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April 14, 1997


The opinion of the court was delivered by: ORLOFSKY

ORLOFSKY, District Judge:

 Plaintiffs, Robert and Mary Lentz, filed this action against Fox & Lazo, Inc., a real estate broker, and one of its agents, Cathie Galanti ("Galanti"), among others. Plaintiffs' complaint alleges causes of action based upon the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, and the statutory and common law of New Jersey. Based upon the CERCLA claims, this court's jurisdiction is invoked pursuant to 28 U.S.C. § 1331. Supplemental jurisdiction over plaintiffs' state law claims is predicated upon 28 U.S.C. § 1367(a). Plaintiffs also allege complete diversity of citizenship in this matter, and an amount in controversy greater than $ 50,000.00, giving this court an independent basis for its jurisdiction over the plaintiffs' state law claims. See 28 U.S.C. § 1332. *fn1"

 Fox & Lazo and Galanti have moved to dismiss the claims against them for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Furthermore, Fox & Lazo and Galanti contend that there is no diversity jurisdiction in this case. Therefore, Fox & Lazo and Galanti contend, implicitly, if not explicitly, that if they prevail on their motion to dismiss plaintiffs' CERCLA claims, this court should decline to exercise supplemental jurisdiction over the plaintiffs' remaining state law claims. See 28 U.S.C. § 1367(c)(3). Because some, but not all of plaintiffs' claims meet the standard for dismissal under Rule 12(b)(6), defendants' motion will be granted in part, and denied in part.

 I. Facts and Procedural History

 The following facts are those set forth in the complaint, which must be accepted as true for the purposes of this motion to dismiss. Gomez v. Toledo, 446 U.S. 635, 636 n.3, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980).

 Robert and Mary Lentz formerly resided at 1796 Pitman-Downer Road, Williamstown, Gloucester County, New Jersey (the "Property"), a property which they own and whose alleged contamination is the subject of this litigation. Plaintiffs moved from this residence to their present home in Carrollton, Georgia, sometime in 1993.

 On October 22, 1993, plaintiffs entered into a real estate listing agreement (the "Listing Agreement") with Fox & Lazo for the sale or lease of the Property. Accompanying the Listing Agreement was a "Residential Profile," in which plaintiffs described the property and the rental terms. Under the Listing Agreement and Residential Profile, plaintiffs indicated that potential lessees would be required to undergo a credit check. Plaintiffs assert that these documents reflected an agreement that Fox & Lazo and/or Galanti would perform a credit check on any potential purchasers or lessees.

 Fox & Lazo subsequently introduced the plaintiffs to defendant, Carl Mason ("Mason"), and Mason entered into a "Contract for Sale" and a "House Lease" for the Property. Ostensibly, Mason intended to lease the Property until he obtained a mortgage. Plaintiffs allege that no credit check on Mason was ever performed. Mason never secured a mortgage commitment and, after approximately five months at the Property, from March 5, 1994, to August 8, 1994, plaintiffs obtained a Warrant of Removal and reentered the Property.

 Upon reentry, the plaintiffs found the house in disarray. In addition, plaintiffs found in the free-standing garage, located on the Property, various debris, including what they allege are "off-specification basic torpedo tubes." Complaint P 51. Plaintiffs claim that these torpedo tubes have released, are releasing, or threaten to release hazardous substances including fiberglass, nitrosamines, formaldehyde, epichlorohydrine, phenoxymethyl oxirane, and methylethylidene, each of which qualifies as a hazardous substance under CERCLA. Plaintiffs further allege that they have incurred, are incurring, and will continue to incur response costs associated with the clean-up of these toxic substances.

 II. Standard for Dismissal Under Rule 12(b)(6)

 A complaint should only be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) if, accepting as true all of the facts alleged in the complaint and the reasonable inferences to be drawn from those facts, no relief could be granted under any set of facts consistent with those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See also Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 71 (3d Cir. 1994); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990).

 III. Discussion

 A. Liability Under CERCLA

 (1) Introduction

 In order to prevail on their claim under CERCLA, plaintiffs must fit each defendant within one or more of the four categories of "responsible parties" identified in the statute. CERCLA defines "Covered persons" as:

(1) the owner and operator of a vessel or a facility; (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of; (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment of hazardous substances at any facility; and, (4) any person who accepted any hazardous substances for transport to disposal or treatment facilities from which there was a release or a threatened release.

 (2) Liability of Owners

 Plaintiffs contend that Fox & Lazo and Galanti may be held liable under CERCLA as "equitable owners" of the Property. Plaintiffs point to Con-Tech Sales Defined Benefit Trust v. Cockerham, 715 F. Supp. 701 (E.D. Pa. 1989), in which the district court opined that an "equitable owner" could be liable under § 9607(a)(2) of CERCLA. Id. at 705. "Equitable ownership" is a principle of the common law of property. Once parties have entered into an agreement of sale for real estate, "the purchaser thereby becomes the equitable owner of the land" and certain obligations and remedies arise. State By and Through Adams v. New Jersey Zinc Co., 40 N.J. 560, 576, 193 A.2d 244 (1963).

 The Con-Tech court did not declare, as plaintiffs have stated in their brief, "that an entity encumbered with the exclusive obligation to manage and develop the property may be deemed an 'equitable owner' for purposes of CERCLA." Plaintiffs' Brief at 10. Contrary to plaintiffs' assertion, the Con-Tech court began with the apparently undisputed assumption that the party in question was an "equitable owner" under the common law. Id. 715 F. Supp. 701 at 703. The court merely opined on the potential effect of "equitable ownership" in a CERCLA action. Plaintiffs have not alleged facts from which it may be concluded that Fox & Lazo or Galanti were ever "equitable owners" of the Property.

 CERCLA "owner" liability may be extended to a lessee, as plaintiffs point out, when the lessee participates in the disposal of hazardous wastes. United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 1003 (D.S.C. 1984), aff'd in part, rev'd in part sub nom. United States v. Monsanto, 858 F.2d 160 (4th Cir. 1988). Fox & Lazo and Galanti, however, are not lessees, nor are they alleged to have participated in any decision involving the disposal of hazardous wastes on the Property. Furthermore, in South Carolina Recycling, the district court concluded that the lessee, a chemical manufacturer, was liable as an "owner," "operator," "arranger" and "transporter" under CERCLA. This litany suggests that the case did not turn on the manufacturer's status as an "equitable owner," but rather, on its involvement as a lessee in the operation of the contaminated site. Therefore, one cannot draw from South Carolina Recycling, the conclusion that a lessee is automatically liable as an "equitable owner," absent other indicia of participation in the alleged hazardous waste disposal.

 Plaintiffs' reliance upon City of Phoenix v. Garbage Services Co., 816 F. Supp. 564, 567-68 (D. Ariz. 1993), is equally unavailing. In City of Phoenix, a trustee was deemed to qualify as an "owner," simply because it held legal title to the contaminated site, even though the trustee was never involved in the day-to-day operation of the contaminated waste site. Simply put, City of Phoenix does not address "equitable ownership" under CERCLA, but rather, speaks to actual ownership. In this case, there is no allegation in plaintiffs' ...

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