Opinion
No. 01 Civ. 9726 (JFK)
September 9, 2002
Pat Bonanno, Esq., PAT BONANNO ASSOCIATES, P.C., White Plains, New York, for Plaintiff.
JAMES B. COMEY, United States Attorney for the Southern District of New York, New York, New York Daniel S. Alter, Esq., and Sheila M. Gowan, Esq., Assistant United States Attorneys, for Defendant.
OPINION and ORDER
Before the Court is a motion by defendant Benigno G. Reyna ("Reyna"), as Director of the United States Marshals Service, to dismiss the complaint in this case for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment, under Fed.R.Civ.P. 56(b). Plaintiff Thomas J. Massone ("Massone"), on behalf of the United States Court Security Officers, opposes the motion. Because the Court has considered materials outside of the complaint, it will treat this motion as one for summary judgment as provided in Fed.R.Civ.P. 12(b). For the reasons stated herein, the Court grants Defendant Reyna's alternative motion for summary judgment in its entirety.
In spite of the Court-ordered May 3, 2002 deadline for submission of his opposition papers, Plaintiff failed to serve a response by that date. It was not until May 15, 2002 that Defendant Reyna, via facsimile copy, finally received Plaintiff's opposition. To this date, Plaintiff has not managed to file those papers with the Clerk of Court and has not bothered to submit a courtesy copy of them to chambers. Notwithstanding Plaintiff's neglect of this matter, the Court will reach the merits of Defendant Reyna's motion because of Plaintiff's eventual response.
Background
Plaintiff Massone is the President of the United States Court Security Officers of the Southern District of New York, a labor union that represents both Court Security Officers ("CSOs") and Special Security Officers. See Amended Compl. ¶ 10. Amongst other things, CSOs screen mail received from the USPS Morgan Processing and Distribution Center ("Morgan Facility") in the so-called P-3 loading dock area of the federal courthouse located at 500 Pearl Street in New York City. See id. ¶ 18. CSOs at the courthouse also screened mail for New York's City Hall for a period of several weeks during the months of January and February of 2002. See id. Defendant Reyna is the Director of the United States Marshals Service ("USMS"). See id. ¶ 12.
On November 5, 2001, Plaintiff brought this suit for declaratory, injunctive and monetary relief against defendants Reyna and Daya S. Khalsa of Akal Security, Inc. ("Khalsa"), alleging violations of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"), and New York State environmental law. See Compl. ¶¶ 25-47. In his complaint, Plaintiff also alleged a common law public nuisance cause of action, a claim that he later voluntarily withdrew by stipulation, dated March 28, 2002. See id. ¶¶ 48-50. On February 1, 2002, Plaintiff amended his complaint as of right, adding federal and state law claims for discrimination and retaliation against Defendant Khalsa. See Amended Compl. ¶¶ 55-59.
On August 16, 2002, the Court granted Defendant Khalsa's motion to dismiss as unopposed in light of Plaintiff's utter disregard of that motion. See Order dated August 16, 2002.
This lawsuit is predicated upon the theory that the P-3 loading dock area at the federal courthouse at 500 Pearl Street in lower Manhattan is contaminated with anthrax from mail delivered by the United States Postal Service ("USPS") that was processed at the Morgan Facility and from a videotape sent to City Hall that may have been pre-screened at the courthouse.
Morgan is the largest central mail-processing facility in the New York City area. See Smith v. Potter, 187 F. Supp.2d 93, 95 (S.D.N.Y. 2001). In October of 2001, testing revealed the presence of anthrax spores on five pieces of mail-sorting equipment on the third floor in the south building of the Morgan Facility. See id. at 94. The anthrax contamination at Morgan likely came from anthrax-laced letters that were sent to Tom Brokaw at NBC News and to The New York Post, which were processed at the Morgan Facility in mid-September of 2001. See id. at 94-96. Following the discovery of anthrax spores, the USPS closed-down the affected area at Morgan and hired environmental specialists to clean 120,000 square feet of space at the facility. See id. at 96. Due in large part to these measures, this Court found that, as of November 15, 2001, the continued operation of the Morgan Facility poses no imminent and substantial risk to health or the environment. See id. Follow-up testing conducted at Morgan was negative for the presence of anthrax. See Declaration of Shelia M. Gowan, Esq., dated April 5, 2002 ("Gowan Decl."), Ex. A.
On October 24, 2001, an environmental clean-up crew tested the mail-processing facilities at the federal courthouse at 500 Pearl Street for the presence of anthrax. See id. Ex. B. The testing at that site included, among other locations, the P-3 loading dock area. See id. These tests came back negative for the presence of anthrax. See id.
Discussion
A. Rule 12(b)(6) Motion to Dismiss StandardsOn review of a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a court must accept the plaintiff's allegations of fact as true and draw all reasonable inferences in the plaintiff's favor. See Hines v. F.J.C. Security Co., No. 96 Civ. 2632, 1998 WL 60967, at *1 (S.D.N.Y. Feb. 13, 1998) (citing Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A Rule 12(b)(6) motion to dismiss may be converted into one for summary judgment and dispose of as provided in Fed.R.Civ.P. 56 if the court accepts and considers materials outside of the pleadings in resolving the matter.See Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."). Defendant Reyna submitted materials beyond the complaint in support of his dismissal motion, i.e., the Environmental Sampling Report for Bacillus Anthracis Screening relating to anthrax testing conducted at the federal courthouse, a report that the Court intends to consider in deciding the instant motion. On account of this, the Court hereby converts the motion to dismiss to one for summary judgment.
This does not constitute a sua sponte conversion by the Court given that Plaintiff had notice of a likely conversion. See Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990) ("The essential inquiry, when determining if the district court correctly converted a motion to dismiss into a motion for summary judgment, is whether the non-movant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." (internal quotation marks omitted)). This is so because of the way in which Defendant Reyna styled his motion — as one for dismissal pursuant to Rule 12(b)(6) or, alternatively, as one for summary judgment under Rule 56 — and because Defendant Reyna submitted evidence outside of the pleadings in connection with his motion. See Gowan Decl., Exs. A B. Plaintiff acknowledged in his memorandum in opposition to Defendant Reyna's motion the fact that the defense was moving for summary judgment as an alternative to dismissal, stating that Plaintiff "submits this memorandum in opposition to the motion of defendants to dismiss the instant complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and/or 56(b)." Plaintiff's Memorandum in Opposition to Motion to Dismiss at 2. Moreover, Plaintiff had a chance to provide his own factual materials along with his opposition papers, but failed to avail himself of that opportunity. Based on all of this, Plaintiff had reason to know that the Court would likely consider materials beyond the complaint, and, as such, he has received adequate notice of the conversion as required by Fed.R.Civ.P. 12(b)(6).
B. Rule 56(b) Summary Judgment Standards
This Court may grant summary judgment only if the moving party is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); Montana v. First Fed. Sav. Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Knight v. U.S. Fire Insur. Co., 804 F.2d 9, 11 (2d Cir. 1986). The role of the Court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11;see also First Fed. Sav. Loan Ass'n, 869 F.2d at 103 (stating that to resolve a summary judgment motion properly, a court must conclude that there are no genuine issues of material fact, and that all inferences must be drawn in favor of the non-moving party).
The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any," that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant meets this initial burden, the party opposing the motion must then demonstrate that there exists a genuine dispute as to the material facts. See id.; Silver, 947 F.2d at 1022.
The opposing party may not solely rely on its pleadings, on conclusory factual allegations, or on conjecture as to the facts that discovery might disclose. See Gray v. Darien, 927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing party must present specific evidence supporting its contention that there is a genuine material issue of fact. See Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990). To show such a "genuine dispute," the opposing party must come forward with enough evidence to allow a reasonable jury to return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Cinema North Corp. v. Plaza Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989). If "the party opposing summary judgment propounds a reasonable conflicting interpretation of a material disputed fact," then summary judgment must be denied. Schering Corp. v. Home Insur. Co., 712 F.2d 4, 9-10 (2d Cir. 1983). The Court will analyze the instant motion in accordance with these principles.
C. Imminent and Substantial Endangerment Claim (Count 1)
In count one of his complaint, Plaintiff alleges, upon information and belief, that the P-3 loading dock area at the federal courthouse is contaminated with anthrax "as a result of the `disposal' of anthrax from [mail] received from the Morgan Facility," which thereby poses an imminent and substantial danger to public health and the environment in violation of the citizen suit provision of 42 U.S.C. § 6972 (a)(1)(B). Amended Compl. ¶¶ 41, 29-35. Section 6972(a)(1)(B) permits a civil suit against any person or entity, including the United States, "who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972 (a)(1)(B). An imminent and substantial danger for purposes of a RCRA claim does not exist "if the risk of harm is remote in time, speculative in nature, and de minimis in degree." Christie-Spencer Corp. v. Hausman Realty Co., 118 F. Supp.2d 408, 418 (S.D.N.Y. 2000); see also Vernon Village, Inc. v. Gottier, 755 F. Supp. 1142, 1154 (D. Conn. 1990) (stating that "in the absence of any suggestion beyond the mere allegation of `imminent and substantial endangerment,'" no genuine issue of material fact as to whether the alleged harm posed by the waste is "imminent and substantial").
The undisputed evidence in this case demonstrates that the courthouse tested negative for the presence of anthrax, a fact that Plaintiff acknowledges as accurate. See Gowan Decl., Ex. B; Pl.'s Opp. Br. at 1. What is more, Plaintiff offers nothing beyond mere conjecture that conditions at the courthouse pose an imminent and substantial danger in violation of RCA. Quite the contrary, Plaintiff has adduced no evidence of anthrax contamination at the courthouse — none whatsoever. Consequently, the Court grants Defendant Reyna summary judgment as to count one of Plaintiff's amended complaint.
D. Federal and State Law Claims for Hazardous-Waste Permit Violations (Counts 2 and 3)
In his complaint, Plaintiff also brings claims pursuant to Section 6972(a)(1)(A) of RCRA and Title 9 of Article 27 of the New York Environmental Conservation Law (New York State's statutory hazardous waste program authorized by the EPA pursuant to Section 6926(b) of RCRA), alleging that the USMS has violated federal and state permit requirements for the storage and disposal of hazardous wastes. See Amended Compl. ¶¶ 36-51.
Section (a)(1)(A) of RCRA allows for civil actions "against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter. . . ." 42 U.S.C. § 6972 (a)(1)(A). Subchapter III of RCRA obligates owners and operators of facilities for the treatment, storage, or disposal of hazardous waste to obtain permits pursuant to Section 6925(a). See 42 U.S.C. § 6925 (a); see also Orange Env't, Inc. v. County of Orange, 860 F. Supp. 1003, 1020 (S.D.N.Y. 1994). This Subchapter also requires that such individuals comply with standards for transporting hazardous waste promulgated by the EPA. See 42 U.S.C. § 6922 (a)(5) 6923(a); see also 40 C.F.R. Pts. 262, 263. The EPA, however, can authorize state hazardous waste programs in lieu of the federal program pursuant to Section 6926(b), which provides, in relevant part, that upon authorization:
Such State is authorized to carry out such program in lieu of the Federal program under this subchapter [III] in such State and to issue and enforce permits for storage, treatment or disposal of hazardous waste . . .42 U.S.C. § 6926 (b).
In accordance with Section 6926(b) of RCRA, the EPA authorized the State of New York to administer and enforce a hazardous waste program in lieu of the federal program under Subchapter III. See 51 Fed. Reg. 17737 (May 15, 1986); see also Long Island Soundkeeper Fund, Inc. v. New York Athletic Club, No. 94 Civ. 0436, 1996 WL 131863, at *7 (S.D.N.Y. Mar. 22, 1996). In theory, Plaintiff could seek to enforce EPA-authorized New York hazardous-waste regulations via Section 6972(a)(1)(A) of RCRA, but he cannot do so in this case. This is so given the absolute lack of evidence that the courthouse is contaminated with anthrax and, consequently, that Defendant Reyna is the operator of a storage facility for anthrax in violation of RCRA's permit requirements. See Brewer v. Ravan, 680 F. Supp. 1176, 1182 (M.D. Tenn. 1988) (dismissing plaintiffs' RCRA claims because their "complaint simply retraces the relevant language of RCRA and alleges nothing more than unsupported legal conclusions"). As such, the Court grants Defendant Reyna summary judgment as to counts two and three of Plaintiff's amended complaint.
Conclusion
For the reasons set forth above, the Court grants Defendant Reyna's alternative motion for summary judgment in its entirety. The Court orders this case closed and directs the Clerk of Court to remove it from the Court's active docket.