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Ama Realty LLC v. 9440 Fairview Avenue LLC

United States District Court, D. New Jersey

May 2, 2014

AMA REALTY LLC, a New Jersey Based Limited Liability Corporation, Plaintiff,
v.
9440 FAIRVIEW AVENUE LLC, NORTH BERGEN ASPHALT LLC, JOSEPH M. SANZARI INC., JOSEPH M. SANZARI, TIMOTHY MURRAY, jointly, severally, and individually, and TILCON NEW YORK INC. Defendants.

OPINION

KEVIN McNULTY, District Judge.

Plaintiff AMA Realty LLC alleges that the Defendants have environmentally ravaged its riverfront property in North Bergen, New Jersey. Plaintiff's central allegation is that several of the defendants formed a corrupt enterprise which leased Plaintiff's property and then furtively dumped hazardous waste and/or toxins onto the property. Plaintiff has brought various common law claims along with federal law claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and the Clean Water Act, 33 U.S.C. § 1251. (First Amended Complaint [ECF No. 31] at First, Second, and Sixth Counts). There are two currently pending motions to dismiss [ECF Nos. 33, 38] which require me to address the sufficiency with which the federal claims have been pled. As set forth below, I will DENY these motions in their entirety.

Factual Allegations

Plaintiff owns real estate at 9501 Fairview Avenue in North Bergen, situated at the intersection of two waterways which feed the Hackensack River (the "Property"). (First Amended Complaint ("FAC") ¶ 1). Plaintiff and Defendant 9440 Fairview Avenue LLC ("9440 LLC") entered into a 10-year lease for the use and occupancy of the Property and the commercial structure thereon. The lease was signed by Defendant Joseph M. Sanzari and commenced July 1, 2007. ( Id. ). Among other things, 9440 LLC promised not to alter the property or structure without the express written permission of Plaintiff. ( Id. at ¶ 3).

9440 LLC, together with Defendants Joseph M. Sanzari, Joseph M. Sanzari Inc., and Timothy Murray, allegedly owned and/or controlled Defendant North Bergen Asphalt LLC ("NBR"), which engaged in the business of recycling asphalt and concrete. ( Id. at ¶¶ 4-5).[1] NBR was based next door to the Property, at 9440 Fairview Avenue, and conducted operations at another adjacent property, 9505 Fairview Avenue. ( Id. ). After 9440 LLC leased the Property, NBR expanded its operation onto the Property ( id. at ¶ 5)(Dfd's Br. at 2). It continued until abandoning the premises in December 2011. ( Id. at ¶ 6).

NBR's operations require New Jersey Department of Environmental Protection (N.JDEP) approval. NBR held a "Class B" permit from the NJDEP to recycle asphalt and crushed concrete next door at 9505 Fairview, but allegedly failed to notify NJDEP or obtain a permit allowing it to do the same thing on the Property. (FAC at ¶¶ 5-6).

Plaintiff alleges that NBR and its owners or operators, 9440 LLC, Sanzari, Sanzari Inc., and Murray (collectively with NBR, the "NBR Defendants") "engaged in filling in protected wetlands in an unauthorized expansion of the [P]roperty at 9501 Fairview Avenue[, and] also dumped contaminated and/or hazardous materials directly into Bellman's Creek and Wolf's Creek." (Complaint ¶ 7). In addition, "Defendants, by and through [NBR], engaged in a deliberate scheme to defraud Plaintiff and various government agencies while keeping their illegal activities hidden from same." ( Id. at ¶ 8). In fact, the Complaint alleges, the NBR Defendants worked in conjunction with a company called Pure Earth, itself banned from removing waste from New York City and from bringing waste to Pennsylvania because of its "ties with organized crime, " to utilize 9505 Fairview and the Property as a way-station for Pure Earth to deposit New York City construction debris bound for Pennsylvania. ( Id. at ¶ 9).

In the course of these operations, the NBR Defendants allegedly dumped contaminated or hazardous materials onto the Property, "including but not limited to, Beryllium, Benzo(b)Flouranthene... Benzene A Pyrene, Mercury, and Lead and others in excess of State limits." ( Id. at ¶ 11). Further, the NBR Defendants, before abandoning the Property during the lease period, "environmentally devastated Plaintiff's property and the affixed structure through the continuous and systematic dumping of approximately 6000 cubic meters of contaminated and/or hazardous fill." ( Id. at ¶ 12). Plaintiff says that the NBR Defendants' "unlawful dumping caused a change of the grade of the property, from where it previously sloped away from the building toward the wetlands, to a slope now directed toward the building... in radically altering the topography of Plaintiff's property, [the NBR Defendants] ha[ve] caused the flooding of the affixed structure whenever it rains. In an effort to alleviate and conceal the flooding issue[, ] Defendants, without Plaintiff's knowledge and/or consent, wrongfully installed storm drains on the leased property." ( Id. at ¶ 11).

The NBR Defendants have never received NJDEP permission and have failed to report the residual waste deposited on the Property in annual certifications to the NJDEP. ( Id. at ¶¶ 41, 44, 46-47, 55).

The NBR Defendants actions have allegedly "placed Plaintiff in legal peril" and rendered the Property "un-rentable and/or unsaleable with little value, no value, or negative value until length and costly remediation upon the land and affixed structure are completed." ( Id. at ¶¶ 13, 54).

Plaintiff asserts the following causes of action against the NBR Defendants: 1) RICO, with NBR as the "enterprise" and mail fraud as the "racketeering activity"; 2) RICO Conspiracy; 3) Breach of lease; 4) Negligence; 5) Unjust enrichment; 6) Citizen's suit under the Clean Water Act, 33 USC § 1365, and 7) Fraud. It separately asserts a claim of private nuisance against Tilcon. Plaintiff seeks punitive damages on all of its claims.

Defendants' Motions to Dismiss

The NBR Defendants seek dismissal pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Plaintiff's First Amended Complaint: (A) insufficiently alleges RICO standing, that is, a concrete injury to business or property; (B) insufficiently alleges at RICO predicate acts (racketeering conduct); (C) insufficiently alleges harm resulting from any predicate act; (D) Fails to "properly" allege that defendants "conducted the affairs of the enterprise[;]" (E) Fails to make out a conspiracy claim because there is no valid underlying RICO claim; (F) fails, with respect to the Clean Water Act claim, to precisely allege compliance with the statutory pre-suit notice process; (G) alleges only "wholly past" violations, such that the suit is legally barred; and (H) seeks only non-injunctive relief, also warranting a legal bar.

NBR apparently sold the 9505 Fairview property to defendant Tilcon New York Inc. Tilcon separately moves to dismiss [ECF No. 38, 48], arguing that if the federal claims against the NBR defendants are dismissed, then the Court would have no subject matter jurisdiction over the state law claims against Tilcon. Because I am denying the motion to dismiss the federal claims, I will deny Tilcon's motion as well.

Analysis

Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States , 404 F.3d 744, 750 (3d Cir. 2005). On such a motion, the well-pleaded factual allegations of the complaint must be taken as true, with all ...


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