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 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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united states district court northern district of new … · 9/20/2017 · syracuse, new york...

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