corporation under the Spill Act than under common law principles. Since the ultimate hurdle is lower for a Spill Act claim than for a common law claim, it follows that the threshold hurdle must be proportionally lower as well. Therefore, despite the insufficiency of the common law claims, the Spill Act claims meet the notice requirements of Rule 8(a)(2).
(B) Substantive Limitations of the Spill Act
Nevertheless, Frola and Von Dohln seek relief under the Spill Act that is unavailable to them under that Act.
The Spill Act does not provide a private right of action for recovery of cleanup costs and other damages. T & E Industries, Inc. v. Safety Light Corp., 680 F. Supp. 696, 703 (D.N.J. 1988); Jersey City Redevelopment Authority v. PPG Industries, 655 F. Supp. 1257, 1262-63 (D.N.J. 1987). Rather, § 8(c) of the Spill Act, N.J.S.A. § 58:10-23.11g(c), allows the New Jersey Department of Environmental Protection (DEP) to recover its cleanup costs from responsible parties, and allows the New Jersey Spill Compensation Fund (created by the Spill Act) to recover such cleanup costs for which it has reimbursed the DEP. Jersey City Redevelopment, 655 F. Supp. at 1263; see, e.g., Ventron, 94 N.J. at 481-83, 468 A.2d at 154-55 (lawsuit brought under the Spill Act by the DEP, with the Spill Compensation Fund intervening).
Apparently acknowledging the inadequacy of the Spill Act alone, Frola and Von Dohln seek to impose Spill Act liability on third-party defendants through the New Jersey Environmental Rights Act (ERA), N.J.S.A. § 2A:35A-1 et seq. Section 4(a) of the ERA, N.J.S.A. § 2A:35A-4(a), provides that "any person may maintain an action in a court of competent jurisdiction against any other person to enforce, or to restrain the violation of, any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment." Importantly, the ERA does not itself provide any substantive rights. Superior Air Products Co. v. NL Industries, Inc., 216 N.J. Super. 46, 58, 522 A.2d 1025, 1032 (App. Div. 1987). Rather, it confers standing upon private persons to enforce the Spill Act (and other New Jersey environmental statutes) "as an alternative to inaction by the government which retains primary prosecutorial responsibility." Id. Assuming they have complied with the notice requirements of the ERA,
Frola and Von Dohln may have a right to enforce the Spill Act through the ERA.
However, in light of the above discussion, their substantive rights under the Spill Act through the ERA cannot exceed their substantive rights under the Spill Act directly. Therefore, because Frola and Von Dohln cannot recover damages under the Spill Act directly, neither can they recover damages under the Spill Act via the ERA. Accordingly, Counts 13, 14 and 16 will be dismissed insofar as those counts seek to recover damages. Since the Court's reasoning applies with equal force to all the third-party defendants (not just the three movants), the Court will sua sponte grant a similar partial dismissal of these three counts as to all the third-party defendants in this case. Although the three counts will be allowed to survive insofar as they seek equitable remedies and attorney's fees,
the Court remains skeptical as to the availability of Spill Act or ERA relief at all where, as here, the federal government (through the EPA) has acted to clean up contaminated property that the New Jersey DEP has not acted on.
The logic of the ERA as an alternative to state governmental inaction would seem not to apply where the federal government has gone a long way toward cleaning up a site. This is especially so where, as here, the parties asserting the private right of action have declined to cooperate with the EPA in its efforts under CERCLA.
Since these issues were not raised on the instant motion, the Court will allow the remainder of Counts 13, 14 and 16 to survive, but will be prepared to dismiss those counts if further development of the record so requires.
IV. Request for Leave to Replead
In their brief in opposition to the instant motion, Frola and Von Dohln request an opportunity to amend their third-party complaint should it be dismissed for failure to state a claim against Quanta Holding, Waste Recovery and Becker Paribas. The Court will grant this request with respect to Counts 7 through 12 and 17, which it has determined to be insufficient.
Federal Rule of Civil Procedure 15(a) allows a party to amend a pleading upon leave of court, which "shall be freely given when justice so requires." The decision whether to allow an amendment is within this Court's discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S. Ct. 795, 802, 28 L. Ed. 2d 77, 87 (1971); Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 386 (5th Cir. 1985). When a complaint is dismissed for failure to state a claim, leave to amend should ordinarily be given in order to allow the pleader an opportunity to correct the deficiencies. Dupree v. Hertz Corp., 419 F. Supp. 764, 765-66 (E.D. Pa. 1976); C. Wright & A. Miller, Federal Practice and Procedure, supra, § 1216, at 124. The principle ground for denying leave to amend is if granting such leave would unfairly prejudice the rights of defendant or other parties. See Zenith Radio, 401 U.S. 330-31, 91 S. Ct. at 802, 28 L. Ed. 2d at 87-88; Auster Oil & Gas, 764 F.2d at 391; C. Wright & A. Miller, Federal Practice and Procedure § 1484, at 420 (1971 & Supp. 1988).
Third-party defendants herein have not alleged prejudice, and for good reason; such an argument could hardly be countenanced at such an early stage in the litigation over Frola and Von Dohln's third-party complaint. See Dupree, 419 F. Supp. at 766.
The basis of third-party defendants' opposition to allowing Frola and Von Dohln a chance to replead is an argument that such an opportunity would be futile. Indeed, it is within the Court's discretion to deny leave to replead if the amendment would be an exercise in futility in that the amended pleading would still fail to state a claim upon which relief could be granted. See 3 Moore's Federal Practice para. 15.10, at 15-16 (1987). Contrary to third-party defendants' assertions, however, it is not at all clear that allowing Frola and Von Dohln a chance to correct the deficiencies of their pleading would be a useless exercise. There is no reason to conclude that Frola and Von Dohln could not be more specific in their allegations of injustice, illegality, or the like, within the meaning of Ventron. Even if they change their position and choose to allege fraud as a basis for piercing the corporate veil, they would likely be successful in surviving a subsequent motion to dismiss.
It goes without saying that leave will not be granted to replead Counts 13, 14 and 16, since those counts were partially dismissed not because of pleading deficiencies, but because of limitations on substantive rights.
For the reasons set forth herein, the motion of third-party defendants Quanta Holding, Waste Recovery and Becker Paribas will be granted as to Counts 7 through 12 and 17, with leave to replead. The motion will be granted in part and denied in part as to Counts 13, 14 and 16 with respect to all third-party defendants, without leave to replead those counts.
An appropriate order is attached.
Dated: December 13, 1988
For the reasons set forth in an opinion of the Court filed herewith,
It is on this 13th day of December, 1988,
ORDERED that the motion of third-party defendants Quanta Holding Corp., Waste Recovery, Inc. and Becker Paribas, Inc. to dismiss the third-party complaint as against them is hereby granted as to Counts 7 through 12 and 17; and it is further
ORDERED that third-party plaintiffs Frola and Von Dohln are hereby granted leave to replead those counts within 30 days of today's date; and it is further
ORDERED that the motion of third-party defendants Quanta Holding, Waste Recovery and Becker Paribas to dismiss the third-party complaint as against them is hereby granted in part as to Counts 13, 14 and 16, without leave to replead, to the extent that those counts seek monetary damages or recovery of cleanup costs, and denied in part, to the extent that Counts 13, 14 and 16 seek equitable remedies and attorney's fees; and it is further
ORDERED that the partial dismissal of Counts 13, 14 and 16 is hereby applied sua sponte to the claims against all the third-party defendants.