Read v. Corning Inc.

371 F. Supp. 3d 87
CourtDistrict Court, W.D. New York
DecidedApril 10, 2019
Docket18-CV-6131L
StatusPublished
Cited by11 cases

This text of 371 F. Supp. 3d 87 (Read v. Corning Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Read v. Corning Inc., 371 F. Supp. 3d 87 (W.D.N.Y. 2019).

Opinion

DAVID G. LARIMER, United States District Judge

This action was brought by four property owners in Corning, New York ("Corning, NY"), against Corning Incorporated ("Corning"), asserting claims under the Comprehensive Environmental, Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq. , *90and under New York state law. In the original complaint, plaintiffs sought damages and response costs due to alleged contamination by hazardous substances of property owned by plaintiffs. The complaint was ostensibly brought on behalf of a class of owners, occupants and residents of an area identified in the complaint as the "Houghton Plot."

On December 21, 2018, the Court issued a Decision and Order ("2018 Decision") granting defendant's motion to dismiss all but plaintiffs' first cause of action, which seeks response costs under CERCLA.1 The Court also stayed that cause of action pending further order of the Court, based on the pendency of a remedial process taking place pursuant to administrative proceedings before the New York State Department of Environmental Conservation ("DEC"). 351 F.Supp.3d 342 (W.D.N.Y. 2018).

Plaintiffs have now filed a motion for leave to file an amended complaint, or in the alternative for an order entering final judgment on the claims that were dismissed by this Court's 2018 Decision. For the reasons that follow, the motion is denied.

DISCUSSION

I. Motion for Leave to Amend

In their motion for leave to amend, plaintiffs seek, as they put it, "to restate their negligence claim to add additional allegations, including failure to warn and breach of duties, ... to eliminate any claims for injunctive relief, and to delete the other common law claims that have been dimissed by this Court." Plaintiffs' Mem. (Dkt. # 28-4) at 2. Plaintiffs' proposed amended complaint, then, would retain their CERCLA claim, and restate and re-assert their negligence claim.

Rule 15(a)(2) directs a court to "freely give leave [to amend a complaint] when justice so requires." See Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The rule is not meant simply to give plaintiffs a second bite at the apple, however. Although "[o]rdinarily, a party must be given at least one opportunity to amend before the district court dismisses the complaint," Corsello v. Lincare, Inc. , 428 F.3d 1008, 1014 (11th Cir. 2005) (emphasis added), that liberal standard is not meant to encourage a "wait-and-see approach," where the pleader in effect lets the court identify the deficiencies in the pleading, and only then attempts to correct them. See Adbul-Mumit v. Alexandria Hyundai, LLC , 896 F.3d 278, 292 (4th Cir. 2018) ("The district court does not serve as a legal advisor to the parties, nor is a dispositive motion a 'dry run' for the nonmovant to 'wait and see' what the district court will decide before requesting leave to amend"); see also Kader v. Sarepta Therapeutics, Inc. , 887 F.3d 48, 61 (1st Cir. 2018) (district court did not abuse its discretion where plaintiffs waited until after court's ruling on motion to dismiss before seeking leave to amend); Association of Victims of Med. Malpractice v. Torres-Nieves , 316 F.R.D. 51, 55 (D.P.R. 2016) (allowing plaintiffs to restate existing claim, but making clear that "the Court will not allow the amended complaint to resurrect previously dismissed claims").

There is also authority that "unless otherwise specified, a dismissal for failure *91to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. U.S. , 566 F.3d 391, 396 (4th Cir. 2009) (quoted in Beckworth v. Bizier , 48 F.Supp.3d 186, 198 (D.Conn. 2014)). See also Sanders v. Sullivan , 900 F.2d 601, 605 (2d Cir. 1990) (absent compelling reasons, a court adheres to its own decision at an earlier stage of the litigation); VanBrocklen v. Dep't of Homeland Sec. , No. 1:12-CV-003 (GTS/ATB), 2012 WL 2873373, *3 (N.D.N.Y. July 12, 2012) (a dismissal pursuant to Rule 12(b)(6) is presumed to be with prejudice unless otherwise specified).

At the same time, the Court recognizes that it has some discretion to allow repleading, "if justice so requires." Fed. R. Civ. P. 15(a). See Preece v. Cooke , No. 13-cv-03265, 2014 WL 6440406, at *1 (D. Colo. Nov. 17, 2014) (stating that "[a] dismissal under Rule 12(b)(6) is a determination on the merits ... and presumptively is entered with prejudice," but that a case presenting "a scenario in which ... [the plaintiff] might be able to replead to state a viable claim if the facts were made clearer or expanded in some way" may be a candidate for dismissal without prejudice). Having reviewed plaintiffs' proposed amended complaint, however, I see no basis here to allow plaintiffs leave to amend.

Although Rule 15(a) sets forth a liberal standard for allowing amendment, the court has discretion to deny such a motion when the amendment would be futile, see Foman

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371 F. Supp. 3d 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/read-v-corning-inc-nywd-2019.