UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW … · 9/20/2017 · Syracuse, New York...
Transcript of UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW … · 9/20/2017 · Syracuse, New York...
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
v. No. 1:03-CV-951 (CFH)
TIMMONS CORPORATION; DONALDW. STONE, SR.; REAL PROPERTY LOCATED AT 191 WATERVLIETSHAKER ROAD, COLONIE, ALBANYCOUNTY, NEW YORK,
Defendants.
CHRISTIAN F. HUMMELU.S. MAGISTRATE JUDGE
APPEARANCES: OF COUNSEL:
U.S. Department of Justice RICHARD M. GLADSTEIN, ESQ.601 D Street NWWashington, DC 20901Attorneys for Plaintiff
U.S. Department of Justice - RUTH A. MCQUADE, ESQ Environmental Enforcement Section ALFRED S. IRVING, ESQ.P.O. Box 7611Washington, DC 20044-7611Attorneys for Plaintiff
Office of William H. Pease623 1st Street Liverpool, New York 13088 WILLIAM H. PEASE, ESQ.Attorneys for Plaintiff
Office of the United States Attorney - WILLIAM F. LARKIN, ESQ. SyracuseP.O. Box 7198100 South Clinton StreetSyracuse, New York 13261-198
Case 1:03-cv-00951-CFH Document 99 Filed 09/20/17 Page 1 of 26
Attorneys for Plaintiff
Couch White, LLP ADAM J. SCHULTZ, ESQ.540 Broadway ALITA J. GUIDA, ESQ.P.O. Box 22222Albany, New York 12201-2222Attorneys for Defendant RealProperty Located at 191Watervliet Shaker Road, Colonie, Albany County, New York
MEMORANDUM-DECISION & ORDER1
Presently pending before the Court is plaintiff United States of America’s
(“United States” or “plaintiff”) Motion to Reopen the case and Motion for Declaratory
Judgment. Dkt. Nos. 60, 61. Defendant Real Property located at 191 Watervliet
Shaker Road, Colonie, Albany County, New York (“191" or “defendant”) opposed the
Motion to Reopen and Motion for Declaratory Judgment. Dkt. No. 78, 82, 89, 97. The
United States filed a Reply to the Motion to Reopen and the Motion for Declaratory
Judgment. Defendant 191, with permission of the Court, filed a Sur-Reply to the Motion
to Reopen. Dkt. Nos. 82, 87, 91. Defendant 191 also filed a Sur-reply to the Motion for
Declaratory Judgment. Dkt. Nos. 97, 98.2 For the reasons discussed below, the Motion
to Reopen is denied and the Motion for Declaratory Judgment is denied and dismissed
as moot.
I. Background
1 Pursuant to 28 U .S.C. § 636(c), FED. R. CIV. P. 73, and N.D.N.Y.L.R. 72.2(b), the parties have
consented to disposition of this matter by a Magistrate Judge.
2 Real Property was also given permission of the Court to file this Sur-Reply. Dkt. No. 96.
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On February 8, 2006, this Court issued a Memorandum-Decision and Order
(“MDO”) granting summary judgment in favor of the United States and ordering
defendants to pay $1,246,399.99, that a judgment in rem be entered against the real
property, and that such real property be sold.3 Dkt. No. 28, 32. After postponements
and the filing of many status reports (Dkt. Nos. 29, 31, 33, 34, 35, 41, 42, 44, 45, 50,
52) regarding the judicial sale of the subject property, on July 26, 2010, the United
States filed a letter request seeking to be excused from a court-ordered sale of the
property based on its belief that “a judicial sale of the property would be a futile process
that would cause the government to incur additional costs for the sale without any
likelihood of recovering any of its unreimbursed costs.” Dkt. No. 54 at 2.4 The Court
“excused” the United States “from seeking a court-ordered sale of the subject property
and such order is not issued[.]’” Dkt. Nos. 55; 56 at 2. The Court further held that “no
civil penalties are awarded against the defendants at this time, without prejudice to the
United States to renew its application for the imposition of civil penalties against the
defendants or either of them at a later date.” Dkt. No. 56 at 2. An Amended Judgment
was entered in favor of the United States on September 8, 2010. Dkt. No. 58.
On January 13, 2017, the United States f iled a notice of appearance, and
thereafter submitted the Motion to Reopen and Motion for Declaratory Judgment
3 As familiarity with this matter is assumed, reference is made to the case’s docket and to the
February 8, 2006 Memorandum-Decision and Order for a more in-depth review of this matter.
4 The United States provided it “will, however, leave its judgment in place.” Dkt. No. 54 at 2.
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currently pending before this Court.5 Dkt. Nos. 59-61. The United States seeks to
reopen the action “for the limited purpose of considering the United States’ Motion for
Declaratory Judgment” which seeks “confirmation of the continued existence of the
United States’ CERCLA lien on Real Property, filed concurrently with this Motion to
Reopen Case.” Dkt. No. 60-2 at 1.
II. Arguments
A. Plaintiff’s Arguments
The United States first contends that this Court has jurisdiction to reopen this
case under the All Writs Act, 28 U.S.C. § 1651, “as necessary or appropriate to
effectuate and prevent the frustration of orders it has previously issued.” Dkt. No. 60-2
at 2. Further, the United States argues that the Court “has broad equitable authority to
fashion an appropriate remedy in giving effect to its prior orders.” Id. at 2-3. Similarly, it
argues that this Court has jurisdiction to reopen the action “for good cause shown.”
Dkt. No. 60-2 (citing Lynman v. New York and Presbyterian Hosp., No. 11 Civ. 3998,
2012 WL 6135354 (S.D.N.Y. Dec. 11, 2012)6(additional citations omitted). It contends
that reopening this action is necessary because this Court’s February 8, 2008 MDO
(Dkt. No. 28) has been, or may be, frustrated by nonparty Albany County’s foreclosure
5 Upon the filing of these motions, this action was reassigned to the undersigned, as Magistrate
Judge Treece, who was assigned to the case, has retired. Dkt. No. 62.
6 Although the Southern District in Lyman acknowledged that the motion was “styled” as one toreopen the Court concluded that the “fundamental question is whether the parties reached an enforceableoral agreement to settle this case”; thus, the Court “appl[ied] the body of law governing the enforcability oforal settlement agreements.” 2012 WL 6135354, at *2.
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proceeding and sale of the subject property in 2012. Dkt. No. 60-2 at 2.
In its Reply, the United States sets forth additional arguments both as to
timeliness and its belief as to why the Motion to Reopen need not be brought pursuant
to Fed. R. Civ. P. 60(b). It contends that its Motion to Reopen and Motion f or
Declaratory Judgment should be considered timely as there is no statute of limitations
under CERCLA for enforcement of a lien. Dkt. No. 82 at at 6-7. Further, it argues that
because it is not seeking relief from a prior action, the motion “sounds more in the
nature of a motion to administratively reopen.” Id. at 7. The United States contends
that it need not bring its motion under Fed. R. Civ. P. 60(b) (Relief from a Judgment or
Order) because it seeks merely clarification as to its lien status, and a motion for
clarification “need not be based on Rule 60(b).” The United States also contends that,
even if Rule 60(b) applies, “the lien confirmation sought here does not seek the full
measure of relief afforded under Rule 60(b), thus reopening is not foreclosed.” Dkt. No.
82 at 8. Elaborating on this theory, the United States appears to argue that it is not
seeking to be relieved from judgment and the Motion to Reopen will not disturb the
finality of the judgment. Id. at 8-9. Further, it contends that Rule 60(b) affords broad
discretionary powers on the Court. Id.
The United States suggests that the Declaratory Judgment Act, 28 U.S.C. §
2201(a), permits this reopening, but also contends that it need not seek relief under the
Declaratory Judgment Act because its prior pleadings and earlier-filed request for
declaratory relief is sufficient. Dkt. No. 60-2 at 2 (citing E.R. Squibb & Sons v. Llyod’s &
Companies, 241 F.3d 154, 177 (2d Cir. 2001); Government Employees Ins. Co. v.
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Saco, No.12-CV-5633, 2014 WL 639419 (E.D.N.Y. Feb. 18, 2014)); Dkt. No. 82 at 9-
10. The United States requests that, if the Court determines the pleadings are
“insufficient for a lien status determination,” prior to “declining to hear this matter,” the
Court “direct an amended or additional pleading be filed.” Dkt. No. 82 at 10. Finally,
plaintiff argues that it seeks to reopen pursuant to the Court’s orig inal jurisdiction under
CERCLA § 9607(l)/107(l) and CERCLA’s declaratory judgment provision. Dkt. No. 82
at 2, 10.
B. Defendant’s Arguments
Defendant 191 argues that pursuant to this Court’s February 8, 2006 MDO and
the final judgment dated September 14, 2010 (Dkt. Nos. 28, 58), the United States was
given all relief requested; thus, there are no active pleadings and the Court cannot
reopen the action. Dkt. No. 78-1 at 12. It contends that the m otion is most properly
brought pursuant to Rule 60(b)(6), but that under such rule, the motion is untimely. Dkt.
No. 87 at 13. Further, it argues that the All Writs Act, the Declaratory Judgment Act,
and CERCLA do not provide bases to reopen this action nor do they provide
jurisdiction. Dkt. No. 78-1 at 6. Defendant 191 further contests the United States’
characterization of its motion as one for clarification or to administratively reopen. Dkt.
No. 87 at 11, 13. Defendant 191 also contends that the United States inappropriately
attempts to “bootstrap” its arguments within its declaratory judgment motion in its
Motion to Reopen, and that the Court cannot consider the m erits of the declaratory
judgment motion on the motion to reopen. Dkt. No. 87 at 8-10. Finally, insofar as the
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United States seeks to amend its pleadings, Defendant 191 objects and points out that
it did not submit a proposed pleading. Id. at 5-8.
III. Analysis
A. All Writs Act
The United States argues that the Supreme Court of the United States “has
repeatedly recognized the power of a federal court to issue such commands under the
All Writs Act . . . as may be necessary or appropriate to effectuate and prevent the
frustration of orders it has previously issued.” Dkt. No. 60-2 at 2; see also Dkt. No. 82
at 2. The United States contends that the Court “does not require a separate grant of
jurisdiction to issue an order to effectuate its prior ruling, if needed[,]” citing New York
Tel. Co., 424 U.S. at 172, to argue that the All Writs Act provides authority to prevent
frustration of orders a court has previously issued “in exercise of jurisdiction it otherwise
obtained.” Dkt. No. 82 at 2. The United States suggests that the jurisdiction this Court
“otherwise obtained” is its original jurisdiction under CERCLA. Id.
The All Writs Act provides: “[t]he Supreme Court and all courts established by
Act of Congress may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
It is well settled that the All Writs Act applies to prevent frustration of orders where the
Court has continued jurisdiction or otherwise retained jurisdiction. United States v.
Tabile, 166 F.3d 505, 506 (2d Cir. 1999); United States v. New York Tel. Co., 434 U.S.
159, 172 (1977). As many courts have stated, and the United States has recognized,
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the All Writs Act “does not confer an independent basis of jurisdiction; it merely
provides a tool courts need in cases over which jurisdiction is conferred by some other
source.” Tabile, 166 F.3d at 506) (citing New York Tel. Co., 434 U.S. at 172; Syngenta
Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002); Dkt. No. 82 at 2. In support of
its argument that this Court has authority to reopen a case that has been closed for
seven years, the United States cites, without elaboration, to New York Tel. Co., 434
U.S. at 182; Jankovic v. United States,7 384 F. Supp. 1355, 1358 (D.D.C. 1974); and
United States v. Visa, U.S.A., Inc., No. 08 Civ. 7076, 2007 WL 1741885, at *3 (S.D.N.Y.
June 15, 2007). Dkt. No. 60-2 at 2; Dkt. No. 82 at 2. However, these cases do little
more than state the general proposition repeatedly set forth – that the All Writs Act
allows a court to act to prevent frustration of its order where it has an independent basis
for jurisdiction – and do little to support the conclusion the United States asks this Court
to reach.
In New York Tel. Co., the Supreme Court held that a Court had the authority,
pursuant to the All Writs Act, to require a third-party telephone company to provide
assistance with pen registers necessary for the implementation of its order. However,
this case largely stands for the conclusion – non-relevant to this case – that the All
Writs Act extended to those not original parties to the action whose actions could
frustrate the implementation of a court order. 434 U.S. at 174. Janokovic similarly
restated the unremarkable proposition that “where the Court otherwise has an
7 It appears the United States intended to cite Jankovic v. United States, rather than Jackson v.
United States, as the provided Jackson citation leads the reader to Jankovic. Dkt. No. 60-2 at 2.
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independent basis of jurisdiction, the Court may award declaratory relief under 28
U.S.C. §§ 2201, 2202, and it may issue any writ necessary in aid of its jurisdiction under
28 U.S.C. § 1651, the All Writs Act. 384 F. Supp. at 1358. Finally, in Visa U.S.A., Inc.,
pursuant to a motion to enforce a judgment against the defendant, the Southern District
of New York reviewed findings of a special master appointed by the Court. 2007 WL
1741885, at *1. The Court held that a “finding of contempt is not a prerequisite for
enforcement” of its prior orders and provided a string cite to a variety of cases, including
New York Tel. Co., which cited to a court’s broad remedial powers. Id. at *3. Thus,
none of these cases provide support for the leap the United States is asking this Court
to make – that the All Writs Act, this Court’s “broad equitable authority,” and this Court’s
original jurisdiction over this action under CERCLA provide it with authority to reopen
this case. The All Writs Act alone, thus, cannot provide a basis for jurisdiction or
authority to reopen. The question then is whether the Court has jurisdiction,
independent from the All Writs Act, to reopen this matter.
The United States suggests that the “separate act of jurisdiction” that allows use
of the All Writs Act is this Court’s original jurisdiction pursuant to CERCLA § 113(b)/§
9613(b). The United States provides no case wherein a court concluded that the All
Writs Act provided authority over a matter where the court no longer had jurisdiction.
Instead, it argues that this Court’s original jurisdiction over the matter, combined with
the fact that this Court’s February 8, 2006 MDO wherein the Court cited the general
proposition that under §113(b)/§9613, a “lien continues until all liability for the costs are
satisfied,” must mean this Court retains jurisdiction because its costs are not yet
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satisfied. Dkt. No. 82 at 2. However, this proposition is wholly unsupported. Id. at 2, 7.
This Court closed this action in 2010; regardless of the fact that the United States’ lien
has not been satisfied, the parties did not ask this Court to retain jurisdiction until such
lien was satisfied. Thus, the Court is unaware of any independent basis of jurisdiction it
may have, and is not convinced that any of the statutes or doctrines raised the United
States’ raise provide such jurisdiction. Cf. Phillips Beverage Co. v. Belvedere S.A., 204
F.3d 805, 806 (8th Cir. 2000) (concluding that the All Writs Act applied in a matter over
which the district court “continued to have jurisdiction,” in order to prevent frustration of
an order denying a temporary restraining order where the requesting party, the
defendant, filed a customs application in an attempt to “make an end run around the
district court’s refusal to grant the interim relief [the defendant] sought.”) (emphasis
added).
The Court further agrees with Defendant 191 insofar as it argues that the All
Writs Act does not apply to permit the reopening of this action because, although the All
Writs Act may be used to enforce final judgments or where the Court’s order has been
frustrated, it cannot be said that this Court’s f inal judgment has been frustrated. The
United States contends that, absent
reopening of this case, there would be uncertainty as towhether the Court’s prior ruling and judgment could befrustrated and blocked by a state foreclosure proceeding inwhich the County failed to comply with federal law when itfailed to name or serve the United States with process of thestate court proceeding or a copy of the foreclosurecomplaint, and failed to seek judicial sale following theforeclosure, thus not complying with 28 U.S.C. § 2410.
Dkt. No. 82 at 3. However, the Court ruled in favor of the United States, and when the
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plaintiff requested relief from a court-ordered judicial sale, the Court granted such
request. Dkt. No. 56. The parties did not request for this Court to retain jurisdiction of
the matter after issuance of the judgment. Dkt. No. 58. Thus, the Court declines to find
that the All Writs Act, pursuant to this Court’s original jurisdiction under CERCLA,
permits reopening of this matter and review of the Motion for Declaratory Judgment.
However, the Court will review the United States’ alternate arguments in greater detail
below.
B. Declaratory Judgment Act
The United States also appears to argue that the Declaratory Judgment Act8
provides a basis on which the Court can reopen this matter. Dkt. No. 60-2 at 2. In its
Reply, the United States expands this argument slightly by providing: “[i]n 2005 the
United States requested a declaratory judgment for liability for future costs in its
Memorandum in Support of Summary Judgment, and the Court granted that declaratory
relief.” Dkt. No. 82 at 9 (citing Dkt. No. 20-3 at 269; Timmons, 2006 WL 314457, at
8 The Declaratory Judgment Act provides:
In a case of actual controversy within its jurisdiction . . . any court of theUnited States, upon the filing of an appropriate pleading, may declare therights and other legal relations of any interested party seeking suchdeclaration, whether or not further relief is or could be sought. Any suchdeclaration shall have the force and effect of a final judgment or decreeand shall be reviewable as such.
28 U.S.C. § 2201 (a).
9 Plaintiff cites page 23 of Dkt. No. 20-3, but as this MDO refers to the pagination of the Court’s
electronic filing system, CM/ECF, all page references will be made to those page numbers, rather thanthose set forth in the original documents.
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*13). It further cites CERCLA § 113(g)(2), which allows for entry of a declaratory
judgment “on liability for response costs or damages that will be binding on any
subsequent action or actions to recover further response costs or damages.” Id. The
United States argues that this Court’s “original jurisdiction in this matter and the United
States’ prior case filings and Motion for Declaratory Judgment provide sufficient basis to
enter a declaratory judgment.” Id. at 10. The United States further provides that its
pending Motion for a Declaratory Judgment “may be accepted as a motion requesting
the Court to enter an order in aid of its prior Order and Judgment, which need not issue
under the Declaratory Judgment Act.” Id. Finally, the United States provides that,
should the Court “find the pleadings are insufficient for a lien status determination, the
United States respectfully requests that the Court direct an amended or additional
pleading be filed, rather than declining to hear this matter.” Id.
Defendant 191 argues that the Declaratory Judgment Act does not apply as “it
provides a remedy, not a substantive ground to create jurisdiction or re-open a case.”
Dkt. No. 78-1 at 15. Thus, Defendant 191 contends that “‘a request for relief in the form
of a declaratory judgment does not by itself establish a case or controversy involving an
adjudication of rights.’” Id. (quoting In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726,
731 (2d Cir. 1993). Further, addressing the United States’ request that this Court
permit it to amend its pleadings should it deem them insufficient, Defendant 191 argues
that a motion to amend, at this stage of the proceedings, is improper as (1) the case is
closed and there are no pleadings to amend, (2) the motion seeks post-judgment relief
that it had not sought earlier, and (3) the United States has not complied with Local
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Rule 7.1(a)(4) by failing to provide a copy of the proposed amended pleading. Dkt. No.
87 at 5-8.
The Court cannot see how requesting declaratory relief in the form of liability for
“future costs in its Memorandum in Support of Summary Judgment” allows this Court to
grant this motion to reopen. Specifically, the United States requested “a declaratory
judgment that Defendant Timmons remain jointly and severally liable for additional
response costs at the Site[,]” including “[e]nforcement costs.” Dkt. No. 23 at 26-27, 27
n.10. Thus, this Court entered declaratory judgment in favor of plaintiff, concluding that
defendant is liable for response costs or damages that would be binding on any
subsequent action to recover further response costs or damages, 2006 WL 314457, at
*13, 18; yet, there is no question that defendant Timmons Corp. was found liable for
damages. That request of declaratory relief and this Court’s grant of such relief -- which
did not request that the Court retain jurisdiction over the matter until it obtained
payment or similar relief -- does not operate to provide authority reopen this action. To
hold otherwise would be a slippery slope that could impact the finality of future CERCLA
matters. Following the United States’ logic, potentially, a party that requested and was
granted by the Court a form of declaratory relief at any stage of the case could then
request that the case can be reopened at any time in order to seek distinct declaratory
relief. See, e.g., Kalamazoo River Study Grp. v. Rockwell Int’l Corp., 355 F.3d 574, 584
(6th Cir. 2004). However, the undersigned declines to conclude that United States’
initial request, and this Court’s grant, of declaratory relief provides this Court with
jurisdiction over this matter. Further, the United States otherwise fails to explain how
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the Declaratory Judgement Act provides the Court with jurisdiction.
C. CERCLA
Beyond arguing that CERCLA provides the underlying jurisdiction to allow this
Court to reopen the case under the All Writs Act, discussed supra, the United States
also appears to make a related argument that CERCLA itself provides an independent
basis for jurisdiction because CERCLA § 113(b) provides that district courts have
exclusive jurisdiction over “all controversies” arising under this chapter. Dkt. No. 82 at
1-3. Thus, the United States’ argument suggests that, despite the closing of the case,
the Court does not need a separate grant of jurisdiction to effectuate its prior ruling,
suggesting that the original jurisdiction continues. Although the United States argues
that the Court has authority to reopen because it has original jurisdiction over the
CERCLA action, the United States does not explain whether or how CERCLA affords
an independent basis of authority to reopen..
Kalamazoo River Study Grp. v. Rockwell Int’l Corp., 355 F.3d 574, 584 (6 th Cir.
2004), cited by Defendant 191, is helpful in assessing whether CERCLA itself provides
an independent basis to reopen this action. Dkt. No. 87 at 9. In Kalam azoo, the
plaintiff sought review of the District Court’s denial of its motion to reopen and argued
that the District Court inappropriately “pigeonhol[ed]” its motion to reopen as a Rule
60(b) motion because “CERCLA allocation orders are subject to revision whenever the
equities underlying the decision shift.” Id. The Court agreed that “principles of equity
guide CERCLA’s contribution provision,” but found that “nothing in CERCLA compels
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the conclusion that the equitable underpinnings of an allocation decision exempt it from
the requirement that motions to alter judgments be brought under Rule 60(b).” Id.
Although the United States’ reason for seeking to reopen this action differs from the
plaintiff in Kalamazoo – there, revising an allocation judgment, versus here, seeking to
“clarify” or state its lien’s continued existence – the Sixth Circuit rationale is instructive.
The mere fact that CERCLA provided this Court with original jurisdiction over the
underlying action does not mean that CERCLA itself provides its own or separate
vehicle to review the United States’ motion after the case has been fully closed and all
requested relief granted. The Sixth Circuit in Kalamazoo rejected the plaintiff’s
argument -- which it defined as “because a district court relies upon equitable factors to
make an allocation designation, such decision is forever subject to revision should there
be any alteration in the equities underlying the allocation order” – concluding that the
mere “equitable basis” of CERCLA “does not deprive all allocation orders of their
finality.” Id. at 584. Although the Kalamazoo Court recognized that courts in prior cases
have altered CERCLA judgments, it noted that in those cases, the court specif ically had
allowed for future change in its initial order. Id. at 585-86 (“What these cases show is
not that allocation decisions in CERCLA cases are inherently subject to change, but
rather that courts have the power to fashion relief that is subject to future change.
Neither case stands for the proposition that CERCLA provides an alternative route for
reopening decisions in lieu of Rule 60(b), but rather they affirm the broad equitable
powers of the district court.”) (emphasis added).
Here, the Court did not anticipate future change to its judgment or issue
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provisional language within that judgment, nor did the parties request such flexibility
prior to the judgment being issued. As in Kalamazoo, the Court “ha[s] been presented
with no support for the notion that CERCLA provides a mechanism independent of
[R]ule 60(b)” for revising its orders. 355 F.3d at 586. Although this Court had
jurisdiction over the underlying CERCLA action, it does not find that this original
jurisdiction of the action, nor any portion of CERCLA itself, allows it to now reopen the
matter even if reopening would not alter or amend the underlying MDO.
D. Fed. R. Civ. P. Rule 60(b) - Relief from Judgment or Order
The United States argues that it “is not seeking to relitigate issues already
decided in its favor, and it is not seeking relief from a prior judgment under Rule 60(b).”
Dkt. No. 82 at 7. Further, it provides that it has “not sought relief under Fed. R. Civ. P.
60(b) nor is the instant motion controlled by it.” Id. Instead, the United States contends
that its motion “sounds more in the nature of a motion to Administratively Reopen the
case so the United States can file a motion requesting the Court to confirm the
continuation of a lien afforded under a prior Order.” Id. Moreover, the United States
contends that, “if the Court finds” that the Motion to Reopen “seeks clarif ication of the
prior judgment of the Court, a motion for clarification need not be based on Rule 60(b).”
Dkt. No. 82. Finally, the United States argues that, even if Rule 60(b) applies, “the lien
confirmation sought here does not seek the full measure of relief afforded under rule
60(b), thus reopening is not foreclosed.” Id. at 8 (citing Simpson v. Sutton East Assoc.
#88, 1997 WL 642344, at *3 (E.D.N.Y. Sept. 5, 1997)). Under this theory, the United
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States urges the Court to exercise the “broad discretion” and “equitable power”
provided to the Court under Rule 60(b)(6). Id. The United States further appears to
argue that it would not be barred under Rule 60(b) due to timeliness because there is
no statute of limitations for CERCLA liens. Dkt. No. 82 at 6-7.
Defendant 191 argues that the United States’ only avenue under which to bring
this motion is through a Rule 60(b) motion, but that such motion is untimely. Further,
Defendant 191 disputes the United States’ argument that its motion is akin to a motion
to administratively reopen, arguing that administrative reopenings are for matters where
“a party is granted the opportunity to pursue further relief that had not been granted at
the time of the closure.” Dkt. No. 87 at 12. Finally, Defendant 191 argues that the
Motion to Reopen should not to be compared to a Motion for Clarification because the
United States is not seeking to clarify something ambiguous or vague about the Court’s
prior Order. Id. at 12-13.
Rule 60(b) provides
Grounds from Relief from a Final Judgment, Order, orproceeding. On motion and just terms, the court may relievea party or its legal representative from a final judgment,order, or proceeding for the following reasons:(1) mistake, inadvertence, surprise, or excusable neglect;(2) newly discovered evidence that, with reasonablediligence, could not have been discovered in time to movefor a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic),misrepresentation, or misconduct by an opposing party;(4) the judgment is void;(5) the judgment has been satisfied, released or discharged;(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). Motions under Rule 60(b), other than for reasons one through
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three, must be made “within a reasonable time.” Id.10
The Court first addresses the United States’ argument that its motion is one for
clarification. As an initial point, “there is no Federal Rule of Civil Procedure specifically
governing ‘motions for clarification.’” Frommert v. Conkright, 00-CV-6311L, 2017 WL
952674, at *3 (W.D.N.Y. Mar. 10, 2017) (quoting University of Colorado Health at Mem.
Hosp. v. Burwell, 165 F. Supp. 2d 56, 61 (D.C.C. 2016)). The United States directs the
Court to United States v. Philip Morris USA, Inc., 793 F. Supp. 2d 164 (D.D.C. 2011) in
support of its argument that its motion should be treated as a motion for clarification,
and, thus, need not be based on Fed. R. Civ. P. 60(b). Dkt. No. 82 at 7. In Philip
Morris, the defendants “presented a litany of . . . arguments for clarifying, limiting,
reformulating, or entirely vacating this Court’s factual findings and [prior] Order,”
specifically seeking that language be added to the Court’s Order that “‘(1) clarif ies that
this Court has exclusive jurisdiction to enforce the Court’s [prior Order]; (2) confirms that
only the Government may seek to enforce [the prior order] absent leave of the Court;
and (3) requires the parties meet and confer . . . before motions to enforce [the prior
order] are filed . . . .” Phillip Morris, 793 F. Supp. 2d at 167. The parties disagreed over
the standard under which the motion should be reviewed, with the defendants arguing
that its motion was one for clarification, and the intervenors contending that it must be
reviewed under Rule 60(b). Id. The Court concluded that the motion should be
reviewed under Rule 60(b) because a motion for clarification “ask[s] the Court to
10 The parties are not contending that the United States’ motions would fall under categories one
through three.
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construe the scope of its Order by applying it in a concrete context or particular factual
situation” or to “clarify something ambiguous or vague[.]” Id. at 167-69. The Court
noted that the defendant did not provide language from the prior order that it found to
be ambiguous or vague, and instead sought to add new language and “new
declarations of law.” Id. at 167. Thus, the Court concluded that the defendants’ motion
was not one for clarification. Id. at 169.
Here, plaintiff argues that because is not seeking to alter, amend, or add new
language to the Court’s MDO, its Motion to Reopen can be considered a motion for
clarification. Dkt. No. 82 at 7. Although the United States does not appear to seek to
add to, modify, or amend the Court’s MDO, it is also not seeking the general relief
provided by a motion for clarification. Philip Morris, 793 F. Supp. 2d at 167-69.
Nowhere in its filings is the United States contending that this Court’s MDO was
ambiguous or vague or that it contained a clerical error; rather, it asks the Court to
reopen, and, upon reopening, grant a motion for declaratory judgment in order to
provide “confirm[ation]” that its lien still “exist[s].” Dkt. No. 60-1 at 1. This question is
not based on ambiguity or vagueness of the June 8, 2006 MDO, rather, it arises out of
certain events that have unfolded post-judgment. See Vaughn v. Laurel County Jail, 85
F.3d 630, 1996 WL 254660, at *1 (6th Cir. May 14, 1996) (“motion for clarification”
reviewed under Rule 60(b) because “[a]ny post-judgment motion that asks for relief
other than correction of a purely clerical error and which is filed more than ten days
after entry of judgment is treated as a Rule 60(b) motion.”) (emphasis added). The
Court also declines the United States’ invitation to construe its motion to reopen as
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asking the Court to “construe the scope of its Order by applying in a concrete context or
particular factual situation.” Philip Morris, 793 F. Supp. 2d at 167-69. Seeking a ruling
about status of its lien or asking the Court to confirm its “continued existence,” even if it
can be said to be applying the Court’s MDO to a “concrete context or particular factual
situation,” would not be “construing the scope” of the MDO. Although reopening this
matter and addressing the motion for declaratory judgment may not alter, amend, or
add to this Court’s MDO, the United States’ request regarding the lien status is one that
would require the Court to look beyond the findings made in its initial decision as the
United States has not demonstrated that it could make this determination without
considering matters that have occurred since the closing of the case. Thus, it is not the
kind of motion the Court believes is contemplated by a Motion for Clarification; thus, the
Court declines to adopt the United States’ reasoning.
The Court is similarly unconvinced that the United States’ Motion to Reopen
sounds as one to administratively reopen the action. Although the United States
emphasizes that it is not seeking to alter this Court’s judgment, it cannot be said that
seeking to reopen a matter closed for seven years and then address a motion that
seeks a declaratory judgment is an administrative reopening. As defendant points out,
motions for administrative reopening largely involve matters where the Court explicitly
provided parties an opportunity to reopen the matter after completing a certain task or
attempting to obtain certain relief. For example, courts have allowed for administrative
reopening: after closing the case to provide a pro se plaintiff an opportunity to find
counsel; to allow parties to complete arbitration or mediation; to provide a party with an
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opportunity to pursue relief in other venues; to allow a section 1983 inmate plaintiff an
opportunity to exhaust administrative remedies; to afford a party limited discovery; and
to allow a pro se plaintiff an opportunity to submit a proper in forma pauperis
application.11 See, e.g., Shuford v. United States, 13-CV-6303 (SJF/AKT), 2014 WL
4199408, at *7 (E.D.N.Y. Aug. 21, 2014) (closing matter with opportunity to
administratively reopen after the defendant was provided opportunity research whether
the plaintiff’s claims were covered by the Federal Employees’ Compensation Act, which
potentially could divest the Court of jurisdiction over the plaintiff’s action pursuant to the
Federal Torts Claims Act); Estrada v. County of Nassau, 05-CV-1921 (LDW/ARL), 2010
WL 2218802, at *1 (E.D.N.Y. May 28, 2010) (reopening matter after the court had
administratively closed the case where the court explicitly provided opportunity to
reopen after completion of limited discovery); Rini v. Snap-On Toops Corp., 92-CV-251,
1992 WL 151803, at *6 (N.D.N.Y. June 22, 1992) (staying action by administratively
closing case to allow parties opportunity to complete arbitration pursuant to the Federal
Arbitration Act with opportunity to reopen after concluding arbitration); Clearfield v. HCL
Am., Inc., 17-CV-1933 (JMF), 2017 WL 2600116, at *2 (S.D.N.Y. June 15, 2017)
(administratively closing matter, allowing parties to move to reopen after concluding
arbitration); Madrid v. Ercole, 08-CV-4397 (ENV/CLP), 2011 WL 795557, at *1
(E.D.N.Y. Feb. 28, 2011) (staying proceedings and administratively closing matter, with
opportunity to reopen pending resolution of C.P.L. § 440.10 and error coram nobis
11 The undersigned is not suggesting that this is an exhaustive list; rather, that motions to
administratively reopen are generally granted in matters where parties were afforded an opportunity topursue certain relief or take certain steps and then return to the matter once such steps were taken.
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petitions in state court). In sum, courts have allowed for the reopening of a closed
action in situations where a party requires a potentially temporary stay or closure in the
proceeding to take an action necessary to litigate the action further and where the Court
has explicitly provided language permitting the reopening. Plaintiff has provided no
support for this Court to apply the logic of a motion for clarification or for administrative
reopening to a case where full judgment was issued in favor of a prevailing party, with
no further issues left to decide and no request for the Court’s continued involvement.
Finally, the United States argues that, even if this Court concludes that its motion
must be construed as brought pursuant to Rule 60(b), because it does not seek the “f ull
relief” afforded by Rule 60(b), reopening pursuant to Rule 60(b) is not foreclosed. Dkt.
No. 82 at 8. Although the United States insists that it does not wish to disturb the
finality of the judgment and is asking for less than that permitted by Rule 60(b), the
Court does not find that such factors mean that its motion falls outside of the
requirements of Rule 60(b). The United States refers to Simpson v. Sutton East
Assoc., #88, 91-CV-1260,1997 WL 642344, at *3 (E.D.N.Y. Sept. 5, 1997); however,
the unique and factually-distinguishable background of that case does not persuade the
Court to reach a different finding.12 Indeed, the Simpson Court’s discussion of the
12 In Simpson, the party seeking to reopen the action argued that “the judgment of foreclosure did
not dispose of its counterclaims and that this action was closed in error.” 1997 WL 642344, at *2. TheEastern District noted that “the exact reasons the case was closed are unclear” and that “neither partyargues that the closing of this case was intentional or proper.” Id. at *2. The party sought to reopen solelyso that its counterclaims could be addressed, which would not “disturb the finality of the judgment offoreclosure” as the judgment failed to address the counterclaims. Id. Further, the party seeking toreopen the action contacted the Court within one-year after closure of the case. Id. Thus, the fact-specificnature of Simpson, where the moving party sought to reopen counterclaims that apparently weremistakenly unaddressed prior to entry of judgment, is not persuasive here.
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moving party seeking less than the full measure allowed by Rule 60(b) appears relevant
solely to address the opponents’ claim that reopening would cause it prejudice, a claim
with which the Court ultimately disagreed. Id. at *3. Thus, the mere fact that the United
States does not seek the full measure of relief afforded by Rule 60(b) does not change
the Rule 60(b) analysis.
Although the United States does not appear to seek to alter or am end this
Court’s judgment, it has failed to demonstrate that it has any avenue for relief other
than Rule 60(b)(6). Defendant 191 argues that relief may not be granted because its
motion is untimely under Rule 60(b). The United States argues that its motion is not
untimely because there is “no applicable statute of limitations for the enforcement of
real property liens under CERCLA” and liens “can exist for long periods and often do
not lapse even when not foreclosed upon.” Dkt. No. 82 at 6-7. However, as this Court
does not find that this Court’s original CERCLA jurisdiction provides it with continuing
jurisdiction or a basis to reopen, timeliness pursuant to CERCLA’s statute of limitations
or lack thereof is not of relevance to the Court. It cannot be said that this Motion was
brought within a reasonable time. It has been seven years since entry of the Amended
Judgment. Dkt. No. 58. Although the United States explains that it was unaware of
Albany County’s foreclosure action on the property, as the County did not provide it with
proper notice, the United States does not even attempt to explain when it became
aware of the alleged improper sale of the property, which occurred in 2012. The United
States specifically requested to be excused from a court-ordered sale of the property,
seven years have passed since this matter has been closed, and five years since the
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subject property has been sold to a third party, yet the United States provides no
explanation as to why it could not have sought intervention sooner; thus, it cannot be
said that this motion was brought “within a reasonable time.” FED. R. CIV. P. 60(b).
Despite the United States’ argument that there is no statute of limitations on
CERCLA liens, to hold that a CERCLA plaintiff, even an unlimited number of years later
could seek to reopen a closed action because it did not obtain satisf action of its lien,
could allow for a potentially limitless time frame for those seeking similar relief in future
cases and encourage parties to delay in obtaining satisfaction on liens for years.13 To
avoid difficulty or uncertainty in obtaining satisfaction of a lien in future cases, CERCLA
plaintiffs may wish to request that the Court retain jurisdiction, or explicitly request an
opportunity to reopen, should there be difficulty in enforcement of the lien.
Accordingly, although the Court concludes that Rule 60(b) provides plaintiff’s only
avenue to reopen this matter, it further finds that its motion was not brought within a
reasonable time, even when considering the specific facts surrounding the matter.
5. Good Cause
Finally, the United States contends that this Court has the broad authority to
reopen this case for “good cause shown”. Dkt. No. 60-2 at 1-2. The United States
argues that if the Court does not reopen this matter, it could potentially lose the ability
to recover its judgment, suggesting that such reasoning, without more, permits this
13 The Court acknowledges, however, that each case is fact-specific and there could certainly be
cases where, despite a delay, the motion can be said to have been brought within a reasonable time.
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Court to reopen this matter to address its Motion for Declaratory Judgment. Dkt. No. 82
at 5-6. However, the United States provides no authority to support a finding that good
cause alone allows this Court jurisdiction over this matter and the authority to reopen
when the jurisdiction does not exist otherwise. As the Court concludes that the United
States has failed to demonstrate that the Court has constituting jurisdiction over this
matter, or that the All Writs Act, CERCLA, Rule 60(b), or any other statute or rule
permits reopening of this action, it cannot conclude that good cause and this Court’s
general discretionary authority permits such relief.14
6. Opportunity to Amend
Somewhat confusingly, the United States requests, “if the Court finds the
pleadings insufficient for a lien status determination, the United States respectfully
requests that the Court direct an amended or additional pleading be filed, rather than
declining to hear this matter. Dkt. No. 82 at 9-10. It is not entirely clear whether the
United States is requesting permission to file an amended complaint or if it is requesting
an opportunity to supplement its Motion for Declaratory Judgment. Id. However, as the
Court concludes that the United States has failed to demonstrate that this Court has
jurisdiction to reopen this matter, it declines to grant this request, as it will not reach the
pending Motion for Declaratory Judgment.
14 As a final point, the undersigned agrees that it is not proper for the Court to consider the merits
of its Motion for Declaratory Judgment in deciding the Motion to Reopen. Dkt. No. 87 at 8 (“”. . . . Plaintifftempts this Court to reopen this action on the basis of what Plaintiff hopes to prove in its declaratoryjudgment action.”). Thus, plaintiff’s attempts to incorporate by reference exhibits from the Motion forDeclaratory Judgment into the Motion to Reopen are rejected. Dkt. No. 82-1 at 2).
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IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff United States’ Motion To Reopen (Dkt. No. 60) is
DENIED; and it is further
ORDERED, that plaintiff United States’ Motion for Declaratory Judgment (Dkt.
No. 61) is DENIED AND DISMISSED AS MOOT; and it is further
ORDERED, that the Clerk of the Court serve this Memorandum-Decision and
Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 20, 2017Albany, New York
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