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Scott v. E.I. Dupont De Nemours and Co.

April 1, 2009

MISTY SCOTT, PLAINTIFF,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, DEFENDANT.



The opinion of the court was delivered by: Bumb, United States District Judge

[Dkt. No. 205]

OPINION

This matter comes before the Court on a motion to dismiss Count Six of Plaintiff's Second Amended Complaint brought by Defendant E.I. Dupont de Nemours and Company ("DuPont").

Procedural Background

This case first began when Plaintiff Donald Coles ("Coles") filed a Complaint on behalf of himself and a class of alleged plaintiffs in the Chancery Court in Salem County, New Jersey, on June 14, 2006. The original Complaint contained claims based on New Jersey medical monitoring, strict liability, private nuisance, public nuisance, trespass, punitive damages, and negligence. On July 7, 2006, DuPont properly removed the action to this Court based on diversity jurisdiction.

On November 21, 2006, counsel for Coles sent a letter to counsel for DuPont informing DuPont that Coles intended to "institute a claim under N.J.S.A. 2A:35A-4(b)" of the New Jersey Environmental Rights Act (the "ERA"). (Letter from Joseph A. Osefchen*fn1 to Roy Alan Cohen, dated Nov. 21, 2006 (attached as Ex. B to Pl. Opp.)). Thereafter, on January 22, 2007, Coles filed an Amended Complaint, adding the claim under the ERA. (Am. Compl. [Dkt. No. 36]). The Amended Complaint also deleted the claims based on trespass and punitive damages and added Misty Scott ("Scott") as an additional plaintiff. (Id.).

On February 9, 2007, DuPont filed an Answer to the Amended Complaint and raised the following Twenty-Sixth Affirmative Defense:

The New Jersey Environmental Rights Act count of the Complaint should be dismissed based on plaintiffs' failure to comply with the notice of intention to commence an action in accordance with NJSA 2A:35A-11, including but not limited to notice to the Attorney General, the New Jersey Department of Environmental Protection, and all local governing body [sic] at least 30 days prior to commencement of any action. No such notice documents are appended to plaintiffs' complaint, and therefore, this count should be dismissed. (Def. Answer to Am. Compl. [Dkt. No. 38]).

Subsequently, on March 14, 2007, counsel for Coles sent a letter to Linda Bonnette of the New Jersey Department of Environmental Protection, advising Ms. Bonnette of Coles' "intent to litigate claims under the New Jersey Environmental Rights Act... ." (Letter from Joseph A. Osefchen to Linda Bonnette, dated March 14, 2007 (attached as Ex. A to Pl. Opp.)). Copies of the letter were also sent to the Deputy Attorney General, the Mayor of Penns Grove Township, the Mayer of Pennsville Township, and the Mayor of Carneys Point Township. (Id.). Seven months later, on October 17, 2007, Plaintiff Scott filed a Second Amended Complaint, which dismissed Coles as a plaintiff in the case. (Sec. Am. Compl. [Dkt. No. 123]). No changes were made as to any of the claims, including the ERA claim in Count Six.

Discussion

The notice provision of the New Jersey ERA provides in relevant part,

[n]o action may be commenced pursuant to this act 3 unless the person seeking to commence such suit shall, at least 30 days prior to the commencement thereof, direct a written notice of such intention by certified mail, to the Attorney General, the Department of Environmental Protection, the governing body of the municipality in which the alleged conduct has, or is likely to occur, and to the intended defendant; provided, however, that if the plaintiff in an action brought in accordance with the "N.J. Court Rules, 1969," can show that immediate and irreparable damage will probably result, the court may waive the foregoing requirement of notice.

N.J. Stat. Ann. § 2A:35A-11. The language of this provision clearly states that a plaintiff seeking to bring a claim under the ERA must provide at least 30 days notice to the various governmental entities as well as the intended defendant prior to commencing the suit.

The ERA notice provision "is a mandatory condition precedent to bringing a private cause of action under the ERA... ." Player v. Motiva Enterprises, LLC, 240 Fed. Appx. 513, 524 (3d Cir. 2007)*fn2 ; see also Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989) (holding that requirements in an analogous notice provision in the Resource Conservation and Recovery Act are "mandatory conditions precedent to commencing suit" and that "a district court may not disregard these requirements at its discretion"); Hawksbill Sea Turtle v. Federal Emergency Mgt. Agency, 126 F.3d 461, 471 (3d Cir. 1997) (pursuant to analogous notice provision in the Endangered Species Act, "[p]roviding notice to [the government entities] is a prerequisite to suit") (citing Hallstrom, 493 U.S. at 31). Failure to comply with this statutory notice provision requires dismissal of ...


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