IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FOR PUBLICATION
NEW WEST URBAN RENEWAL CO., a
New Jersey Limited Partnership,
Plaintiff,
v.
VIACOM, INC. (successor by
merger to CBS Corporation,
formerly known as Westinghouse
Electric Corporation), JOHN DOES
1-50, and ABC COMPANIES 1-50,
Defendants.
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HON. STEPHEN M. ORLOFSKY
CIVIL ACTION NO. 01-707
OPINION
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Appearances:
Howard P. Davis, Esq.
The Law Offices of Howard P. Davis, Esq.
440 Sylvan Avenue, Suite 130
Englewood Cliffs, New Jersey 07632
Marisa Y. Paradiso, Esq.
The Law Offices of Marisa Y. Paradiso
Riverdale Plaza, 44 Route 23 North
P.O. Box 85
Riverdale, New Jersey 07457-0085
Attorneys for Plaintiff, New West Urban Renewal Co.
James Stewart, Esq.
Lowenstein Sandler, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068-8700
Mark D. Shepherd, Esq.
Lisa G. Silverman, Esq.
Babst, Calland, Clements and Zomnir, P.C.
Two Gateway Center, Eighth Floor
Pittsburgh, Pennsylvania 15222
Attorneys for Defendant, Viacom, Inc.
ORLOFSKY, District Judge
I. INTRODUCTION
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).See footnote 11 Viacom now moves for partial summary judgment on
all but the First and FifthSee footnote 22 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.
II. 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 I). 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 I 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.See footnote 33
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. ¶ 5.
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 under 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 ThreeSee footnote 44 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 Complaint.See footnote 55
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 judgment, the party contesting the
motion must demonstrate a dispute over facts that might affect
the outcome of the suit. Groman v. Township of Manalapan, 47
F.3d 628, 633 (3d Cir. 1995) (citing Anderson, 477 U.S. at 250-
52).
When considering a motion for summary judgment, the judge's
function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial. Anderson, 477 U.S. at 249. In evaluating the
evidence, the court must "view the inferences to be drawn from
the underlying facts in the light most favorable to the party
opposing the motion. Curley v. Klem, 298 F.3d 271, 276-77 (3d
Cir. 2002) (quoting Bartnicki v. Vopper, 200 F.3d 109, 114 (3d
Cir. 1999)); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). Notwithstanding this deference towards the non-
movant, [t]he mere existence of a scintilla of evidence in
support of the [movant]'s position will be insufficient to
defeat a motion for summary judgment. Anderson, 477 U.S. at 252.
Summary judgment is proper if after adequate time for
discovery and upon motion, a party fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial. Conrail, 297 F.3d at 247 (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
After one party has filed a properly supported summary
judgment motion, the party opposing it must present sufficient
evidence for a reasonable jury to find in its favor. Groman, 47
F.3d at 633 (citing Anderson, 477 U.S. at 250-52). Moreover,
[w]hen a motion for summary judgment is made and supported . . .
an adverse party may not rest upon the mere allegations or
denials of the adverse party's pleadings, but the adverse party's
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial. Fed. R. Civ. P. 56(e).See footnote 66 If the adverse party
does not so respond, summary judgment, if appropriate, shall be
entered against the adverse party. Id.
IV. STATUTES OF LIMITATIONS AND THE NEW JERSEY DISCOVERY RULE
Viacom seeks summary judgment on Count Three and Counts Six
through Nine of the Complaint based on the expiration of the
applicable statutes of limitations. The success of this attack
hinges on the applicability of New Jersey's discovery rule.
A. THE NEW JERSEY DISCOVERY RULE
Under the discovery rule, a cause of action does not accrue
until [a] plaintiff learns, or reasonably should learn, the
existence of that state of facts which may equate in law with a
cause of action. Burd v. New Jersey Tel. Co., 76 N.J. 284, 291,
386 A.2d 1310, 1314 (1978) (emphasis added); see also Rolax v.
Whitman, 175 F. Supp. 2d 720, 727 (D.N.J. 2001) (Orlofsky, J.),
aff'd, No. 01-4229 (3d Cir. Oct. 28, 2002); Slater v. Skyhawk
Transp., Inc., 187 F.R.D. 211, 217 (D.N.J. 1999) (Orlofsky, J.).
[I]t is the province of the court to take into account and
balance all the equities of each case for purposes of determining
whether the party invoking the rule is equitably entitled to its
benefit. Amland Props. Corp. v. Aluminum Co. of America, 808 F.
Supp. 1187, 1191 (D.N.J. 1992). The discovery rule may apply
even where the precise party responsible for the injury is not
known, as long as it is, or should be, apparent that some party
is at fault. See id. at 1192.See footnote 77
In New West I, Judge Walls found that New West had not
presented enough evidence to warrant tolling under the discovery
rule on its ECRA claim. See id., 909 F. Supp. at 228. Thus,
Judge Walls dismissed the ECRA claim because New West had
discovered environmentally hazardous drums on the property in
March 1985. Id. Under the six-year statute of limitations, New
West had until March 1991 to file suit but did not do so until
1994, making its ECRA claim legally stale. Id.
New West argues that the discovery rule should apply to its
remaining claims because actual sampling results are necessary
for knowledge of contamination, or to impute knowledge of
contamination. See Br. in Opp'n to Partial Summ. J., at 20.
This is not the case. The discovery rule delays the onset of the
statute of limitations until the party bringing suit learns, or
reasonably should have learned, of a state of facts giving rise
to a cause of action. Thus, with respect to environmental
claims, tolling under the discovery rule is not dependent on
whether actual sampling results have been taken, but whether
there are enough indications of environmental contamination to
put the plaintiff on reasonable notice of a need to investigate
further. See Staub v. Eastman Kodak Co., 320 N.J. Super. 34, 45,
726 A.2d 955, 961 (App. Div. 1999) (Discovering that one might
have a basis for an actionable claim means perceiving an injury
and believing, or having reason to believe _ with a degree of
firmness that would lead a reasonable person to investigate the
matter if he is interested in seeking redress _ that his injury
was probably caused by the fault of another. Certainty is not
required.). Indeed, New West's position would create a perverse
incentive for plaintiffs with environmental claims to delay
sampling in the face of clear signs of environmental
contamination in order to avoid being time-barred by the statute
of limitations. This would eviscerate the policy behind having a
limitations period _ to create repose, to eliminate stale claims,
and to compel the exercise of a right of action so that an
opposing party has a fair opportunity to defend. See Union City
Hous. Auth. v. Commonwealth Trust Co., 25 N.J. 330, 335-36, 136
A.2d 401, 403-404 (1957); see also Martinez v. Cooper Hosp.-Univ.
Med. Ctr., 163 N.J. 45, 51-52, 747 A.2d 266, 269-70 (2000).
B. STATUTE OF LIMITATIONS
The applicable six-year statute of limitations to Counts
Three and Six through Nine of the ComplaintSee footnote 88 is codified at
N.J.S.A. § 2A:14-1:
Every action at law for trespass to real
property, for any tortious injury to real or
personal property, for taking, detaining, or
converting personal property, for replevin of
goods or chattels, for any tortious injury to
the rights of another not stated in sections
2A:14-2 and 2A:14-3 of this Title, or for
recovery upon a contractual claim or
liability, express or implied, not under
seal, . . . shall be commenced within 6 years
next after the cause of any such action shall
have accrued.
Id. (West 2002). The parties do not dispute the applicability of
the six-year statute of limitations to New West's state common
law contract and tort claims.
The issue before this Court on Viacom's motion for partial
summary judgment is whether there is any genuine issue of
material fact as to whether New West discovered, prior to March
9, 1988, the last date before New West's claims would be time-
barred under the six-year statute of limitations, any
environmental hazards on the Orange Street property that it
purchased from Westinghouse. After reviewing the summary
judgment record, I find that there is no genuine issue of
material fact that the claims upon which Viacom seeks summary
judgment are barred under the six-year statute of limitations,
N.J.S.A. § 2A:14-1. Indeed, New West had knowledge of the
potential environmental hazards on the Orange Street property as
early as 1985, but did not file suit until 1994.
Ivor Braka's (Braka's) deposition testimony indicates that
New West had knowledge of environmental hazards prior to 1988.
Braka was New West's designated representative for its Fed. R.
Civ. P. 30(b)(6) fact deposition in 1995, and described himself
as the person in charge of the Orange Street property, see Dep.
of Ivor Braka, 3/18/02, (Braka Dep. II) at 13:2, attached as
Ex. 7 to Paradiso Certif. Braka had been involved in
negotiations with Newark Ventures about leasing the Orange Street
property. See Braka Dep. II, 31:3-16, 33:2-21; see also
Silverman Certif., Ex. 8. Braka testified that the first time he
became aware of big environmental problems, Braka Dep. II,
152:14-15, was in connection with these negotiations, when Newark
Ventures commissioned an environmental report on the property.
According to the report, there was an asbestos problem, . . .
some PCBs in there, and a couple of tanks. Id. at 152:20-23.
New West commissioned its own study of the property in an
attempt to retain Newark Ventures as a purchaser, and demonstrate
that a clean-up would not be costly. Id., 37:2-17. Based on
the reported environmental defects, however, Newark Ventures
opted not to purchase the property. Id., 152:24 to 153:4; see
also Silverman Certif., Ex. 16 (cancellation letter of 12/15/87).
In the cancellation of its option contract with New West, Newark
Ventures explained that the cancellation was based on environ-
mental reports from Accutech and PMK Engineering, dated December
10, 1987 and December 14, 1987, respectively. See Dep. of Paul
M. Antinori, 4/2/02 (Antinori Dep.), 24:3-25, attached as Ex. 9
to Silverman Certif.See footnote 99 Copies of these reports were enclosed with
the cancellation letter, see Antinori Dep., 25:2-9, and also
hand-delivered to Ivor Braka, id., 27:15-25. Thus, the latest
date when New West was placed on notice of environmental problems
at the Orange Street property was around late '87." Braka Dep.
II, 154:22 to 155:2.
New West attempts to minimize the significance of these 1987
reports, arguing that they were produced for purposes of property
redevelopment and not for compliance with environmental laws.
See Br. in Opp'n to Partial Summ. J., at 22. This, however, is a
distinction without a difference. Regardless of the reason the
environmental reports were generated, as long as New West was
given reasonable notice of environmental hazards on the Orange
Street property, this triggered a duty to investigate, and the
discovery rule did not toll the statute of limitations.
This case raises facts very similar to those presented in a
Seventh Circuit case, Vector-Springfield Props., Ltd. v. Cent.
Ill. Light Co., Inc., 108 F.3d 806 (7th Cir. 1997). There, the
plaintiff invoked Illinois' discovery ruleSee footnote 1010 in an unsuccessful
attempt to toll the statute of limitations on its environmental
contamination claims. The court rejected this argument, finding
that the plaintiff had adequate and timely notice of
environmental contamination based on a consultant's letter, which
recommended a preliminary investigation of the affected property,
a former gas plant site. Id. at 807-10. Even though the letter
did not explicitly state that the property was contaminated, the
court found that the only reasonable inference to be drawn from
these undisputed facts . . . is that a reasonable person,
possessed of such a letter, would be put on notice of its injury
and that it should determine whether legally actionable conduct
was involved . . . . Id. at 810. Likewise, the 1987 Accutech
and PMK reports provided to New West gave it reasonable notice of
environmental contamination at the Orange Street property.
To reiterate, the discovery rule postpones the onset of the
statute of limitations until [a] plaintiff learns, or reasonably
should learn, the existence of that state of facts which may
equate in law with a cause of action. Burd, supra, 76 N.J. at
291, 386 A.2d at 1314 (emphasis added). The statute is not
tolled until the plaintiff learns the legal significance of those
facts. See SC Holdings, Inc. v. A.A.A. Realty Co., 935 F. Supp.
1354, 1367 (D.N.J. 1996) (emphasis added) (citing Burd, 76 N.J.
at 291-93, 386 A.2d at 1314-15). Here, New West had notice of a
potentially actionable state of facts, but did not act on them
in a timely manner.See footnote 1111
As Judge Walls noted, New West arguably had notice of
environmental contaminants as early as 1985. This is evidenced
by a letter sent from New West to CECOS, the company that New
West hired to clean the Orange Street property of hazardous
materials. See Silverman Certif., Ex. 20 (letter from P. Safran
to CECOS of 3/8/85); see also Dep. of Peter Safran, 12/14/94,
40:23 to 41:16, attached as Ex. 6 to Silverman Certif. This
letter from Peter Safran, a New West employee, informed CECOS
that some hazardous items had not been removed from the property,
including, inter alia, four fifty-five gallon drums labeled
waste benzene, one of which developed a leak, and a fifty-five
gallon drum of sodium cyanide with a loose top. See Silverman
Certif., Ex. 20.
Braka testified that he was aware of both the age and the
prior use of the property when New West purchased it. See Braka
Dep. I, 243:4-15. Indeed, the potential environmental hazards on
the Orange Street property were no secret, as explained in New
West's Complaint: During the period when Westinghouse owned and
operated, and/or leased, the Orange Street site, it employed,
inter alia, various materials including diesel fuels, solvents,
degreasing materials, p[o]lychlorinated biphenyls (PCBs),
trichloroethelene, and other hazardous substances in its
manufacturing business at said property. Compl. ¶ 11, attached
to Silverman Certif. as Ex. 3.
Thus, the summary judgment record contains no genuine
question of material fact regarding whether New West had
knowledge of environmental hazards on the Orange Street property
in late 1987. New West had six years from that point in which to
pursue a cause of action, but did not do so. Accordingly, I
shall grant Viacom's Motion for Partial Summary Judgment on
Counts Six through NineSee footnote 1212 of the Complaint. Accord Amland, 808
F. Supp. at 1193 (finding claims based on environmental
contamination time-barred as a matter of law and noting [i]t is
well within the province of this court to deal with issues which
are potentially factual in nature.).
V. INDEMNIFICATION CLAIM
In Count Three of the Complaint, New West seeks indemnifi-
cation as a third-party beneficiary for its environmental clean-
up costs directly from Viacom's insurance carrier. See Compl. ¶¶
35-37. New West has agreed, however, to dismiss Count Three of
its Complaint without prejudice to bring and renew such claim at
a later time. Br. in Opp'n to Mot. for Partial Summ. J. at 36.
Viacom does not consent to dismissal of this claim without
prejudice, see Reply Br. in Further Supp. of Mot. for Partial
Summ. J., at n.2, p.3. Accordingly, this court shall grant
summary judgment on Count Three as unopposed on the merits, with
prejudice, pursuant to Fed. R. Civ. P. 56(e). When confronted
with a properly supported motion for summary judgment, New West
cannot simply respond by withdrawing its indemnification claims
in an attempt to preserve the merits of those claims for another
day or for another forum. Id.; see also Amland, 808 F. Supp. at
1196.
VII. CONCLUSION
For the reasons stated above, I shall grant the Motion for
Partial Summary Judgment of Defendant, Viacom, Inc., on Count
Three and Counts Six through Nine of the Complaint. The parties
have stipulated to the dismissal of Count Two with prejudice, and
Count Four shall be dismissed in accordance with Judge Walls'
ruling in New West I, 909 F. Supp. at 228. The Court shall enter
an appropriate form of Order.
Dated: November 18, 2002 ____________________________
STEPHEN M. ORLOFSKY
United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NEW WEST URBAN RENEWAL CO., a
New Jersey Limited Partnership,
Plaintiff,
v.
VIACOM, INC. (successor by
merger to CBS Corporation,
formerly known as Westinghouse
Electric Corporation), JOHN DOES
1-50, and ABC COMPANIES 1-50,
Defendants.
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HON. STEPHEN M. ORLOFSKY
CIVIL ACTION NO. 01-707
ORDER
|
This matter having come before the Court on the Motion of
Defendant, Viacom, Inc., for Partial Summary Judgment, pursuant
to Fed. R. Civ. P. 56, James Stewart, Esq., LOWENSTEIN SANDLER,
P.C., and Mark D. Shepherd, Esq. and Lisa G. Silverman, Esq.,
BABST, CALLAND, CLEMENTS AND ZOMNIR, P.C., appearing on behalf of
Defendant, Howard P. Davis, Esq., THE LAW OFFICES OF HOWARD P.
DAVIS, ESQ., and Marisa Y. Paradiso, Esq., THE LAW OFFICES OF
MARISA Y. PARADISO, appearing on behalf of Plaintiff, New West
Urban Renewal Co.; and,
The Court having considered the submissions of the parties,
for the reasons set forth in the OPINION filed concurrently with
this ORDER;
IT IS, on this 18th day of November, 2002, hereby ORDERED
that:
1. Counts Two and Four of New West's Complaint are
DISMISSED with prejudice.
2. Viacom's Motion for Partial Summary Judgment on Count
Three and Counts Six through Nine of the Complaint is GRANTED.
____________________________
STEPHEN M. ORLOFSKY
United States District Judge
Footnote: 1 1 See Certif. of Lisa G. Silverman in Supp. of Def.
Viacom's Mot. for Partial Summ. J., 6/6/02 (Silverman Certif.),
Ex. 2 at pp.1-2.
Footnote: 2 2 Viacom withdrew its request for partial summary judgment
on Count Five. See Reply Br. in Further Supp. of Mot. for
Partial Summ. J. at pp.2-3.
Footnote: 3 3 The Tolling and Status Quo Agreement Between New West
Urban Renewal Co. Ltd. and Viacom, Inc. provides that any and
all Decisions, Orders, and Opinions issued or entered by the
Court in the previous action (Civil Action 94-1033) shall
constitute the law of the case and shall be treated as if they
were issued in the new action. Silverman Certif., Ex. 2, at
p.4. Because Judge Walls already dismissed the ECRA claim
against Westinghouse as time-barred under the six-year statute of
limitations, see New West I, 909 F. Supp. at 228, this Court
shall likewise dismiss the Fourth Count of New West's Complaint.
Footnote: 4 4 New West made a business decision to dismiss with
prejudice Count Two, alleging individual liability under CERCLA,
see New West Br. in Opp'n at pp.34-35, but it has only agreed to
dismiss Count Three, alleging a right to indemnification under
Viacom's operators' insurance policies, without prejudice. See
id. at p.36. Viacom will not consent to the dismissal of Count
Three without prejudice and argues that New West is barred from
so doing under Fed. R. Civ. P. 41(a)(1). Rule 41(a), however, is
not applicable here because that rule applies to dismissals of
entire actions and not to individual claims. See Smith, Kline &
French Labs. v. A.H. Robins Co., 61 F.R.D. 24, 28-29 (E. D. Pa.
1973); see also 8 James Wm. Moore, et al., Moore's Federal
Practice § 42.21[1] (3d ed. 2002). I shall dismiss Count Two of
the Complaint with prejudice, per the parties' stipulation, and I
shall address Count Three separately herein.
Footnote: 5 5 See Note 2, supra.
Footnote: 6 6 Local Civil Rule 56.1 of this Court also requires that,
on motions for summary judgment, each side must submit statements
identifying material facts as to which there does or does not
exist a genuine issue. See id. (Gann 2002). [F]acts submitted
in the statement of material facts which remain uncontested by
the opposing party are deemed admitted. Hill v. Algor, 85 F.
Supp. 2d 391, 408 n.26 (D.N.J. 2000).
Footnote: 7 7 [A] party who knows that he or she has been injured and
knows that the injury is the fault of another, but who does not
know the identity of the party potentially at fault, can avoid
the harsh result the statute of limitations otherwise would
impose by naming fictitious 'John Doe' defendants. Amland
Props. Corp. v. Aluminum Co. of America, 808 F. Supp. 1187, 1192
(D.N.J. 1992).
Footnote: 8 8 See Gahney v. State Farm Ins. Co., 56 F. Supp. 2d 491,
495 (D.N.J. 1999) (Count Three_Owner's/Operators' Insurance
Coverage; Count Nine_Breach of Covenant); Kemp Indus. Inc. v.
Safety Light Corp., Civil A. No. 92-95(AJL), 1994 WL 532130, at
*17 (D.N.J. 1994) (Count Six_Strict Liability); Amland, 808 F.
Supp. at 1190 (D.N.J. 1992) (Count Seven_Negligence); and
Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping
Group Ltd., 181 F.3d 410, 425 (3d Cir. 1999) (Count Eight_Fraud).
Footnote: 9 9 The Accutech report identified the following as areas of
environmental concern: Underground storage tanks, three tanks,
two in use, one stored waste oil; asbestos, significant amounts
of pipes and boiler insulation which most likely contains
asbestos; transformers, which may contain PCBs; and a former
plating area, where it talks about maybe potential chromium
contamination. Antinori Dep., 17:18 to 18:4; see also Silverman
Certif., Ex. 12, at 2.
Footnote: 10 10 Under the Illinois discovery rule, which is similar to
New Jersey's, the statute of limitations begins to run when the
plaintiff becomes possessed of sufficient information concerning
its injury to put a reasonable person on inquiry to determine
whether actionable conduct was involved. Vector-Springfield
Props., Ltd. v. Cent. Ill. Light Co., Inc., 108 F.3d 806, 809
(7th Cir. 1997) (citations omitted).
Footnote: 11 11 I find New West's expert affidavits unpersuasive.
Girish Mehta explains that the 1987 reports identify only
potential areas of concern to the environment . . . without any
determination of proof whether or not environmental contamination
exists. Aff. of Girish Mehta, 9/9/02, ¶ 4. The statute of
limitations, however, is triggered by a plaintiff's knowledge of
material facts, not by conclusive proof of every relevant fact.
SC Holdings, Inc. v. A.A.A. Realty Co., 935 F. Supp. 1354, 1367
(D.N.J. 1996) (citing Hatco Corp. v. W.R. Grace & Co., 801 F.
Supp. 1309, 1324 (D.N.J. 1992)) (internal quotations omitted).
New West contends that the first time that New West had
knowledge of any actual environmental contamination in the
building at 95 Orange Street was April 30, 1992, the date it
received its Report of Preliminary Interior Sampling. Br. in
Opp'n to Mot. for Partial Summ. J., at 25; Paradiso Certif., Ex.
7. New West's other expert, Barry Skoultchi, explained that
sampling of the Orange Street property would have taken four to
five months to complete, see Aff. of Barry Skoultchi, 9/10/02, ¶
5, and thus, New West argues it could only have had actionable
notice starting in March 1988, within the limitations period.
This timing argument is contradicted by the very report on which
New West relies, which took less than two months to complete from
the date of sampling on March 5, 1992. See Paradiso Certif., Ex.
7, § 1.0.
Footnote: 12 12
The parties dispute whether the discovery rule applies to New West's contract
claims as well as its tort claims. The New Jersey Supreme Court has explained
that the rationale for employing the discovery rule in tort- or fraud-type
actions . . . does not carry over to most contract actions. County of
Morris v. Fauver, 153 N.J. 80, 110, 707 A.2d 958, 972 (1998). This is because
most contract actions presume that the parties to a contract know the terms
of their agreement and a breach is generally obvious and detectable with any reasonable
diligence. Id. I need not address this issue because I find that
the discovery rule does not toll the statute of limitations for any of New West's
causes of action.