Paulsboro Natural Gas Pipeline Company Llc et al v. Great Lakes Dredge & Dock Company, Llc

BRIEF in Opposition

D.N.J.October 3, 2016

ARCHER & GREINER A Professional Corporation One Centennial Square P.O. Box 3000 Haddonfield, New Jersey 08033-0968 (856) 795-2121 Attorneys for Plaintiffs BY: PETER L. FRATTARELLI, ESQUIRE MARC A. ROLLO, ESQUIRE WILLIAM J. STACK, ESQUIRE RICHARD J. RAMONES, ESQUIRE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE PAULSBORO NATURAL GAS PIPELINE COMPANY LLC and PAULSBORO REFINING COMPANY LLC, Plaintiffs, vs. GREAT LAKES DREDGE & DOCK COMPANY, LLC, Defendant, vs. GAHAGAN & BRYANT ASSOCIATES INC., THE UNITED STATES OF AMERICA, Defendants/Third-Party Defendants. Civil Action No.: 15-8163 (JHR) (AMD) PLAINTIFFS, PAULSBORO NATURAL GAS PIPELINE COMPANY LLC AND PAULSBORO REFINING COMPANY LLC’S, BRIEF IN OPPOSITION TO THE UNITED STATES’ SECOND MOTION TO DISMISS Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 1 of 17 PageID: 1358 TABLE OF CONTENTS Page(s) -i- TABLE OF AUTHORITIES ..................................................................................................... ii I. PRELIMINARY STATEMENT .....................................................................................1 II. STATEMENT OF FACTS .............................................................................................3 III. ARGUMENT .................................................................................................................6 A. STANDARD FOR MOTION TO DISMISS .......................................................6 B. THE UNITED STATES’ MOTION SHOULD BE TREATED AS MOTION FOR SUMMARY JUDGMENT .........................................................7 C. THE LANGUAGE OF THE PERMIT ALLOWS RECOVERY FROM THE UNITED STATES FOR DAMAGES INCURRED BY PLAINTIFFS ......................................................................................................9 IV. CONCLUSION ............................................................................................................ 12 Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 2 of 17 PageID: 1359 i TABLE OF AUTHORITIES Page(s) Federal Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................................................................. 8 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .......................................................................................................... 7 Bean Horizon Corp. v. Tenn. Gas Pipeline Co., 1998 U.S. Dist. LEXIS 3341 (E.D. La. Mar. 9, 1998) .................................................... 10, 11 Bello v. Romeo, 424 Fed. Appx. 130 (3d Cir. 2011) ........................................................................................ 8 Bos. Edison Co. v. Great Lakes Dredge & Dock Co., 423 F.2d 891 (1st Cir. 1970) .................................................................................................. 9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................................. 8 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) .................................................................................................. 7 Frescati Shipping Co. v. Citgo Asphalt Ref. Co., 718 F.3d 184 (3d Cir. 2013) .................................................................................................. 9 Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77 (3d Cir. 2011) .................................................................................................... 7 Federal Statutes 33 U.S.C. § 1............................................................................................................................... 9 33 U.S.C. § 2201 et seq ............................................................................................................... 3 41 U.S.C. § 7101-7109 ................................................................................................................ 1 Rules Fed. R. Civ. P. 12(b)(1) ............................................................................................................... 1 Fed. R. Civ. P. 12(b)(6) ....................................................................................................... 1, 6, 7 Fed. R. Civ. P. 12(d) ................................................................................................................... 8 Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 3 of 17 PageID: 1360 ii Fed. R. Civ. P. 14(c) .......................................................................................................... 5, 6, 10 Fed. R. Civ. P. 14(c)(2) ........................................................................................................... 1, 4 Fed. R. Civ. P. 56 .................................................................................................................... 2, 8 Fed. R. Civ. P. 56(c) .................................................................................................................... 8 Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 4 of 17 PageID: 1361 1 Plaintiffs Paulsboro Natural Gas Pipeline Company LLC and Paulsboro Refining Company LLC (hereinafter “Plaintiffs”) submit the following brief in opposition to Defendant/Third Party Defendant, The United States’ (“United States”) Second Motion to Dismiss. For the reasons that follow, the United States’ Second Motion to Dismiss must be denied. I. PRELIMINARY STATEMENT The United States moves to dismiss all claims against it on two separate grounds. First, the United States moves to dismiss the third party claims by Defendant/Third Party Plaintiff Great Lakes Dredge and Dock Company, LLC (“Defendant” or “Great Lakes”) under Fed. R. Civ. P 12(b)(1) on the grounds that the Court lacks subject matter jurisdiction since Defendant allegedly failed to exhaust the jurisdictionally required administrative remedies of the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. This argument does not apply to Plaintiffs. Moreover, given that Great Lakes in its Amended Third-Party Complaint also tendered over direct claims by the Plaintiffs against all of the third-party defendants, including the United States, pursuant to Fed. R. Civ. P. 14(c)(2), even if the Court grants the United States’ Second Motion to Dismiss the Amended Third-Party Complaint on these jurisdictional grounds, that will not result in a dismissal of the now-tendered direct claims of Plaintiffs against the United States. Nevertheless, with respect to these initial grounds for the Second Motion to Dismiss, Plaintiffs rely upon and join in the anticipated opposition of Great Lakes on this issue. Second, the United States also moves to dismiss under Rule 12(b)(6) the now-tendered and direct claims of Plaintiffs - pursuant to Fed. R. Civ. P. 14(c)(2) - because they are allegedly barred by the terms of the Army Corps of Engineers’ permit authorizing the construction of the natural gas pipeline that is at the heart of the current litigation. However, this argument fails for several reasons. As an initial matter, the Second Motion to Dismiss should be denied as Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 5 of 17 PageID: 1362 2 premature. The Second Motion to Dismiss relies on matters outside the pleadings, i.e., the permit for the pipeline that presumably provides a defense to this litigation. As such, the Motion must be treated as one for summary judgment under Fed. R. Civ. P. 56, under which this Motion is clearly submitted too early in the case for an adequate and substantive resolution. To date, only paper discovery has taken place, and Plaintiffs submit that complete discovery is needed to examine several factual and legal issues, such as: • the authorized scope of work concerning the United States’ dredging project; • the ownership of the pipeline at issue (which has changed hands several times since the permit was issued); and • the facts surrounding the United States’ failure (as alleged in the Complaint) to advise the Plaintiffs of the anticipated dredging to take place in the vicinity of the pipeline. Accordingly, based upon the current stage of the proceedings, the United States’ converted summary judgment motion must be denied pending a full factual development of the record in this case. Additionally, Plaintiffs respectfully submit that, even if this Motion to Dismiss the direct and tendered claims can be fully adjudicated at this time, this Court cannot conclude as a matter of law that the permit precludes all recovery from the United States. The permit language relied upon by the United States on its face only arguably precludes claims for damage to the pipeline. The plain language of the permit’s exculpatory clause does not address a portion of the damages being sought herein that extend beyond the pipeline itself, i.e., the economic losses suffered at the Plaintiffs’ oil refinery that is inter-connected to the pipeline at issue. Thus, whether as a matter of law or because further factual development is needed as to the scope and intent of this language, summary judgment must be denied at this stage of the proceedings. Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 6 of 17 PageID: 1363 3 For all these reasons, as further explained below, the United States’ Second Motion to Dismiss should be denied. II. STATEMENT OF FACTS Plaintiff Paulsboro Natural Gas Pipeline Company LLC owns an 8-inch natural gas pipeline (the “Pipeline”) which supplies natural gas to an oil refinery (the “refinery”) owned by the Plaintiff Paulsboro Refinery Company LLC. (Amend. Compl. ¶ 3, Dkt. No. 54.) A portion of the Pipeline is located in soils beneath the Delaware River within the riparian lands of the State of New Jersey and the Commonwealth of Pennsylvania. (Id. ¶ 8.) Plaintiff Paulsboro Refining Company LLC has a proprietary interest in the Pipeline and exercises actual and functional control over the Pipeline. (Id. ¶ 9.) The Pipeline has been located at the same location and depth since approximately 1941, under the ownership of prior owners of that Pipeline. (Id. ¶ 10.) The Delaware River Federal Navigation Channel is located within the Delaware River. It was established by the United States of America, and its appropriate agencies and constitutes the identified limits of a defined channel where it is safe to operate watercraft. (Id. ¶ 11.) The Delaware River Federal Navigation Channel was maintained by the United States Army Corps of Engineers (“USACE”) at a depth of forty (40) feet below mean sea levels. The Pipeline was located at a depth of fifty- six (56) feet below mean sea level in the area immediately below the Delaware River Federal Navigation Channel. (Id. ¶ 12.) Pursuant to §§ 101(6), 306 and 308 of the Water Resources Development Act of 1992, as amended, 33 U.S.C. § 2201 et seq, the USACE has acted to deepen the Delaware River Federal Navigation Channel through funds authorized by the United States Congress. This project, knows as the Delaware River Main Channel Deepening Project (“Deepening Project”), provided for the deepening of the existing Delaware River Federal Navigation Channel from forty (40) Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 7 of 17 PageID: 1364 4 feet to forty-five (45) feet from Philadelphia, Pennsylvania and Camden, New Jersey to the mouth of the Delaware Bay. (Id. ¶ 16.) The Deepening Project included dredging work in the section of the Delaware River where the Pipeline is located. (Id. ¶ 18.) As part of the Deepening Project, the USACE investigated the location and depth of submarine utility crossings, including the Pipeline, in order to determine whether any utility was at risk of damage from the dredging associated with the Deepening Project. (Id. ¶ 17.) USACE and/or its consultant, Defendant/Third-Party Defendant Gahagan & Bryant Associates, Inc. (“GBA”)1 contacted Plaintiffs and advised of the Deepening Project and requested both verification of existing information and also other additional information as to the depth and location of the Pipeline. Plaintiffs provided available drawings and information as to the location of the Pipeline, including a report which provided its exact depth and location beneath the Delaware River within the Delaware River Federal Navigation Channel as well as its depth and location outside the Channel. (Id. ¶¶ 20-21.) The USACE awarded the contract for the dredging to Great Lakes and provided it with all of the available surveys and information as to the submarine crossings beneath the Delaware River. (Id. ¶ 23.) From November 2012 through January 2013, representatives of the USACE notified Plaintiffs by email or phone of dredging work in the vicinity of the Pipeline prior to the occurrence. Plaintiffs were notified only as to dredging within the Delaware River Federal Navigation Channel, which was occurring at depths well above the depth and location of the Pipeline. (Id. ¶ 26.) 1 Consistent with the pleadings asserted by Great Lakes against the United States, GBA was also sued by Great Lakes as both a third-party defendant and as a defendant by the tendering over of Plaintiffs’ claims pursuant to Fed. R. Civ. P. 14(c)(2). Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 8 of 17 PageID: 1365 5 The USACE initiated a separate phase of dredging to widen the Delaware River Federal Navigation Channel. In this instance, prior to commencing dredging, neither USACE nor any of its contractors made any effort to inform Plaintiffs that this work was going to take place. (Id. ¶ 27.) No further information-gathering from Plaintiffs regarding the location or depth of utilities or pipelines for this separate phase of the work was conducted by the USACE or any of its contractors. (Id.) Plaintiffs received no communications regarding this phase of the work and no notice or warning that any USACE contractor would be dredging below the bury depth of its Pipeline. In fact, Plaintiffs received no communications after January 2013 from the USACE or any of its contractors. (Id. ¶ 28.) On August 4, 2014, at approximately 9:15 p.m., the PADRE ISLAND, a dredging vessel owned and operated by Great Lakes, struck and ruptured the Pipeline at a depth of forty-three (43) feet, at a location outside the Delaware River Federal Navigation Channel. (Id. ¶ 30.) The location and depth of the Pipeline at that depth and location was known and was consistent with the surveys and information available to USACE and its contractors. (Id.) Plaintiffs filed its lawsuit against Great Lakes on November 19, 2015 seeking damages for costs related to the repair of the Pipeline, as well as economic losses at the Paulsboro Refinery due to the loss of its natural gas supply. (Id. ¶¶ 56-57.) On January 21, 2016, Defendant Great Lakes filed a Third Party Complaint against the United States of America as both a third party defendant and direct defendant pursuant to Fed. R. Civ. P. 14(c). (Great Lakes Third Party Compl., Dkt. No. 7.) On August 3, 2016, Plaintiffs filed an Amended Complaint against Defendant Great Lakes (Am. Compl., Dkt. No. 54.) On August 29, 2016, Defendant Great Lakes filed an Amended Third Party Complaint against the United States of America as Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 9 of 17 PageID: 1366 6 both a third party defendant and direct defendant pursuant to Fed. R. Civ. P. 14(c). (Great Lakes Am. Third Party Compl., Dkt. No. 61.) USACE now files its Second Motion to Dismiss. In its Motion to Dismiss, the United States argues that Plaintiffs’ claims are barred under Section (g) of a 1941 permit (the “Permit”) issued by the War Department of the United States to Socony-Vacuum Oil Company for the installation of what they allege in their Motion is the Pipeline. The Permit was attached as Exhibit A to the Motion, but is not included or referenced anywhere in the Amended Complaint or the Amended Third-Party Complaints. In addition, Plaintiffs’ proprietary interest in the Pipeline only began on December 17, 2010, when they purchased the Pipeline as part of an Asset Purchase Agreement with the then-owner of the Pipeline and the Refinery. (Id. ¶ 10.) And, as alleged in the Complaint, the Pipeline had several prior owners as of 2010, (see id.), through presumably a series of additional transactions.2 III. ARGUMENT A. Standard For Motion To Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party, in responding to a pleading, may file a Motion to raise the defense of “failure to state a claim upon which relief can be granted.” Specifically, [u]nder Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ . . . [T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation. A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ 2 Although not cited in the pleadings, Plaintiffs represent to the Court that the Pipeline was not purchased in 2010 from Socony -Vacuum Oil Company, the entity to which the United States’ War Department issued the Pipeline’s permit. Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 10 of 17 PageID: 1367 7 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal citations omitted). Thus, to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), all well-pleaded allegations in the complaint, along with all reasonable inferences that can be drawn therefrom, must be accepted as true and viewed in the light most favorable to the plaintiffs. Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). When presented with a motion to dismiss, the Court should (1) separate the factual and legal elements of a claim and accept all of the complaint’s well-pleaded facts as true while disregarding any legal conclusions and (2) then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) (citing Ashcroft, 556 U.S. at 679). As will be demonstrated, Plaintiffs’ Complaint sets forth more than sufficient factual detail to make Plaintiffs’ allegations plausible. B. The United States’ Motion Should be Treated as Motion for Summary Judgment Consistent with the Federal Rules of Civil Procedure, this motion must be treated as one for summary judgment and not as a motion to dismiss. That is, Fed. R. Civ. P. 12(d) provides, in pertinent part, “[i]f, on a motion under Rule 12(b)(6)…matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 11 of 17 PageID: 1368 8 judgment under Rule 56. All parties must be given a reasonable opportunity to present all material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, any decision as to summary judgment involving the Permit should be denied as premature. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted if there is “no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” only if it will affect the outcome of the lawsuit under the applicable law, and a dispute over material fact is “genuine” if the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A “party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record.” Bello v. Romeo, 424 Fed. Appx. 130, 133 (3d Cir. 2011). Discovery in this matter is still in its early stages and summary judgment on the record before this Court is simply inappropriate. To date, the parties have only exchanged written discovery requests and responses. No depositions have taken place. As such, there are genuine issues of material facts which need to be explored. Facts are necessary to, inter alia, identify the scope of the widening project, the Permit’s ownership history since 1941, whether there is a separate contract for the widening project and whether the Permit language is binding on successors. In addition, as noted below, Plaintiffs submit that the facts here, whereby the United States allegedly did not communicate with the Plaintiffs in any manner immediately prior to the Pipeline strike (in contrast to the United States’ practice earlier in the Deepening Project), are facts that should preclude any summary judgment ruling at this time, before a full record of those facts can be developed. Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 12 of 17 PageID: 1369 9 Lastly, although courts have apparently upheld the validity of language similar to Section (g) of the permit cited by the United States, this issue has not been traditionally reached until later in the proceedings. Obviously, every case is different, but that procedural history is persuasive and likewise compels a finding that this permit language defense be deferred until a fuller factual record has been developed. C. The Language of the Permit Allows Recovery From the United States For Damages Incurred by Plaintiffs In its motion, the United States argues that Plaintiffs’ claims are barred under Section (g) of the Permit. Section (g) of the Permit provides: That the United States shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations, undertaken by the Government for the conservation or improvement of navigation or for other purposes, and no claim or right to compensation shall accrue from any such damage. (See Mtn., Exhibit A at 2, Dkt. No. 63.) It is undisputed that the United States has the statutory and regulatory authority to regulate construction or excavation within navigable waters of the United States. Frescati Shipping Co. v. Citgo Asphalt Ref. Co., 718 F.3d 184, 194 (3d Cir. 2013) (citing 33 U.S.C. § 403; 33 C.F.R. § 329.11). “It is under the authority of [33 U.S.C. § 1] that the Secretary has promulgated the regulation requiring the standard form of permit to be used by the Corps of Engineers prior to authorizing erection of any structure in navigable waters to include a clause identical to Clause (g).” Bos. Edison Co. v. Great Lakes Dredge & Dock Co., 423 F.2d 891, 895 (1st Cir. 1970). Although several courts have dismissed claims against the United Stated pursuant to the Section (g) language, (see Mtn. at 16-17, Dkt. No. 63), importantly, one court has interpreted the scope of this Section (g) of a similar permit and found that it “cannot conclude as a matter of Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 13 of 17 PageID: 1370 10 law that [Section (g)] precludes all recovery from the Government.” Bean Horizon Corp. v. Tenn. Gas Pipeline Co., No. 96-3503 c/w 97-0636, 97-0546, 1998 U.S. Dist. LEXIS 3341, *25- 26 (E.D. La. Mar. 9, 1998) (emphasis added). In Bean Horizon, plaintiff, a dredging contractor, filed an action against the pipeline company for damages to its dredging vessel arising from an explosion that occurred during the course of work being performed for the USACE. The pipeline company sued the United States as a third-party defendant pursuant to Fed. R. Civ. P. 14(c) for failing to properly provide information for, or supervise the, dredging project. The United States filed for summary judgment on the grounds that, inter alia, the pipeline’s claims were barred by the language of the permit authorizing the construction of the pipeline. The language of the permit in Bean Horizon is virtually identical to the language at issue in the instant matter. While acknowledging the validity of the permit language, the Bean Horizon Court denied summary judgment and held that there was a “question [as to] the scope of clause (g) and its applicability to the facts at hand.” Id. at *25. Specifically, the court noted that the terms of Section (g), and cases interpreting the same, “dealt with suits for recovery of damages inflicted on the authorized structure or work” and not “damages to persons or to property other than the authorized structure.” Id. (emphasis added). Accordingly, the court could not conclude that, as a matter of law, Section (g) precludes all recovery from the [United States]. Id. at *26. In the instant case, Plaintiffs are seeking recovery for damages related to the Pipeline and for economic losses to the Paulsboro Refinery incurred as a result of the loss of its natural gas supply. Under the holding of Bean Horizon, the damages to the Paulsboro Refinery are not precluded by the language of the permit. Even if this Court upholds the validity of the Section (g) language of the Permit, that language is limited to “damage or injury” to the Pipeline only. Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 14 of 17 PageID: 1371 11 Plaintiffs’ economic losses related to the Paulsboro Refinery are not covered by the language of the permit as explained by the court in Bean Horizon. Further, at a bare minimum, discovery is needed to determine whether any modifications to the Permit’s language have occurred, and whether the Permit has been implicated in any of the subsequent ownership changes. Moreover, Plaintiffs submit that the unique facts of this case, whereby Plaintiffs allege that the United States and/or its contractors failed to properly notify them of the planned dredging immediately prior to the Pipeline strike, provide an adequate basis to deny summary judgment at this stage. That is, as stated plainly in the Amended Complaint, Plaintiffs did not receive notice of the separate phase of dredging to widen the Delaware River Federal Navigation Channel. As such, Plaintiffs received no communications regarding this phase of the work or warnings that the dredging was taking place below the bury depth of the Pipeline in that area. According to the United States’ apparent argument, no such facts would have merit, and they received in 1941, an absolute and complete defense to any future navigation work, regardless of when, who or why. Yet, it defies logic for the United States to argue, at this stage of the proceedings, that Section (g) of the Permit bars recovery against it, no matter what the facts. Accepting the United States' argument on its face, the USACE could dredge to any depth, destroy all submarine utility crossings in the way without any liability and regardless of any efforts or attempts to identify same. This clearly cannot be the intent of the Permit language, and Plaintiffs submit that these unique, alleged facts allow summary judgment to be denied, while a record is developed as to the truth of these allegations (which Plaintiffs feel confident they will be able to prove). Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 15 of 17 PageID: 1372 12 IV. CONCLUSION For the reasons states above, Plaintiffs respectfully request that the United States’ Second Motion to Dismiss should be denied. ARCHER & GREINER A Professional Corporation Attorneys for Plaintiffs By: /s/ Peter L. Frattarelli PETER L. FRATTARELLI, ESQ. Dated: October 3, 2016 Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 16 of 17 PageID: 1373 13 CERTIFICATE OF SEVICE The undersigned hereby certifies that on October 3, 2016, I electronically filed and served on all counsel of record, via CM/ECF, Plaintiffs Paulsboro Natural Gas Pipeline Company LLC and Paulsboro Refining Company LLC’s brief in opposition to Defendant/Third Party Defendant, The United States’ Second Motion to Dismiss. By: /s/ Peter L. Frattarelli PETER L. FRATTARELLI 114978387v5 Case 1:15-cv-08163-JHR-AMD Document 68 Filed 10/03/16 Page 17 of 17 PageID: 1374