Byram River v. Village of Port Chester

Civil No. B-917 (D. Conn. August 21, 1974)

The court rules that it has subject matter jurisdiction to entertain a suit seeking to halt the discharge by out of state defendants of inadequately treated sewage into a river which forms part of the boundary between Connecticut and New York under the federal common law of nuisance in interstate waters. The river itself is listed as the lead plaintiff, and the court implicitly accepts the propriety of this characterization. The court goes on to find, however, that under Connecticut's long-arm statute, it has in personam jurisdiction over the village which is directly responsible for the discharge, but not over the other out of state defendants, whose connection with the discharge is less direct. Motions to dismiss are thus granted as to all defendants except the Village of Port Chester. Noting that there are significant advantages to be achieved if the litigation proceeds under circumstances where all defendants can remain as parties, the court then transfers the case to the Southern District of New York, where jurisdiction can be obtained against all defendants, including those dismissed here.

Counsel for Plaintiffs
Haynes N. Johnson
Bryan, Parmalee, Johnson & Bollinger
460 Summer Street
Stamford, Conn. 06901

A. William Mottolese
Town of Greenwich
Town Hall
Greenwich, Conn. 06830

Counsel for Defendant New York Dept. of Environmental Conservation
Louis Lefkowitz Attorney General
Julius Feinstein Asst. Attorney General
The Capitol
Albany, N.Y. 12224

Counsel for Defendant Village of Port Chester
Erwin M. Blant Corporation Counsel
Village of Port Chester
101 Westchester Avenue
Port Chester, N.Y. 10573

Counsel for Defendant County of Westchester
F. Sherwood Alexander Asst. County Attorney
Westchester County Office Building
White Plains, N.Y. 10601

Counsel for Defendant Interstate Sanitation Commission
Mitchell Wendell
1432 Laburnum Street
McLean, Va. 22101

Peter B. Cooper
Sosnoff, Cooper & Whitney
35 Elm Street
New Haven, Conn. 06510

[4 ELR 20816]

Newman, J.

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS

This suit seeks to stop the depositing of inadequately treated sewage into the Byram River by a sewage treatment plant owned and operated by the Village of Port Chester, New York. The river, which is one of the plaintiffs, forms a portion of the boundary line between Connecticut and New York, flowing eventually into Long Island Sound. The other plaintiffs are the Byram River Pollution Abatement Association, a corporation formed to protect and improve the river's quality; the Town of Greenwich, a municipal corporation bordering the Connecticut side of the river; and J.A.B. Haughwout, a Connecticut resident, who lives on the river's shore. The defendants are the Village of Fort Chester, a municipal corporation bordering the New York side; the County of Westchester, in which Port Chester is located, and its Chief Executive; the New York State Department of Environmental Conservation (hereafter the "DEC"), which establishes standards for construction of sewage treatment plants and approves plans, and its Commissioner; [4 ELR 20817] and the Interestate Sanitation Commission (hereafter the "Interstate Commission"), a tri-state organization established by an interstate compact approved by Congress to prevent pollution of various waters including the Byram River, and the Commission's Director.

Plaintiffs allege that all of the defendants are jointly and severally liable for nonfeasance in having failed to construct a secondary sewage treatment plant in Port Chester that would have abated pollution of the river. This nonfeasance is claimed to have (1) created a public nuisance under federal common law, see Illinois v. City of Milwaukee, 406 U.S. 91, 108 (1972); (2) violated plaintiffs' civil rights 42 U.S.C. § 1983; and (3) prevented the allotment of federal funds for construction of another plant. Plaintiffs seek broad equitable relief, including an order setting a timetable for construction of a new sewage treatment plant, the appointment of a receiver to supervise planning and construction, and a declaration that defendants have been derelict in their duties in failing to complete the new plant.

Controversy over who is responsible for the Byram River's pollution has concerned courts and agencies for more than thirteen years. The river's substandard condition is a matter of record. The controversy concerns who should act to abate it. None of the defendants is a newcomer to the dispute.

In May, 1961, the Interstate Commission found the river to be polluted, and ordered the Village to construct new facilities so that discharging of inadequately treated sewage would cease by September, 1963. When the Village failed to comply — undertaking only marginal reconstruction and enlargement — the Interstate Commission obtained an order from the New York State Supreme Court in May, 1966, that new facilities be completed by May, 1968. That order, too, was not followed.

In February, 1968, as it became clear that the Court's timetable could not be met, an agreement was reached by the Village and interstate Commission, and approved by the Court, providing for construction of new facilities by 1971. But in December, 1969, the County of Westchester made the Village a part of its newly-created Port Chester Sanitary Sewage District. It hired an engineering firm to develop a plan for new facilities, intended to be a part of a county-wide and metropolitan system. The County submitted the proposal for approval to the Department of Environmental Conservation in April, 1972, so that federal and state funding could be obtained. A year later, in April, 1973, the Department informed the County that the proposal was "not acceptable."

All of the defendants, except the Interstate Commission, have moved to dismiss the complaint on various grounds, including lack of subject matter and personal jurisdiction. The DEC and its Commissioner have also raised Eleventh Amendment objections to the suit. The Interstate Commission has indicated that it will assert Eleventh Amendment objections if the New York State defendants are dismissed as parties.

Without considering all of plaintiffs' theories of subject matter jurisdiction, it is sufficient to observe that jurisdiction is properly predicated on 28 U.S.C. § 1331 to consider the claim of a nuisance upon interstate waters in violation of federal common law. Illinois v. City of Milwaukee, supra.

The problem of personal jurisdiction is more troublesome. Plaintiffs invoke long-arm jurisdiction under both Conn. Gen. Stat. §§ 33-411 and 52-59(b), alleging that all defendants have played some part in causing or perpetuating the river's pollution, a tort injurious to plaintiffs. Plaintiffs do not specify which defendants should be regarded as foreign corporations under § 33-411, and which as nonresidents under § 52-59(b), and do not spell out a precise theory of jurisdiction under either statute. Under § 33-411(c) (4), out-of-state corporations are subject to jurisdiction for tortious conduct "in this state." In somewhat different terms § 52-59(b) furnishes jurisdiction over nonresidents and foreign partnerships who commit tortious acts outside the state causing injuries to persons or property in Connecticut, under certain conditions. These state law provisions are determinative, Arrowsmigh v. United Press International, 320 F.2d 219, 222 (2d Cir. 1963), but they do not necessarily lead to the same answer with respect to all defendants.

As a matter of construction, the emphasis in these statutes on the place of the alleged tortious conduct, § 411 (c)(4), and on the alleged tortfeasors' other business relationships in the state, indicate the legislature's intention that the statutes provide jurisdiction only over potential defendants whose role in causing a tort is primary and active. The legislature was not required to go as far as the Constitution would allow in casting its jurisdictional net, International Shoe Company v. State of Washington, 326 U.S. 310 (1945), and "Connecticut's long-arm statute is obviously not designed to reach the constitutionally permissible limit . . ." Marvel Products, Inc. v. Fantastics, Inc., 296 F. Supp. 783, 785 (D. Conn. 1969). It was not intended to reach parties whose conduct is a secondary or indirect cause of the tort alleged. This is why the legislature required that the tortious act occur within the state under § 411 (c)(4), or that the tortfeasor regularly do business, or anticipate the consequences of his action and derive substantial interstate revenue under § 52-59(b).

Courts construing the Connecticut long-arm statutes have emphasized the importance of these limitations on jurisdiction. See Buckley v. New York Post Corporation, 373 F.2d 175, 178-80 (2d Cir. 1967); Eutectic Corporation v. Curtis Noll Corporation, 342 F. Supp. 761, 762 (D. Conn. 1972); Marvel Products, Inc. v. Fantastics, Inc., supra, 296 F. Supp. at 786; Southern New England Distribution Corporation v. Berkeley Finance Corporation, 30 F.R.D. 43, 46-48 (D. Conn. 1962); Melillo v. Monarch Wine Company, 29 Conn. Supp. 172, 276 A.2d 904, 905 (Comm. Pl. 1971). They have read strictly the requirement that the tortious acts be performed within the state, Southern New England Distributor Corporation v. Berkeley Finance Corporation, supra, 30 F.R.D. at 47. The acts alleged must be directly causal, not merely contributory, cf., Marvel Products, Inc. v. Fantastics, Inc., supra, 296 F. Supp. at 787; Melillo v. Monarch Wine Company, supra.

In construing similar long-arm statutes of other states, courts have applied the same principles. See, e.g., Marsh v. Kitchen, 480 F.2d 1270, 1272 (2d Cir. 1973); Wright v. Yackley, 459 F.2d 287, 290 (9th Cir. 1972); In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220, 230 (6th Cir. 1972); Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 127-28 (2d Cir. 1963); Gildenhorn v. Lum's, Inc., 335 F. Supp. 329, 335 (S.D.N.Y. 1971). The emphasis on the intent of the alleged tortfeasor, see, e.g., Murphy v. Erwin-Wasey, Inc., 460 F.2d 661 (1st Cir. 1972), the interest of the state at stake under the particular circumstances, see, e.g., Wright v. Yackley, supra, 459 F.2d at 289 n. 4, and the significance of the act in the chain of events leading to the alleged tort, Gildenhorn v. Lum's, Inc., supra, 335 F. Supp. at 335, reflects these courts' view that the nature of the tortfeasor's role, as well as the place of his actions, is important to the judgment as to the jurisdictional reach of the statutes.

Under the circumstances alleged here, the Village, as a nonresident corporation, is clearly subject to this Court's jurisdiction under § 411 (c)(4) for the tort allegedly caused in Connecticut. The Village's action in discharging inadequately treated sewage into the river, if proven, makes it a primary tortfeasor. Its responsibility for the tort is direct and immediate, comparable to that of the gunman firing across a state line, hypothesized in Buckley v. New York Post Corporation, supra, 373 F.2d at 179. Although some of its actions may occur in another state, the nexus between the Village's nonfeasance and the arrival of its sewage on Connecticut's shores is sufficiently strong to justify the conclusion that the place of the tort is within this state for purposes of § 33-411, cf. Eutectic Corporation v. Curtis Noll Corporation, supra, 342 F. Supp. at 764. For jurisdictional purposes, its nonfeasance in failing to treat the refuse properly is the equivalent of dumping it on Connecticut's side of the river. The Village could not have realistically expected the sewage to stay on its side, and Connecticut has a strong and legitimate interest in permitting its citizens to sue in their own courts nonresidents polluting shared waterways.

The Village seeks to avoid long-arm jurisdiction by contending that it has "given up all authority" to construct improved sewage treatment facilities as a result of an "agreement with the State of New York whereby it will cooperate with the County of Westchester . . ." (Memorandum, p. 6) and the County's decision to include it in a larger sewage treatment district (Memorandum, p. 2). While the precise nature and effect of these actions is not clear from the record presently available, the undisputed fact remains that the Village owns and operates the existing sewage treatment plant, and its sewage is a source of the river's pollution. Even if there were a contract between the Village and the County for treatment [4 ELR 20818] of the sewage, the Village's liability for this nuisance would not be eliminated, nor would it thereby escape assertion of long-arm jurisdiction to determine its liability.

Compared to the alleged tortious conduct of the Village, however, that of the other defendants is of a far less direct nature. The County and its Chief Executive, by creating a sewage district that includes the Village, have not assumed authority for operation of the existing plant. By their own interpretation, their participation in treatment of the sewage begins only when plans for construction of the new facilities are approved by the DEC. Even if they presently have a responsibility, however, their role is that of tolerating and perpetuating this nuisance, not creating it. It is not the County's sewage that is flowing into the river. The County's nonfeasance, if any responsibility for treatment of sewage can be proven, is an act complete within New York State. Such nonfeasance — by a governmental entity of another state — was not intended by the Connecticut legislature to furnish in personam jurisdiction over that entity. This is not to suggest that the County's role may not provide a sufficient basis for liability to the plaintiffs. But that liability must be determined in a judicial forum within New York.

The role of the DEC in creating the nuisance, as alleged by plaintiffs, is even less direct. By state and federal law, it considers and approves plans for sewage treatment facilities (as well as many other environmental projects) submitted by localities in applications for funding. See 33 U.S.C. § 1251 et seq.; 40 C.F.R. § 35-920-2; New York Environmental Conservation Law Article 51. The DEC compares the proposed facility's importance to that of other projects submitted by other localities — taking account of local pollution conditions and the effectiveness of the existing plant — and assigns it a priority. With a sufficiently high priority rating, a proposal becomes eligible for federal funds and, in turn, for state funds. Neither the DEC's finding that Westchester County's plan is "not acceptable," nor its delay in communicating its conclusion, make it a primary tortfeasor, subject to Connecticut's long-arm jurisdiction. As with the County, application of the long-arm statute must be affected to some extent by the fact that there is involved a discretionary action by a governmental agency of another state. The relation of the DEC to the act of discharging the Village's sewage is highly tenuous. There is no allegation that it has the authority to order the Village to cease its tortious conduct, or impose plans for new facilities drawn up on its own initiative.

Of all the potential defendants, the Interstate Commission's action is the least direct in its alleged connection to the pollution nuisance. While the Compact creating the agency specifies the objective of preventing pollution of waterways like the river, its part in creating the tort at most consists of a failure to push or pursue the other governmental entities as vigorously as it might have. Such action is not contemplated by Connecticut's long-arm statutes as a tort within this state under § 33-411, or as one creating injury within Connecticut under the conditions outlined in § 52-59(b).

Even if the Connecticut long-arm statutes could be construed to reach any of the defendants other than the Village, this Court must consider the appropriateness of jurisdiction in light of the nature of relief requested in this action. The suit is one in equity. The remedies sought by plaintiffs, if they are successful in proving defendants' joint liability, would require extensive interference by a federal court in decision-making of governmental agencies of another state. The appropriateness of formulating such remedies in this forum, instead of in a federal court within New York, may be a consideration that is not strictly jurisdictional. But, to the extent that the equitable nature of this action provides this Court with a measure of discretion on jurisdictional questions, this factor weighs strongly against asserting jurisdiction as to any defendant except the Village, as to which the application of § 33-411 is clear.

The Village's remaining attack on the complaint is readily disposed of. It alleges that some of the plaintiffs, especially the Town of Greenwich, are contributing to the pollution of the river and that the doctrine of unclean hands should bar the granting of equitable relief. Such a contention is no basis for dismissing the complaint. It may affect or conceivably eliminate the entitlement of any of the plaintiffs to a remedy, or give rise to a counterclaim, but it does not defeat jurisdiction nor eliminate the sufficiency of the claim for relief that the complaint adequately states.

Thus, the motion of the Village to dismiss the complaint must be denied, while the complaint must be dismissed as to all other defendants for lack of in personam jurisdiction.¹ That outcome raises a serious question as to the proper course for this litigation to follow. As the Interstate Commission points out in its memorandum, there are significant advantages to be achieved if the litigation proceeds under circumstances where all defendants can remain as parties. The fashioning of effective relief will certainly be enhanced if all defendants are parties to this suit. Responsibility for treatment of the Village's sewage is shared by several governmental entities. Whatever their respective liabilities for creating the nuisance, they each have an important part in solving the pollution problem. Therefore, it is highly desirable that plaintiffs' suit against the Village proceed in a court whose in personam jurisdiction can reach all the appropriate parties.

The position outlined in the Interstate Commission is really an invitation to this Court, in the event jurisdiction does not exist as to all defendants in this District, to transfer the suit, pursuant to 28 U.S.C. § 1404(a), to a District where jurisdiction can be obtained against the parties dismissed here, presumably the Southern District of New York.² Such a transfer is surely for the convenience of the parties now remaining and is in the interest of justice. And the opportunity to join appropriate defendants is a legitimate consideration in exercising discretion to transfer. Simpson Timber Co. v. Great Salt Lake Minerals & Chemicals Corp., 296 F. Supp. 243 (D. Ore. 1969); Koeneke v. Greyhound Lines, Inc., 289 F. Supp. 487 (W.D. Okla. 1968); Popkin v. Eastern Air Lines, 253 F. Supp. 244 (E.D. Pa. 1966); Brown v. Blidberg Rothchild Co., 222 F. Supp. 18 (D. Del. 1963); Allied Petro-Products, Inc. v. Maryland Casualty Co., 201 F. Supp. 694 (E.D. Pa. 1961).

Accordingly, the complaint is dismissed for lack of in personam jurisdiction as to all defendants except the Village of Port Chester, and the case is transferred to the District Court for the Southern District of New York.

1. Technically, it may not be necessary to dismiss for lack of in personam jurisdiction as to the Interstate Commission, since it has not specifically moved to dismiss for lack of in personam jurisdiction. Possibly its memorandum of views, in effect reserving the right to assert Eleventh Amendment objections, could be considered a waiver of in personam jurisdiction objections, since there has been an appearance. And jurisdiction may well exist here apart from a claim of tortious conduct, though no other basis has been alleged. However since the suit is to be transferred to a forum where in personam jurisdiction can be readily asserted over the Interstate Commission, dismissal of all defendants except the Village seems appropriate; in the transferee forum, the Interstate Commission can either be added as a party defendant or can move to intervene.Cf. Ferri v. United Aircraft Corp., 357 F. Supp. 814 (D. Conn. 1973).

2. Since the only defendant remaining in the suit after disposition of the motions to dismiss will be the Village of Port Chester, a transfer of the suit will be in accord with the rule that a case can be transferred only if jurisdiction over defendants can be properly obtained in both the transferor and transferee jurisdiction. See, e.g., Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970). Whatever Eleventh Amendment objections are available to any parties that may be added to the transferred action will be as available in the Southern District as in this District, and in any event do not bar transfer of the suit against the Village.