2005). Here, based upon the allegations in the

pleadings, the Exxon Mobil standard – whether there is a reasonable probability that the damages

sought by at least one plaintiff meet the $75,000 threshold – is satisfied. The residents have not

asserted an amount of monetary damages, so, in these circumstances, we “may look outside those

pleadings to other evidence in the record” to determine the amount in controversy. United Food

& Commercial Workers Union, Local 1919 v. CenterMark Props. Meriden Square, Inc.,

, 305 (2d. Cir. 1994). The residents do not deny that at least one of their claims might exceed

$75,000. Instead, they focus on their out-of-date legal argument that each and every plaintiff must

meet the $75,000 threshold, which is expressly foreclosed by Exxon Mobil. And, regardless, the

residents’ allegations involve a wide range of conduct likely to exceed the $75,000 threshold,

encompassing personal injury claims, property damage, and loss of enjoyment. Moreover, the

residents never stipulated that they would limit their recovery to less than $75,000 per plaintiff.

Thus, there is a reasonable probability that at least one plaintiff meets the $75,000 jurisdictional

threshold. Accordingly, we conclude that diversity jurisdiction is present.

7 II. CERCLA PREEMPTION

Turning to the merits, we conclude that CERCLA preempts the residents’ state tort law

claims.

A. LEGAL FRAMEWORK

We review de novo a district court’s grant of a motion to dismiss for failure to state a claim

on which relief can be granted, “accepting all factual allegations in the complaint as true and

drawing all reasonable inferences in favor of the plaintiff.” See Caro v. Weintraub,

(2d Cir. 2010). In resolving a motion to dismiss, “we may consider any written instrument

attached to the complaint, statements or documents incorporated into the complaint by

reference, . . . and documents possessed by or known to the plaintiff and upon which it relied in

bringing the suit.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,

(2d Cir. 2007).

“[W]here a conclusory allegation in the complaint is contradicted by a document attached to the

complaint, the document controls and the allegation is not accepted as true.” Amidax Trading

Grp. v. S.W.I.F.T. SCRL,

(2d Cir. 2011) (per curiam). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)). Although a court must accept as true all the factual

allegations in the complaint, that requirement is “inapplicable to legal conclusions.”

The

plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”

“Determining whether a complaint states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.”

.

8 Conflict preemption applies “where it is impossible for a private party to comply with both

state and federal law and where under the circumstances of a particular case, the challenged state

law stands as an obstacle to the accomplishment and execution of the full purposes and objectives

of Congress.” Crosby v. Nat’l Foreign Trade Council,

, 372–73 (2000) (internal

brackets, citations, and quotation marks omitted); see also In re Tribune Co. Fraudulent

Conveyance Litig.,

(2d Cir. 2016) (“Preemption is always a matter of

congressional intent, even where that intent must be inferred.”). CERCLA was enacted in 1980

“in response to the serious environmental and health risks posed by industrial pollution.” United

States v. Bestfoods,

(1998). “As its name implies, CERCLA is a comprehensive

statute that grants the President broad power to command government agencies and private parties

to clean up hazardous waste sites.”

(quoting Key Tronic Corp. v. United States,

(1994)); see also

. In assessing conflict preemption in the CERCLA context,

we are mindful that two of CERCLA’s purposes are “to encourage settlements and the prompt

cleanup of contaminated sites.” Town of Halfmoon v. Gen. Elec. Co.,

(N.D.N.Y. 2015). As the Third Circuit has explained, in enacting CERCLA, Congress also

stressed the importance of efficiency and regulatory expertise in effecting a remedy. See Clinton

Cty. Comm’rs v. E.P.A.,

, 1021–24 (3d Cir. 1997) (en banc).

B. DISCUSSION

The instant conflict preemption analysis focuses on whether, under the circumstances of

this particular case, the Amended Complaint’s alleged state tort law violations conflict with a

CERCLA remediation plan enforced by a federal consent decree. That is, whether it is impossible

for Honeywell to comply with both state tort law and CERCLA or whether the residents’ state-law

9 claims stand as an obstacle to the accomplishment and execution of the full purposes and objectives

of Congress.

One of CERCLA’s provisions,

(e)(6), prohibits Honeywell from

commencing any remedial action except for those expressly authorized in the consent decree:

When either the President, or a potentially responsible party pursuant to an administrative order or consent decree under this chapter, has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President.

(e)(6) (emphasis added). For its part, the district court determined that CERCLA

preempts the residents’ claims because the allegations amount to nothing more than a belated

challenge to the adequacy of the consent decree itself (as opposed to a failure by Honeywell to

comply with or properly implement the consent decree). See Bartlett v. Honeywell Int’l, Inc.,

(N.D.N.Y. 2017). That is, the district court reasoned, at bottom the residents

were impermissibly arguing, on a state tort law theory, that Honeywell should have departed from

the consent decree’s terms by conducting additional or different remedial action than that

mandated by CERCLA and the consent decree.

As to many of the Amended Complaint’s allegations, we agree with the district court that

CERCLA preempts the residents’ claims because the residents merely challenge the adequacy of

the consent decree itself. For instance, the residents repeatedly protest Honeywell’s purported

failure to conduct the geotube process in a “closed system.” J.A. 90–92. But this

characterization of the system as one that was supposed to have been essentially hermetically

sealed is misleading, as statements from Honeywell, the United States Environmental Protection

Agency (“EPA”), and the New York State Department of Environmental Conservation (“DEC”)

10 included in the seven volumes of appendices attached to the residents’ Amended Complaint

demonstrate that such hermetic sealing was never anticipated under the consent decree. See, e.g.,

(“The majority of contaminants will remain trapped within the sediments in the geotextile

tubes; however, some contaminants will be contained in the draining water.” (emphases added));

id. at 1598 (describing a “virtually closed system” and stating that the system will be “enclosed,

to the extent practicable” (emphases added)). Similarly unavailing are the residents’ allegations

about purported deficiencies in Honeywell’s perimeter air monitoring system, such as the system’s

inability to detect certain emissions. In fact, Honeywell publicly disseminated the specifications

of the allegedly insufficient perimeter air monitoring system, the DEC and EPA reviewed and

approved this system, and the system became part of the binding consent decree, which Honeywell

was obligated to follow. Put simply, the residents’ perimeter air monitoring system allegations

also are undisguised attacks on the consent decree’s terms. Thus, CERCLA preempts many of

the Amended Complaint’s allegations because they transparently attack – on the basis of state tort

law – the consent decree itself, and not its implementation.

Whether two other categories of the residents’ allegations are preempted, however, is a

closer call. Specifically, the residents allege that Honeywell: (1) after the 2012 dredging

shutdown, violated the consent decree by not implementing certain measures to cover the

geotubes; and (2) before commencing dredging, was negligent in not conducting additional bench-

scale tests of the emissions implications of using geotubes rather than open basins for sediment

dewatering. Although the district court did not directly address these allegations in its opinion

below, we nonetheless conclude that, from the face of the Amended Complaint and the seven

volumes of appendices attached to it, these allegations also are preempted by CERCLA.

11 Taking these assertions in turn, the residents’ claim that Honeywell ran afoul of state tort

law (and violated the consent decree) by not covering some of the geotubes is implausible.

Indeed, documents attached to the Amended Complaint – and fatal to this claim’s plausibility –

plainly reveal that (a) multiple state and federal expert supervising government agencies acting

within their statutory authority, and (b) the federal district court overseeing the consent decree’s

implementation, have extensively supervised Honeywell’s conduct and determined that

Honeywell complied fully with its responsibilities under CERCLA and the consent decree. See,

e.g., id. at 269, 274–81, 284–86, 288, 294–301, 306–08 (consent decree mandating that the DEC

oversee the implementation of the CERCLA remedy, imposing vast monitoring requirements on

various state and federal expert government agencies, and vesting the district court with continuing

jurisdiction to enforce and interpret the consent decree); id. at 288 (requiring that Honeywell

provide the DEC with on-site office space); id. at 831, 840, 857–67, 889 (describing, in painstaking

detail, certain of the extensive, real-time air monitoring systems in place and obliging Honeywell

to relay various daily, monthly, and quarterly submissions to state and federal expert government

agencies); id. at 1045 n.1 (June 25, 2014 letter from the EPA representing that “[f]rom the onset,

the New York State Department of Health has . . . been very involved in the Onondaga Lake

project and works closely with NYSDEC and the EPA on all human health-related matters

pertaining to the project”); id. at 1046 (June 25, 2014 letter from the EPA affirming that “[d]uring

the period of dredging operations, there has been no evidence of adverse impacts to human health”

and “the project is being implemented in a manner which is fully protective of public health”); id.

(June 25, 2014 letter from the EPA quoting the conclusion of the federal district court overseeing

the consent decree’s implementation that “pursuant to the Court’s oversight responsibility with

12 regard to the implementation of the Consent Decree, . . . the Court [after inquiring of multiple

experts] . . . is satisfied that the methods and procedures that [Honeywell] is employing in the

cleanup present no health risks to the surrounding communities” (internal quotation marks

omitted) (first ellipses in original)).

As for the residents’ state law claims arising from Honeywell’s purported negligence in

failing to conduct additional bench-scale tests assessing the prudence of using geotubes rather than

open basins for sediment dewatering, we conclude that subjecting Honeywell to potential state tort

law liability for this alleged conduct would pose an obstacle to the accomplishment and execution

of Congress’s full purposes and objectives. Cf. New Mexico v. Gen. Elec. Co.,

,

1249–50 (10th Cir. 2006) (“Any relief provided the State would substitute a federal court’s

judgment for the authorized judgment of . . . [the expert government agencies] that the cleanup is

not only comprehensive but flexible and dynamic, readily adjusting as new data is received.”). In

the particular circumstances of this appeal (demonstrated in the voluminous attachments to the

Amended Complaint) – i.e., the meticulously negotiated remediation of the Onondaga Lake

Superfund site which was the product of approximately two decades of legal and technical efforts,

including public notice and comment and extensive supervision by a federal court and state and

federal expert agencies – CERCLA preempts the residents’ attempts to impose state tort law

liability on Honeywell for not going above and beyond a testing regime which the EPA itself

described as “extensive.” J.A. 637; see also

(EPA explaining that “the local community raised

concerns pertaining to potential odor generation using th[e] dewatering method[,]” and “[i]n

response to these community concerns, an extensive evaluation comparing the geotextile tube and

settling basin dewatering methods based on 10 site-specific dewatering objectives was

13 conducted . . . . Based on this evaluation, it was determined that there are many site-specific

benefits of using geotextile tubes as compared to settling basins[]”);

at 637–38 (listing several

site-specific benefits of using geotubes rather than open basins for sediment dewatering).

III. LEAVE TO AMEND

We review a district court’s determination to deny a party leave to amend its complaint for

abuse of discretion. See McCarthy v. Dun & Bradstreet Corp.,

(2d Cir. 2007).

Below, the residents cursorily, at the end of their opposition brief, requested leave to amend their

Amended Complaint. The district court denied the request, noting “[t]o the extent that Plaintiffs

intended this discussion to serve as a motion for leave to amend their amended complaint, it does

not comply with this [c]ourt’s Local Rules regarding such motions; and, therefore, the [c]ourt will

not consider it.” Bartlett v. Honeywell Int’l, Inc.,

, 246 n.7 (N.D.N.Y. 2017)

(citing NDNY Local Rule 7.l(a)(4)). Likewise, on appeal, the residents again throw in a

perfunctory request for leave to amend, raised in their opening brief solely as their twentieth

question presented but with no argument explaining why the district court erred, how any

amendment would cure the Amended Complaint’s deficiencies, and without citation to any

authority. Although they make a faint attempt to support this contention in their reply brief, the

residents’ half-hearted efforts constitute abandonment of any request on appeal for leave to amend.

See Fed. R. App. P. 28(a)(8)(A); Diesel v. Town of Lewisboro,

(2d Cir. 2000).

And, in any event, the residents never submitted a proposed amended pleading nor did they

indicate how any amendment would cure the Amended Complaint’s shortcomings. We thus

conclude that the district court did not abuse its discretion in rejecting the residents’ fleeting

14 request for leave to amend. See, e.g., Metz v. U.S. Life Ins. Co. in City of N.Y.,

(2d Cir. 2011) (per curiam).

***

We have considered all of the residents’ remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

15