The opinion of the court was delivered by: Stephen M. Orlofsky, District Judge.
The law does not protect those who sleep on their rights. Here,
Plaintiff, New West Urban Renewal Co. ("New West"), waited for at least
seven years, and perhaps longer, before it sought damages for the
environmental contamination of property that it purchased from
Westinghouse, Inc. ("Westinghouse"), the predecessor-in-interest to the
Defendant, Viacom, Inc. ("Viacom").*fn1 Viacom now moves for partial
summary judgment on all but the First and Fifth*fn2 Counts of the
Complaint based on the expiration of the statute of limitations. Whether
these claims are time-barred depends on the applicability of New Jersey's
"discovery rule," an equitable tolling doctrine. For the reasons
discussed below, I find that the discovery rule does not toll New West's
environmental contamination claims, which are barred by the six-year
statute of limitations. Accordingly, Viacom's motion for partial summary
judgment shall be granted.
FACTS AND PROCEDURAL HISTORY
The parties in this action are no strangers to litigation. In fact, New
West and Westinghouse litigated the same property dispute in 1995, and
Judge Walls, my esteemed colleague, issued an opinion deciding the
parties' cross-motions for partial summary judgment, reported at New West
Urban Renewal Co. v. Westinghouse Elec. Corp., 909 F. Supp. 219 (D.N.J.
1995) (hereafter, "New West"). Although New West I summarizes the facts
at issue in this case, I will briefly review them here.
On December 29, 1983, Westinghouse sold New West property located at
"Orange and High Streets, more particularly referred to as Block 47 Lot
40." Certif. of Marisa Y. Paradiso, Esq. in Opp'n to Summ. J., 9/11/02
("Paradiso Certif."), Ex. 3. Westinghouse had used the property since the
1880's as a manufacturing facility. New West I, 909 F. Supp. at 221.
After New West received title to the property, Westinghouse continued its
occupancy for one year under the lease agreement. Id. During its lengthy
occupancy of the property, Westinghouse had utilized various hazardous
substances that were discharged and released into the soil and buildings
at the property. Id. Westinghouse also kept hazardous materials in its
underground storage tanks, which were released into the surrounding soils
and buildings. Id.
On October 16, 1987, New West entered into an option contract with
Newark Ventures, Inc. ("Newark Ventures") to purchase the Orange Street
property. See Certif. of Lisa G. Silverman ("Silverman Certif."), 6/6/02,
Ex. 8. This contract was never executed because Newark Ventures cancelled
the contract by letter dated December 15, 1987. See
id., Ex. 16. This
cancellation was based on reports issued in 1987 by Accutech
Environmental Services, Inc. ("Accutech") and PMK Engineering &
Testing, Inc. ("PMK"), which "identif[ied] six areas of environmental
concern," id., and gave certain minimum estimates for the cost of
clean-up that approached $500,000. See id.; see also Exs. 12-14.
In 1992, New West conducted a preliminary environmental investigation
of the property to evaluate potential development options. See New West
I, 909 F. Supp. at 222. This investigation revealed the presence of
unlawful environmental contaminants, such as PCB's, or polychlorinated
biphenyls. See id. New West sent two demand letters to Westinghouse to
provide indemnification for the costs to monitor, assess, evaluate and
clean up the environmental contamination at the Property. Id.
Westinghouse refused to do so. Id.
New West filed its original Complaint on March 9, 1994, and both
parties moved for partial summary judgment. Judge Walls granted each
party's motions as follows: (1) the Court rejected Westinghouse's argument
that, under the "as is" clause of the contract of sale, New West had
assumed liability for remedying the environmental contamination of the
purchased property, New West I, 909 F. Supp at 224; (2) although New
Jersey's Environmental Cleanup Responsibility Act ("ECRA"), N.J.S.A.
§§ 13:1K-6, et seq., became effective as of December 31, 1983, after
the closing date of the sale, Westinghouse was still liable because it
continued to operate the property after the ECRA's effective date, see
New West at 227; and (3) the Court found that New West's ECRA claim
against Westinghouse was time-barred under the six-year statute of
limitations, see id. at 228.*fn3
The parties entered into a Partial Settlement and Stay Agreement in
1996, and the action was administratively terminated without prejudice by
Court Order dated March 11, 1996. See Silverman Certif., Exs. 2 and 19.
Unable to reach an agreement, New West notified the Court in writing on
September 1, 2000 that it was terminating the stay. See Ex. 2, at p. 2.
The parties then entered into a Tolling Agreement, in which the parties
agreed to dismiss all outstanding claims and counterclaims in the old
case, Civ. A. No. 94-1033, and commence a new action by filing a new
Complaint and obtaining a new docket number. See Silverman Certif., Ex.
2, ¶¶ 1-2. The Tolling Agreement also provided "that any and all
applicable statute of limitations or other time bars (such as laches or
the like) relevant to any claims they previously asserted . . . are . . .
tolled for the period from the date the previous action was commenced
(March 9, 1994) to the date when the new action is commenced." Id.
In its successive Complaint commencing the present action, Civil Action
No. 01-707, New West alleges that: (1) Viacom is liable for costs under
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 ("CERCLA"), 42 U.S.C. § 9601, et seq.; (2) Viacom individuals
are liable under CERCLA; (3) New West is entitled to indemnification
Viacom's operators' insurance policies; (4) Viacom is liable under
the New Jersey ECRA, see Note 3, supra; (5) Viacom is liable under the
New Jersey Spill Compensation and Control Act, N.J.S.A §§
58:10-23.11, et seq.; (6) Viacom is subject to strict liability; (7)
Viacom acted negligently; (8) Viacom is liable for fraudulent
non-disclosure based on Westinghouse's knowledge of environmental
problems with the property; and (9) Viacom breached the covenant of good
faith and fair dealing. See Complaint ¶¶ 21-77. At this time, New
West has agreed to dismiss Counts Two and Three*fn4 of the Complaint.
See Br. in Opp'n to Mot. for Partial Summ. J., at pp. 35-36. Viacom seeks
partial summary judgment on Count Three and Counts Six through Nine of the
This Court has jurisdiction over the federal claims in this action
under 28 U.S.C. § 1331 (2002) and over the supplemental state law
claims under 28 U.S.C. § 1367. I have considered the submissions of
the parties and decided this motion on the papers without oral argument
pursuant to Fed.R.Civ.P. 78 (2002). For the reasons set forth below,
Defendants' Motion for Partial Summary Judgment shall be granted.
III. STANDARD FOR SUMMARY JUDGMENT
The legal standard governing summary judgment is well-settled. Summary
judgment is proper only "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c) (West 2002); see also Anderson v. Consol. Rail Corp.
("Conrail"), 297 F.3d 242, 247 (3d Cir. 2002). An issue is genuine "if
the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Conrail, 297 F.3d at 247 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material if it
bears on an essential element of the plaintiff's claim. Abraham v. Raso,
183 F.3d 279, 287 (3d Cir. 1999) (citing Anderson, 477 U.S. at 248-251).
Thus, to survive a motion for summary ...