United States District Court, D. New Jersey
Michael Vazquez, U.S.D.J.
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.
Procedural History & Factual Background
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. 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.
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.
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
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.
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.
Standard of Review
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.
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)).
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.