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AMA Realty LLC v. 9440 Fairview Avenue LLC

United States District Court, D. New Jersey

December 28, 2017

AMA REALTY LLC, Plaintiff,

         Not for Publication


          John Michael Vazquez, U.S.D.J.

         This case comes before the Court on Defendant Tilcon New York, Inc.'s ("Tilcon") motion for summary judgment, D.E. 183. Defendant seeks summary judgment on Count Eight of Plaintiff AMA Realty LLC's ("AMA") First Amended Complaint, charging Tilcon with private nuisance. The Court reviewed submissions made in support of the motions and considered the motions without oral argument pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R. 78.1(b). For the reasons that follow, Tilcon's motion is GRANTED.

         I. Procedural History & Factual Background

         The following facts are taken from Defendant's Statement of Undisputed Material Facts, D.E. 184-3 (hereinafter "Defendant's SOMF"), and the First Amended Complaint ("FAC"), D.E. 31.[1] Plaintiff AMA owns property located at 9501 Fairview Avenue in North Bergen, New Jersey (the "Property"). Defendant's SOMF at ¶1. Named Defendant North Bergen Recycling ("NBR") operated a recycling facility on land adjacent to the Property. In August 2011, Tilcon purchased NBR's property. Id. at ¶¶2-3. AMA alleges that Tilcon has allowed contaminated groundwater to flow from Tilcon's land onto the Property, causing Plaintiff "significant damages." FAC at ¶¶14, 112.

         With its opposition to Tilcon's motion, AMA submitted a certification dated February 2, 2017, and amended on Mach 9, 2017, from John Larkins, an employee of RTP Environmental Associates ("RTP"). See Certification of John Larkins (hereinafter "Larkins Cert."), D.E. 192-1 at ¶3; Exhibit A to the Certification of Bruce I. Goldstein, Esq. (hereinafter "Goldstein Cert.") D.E. 205-1. AMA hired Larkins as the Licensed Site Remediation Professional "to manage the environmental remediation activities required at [the Property]." Ex. A. to Goldstein Cert, at ¶3. Larkins states in his certification that RTP conducted an investigation into the groundwater on the Property from August 14, 2012 to February 13, 2017, and that "groundwater contamination has been detected, " and "groundwater contour maps have periodically indicated that groundwater flow is flowing from the Tilcon site . . . directly onto plaintiff AMA Realty LLC's property." Id. at ¶4.

         Tilcon attached to its motion and reply brief excerpts from Larkins' deposition testimony, taken on October 20, 2016. See Exhibit F to the Certification of Timothy Corriston (hereinafter "Corriston Cert."). During that deposition, Tilcon's attorney asked Larkins whether RTP had "sufficient data to quantify or qualify the impact specifically from ... the Tilcon property on the groundwater with respect to the AMA property" to which Larkins answered, "No." See Id. at pg. 81. Also during his deposition, Larkins testified that RTP identified potential sources of the contamination as the historical fill located on the property, brought to the AMA property, or possible regional contamination. Id. at pg. 68.

         RTP also wrote a letter to AMA's president, Michael Aita, in January 2016, stating that after eight rounds of groundwater sampling, additional testing was needed to "provide conclusions, " and that "[u]ntil the groundwater investigation is complete, any adjacent sites cannot be ruled out as a potential responsible party." See Ex. E to Corriston Cert, at pg. 4. It appears from the "Groundwater Analytical Data Summary" attached to Mr. Larkins' amended certification that nine rounds have been conducted, the last of which was performed on February 14, 2017, almost a full two years after the eighth round on March 19, 2015. See Ex. A to Goldstein Cert.

         Plaintiff filed the FAC on September 9, 2013. D.E. 31. Only Count Eight, alleging private nuisance, was brought against Defendant Tilcon. Tilcon filed a motion to dismiss on September 26, 2013, which was dismissed by Judge McNulty on May 2, 2014. D.E. 38, 52. Tilcon filed the instant motion on December 23, 2016. D.E. 183. Plaintiff filed its opposition on February 3, 2017. D.E. 191. Plaintiff, however, did not file its opposition to Defendant's statement of material facts until March 23, 2017. D.E. 205. Defendant filed its reply brief on April 13, 2017. D.E. 210.

         II. Standard of Review

         Summary judgment is proper where the moving party "shows that there is no genuine dispute as to any material fact, " and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999). A fact in dispute is material when it "might affect the outcome of the suit under the governing law" and is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment. Id. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). A court's role in deciding a motion for summary judgment is not to evaluate the evidence and decide the truth of the matter but rather "to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

         A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion, the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). To withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at 250. "[I]f the non-movant's evidence is merely 'colorable' or is 'not significantly probative, ' the court may grant summary judgment." Messa v. Omaha Prop. & Cas. Ins. Co., 122 F.Supp.2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

         Ultimately, there is "no genuine issue as to any material fact" if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp., 477 U.S. at 322. "If reasonable minds could differ as to the import of the evidence, " however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.

         III. ...

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