Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2000

Black Horse Lane v. Dow Chem Corp
Precedential or Non-Precedential:

Docket 0-5031




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Filed September 20, 2000

UNITED STATES COURT OF APPEALS
 FOR THE THIRD CIRCUIT

No. 00-5031

BLACK HORSE LANE ASSOC., L.P., a New Jersey limited
 partnership; UNITED STATES LAND RESOURCES, L.P., a
 New Jersey limited partnership; UNITED STATES REALTY
 RESOURCES, INC., a New Jersey Corporation; and
 LAWRENCE S. BERGER

v.

DOW CHEMICAL CORPORATION; ESSEX CHEMICAL
 CORPORATION, a wholly owned subsidiary of DOW
 CHEMICAL CORPORATION, a Michigan Corporation

Black Horse Lane Associates, L.P., United States Land
 Resources, L.P., United States Realty Resources, Inc. and
 Lawrence S. Berger,

       Appellants

On Appeal from the United States District Court
 for the District of New Jersey
 (D.C. Civ. No. 97-1250)
 District Judge: Honorable Nicholas H. Politan

Argued August 8, 2000

BEFORE: BARRY, WEIS and GREENBERG, Circuit Jud ges

(Filed: September 20, 2000)




       Paul H. Schafhauser (argued)
        Berger & Bornstein
        237 South Street
        P.O. Box 2049
        Morristown, N.J. 07960-2049

       Attorneys for Appellants

       Kenneth H. Mack (argued)
        Linda Mack
        Fox, Rothschild, O'Brien & Frankel
        997 Lenox Drive
        Princeton Pike Corporate Center,
        Building 3
       Lawrenceville, N.J. 08648

       Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes before this court on an appeal by
 plaintiffs United States Land Resources, L.P. ("USLR"),
 United States Realty Resources, Inc. ("USRR"), Black Horse
 Lane Associates, L.P. ("Black Horse"), and Lawrence S.
 Berger ("Berger") (collectively "appellants") from two orders
 entered by the district court in this matter: (1) the order
 entered August 10, 1999, granting a motion by appellees
 Dow Chemical Corporation ("Dow") and Essex Chemical
 Corporation ("Essex") for summary judgment pursuant to
 Fed. R. Civ. P. 56, and denying appellants' cross-motion for
 summary judgment on appellees' counterclaim; and (2) the
 "Final Order" entered December 16, 1999, affirming the
 June 30, 1999 order of the magistrate judge imposing
 sanctions against appellants, and dismissing appellees'
 counterclaim without prejudice for lack of subject matter
 jurisdiction. This litigation arises out of a sale of
 environmentally distressed real property located at 120
 Black Horse Lane, South Brunswick, New Jersey
 (hereinafter "the Property"), by Essex to USLR.

                                 2



For the reasons that follow, we will affirm the August 10,
 1999 and December 16, 1999 orders of the district court in
 all respects.

II. FACTS and PROCEEDINGS

A. Factual Background

The historical facts in this case are rather straightforward
 and, insofar as material to this appeal, essentially are not
 disputed. Appellants, USLR, USRR, Black Horse, and
 Berger, are related entities: USLR is the general partner in
 Black Horse, USRR is the general partner of USLR, and
 Berger is the president of USRR.1 Appellees Essex and Dow
 also are related entities as Essex is Dow's wholly-owned
 subsidiary by virtue of its purchase of all of Essex's stock
 in 1988.

During the 1980s, Essex owned and operated the
 Property, where it engaged in the business of preparing
 adhesive-backed paper products. On or about August 17,
 1984, Essex discovered that chemicals it used in that
 process had leaked into the ground of the Property. In
 October 1984, Essex entered into environmental cleanup
 and decommission negotiations with the New Jersey
 Department of Environmental Protection ("DEP"). Essex
 submitted a "Clean-Up Plan" to the DEP on December 19,
 1985, which the DEP conditionally approved on December
 20, 1985.

Prior to Essex's submission of the Clean-Up Plan to the
 DEP, it entered into a sales agreement ("the Agreement") on
 September 5, 1985, with USLR to sell the Property to USLR
 for $3.6 million. The parties do not dispute that appellants
 were aware of the Property's environmental problems at the
 time that USLR and Essex entered into the Agreement. The
 Agreement required Essex to obtain and implement an
 approved Clean-Up Plan at its sole expense. Paragraph 16
 of the Agreement set forth Essex's responsibilities with
 _________________________________________________________________

1. Also, Berger is a named partner in the lawfirm representing
 appellants.

                                3



respect to the remediation and detoxification of the
 Property:

       The parties acknowledge that the Subject Premises to
        be conveyed are subject to the provisions of the
        Environmental Clean-Up Responsibility Act, N.J.S.A.
        13:1K-6 et seq. (`ECRA') [now named the Industrial Site
        Recovery Act (`ISRA')]. Seller agrees to obtain approval
        of a Clean-Up Plan from the Department of
        Environmental Protection (`DEP'), post the necessary
        financial security for performance pursuant to ECRA,
        will implement the approved Clean-Up Plan and
        complete the detoxification of the Subject Premises in
        accordance with and to the approval of the DEP.
        Pending DEP approval of a Clean-Up Plan, Seller will
        attempt to obtain the consent of the DEP to the
        conveyance of the Subject Premises. `ECRA Approval'
        will be deemed to have taken place upon the receipt by
        Seller from the DEP of the approval of the
        implementation of the Clean-Up Plan and satisfactory
        detoxification of the Subject Premises or a consent
        from the DEP to convey the Subject Premises to
        Purchaser in the form of an Administrative Consent
        Order and bond securing the detoxification of the
        Subject Premises by Seller, all in a form and substance
        satisfactory to Purchaser's mortgage lender. In no event
       shall Purchaser be obligated under this Contract to
       assume any ECRA Clean-Up responsibilities. If ECRA
       Approval is not obtained prior to January 1, 1986,
       Purchaser shall have the continuing right to terminate
       this Contract by giving Seller notice at any time up to
       January 20, 1986. If ECRA Approval is not obtained by
       June 1, 1986, this Contract shall be automatically
       terminated and after the refund of the Deposit to
       Purchaser, neither party shall have any rights or
       claims against the other arising out of this Contract.

App. at 93a-94a. Title to the Property closed on December
 23, 1985, three days after the DEP conditionally approved
 the Clean-Up Plan, and on that day USLR assigned its
 rights in the Property to its present owner, appellant Black
 Horse.

                                4



As previously mentioned, at some point in 1988, appellee
 Dow purchased all of Essex's stock, and Essex became a
 wholly-owned subsidiary of Dow. Since that time, Dow
 employees have been involved in the remediation and
 detoxification of the Property, but these Dow employees
 have been acting as "consultants" to Essex in that
 connection. SA at 546, 549.

Essex began its soil remediation efforts shortly after it
 sold the Property in 1985. While we are not able to
 ascertain the exact date of completion from the record,
 appellants' counsel confirmed at oral argument that soil
 remediation was finished within two years of the sale of the
 Property. See generally app. at 235a; SA at 536; appellees'
 br. at 17. Essex commenced groundwater remediation in
 1988, app. at 236a, but, to date, it has not completed that
 remediation. It is Essex's alleged failure to complete
 remediation and detoxification of the Property within a
 "reasonable time" that forms the crux of the parties' dispute
 in this case.

One specific example that appellants cite as proof of
 Essex's alleged failure to remediate the Property within a
 reasonable time pertains to Essex's cleanup efforts with
 respect to certain "chlorinated volatile organic compounds"
 ("CVOCs") found in the soil and groundwater in certain
 areas of the Property.2 In 1991, the DEP ordered Essex to
 perform a "temporary well point survey" to investigate the
 presence and source of CVOCs found in the groundwater
 and soil gas. See app. at 304a. After Essex conducted
 extensive investigations into the source and levels of
 CVOCs found in the soil gas and groundwater, Essex
 proposed to remediate the areas of the Property
 contaminated with CVOCs by means of soil vapor
 _________________________________________________________________

2. "CVOCs" is a shorthand reference to those volatile organic compounds
 that Essex used to clean the plant's adhesive-backed paper rolls.
 The CVOCs found on the northeastern and eastern portions of
 the Property include tetrachloroethylene, trichloroethylene, trans-1,2-
 dichloroethylene, and vinyl chloride. App. at 237a. Essex discovered
 trace amounts of CVOCs on the eastern and northeast corners of the
 Property in 1985, but the concentrations were so low that at that time
 DEP did not require Essex to address them. See appellees' br. at 19;
 App. at 200a, 237a; SA at 553.

                                5



extraction ("SVE") technology, specifically, a "dual phase
 extraction system." App. at 307a. In May 1992, DEP
 approved this proposal. App. at 307a, 240a.

Notwithstanding DEP's approval of Essex's proposed
 system, Essex did not begin to install and operate the
 system immediately. Rather, from 1992 to 1997, Essex
 continued to investigate the source of the various CVOCs
 found on the Property, and conducted various tests at
 DEP's request. See app. at 238a-40a. This additional
 investigation required Essex to modify the SVE design,
 which requirement might account for the delay in its
 installation. App. at 240a. In any event, Essex completed
 its installation of the dual-phase extraction system in
 August 1997. We note, however, that Essex experienced
 some "start up" difficulties at the outset of its operation of
 the system. App. at 240a. Insofar as we can determine from
 the record, Essex is continuing its remediation efforts in
 connection with the CVOCs detected on the Property.

B. Procedural History

Appellants commenced this action in the district court in
 1997, and filed an amended complaint shortly thereafter.
 The amended complaint sets forth five causes of action
 against appellees Essex and Dow:3 (1) a claim based on a
 breach of Paragraph 16 of the sales contract as a result of
 Essex's failure to complete its cleanup of the Property
 within a "reasonable time", (count I);4 (2) a claim based on
 a breach of the implied covenant of good faith and fair
 dealing based on "defendants' " actions in connection with
 their cleanup efforts, (count II); (3) a claim for damages
 pursuant to section 107(a)(4)(B) of the Comprehensive
 Environmental Response, Compensation, and Liability Act
 ("CERCLA"), 42 U.S.C. S 9607(a)(4)(B), based on appellants'
 alleged expenditure of "necessary costs of response," and
 _________________________________________________________________
3. Inasmuch as the amended complaint refers to Essex and Dow
 collectively as "defendants" and asserts allfive claims against each
 entity, we refer to the defendants together as "appellees" unless
 otherwise noted.

4. The count does not use the term "reasonable time" but appellants
 contend that a reasonable time provision is implicit in the Agreement.

                                6



for declaratory and injunctive relief, (count III); (4) a claim
 for contribution for the costs of "clean-up and removal" and
 for injunctive and declaratory relief pursuant to the New
 Jersey Spill Compensation and Control Act, N.J. Stat. Ann.
 S 58:10-23.11 et seq. ("the Spill Act"), (count IV); and (5) a
 claim for "damages" based on appellees' breach of the
 Agreement "as well as the contamination with respect to the
 subject Property for which defendants are responsible,"
 (count V). See app. at 67a. Appellees filed an answer to the
 amended complaint and a counterclaim seeking declaratory
 relief that remediation of the Property under Paragraph 16
 of the Agreement included use of "engineering and
 institutional controls" and an order requiring appellants to
 consent to them. App. at 80a-81a.

The parties commenced discovery on November 7, 1997.
 Appellants designated Berger as their Fed. R. Civ. P.
 30(b)(6) witness to testify on behalf of USLR, USRR and
 Black Horse. On October 2, 1998, appellees' counsel began
 to depose Berger, but counsel was not able to obtain a date
 to reconvene the deposition. As a result of counsels'
 inability to agree on the date that Berger's deposition
 should resume, appellees' counsel sought an order from the
 magistrate judge overseeing discovery to set the date for the
 resumption of the deposition. After a teleconference with
 the parties on October 6, 1998, the magistrate judge signed
 an order dated October, 9, 1998, which provided the
 following:

       IT IS on this 9th day of October, 1998, ORDERED, as
        follows:

       1. Lawrence S. Berger, as Plaintiffs' Fed. R. Civ. P.
        30(b)(6) designated witness and fact witness, shall
        appear for oral deposition commencing on Tuesday,
        October 13, 1998, at 10:00 a.m. and continuing from
        day to day thereafter until completed.

App. at 657a.

Notwithstanding the court's directive, when appellees'
 counsel appeared at Berger's law office to continue his
 deposition on October 13, 1998, Berger failed to appear and
 his counsel, Paul Schafhauser, was "in trial" and not in the

                                7



office. SA at 60-61. At that point, appellees' counsel again
 sought the court's intervention.

On October 15, 1998, the magistrate judge signed and
 entered an order which directed that Berger's deposition
 recommence on Monday, October 19, 1998, at 10:00 a.m.
 App. at 660a. The order also provided that "[a]s a sanction
 for failure by Lawrence Berger to appear for depositions on
 Tuesday, October 13, Plaintiffs shall promptly pay the fees
 and costs of counsel fees for defendants (a) for appearing at
 Mr. Berger's non-deposition on October 13, and (b) for
 bringing this application and appearance today." App. at
 660a. While Berger appeared for his deposition at the
 designated date and time, appellees claim that he provided
 evasive and non-responsive answers to many of counsel's
 questions relating to the negotiation and execution of the
 Agreement, and appellants' damages allegations. See
 generally app. at 540a-655a.

After the completion of discovery, the parties filed several
 motions germane to this appeal. First, appelleesfiled a
 motion for summary judgment pursuant to Fed. R. Civ. P.
 56, seeking dismissal of the amended complaint in its
 entirety. Appellants opposed the motion, and filed a cross-
 motion for summary judgment on appellees' counterclaim
 for declaratory relief. In addition, appellees filed a motion
 before the magistrate judge for discovery sanctions
 pursuant to Fed. R. Civ. P. 37(b), (d), seeking to preclude
 appellants "from asserting, at trial, a position which differs
 from the testimony of their Rule 30(b)(6) witness." App. at
 20a. Appellees also sought reimbursement of the attorney's
 fees and costs associated with Berger's deposition and their
 filing of the second sanctions motion.

The magistrate judge granted appellees' request for
 sanctions pursuant to Rule 37 by letter opinion and order
 entered June 30, 1999. Relying on Rule 37(b) and (d), he
 agreed that Berger's conduct warranted the sanction
 appellees requested, namely that appellants would be
 precluded from asserting a position and introducing
 evidence contrary to the positions Berger asserted during
 his deposition. The court also concluded that Berger's lack
 of preparedness at his deposition warranted the imposition
 of monetary sanctions pursuant to Rule 37(d) in the form of

                                8
 costs and attorney's fees associated with taking the
  deposition and bringing the sanctions motion before the
  court. App. at 22a. Appellants filed an appeal from the
  magistrate judge's order to the district court.

 In the meantime, after hearing oral argument on the
  cross-motions for summary judgment on June 28, 1999,
  see app. at 806a-831a, the district court granted appellees'
  motion on the amended complaint and denied appellants'
  cross-motion on the counterclaim by letter opinion and
  order entered August 10, 1999. Addressing appellees'
  motion first, the district court determined that dismissal of
  the amended complaint in its entirety was appropriate for
  several reasons, each of which we will discuss in greater
  detail in the discussion that follows.5

 With respect to the breach of contract claim (count I), the
  court held that Paragraph 16 of the Agreement did not
  contain a provision requiring Essex to remediate the
  Property in a "reasonable time," and, given the commercial
  context in which the parties negotiated and executed the
  Agreement and appellants' subsequent conduct, the court
  should not imply that the contract had a reasonable time
  provision. See app. at 10a. Alternatively, it stated that even
  if it were to assume that there is an implicit "reasonable
  time" provision in Paragraph 16 of the Agreement,
  _________________________________________________________________

 5. Before engaging in a substantive analysis of appellants' claims
against
  Essex, the district court dismissed with prejudice all claims appellants
  asserted against Dow, reasoning that

           (1) plaintiffs' causes of action arise solely out of plaintiffs'
            contractual relationship with defendant Essex; (2) Dow and Essex
            are not related except to the extent that Dow acquired Essex's
  stock;
           (3) Essex is a responsible party and not insolvent; and (4) there
  is
         not even a scintilla of evidence that would justify piercing
  Essex's
         corporate veil.

 App. at 7a n.1. Appellants assert that the district court erred in
  dismissing outright the claims against Dow, claiming that there are
  factual issues concerning whether it is a proper party in this suit. We
  will affirm the court's dismissal of Dow without further discussion as
  appellants' argument clearly is without merit. In any event, our
  affirmance of the summary judgment for Essex means that Dow cannot
  be liable to appellants.
                                9



appellants failed to adduce any evidence from which a
 reasonable jury could conclude that 14 years, i.e., from
 1985 to the date of the district court's decision, was an
 unreasonably long time period to complete the type of
 detoxification and remediation called for in the Clean-Up
 Plan. App. at 11a. Turning next to appellants' claim based
 on the alleged breach of the implied covenant of good faith
 and fair dealing (count II), the court found that appellants
 failed to produce sufficient evidence that Essex acted in bad
 faith or engaged in misconduct that caused the delay in
 completing the cleanup of the Property. App. at 13a.

Third, the court dismissed the CERCLA and Spill Act
 claims for damages on the ground that appellants could not
 demonstrate that they incurred any compensable costs
 under either statute. The court pointed out that the only
 costs that appellants allegedly incurred were the fees they
 paid to their consultant, Enviro-Sciences, Inc. ("ESI"), but
 that such fees were not compensable under either the
 CERCLA or the Spill Act. App. at 15a. The court also denied
 appellants' request for injunctive and declaratory relief
 under CERCLA and the Spill Act, reasoning that
 declaratory relief was inappropriate because "plaintiffs have
 utterly failed to make any showing that they are likely to
 incur any future costs that will be recoverable" under either
 statute. It further found that injunctive relief was not
 warranted in view of the circumstance that Essex"is
 contractually and statutorily bound to detoxify the
 Property," and there was no evidence that Essex had
 breached the contract or violated CERCLA or the Spill Act.
 App. at 15a-16a. Next, the court dismissed count V, stating
 that "because plaintiffs have failed to adduce sufficient
 evidence in support of their breach of contract claims, they
 cannot recover the damages outlined in Count Five of the
 Complaint." App. at 16a.

Finally, the district court addressed and denied
 appellants' cross-motion for summary judgment on the
 counterclaim, noting that appellants "cite no authority in
 support of their motion," but "merely allege that `Plaintiffs
 do not and need not consent to any [engineering and
 institutional controls] with respect to the Property.' "
 Ultimately the court found that "[o]n the present record,

                                10



this Court is unable to say that the plaintiffs are entitled,
 as a matter of law, to a judgment dismissing defendants'
  counterclaims."6 App. at 17a. The court's order stated that
  appellants' amended complaint was dismissed with
  prejudice.

 After the district court ruled on the parties' dispositive
  motions, on or about August 13, 1999, the district court
  ordered the parties to file cross-motions with respect to
  Essex's counterclaim. App. at 775a. On December 13,
  1999, the district court heard oral argument on the cross-
  motions, and also considered appellants' outstanding
  appeal from the magistrate judge's sanctions order. Ruling
  on the outstanding motions the district court (1) affirmed
  the magistrate judge's sanctions order, and (2) dismissed
  Essex's counterclaim against appellants without prejudice
  for lack of subject matter jurisdiction because the
  controversy set forth in the counterclaim was not ripe. See
  app. at 832a-49a. The district court then memorialized its
  record rulings in its "Final Order" entered December 16,
  1999. App. at 23a. The monetary sanctions have been
  quantified and we understand that appellants have paid
  them.

 Appellants filed a timely notice of appeal to this court
  from the district court's orders of August 10, 1999, and
  December 16, 1999. App. at 34a. The appellees do not
  cross-appeal from the dismissal of their counterclaim. We
  have jurisdiction pursuant to 28 U.S.C. S 1291.7 Of course,
  the fact that the dismissal of the counterclaim was without
  _________________________________________________________________

 6. The court also addressed and denied appellees' motion for sanctions
  pursuant to Fed. R. Civ. P. 11. That aspect of the court's ruling is not
  in issue in this appeal, and we need not address it any further.

 7. The district court exercised subject matter jurisdiction pursuant to
28
   U.S.C. S 1331 inasmuch as count III of the amended complaint asserted
   a claim pursuant to CERCLA. The district court exercised supplemental
   jurisdiction over the remaining state law claims pursuant to 28 U.S.C.
   S 1367. We exercise plenary review over the district court's dismissal
of
   appellants' amended complaint and the counterclaim, see Nelson v.
   Upsala College, 

, 385 (3d Cir. 1995), and review the court's
   disposition of the sanctions issue pursuant to Rule 37 for an abuse of
   discretion. See General Ins. Co. of Am. v. Eastern Consol. Utils. Inc.,
   

, 219 (3d Cir. 1997).

                                 11



 prejudice does not in the circumstances here deprive us of
  jurisdiction. See Presbytery of N.J. v. Florio , 

,
 1461 (3d Cir. 1994); see also Erie County Retirees Ass'n v.
 County of Erie, 

, 202 (3d Cir. 2000).

III. DISCUSSION

As is evident from our recitation of the procedural history
 leading to this appeal, appellants challenge several of the
 district court's rulings made during the proceedings in this
 matter. First, we will address the court's August 10, 1999
 order dismissing the amended complaint. Then, we will
 review the district court's December 16, 1999 order
 dismissing appellees' counterclaim without prejudice, and
 affirming the magistrate judge's sanctions order.

A. District Court's Dismissal of
        the Amended Complaint

1. Breach of Contract Claim (Count I)

Appellants focus most of their attention on the district
 court's dismissal of their breach of contract claim pleaded
 in count I of the amended complaint. While recognizing that
 under New Jersey law, courts generally find that there is a
 "reasonable time" term implicit in contracts that do not set
 forth any time limitation for performance, the district court
 nevertheless held that "[i]n this case, the Court finds no
 justification for implying a `reasonable time' for
 performance because such a term is not `necessary to give
 business efficacy to the contract as written.' " App. at 8a.
 The court explained that "[a] main purpose of the
 Agreement, and the only purpose of Paragraph 16, was to
 require Essex to remediate the Property to the full
 satisfaction of the DEP and thereby make the land freely
 marketable." App. at 8a. The court found that"a
 `reasonable time' limitation is not necessary because
 Essex's performance under the contract--obtainingfinal
 DEP approval--must be evaluated solely by reference to the
 DEP." App. at 9a. Accordingly, the court stated that "such
 a contract simply does not lend itself to a reasonable time
 limitation." 

also dismissed the breach of contract claim on the
 alternative ground that appellants presented insufficient
 evidence from which a reasonable jury could conclude that
 Essex breached its obligation to perform remediation and
 obtain DEP approval pursuant to the Clean-Up Plan within
 a "reasonable time." On this point, the district court held as
 follows:

       Plaintiffs allege that Essex has breached its contractual
       obligation to complete the detoxification and obtain
       final DEP approval `within a reasonable time.'
       Therefore, to prevail, plaintiffs must show that a
       `reasonable time' has already expired. The Agreement
       was executed in 1985. This Court cannot say that
       fourteen years is unreasonable as a matter of law. In
       the context of an ISRA clean-up, which plaintiff Berger
       understood to be a `cumbersome' and `long' process,
       plaintiffs must adduce evidence that a `reasonable time'
       for completion of the clean-up is less then fourteen
       years. . . .

       Such evidence might be in the form of reprimands or
       other statements from regulatory agencies like the
       DEP. Plaintiffs might also carry their evidentiary
       burden with expert testimony that, under the
       circumstances of this site and comparing it to other
       sites, fourteen years is an unreasonable length of time.
       In this case, however, plaintiffs have simply failed to
       adduce any evidence that fourteen years is
       unreasonable. The only evidence that even remotely
       addresses this issue is contained in plaintiffs' expert
       report. . . .

       Giving plaintiffs the best of Mr. Cohen's report, `the
       environmental program undertaken on this site has
       been slow and ineffective in treating the contaminants
       that were release by Essex Chemical.' But evidence of
       a slow and ineffective clean-up process, without more,
       cannot reasonably support an inference that fourteen
       years is unreasonable.

App. at 11a-12a.

Appellants contend that the court erred in dismissing
 their breach of contract claim because, notwithstanding the

                                13



absence in Paragraph 16 of the Agreement of an explicit
 date by which Essex was to complete its cleanup of the
 Property and obtain DEP approval, by implication the
 Agreement requires Essex to fulfill its contractual
 obligations within a reasonable time. Appellants rely on the
 well-established principle of New Jersey law, which is
 applicable here on the contractual issues, that" `[w]here no
 time is fixed for the performance of a contract, by
 implication a reasonable time was intended.' " Br. at 41
 (quoting, inter alia, Becker v. Sunrise at Elkridge, 

, 983 (N.J. Super. Ct. App. Div. 1988)). They claim that
 the district court erred in concluding that the nature of this
 particular contract, and Essex's obligation with respect to
 the remediation of the Property, rendered a "reasonable
 time" limitation unreasonable in the circumstances.
 Alternatively, they assert that at a minimum, there was a
 genuine issue of material fact as to whether the parties
 intended that Essex complete its remediation obligations
 within a reasonable time, thus precluding summary
 judgment in appellees' favor. Second, appellants contend
 that contrary to the district court's finding, they presented
 sufficient evidence from which a reasonable jury could
 conclude that Essex failed to remediate the Property within
 a "reasonable time."

Appellees respond that the district court correctly
 dismissed the breach of contract claim because appellants
 base their argument on the incorrect premise that
 Paragraph 16 omits a contractual provision which in turn
 requires the court to supply a "reasonable time" limitation.
 Br. at 36. They claim that contrary to appellants'
 construction of the contract, Paragraph 16 does contain a
 definite term for completion of the Property's remediation
 and therefore does not omit a contractual provision. In
 appellees' view the contract unambiguously provides the
 only term for completion that is reasonable in the
 circumstances--namely, that Essex's obligation is satisfied
 if the detoxification is undertaken "in accordance with and
 to the approval of DEP." Br. at 35-36. They claim that the
 district court correctly determined that it would be
 unreasonable to find that the Agreement included an
 implied reasonable time limitation, given the commercial
 context of the sale and purchase.

                                14



Appellees further assert that, in any event, even if we
 agreed with appellants that the district court should have
 implied a "reasonable time" limitation on Essex's
 remediation obligations pursuant to Paragraph 16,
 summary judgment was appropriate because there is no
 evidence that Essex breached its contractual obligations in
 that connection. They claim that the district court correctly
 determined that appellants failed to meet their burden of
 producing evidence demonstrating that as of the date that
 appellants filed their complaint in the district court, Essex
 had failed to remediate and detoxify the Property in
 accordance with the Clean-Up Plan, and obtain DEP
 approval of its efforts, within a reasonable time.

Appellees' protestations notwithstanding, we reject the
 district court's conclusion that a reasonable time provision
 was not implicit in Paragraph 16 of the Agreement. After
 all, New Jersey courts uniformly have applied the principle
 that "where no time is fixed for the performance of a
 contract, by implication a reasonable time was intended."
 See 

(contract for sale of real
 property); see also, e.g., River Dev. Corp. v. Liberty Corp.,
 

, 722 (N.J. 1959) (license to reclaim land must
 be exercised within a reasonable time); Ridge Chevrolet-
 Oldsmobile, Inc. v. Scarano, 

, 300 (N.J. Super.
 Ct. App. Div. 1990) (performance under real estate
 contract); Mazzeo v. Kartman, 

, 737 (N.J.
 Super. Ct. App. Div. 1989) ("If the trial judge cannot
 determine the parties' actual intent [concerning the
 temporal limits of a right of first refusal], he should
 determine a `reasonable time' for the expiration of the
 right."); Ocean Cape Hotel Corp. v. Masefield Corp., 

, 614 (N.J. Super. Ct. App. Div. 1960) (where
 plaintiff claimed that defendant was obligated to make
 certain repairs to property, if plaintiff 's claim had been
 based on breach of contract, the court would have implied
 a term that required completion of performance within a
 reasonable time and would not have permitted parol
 evidence that defendant promised repairs as of a certain
 fixed date); McGraw v. Johnson, 

, 206 (N.J.
 Super. Ct. App. Div. 1956) (noting that performance under
 contract must be completed within reasonable time where
 claim was based on contractor's alleged failure to complete

                               15



building of home within a reasonable time); Curtis Elevator
 Co. v. Hampshire House, Inc., 

, 76 (N.J. Super.
 Ct. Law Div. 1976) (performance under contract to install
 elevators; where no specific date for completion was
 provided in contract, court implied term requiring
 completion within a reasonable time).

The district court predicated its analysis on statements in
 New Jersey cases to the effect that terms are implied to
 "give business efficacy to the contract as written." See app.
 at 8a (citing McGarry v. Saint Anthony of Padua Roman
 Catholic Church, 

, 1357 (N.J. Super. Ct. App.
 Div. 1998)). But appellants argue persuasively that it would
 be commercially unreasonable to construe the terms of
 Paragraph 16 so as to permit Essex to begin its cleanup at
 its leisure, and to continue its efforts in perpetuity without
 the threat or even the slightest possibility of adverse legal
 consequences flowing from inordinate delay. We also doubt
 that the parties could have intended such a bizarre result.
 See Onderdonk v. The Presbyterian Homes of N.J., 

, 1063 (N.J. 1981) ("Central to this inquiry of
 ascertaining what, if any, terms are implied is the intent of
 the parties. Intent may be determined by examination of
 the contract and in particular the setting in which it was
 executed.").
Nevertheless, notwithstanding our holding that a
 "reasonable time" term is implicit is Paragraph 16 of the
 Agreement, we agree with the district court's alternative
 basis for dismissing appellants' breach of contract claim,
 i.e., that a reasonable time period has not expired.8 We are
 mindful that "[w]hat constitutes a reasonable time under
 New Jersey law `is usually an implication of fact, and not of
 law, derivable from the language used by the parties
 considered in the context of the subject matter and the
 _________________________________________________________________

8. In view of our result appellees should understand that they do not
 have forever to complete the remediation and detoxification. To the
 contrary, they must diligently pursue their efforts to obtain the DEP
 approval within a reasonable time. Of course, it is not our intention by
 making this point to invite further litigation. We believe that if
 appellees
 are diligent in these efforts and keep appellants advised of the steps
 they
 are taking that the parties should be able to avoid additional judicial
 proceedings.

                                16



attendant circumstances, in aid of the apparent intention.' "
 

(quoting Borough of West Caldwell
 v. Borough of Caldwell, 

, 412 (N.J. 1958)).
 Nevertheless, appellants would bear the burden of proof on
 this issue at trial, to show that a reasonable time has
 expired, and to survive summary judgment, they must
 adduce evidence from which a reasonable jury could
 conclude that Essex breached its contractual obligation to
 complete its remediation and detoxification efforts within a
 reasonable time. Here, even viewing the facts in the light
 most favorable to appellants, we agree with the district
 court's assessment of the weakness of appellants' evidence
 as well as the court's conclusion that appellants failed to
 demonstrate that there was a genuine issue of material fact
 on the issue of whether Essex had breached its obligation
 to remediate the Property and obtain DEP approval within
 a reasonable time. Simply put, the record does not support
 the conclusion that appellants posit, i.e., that Essex
 breached its contractual duties to complete the remediation
 and detoxification efforts within a reasonable time.

For example, appellants first point to an Essex"Expense
 Appropriation Request" which indicated that the
 "completion date" of the entire project would be "1987."9
 App. at 777a. But we do not share appellants' view that
 this evidence can support a conclusion that Essex breached
 Paragraph 16 of the Agreement. Obviously, the fact that
 Essex estimated its completion date incorrectly does not
 support the conclusion that it has failed to cleanup the
 Property within a reasonable time. While a party's advance
 estimate of the time to complete a project might be
 persuasive evidence of the reasonable time for that
 undertaking, it is not in the circumstances here in which
 the scope of the project was so uncertain.
 _________________________________________________________________

9. According to the deposition testimony of Irwin Zonis, Essex's Chief
 Environmental Officer who was involved in the remediation and
 detoxification of the Property, the purpose of the Expense Appropriation
 Request was to notify Essex's financial department of the amount of
 funds deemed necessary for the completion of the project. He further
 explained that the document "told the financial department that the
 $320,000 would be expended by the end of 1987." App. at 189a.

                                17



Appellants also rely on the fact that in March 1986,
 shortly after the DEP approved Essex's Clean-Up Plan, Dr.
 Calvin J. Benning ("Benning"), Director of Environmental
 Affairs for Essex, wrote to the DEP questioning whether
 certain of the standards set forth in the Clean-Up Plan with
 respect to the contemplated soil remediation and whether
 the Clean-Up Plan's requirements were reasonable in the
 circumstances. App. at 225a-26a. For convenience, we will
 refer to this correspondence as Essex's "March 1986 letter."
 Appellants claim that the March 1986 letter was Essex's
 "attempt[ ] to circumvent the parameters and conditions" of
 its Clean-Up Plan, and that it demonstrates that Essex
 failed to proceed "reasonably and diligently" with the
 Property's detoxification. Br. at 46.

We cannot agree. The March 1986 letter questions the
 cleanup levels relating to the soil remediation which Essex
 completed within two years of the sale of the Property. See
 generally app. at 235a; appellees' br. at 17. Certainly if
 Essex also had completed the groundwater remediation
 within that period appellants would not have instituted
 litigation alleging a breach of Paragraph 16. Thus,
 inasmuch as appellants' breach of contract claim
 essentially is predicated on Essex's failure to complete
 groundwater remediation, we fail to see how this letter
 supports appellants' argument.

Similarly, appellants cite the fact that Essex did not
 begin groundwater remediation efforts until 1988 or
 remediation of the CVOCs until 1997. See br. at 47-48.
 However, appellants do not present evidence indicating that
 the delays were avoidable, and in any event, were
 unreasonable. Also they rely on the circumstance that
 groundwater pumping "was frequently interrupted
 throughout the years," br. at 47, and that the DEP gave
 Essex a rating of "unacceptable due to `failure to operate the
 groundwater remediation system in the capacity it was
 designed.' " App. at 298a (emphasis added). But a review of
 the evidence in the record confirms that the interruptions
 Essex experienced are not a basis for holding that it
 unreasonably delayed its performance under Paragraph 16.
 To the contrary, intermittent delays are to be expected on
 a remediation project which cannot be compared to an

                               18



ordinary construction project built in accordance with fixed
 plans which is thus far less likely to encounter problems
 than a remediation undertaking. Moreover, as appellees
 correctly point out, the DEP's "unacceptable" rating did not
 relate to the length of time that Essex had expended on the
 remediation and detoxification of the Property. Rather, the
 DEP comments related to the need for Essex to implement
 a sufficient maintenance program so that it could manage
 the problems it had been experiencing with the wells more
 efficiently in the future. See app. at 298a. Thus, we cannot
 view the DEP's comments as tantamount to a statement
 that Essex was taking too long to finish the Property
 cleanup.

As the district court correctly observed, app. at 11a-12a,
 appellants' strongest evidence on this score is a statement
 by their environmental consultant, Irving Cohen of ESI.
 Cohen issued a report in which he opined that "the
 environmental program undertaken on this site has been
 slow and ineffective in treating the contaminants that were
 released by Essex Chemical." App. at 418a. In our view,
 however, this statement does not create a factual issue for
 the jury on the issue of unreasonable delay. Importantly,
 Cohen stops short of stating definitively that, given the
 circumstances, Essex had taken too long to complete its
 remediation and detoxification efforts. Moreover, even if he
 had stated such a conclusion it would not have an
 adequate foundation as he does not analyze specifically the
 types of contaminants involved in this project and the
 circumstances surrounding the remediation of this site. Nor
 does he compare Essex's efforts to other sites plagued with
 similar environmental contaminants. Given the vague
 nature of Cohen's conclusion, we agree with the district
 court's observation that "evidence of a slow and ineffective
 cleanup process, without more, cannot reasonably support
 an inference that fourteen years is unreasonable." App. at
 12a.

When boiled down to its essence, appellants' argument is
 that because the cleanup of the Property has taken longer
 to finish than the parties originally anticipated, Essex has
 breached Paragraph 16 of the Agreement as it has not
 completed the cleanup within a "reasonable time." While it

                                19



may be unfortunate that it has taken Essex an extended
 period of time to complete the cleanup of this Property, the
 delay does not support a conclusion that the amount of
 time it already has spent is unreasonable given the nature
 of Essex's contractual obligation. By appellants' own
 admission, the remediation and detoxification of the
 Property is a large effort which, by its very nature, is a
 lengthy and time-consuming process. Given the realities of
 the situation, appellants simply have failed to point to any
 evidence in this record demonstrating that the length of
 time that Essex has taken to detoxify the Property and
 obtain DEP approval is unreasonable in the circumstances.
 Accordingly, we will affirm the district court's dismissal the
 breach of contract claim.

2. Breach of the Implied Duty of Good Faith
        and Fair Dealing (Count II)

The district court also dismissed appellants' claim based
 on Essex's alleged breach of the implied duty of good faith
 and fair dealing, reasoning:

       In this case, plaintiffs allege only that Essex has failed
        to complete the clean-up process and obtain final DEP
        approval within a reasonable time. They point to no
        acts or omissions done in bad faith. There is no
        allegation, and certainly no evidence, that Essex has
        committed any misconduct. Summary judgment is
        therefore appropriate.

App. at 13a. Appellants claim that the district court erred
 in granting summary judgment on this claim because it
 ignored evidence from which a reasonable jury could
 conclude that Essex breached the implied duty of good faith
 and fair dealing during the course of its cleanup of the
 Property. Appellants point to the following evidence in
 support of their claim: (1) documents confirming that
 appellees "attempted to renege upon the standards set forth
 in the Clean-Up Plan"; (2) evidence showing that appellees
 "inexplicably failed to even begin remediation for many
 years after delineating contamination on the Property"; and
 (3) DEP documents reprimanding Essex for " `violations' and
 `unacceptable' progress." Br. at 49.

                                20
To be sure, "every contract in New Jersey contains an
 implied covenant of good faith and fair dealing." Sons of
 Thunder, Inc. v. Borden, Inc., 

, 587 (N.J.
 1997); see also Restatement (Second) of Contracts S 205
 (1981) ("Every contract imposes upon each party a duty of
 good faith and fair dealing in its performance and its
 enforcement."). "The implied covenant is an independent
 duty and may be breached even where there is no breach
 of the contract's express terms." Emerson Radio Corp. v.
 Orion Sales, Inc., 

, 311 (D.N.J. 2000)
 (citing, inter alia, Sons of Thunder, 

);
 see also Bak-a-Lum Corp. v. Alcoa Bldg. Prods., Inc. , 

, 352 (N.J. 1976).

The implied covenant of good faith and fair dealing
 requires that "neither party shall do anything which will
 have the effect of destroying or injuring the right of the
 other party to receive the fruits of the contract." Sons of
 Thunder, 

(internal quotation marks
 omitted); Palisades Properties, Inc. v. Brunetti , 

, 531 (N.J. 1965). A party to a contract breaches the
 covenant if it acts in bad faith or engages in some other
 form of inequitable conduct in the performance of a
 contractual obligation. See, e.g., Sons of Thunder, 

(distinguishing prior decision in Karl's Sales &
 Service, Inc. v Gimbel Bros. Inc., 

(N.J. Super.
 Ct. App. Div. 1991), in which "there were no allegations of
 bad faith or dishonesty on the part of the terminating
 party" to the contract); Association Group Life, Inc. v.
 Catholic War Veterans, 

, 384 (N.J. 1972)
 (stating that a contracting party breaches duty of good faith
 and fair dealing by engaging in behavior that was"not
 contemplated by the spirit of the contract and fell short of
 fair dealing"); Emerson Radio 

 ("The Restatement and the [New Jersey] cases note a state
 of mind or malice-like element to breach of good faith and
 fair dealing, holding that the duty excludes activity that is
 unfair, not decent or reasonable, nor dishonest."); Kapossy
 v. McGraw-Hill, Inc., 

, 248 (D.N.J. 1996)
 (noting that courts "imply a covenant of good faith and fair
 dealing in order to protect one party to a contract from the
 other party's bad faith misconduct or collusion with third
 parties where there is no breach of the express terms of the

                                21



contract"); see also Restatement (Second) of Contracts S 205
 cmt. a (noting that "[t]he phrase `good faith' is used in a
 variety of contexts, and its meaning varies somewhat with
  the context" and explaining that "[g]ood faith performance
  or enforcement of a contract emphasizes faithfulness to an
  agreed common purpose and consistency with the justified
  expectations of the other party; it excludes a variety of
  types of conduct characterized as involving `bad faith'
  because they violate community standards of decency,
  fairness or reasonableness.").10

 Section 205 of the Restatement (Second) of Contracts
  provides examples of the types of behavior that can give
  rise to a claim for breach of the implied duty of good faith
  and fair dealing in the context of one's performance under
  a contract:

        Subterfuges and evasions violate the obligation of good
         faith in performance even though the actor believes his
         conduct to be justified. But the obligation goes further:
         bad faith may be overt or may consist of inaction, and
         fair dealing may require more than honesty. A complete
         catalogue of types of bad faith is impossible, but the
         following types are among those which have been
         recognized in judicial decisions: evasion of the spirit of
         the bargain, lack of diligence and slacking off , willful
         rendering of imperfect performance, abuse of power to
         specify terms, and interference with or failure to
         cooperate in the other party's performance.

 

cmt. d (emphasis added).

 Appellants' basic contention is that the circumstances of
  this case demonstrate that there is a genuine issue of
  material fact concerning Essex's lack of good faith in its
  _________________________________________________________________

 10. Quite coincidentally this very panel on the same day that it heard
  argument in this case also heard argument in a case under Pennsylvania
  law involving the implied duty of good faith and fair dealing. See
  Northview Motors, Inc. v. Chrysler Motors Corp., No. 99-3873, 

, ___ F.3d. ___ (3d Cir. Sept. 8, 2000). Plainly, New Jersey law
  imposes a broader obligation on a party to a contract than Pennsylvania
  law to act in good faith in its performance. The parties, however, do
not
  dispute that New Jersey law applies in this case, and we will decide the
  case on that basis.

                                 22



 performance of its obligation to remediate the Property and
  obtain DEP in accordance with Paragraph 16 of the
  Agreement. They claim that since the DEP approved the
  Clean-Up Plan in 1985, Essex has not performed its
  cleanup in a diligent manner, and in fact, has engaged in
 bad faith conduct purposely to protract the process.
 According to appellants, Essex's conduct has precluded
 them from obtaining the fruits of their contract, i.e., a
 property that is not environmentally distressed.

We cannot agree that the evidence in this case supports
 the existence of a genuine issue of material fact on the
 issue of Essex's good faith in its performance of its
 obligation to remediate and detoxify the Property. In reality,
 appellants' argument rests exclusively on their subjective
 interpretation of the March 1986 letter in which Benning
 set forth the following reservations as to whether certain
 aspects of the Clean-Up Plan were reasonable in the
 circumstances:

       The clean-up plan calls for the excavation and disposal
        of the contaminated soil to a level of 1 ppm, . . . based
        on the requirements of the case manager at BISE. I
        believe these levels are extremely low and not
        warranted. . . . We fully intend to remove the
        contaminated dirt from the former tank farm area. . . .
        However to satisfy BISE we are required to perform 15
        separate sample analyses in the laboratory instead of
        using a portable field analyzer to determine the extent
        of pollution and excavation, and to excavate to 1 ppm
        residual total VOC in the soil. I believe these
        requirements are both unreasonable and unwarranted.
        The clean up plan had to be approved by the end of
        1985 and time was not available to question the
        requirement or to rationally discuss these points.
        However, the IAG discussion [which Benning attended
        on March 18, 1986] indicate [sic] that the[DEP] has
        also been rethinking some of their procedures and
        actions. I believe hexane and heptane are classified as
        hydrocarbon and I believe that a higher level than 1
        ppm is perfectly justified.

App. at 225a-26a. Appellants claim that this letter exhibits
 Essex's lack of good faith and confirms that Essex

                                23



attempted to "renege upon the standards set forth in the
 Cleanup Plan." Br. at 49; reply br. at 22-23.

While the letter questions whether the cleanup level of 1
 ppm is warranted and whether lab analysis of soil samples
 is necessary as opposed to Essex merely conductingfield
 measurements of the soil, the letter does not demonstrate
 a lack of good faith on Essex's part in performing its
 obligations pursuant to Paragraph 16 of the Agreement.
 First, as we previously mentioned, the letter discusses
 Essex's obligations under the Clean-Up Plan relating to soil
 remediation, but appellants do not dispute that Essex has
 completed its soil remediation and detoxification efforts. In
 fact, appellants confirmed that Essex began its cleanup of
 the soil shortly after the sale, and that it completed soil
 remediation sometime within two years. Thus, we fail to see
 how this letter can demonstrate Essex's lack of diligence in
 that regard, or how Essex's conduct in questioning certain
 aspects of the Clean-Up Plan compromised appellants' right
 "to receive the fruits of the contract." See Sons of Thunder,
 

(internal quotation marks omitted).

Moreover, and perhaps more importantly, Benning wrote
 the March 1986 letter after he met with DEP officials and
 discussed the topic of appropriate cleanup levels in soil.
 The letter specifically states that the "IAG discussion on
 March 18 indicate [sic] that the department has also been
 rethinking some of their procedures and actions." App. at
 225a. Thus, while the letter questioned the reasonableness
 of certain aspects of the Clean-Up Plan, Benning's
 comments indicate that he did so because of his previous
 discussions with DEP officials which apparently led him to
 believe that the DEP might no longer view some of its
 requirements as necessary or appropriate. Thus, when
 viewed in context, the letter does not indicate that Essex
 intended to renege on its obligation to cleanup the Property,
 and it does not indicate that Essex performed its
 contractual obligations with a lack of good faith.

In any event, Benning's concern over certain aspects of
 the Clean-Up Plan is of no consequence when we consider
 that less than two months later, he wrote a memorandum
 to Essex officials in which he recognized and re-emphasized

                                24



Essex's obligation to adhere to the requirements set forth in
 Clean-Up Plan. The memorandum states:

       Lately we have received letters from NJDEP and have
        discussed our program and permit applications with
        both state and local officials. These discussions have
        led to some very specific program requirements and
        items we must `keep in mind.'

       For example:

       1. The NJDEP's ECRA office and the department of
        solid waste management have made it very clear
        that we must adhere to the Clean Up Plan .

App. at 227a.
Simply put, the fact that Benning questioned certain
 aspects of the Clean-Up Plan is not evidence that Essex
 acted in bad faith, as the DEP obviously responded to
 Benning's concerns by indicating that Essex was obligated
 to remediate the Property in accordance with the Clean-Up
 Plan, and Benning expressly reaffirmed Essex's intent to
 comply with its contractual and statutory obligations in
 that regard. Moreover, appellants do not demonstrate that
 Essex ever failed to implement a substantive remediation
 measure that the DEP required in connection with Essex's
 cleanup of the Property, and do not dispute that Essex
 completed soil remediation on the Property within two years
 of the sale. In our view, Benning's May 1986 memorandum
 reaffirming Essex's commitment to remediate the Property
 in accordance with the Clean-Up Plan belies appellants'
 assertion that the March 1986 letter evidences Essex's
 intent from the outset to conduct its remediation and
 detoxification efforts in "bad faith." Reply br. at 23. In the
 circumstances, we will affirm the district court's dismissal
 of appellants' claim that Essex breached the duty of good
 faith and fair dealing.

3. Appellants' CERCLA Claim (Count III)
        and Spill Act Claim (Count IV)

Count III of the amended complaint asserts a claim for
 damages and injunctive and declaratory relief pursuant to
 CERCLA, and count IV seeks the same relief pursuant to

                                25



the Spill Act. As previously mentioned, the district court
 dismissed the CERCLA claim, reasoning that appellants
 had not incurred any compensable "necessary costs of
 response" pursuant to section 107(a)(4)(B) of CERCLA. See
 42 U.S.C. S 9607(a)(4)(B). In particular, the court explained
 that the only costs that appellants claimed to have incurred
 were the fees they paid to their environmental consultant,
 ESI. The district court found that those fees were not
 recoverable under CERCLA "because they had nothing to
 do with any effort by plaintiffs to detoxify the Property or to
 prevent or minimize the release of hazardous substances."
 App. at 14a (emphasis added). The district court explained
 that the fees were not recoverable because ESI merely
 reviewed the quarterly reports that Essex submitted to
 appellants and the DEP; ESI never visited the Property,
 monitored the contamination or the cleanup of the
 Property, or gathered data related to the investigation or
 remediation of the Property. The district court stated that
 "ESI's fees are those of an ordinary expert witness: the fees
 represent litigation costs, not environmental monitoring
  costs." App. at 15a. Similarly, the court dismissed
  appellants' Spill Act claim seeking to recover ESI's fees
  because the fees "are unrelated to any prevention,
  mitigation, or remediation of contamination on the
  Property." App. at 14a.

 The district court also denied appellants' request for a
  declaration that Essex is liable to appellants for any future
  costs pursuant to CERCLA or the Spill Act. The court
  stated that "[p]laintiffs have utterly failed to make any
  showing that they are likely to incur any future costs that
  will be recoverable under CERCLA or the Spill Act. Indeed,
  it is undisputed that Essex is contractually obligated to
  remediate the Property at its own expense." App. at 15a.
  Inasmuch as there was "no evidence--or even an allegation
  --that the plaintiffs intend to participate in future clean-up
  activities or incur any costs that might be recoverable
  under CERCLA," the court concluded that granting
  declaratory relief would be inappropriate.

 Finally, the court denied appellants' request for an
  injunction compelling Essex to commence and complete the
  cleanup on the basis that there was no present case or

                                 26



 controversy. The court reasoned that "[t]here is no dispute
  that Essex is under both a contractual and statutory duty
  to detoxify the Property; nor is there any dispute that Essex
  has worked continuously to remediate the Property." The
  court further explained that "[i]n the absence of evidence
  that Essex has breached the Agreement or violated CERCLA
  or IRSA, there is no basis for the injunction that plaintiffs
  seek." App. at 16a.

 On appeal from the CERCLA and Spill Act dispositions,
  appellants primarily claim that the district court erred in
  dismissing their CERCLA claim for monetary relief. 11 While
  _________________________________________________________________

 11. We will address only briefly the several other issues appellants
raise
  in connection with their CERCLA and Spill Act claims pleaded in counts
  III and IV of the amended complaint. Specifically, appellants maintain
  that the district court erred in rejecting their request for injunctive
  and
  declaratory relief pursuant to CERCLA, and in dismissing count IV of the
  amended complaint, their Spill Act claim. First, appellants contend that
  they are entitled to declaratory relief under CERCLA even if they have
  not incurred any compensable response costs as of yet, "[p]articularly
  [because] in light of the inexplicable lack of progress by Defendants in
  detoxifying the Property to date, Plaintiffs may well be forced to incur
  future response costs to complete [the] detoxification. . . ." Br. at 52
  (citing Bowen Eng'g v. Estate of Reeve, 

, 476 (D.N.J.
  1992), aff 'd, 

(3d Cir. 1994) (table)). They also state
  generally that injunctive relief pursuant to CERCLA is appropriate in
the
  circumstances, but fail to explain the reason for their position on that
  point. See 

appellants' arguments in their entirety. First, appellants have
  not presented any evidence with respect to their request for a
declaratory
  judgment as to future response costs under CERCLA demonstrating that
  such relief is appropriate. Given our discussion in the text that
follows,
  it is clear that appellants have not incurred any response costs to
date,
  and it is undisputed that Essex, rather than appellants, is bound
  contractually to complete the cleanup of the Property and obtain final
  DEP approval. Thus, there is nothing in the record suggesting that
  appellants ever will incur response costs, and there is no potential for
  injury that is "sufficiently immediate and real" so as to warrant
  declaratory relief pursuant to section 113(g)(2) of CERCLA, 42 U.S.C.
  S 9613(g)(2). See Kelley v. E.I. DuPont de Nemours & Co., 

,
  845 (6th Cir. 1994) (internal quotation marks omitted); see also United
  States v. USX Corp., 

, 819 (3d Cir. 1995) (quoting statement
  in 

, that " `[i]n providing for the recovery of
  response

                                 27



 appellants have not set forth their CERCLA argument in
  any detail, we understand they predicate it on a belief that
  they are entitled to recover the amounts paid to appellants'
  environmental consultant, ESI, as "necessary costs of
  response" pursuant to section 107(a) of CERCLA, because
  those "oversight costs" fall within the scope of either
  _________________________________________________________________

 costs, Congress included language [in section 113(g)(2)] to insure that a
  responsible party's liability [for response costs], once established,
  would
  not have to be relitigated. . . .' ") (emphasis added)); The Southland
  Corp.
  v. Ashland Oil, Inc., 

, 999 (D.N.J. 1988) ("To be
granted
  a declaratory judgment on the issue of liability, . . . plaintiff[ ]
must
  establish four factors to satisfy the requirements of section 107(a),"
  including "that, as a result [of defendants' conduct], [plaintiff] has
  incurred response costs."); compare Bowen 

  (stating that "[O]nce some expenditure [for response costs] has been
     made, the controversy is sufficiently real to permit the court to issue
a
  declaratory judgment on defendant's liability.") (internal quotation
marks
  omitted). Second, appellants' vague assertion that injunctive relief is
  appropriate in this case, without any further elaboration on that point,
  is unconvincing.

 Finally, we agree with the district court's disposition of the Spill Act
   claim seeking both monetary and equitable relief. While we have
   considered appellants' argument on this score, which essentially
consists
   only of a citation to T&E Industries, Inc. v. Safety Light Corp., 

(N.J. 1991), we fail to see how the case is germane here because
   it did not present claims under the Spill Act. In any event, after
   reviewing the applicable statutory provisions and case law on point, we
   are convinced that the district court did not err in dismissing count
IV.
   Accordingly, we will affirm the court's dismissal of the Spill Act claim
   without further discussion. See N.J. Stat. Ann. S 58:10-23.11b.d.
   (providing definition of "cleanup and removal costs" for purposes of
Spill
   Act); 

(stating that responsible persons are
   "strictly liable, jointly and severally, without regard to fault, for
all
   cleanup and removal costs no matter by whom incurred") (emphasis
   added); compare Analytical Measurements, Inc. v. The Keuffel & Esser
   Co., 

, 929-30 (D.N.J. 1993) (stating that costs of the
   initial soil and groundwater investigation, analysis of problems and
   alternatives, excavation of soil, removal of thefirst 600 tons of soil
to
   Ohio, and design of a groundwater investigation plan were "clearly
   recoverable under the Spill Act since they are associated with the
   cleanup and removal of discharged hazardous substances"; court also
   noted that declaratory relief was appropriate because it would "resolve
   any uncertainties over who is responsible for future cleanups").

                                   28



    "removal" or "remedial" action as defined by section 101 of
     CERCLA, 42 U.S.C. S 9601(23), (24). See generally br. at 53
     (citing United States v. Lowe, 

, 401-02 (5th
     Cir. 1997), which held, contrary to our decision in United
     States v. Rohm and Haas Co., 

(3d Cir. 1993),
     that EPA's costs incurred in oversight of the private party
     cleanup of site were compensable "response costs"
     pursuant to section 107(a) of CERCLA). Appellants state
     that the court erred in finding that ESI's fees were those of
     "an ordinary expert witness," inasmuch as"an `expert
     witness' is clearly required only in the context of litigation
     while, by contrast, Plaintiffs have been forced to retain and
 utilize the expertise of ESI, an environmental consultant,
 for the past fifteen years due to the lack of progress made
 by Essex with respect to the Property's `detoxification.' " Br.
 at 53.

Appellants' argument thus raises the issue of whether
 ESI's fees are "necessary costs of response" for which
 appellants, as private parties, may recover in a suit
 pursuant to section 107(a)(4)(B) against Essex, the party
 indisputably responsible for the cleanup of the Property
 pursuant to the Clean-Up Plan approved by the DEP. To
 answer that question, we must ascertain the character of
 the costs in question, and determine whether they fall
 within the types of costs recoverable by an innocent party
 pursuant to section 107(a)(4)(B) of CERCLA.

We begin with the relevant statutory language. Section
 107 of CERCLA, 42 U.S.C. S 9607(a)(4), provides that
 certain enumerated parties "shall be liable for .. . all costs
 of removal or remedial action incurred by the United States
 Government or a State or an Indian tribe not inconsistent
 with the national contingency plan; [and] . . . any other
 necessary costs of response incurred by any other person
 consistent with the national contingency plan. . . ." The
 statute defines "response" as "remove, removal, remedy,
 and remedial action," and states that these terms include
 "enforcement activities related thereto." See CERCLA
 section 101(25), 42 U.S.C. S 9601(25). It then defines
 "remove or removal" and "remedy or remedial action" as
 follows:

                               29



       (23) The terms `remove' or `removal' means[sic] the
        cleanup or removal of released hazardous substances
        from the environment, such actions as may be
        necessary taken in the event of the threat of release of
        hazardous substances into the environment, such
        actions as may be necessary to monitor, assess, and
        evaluate the release or threat of release of hazardous
        substances, the disposal of removed material, or the
        taking of such other actions as may be necessary to
        prevent, minimize, or mitigate damage to the public
        health or welfare or to the environment, which may
        otherwise result from a release or threat of release. The
        term includes, in addition, without being limited to,
        security fencing or other measures to limit access,
        provision of alternative water supplies, temporary
        evacuation and housing of threatened individuals not
        otherwise provided for, action taken under section
        9604(b) of this title, and any emergency assistance
        which may be provided under the Disaster Relief and
       Emergency Assistance Act. . . .

       (24) The terms `remedy' or `remedial action' means [sic]
        those actions consistent with permanent remedy taken
        instead of or in addition to removal actions in the event
        of a release or threatened release of a hazardous
        substance into the environment, to prevent or minimize
        the release of hazardous substances so that they do
        not migrate to cause substantial danger to present or
        future public health or welfare or the environment. The
        term includes, but is not limited to, such actions at the
        location of the release as storage, confinement,
        perimeter protection using dikes, trenches, or ditches,
        clay cover, neutralization, cleanup of released
        hazardous substances and associated contaminated
        materials, recycling or reuse, diversion, destruction,
        segregation of reactive wastes, dredging or excavations,
        repair or replacement of leaking containers, collection
        of leachate and runoff, onsite treatment or
        incineration, provision of alternative water supplies,
        and any monitoring reasonably required to assure that
        such actions protect the public health and welfare and
        the environment. The term includes the costs of
        permanent relocation of residents and businesses and

                               30



       community facilities where the President determines
        that, alone or in combination with other measures,
        such relocation is more cost-effective than and
        environmentally preferable to the transportation,
        storage, treatment, destruction, or secure disposition
        offsite of hazardous substances, or may otherwise be
        necessary to protect the public health or welfare; the
        term includes offsite transport and offsite storage,
        treatment, destruction, or secure disposition of
        hazardous substances and associated contaminated
        materials.

Section 101(23)(24), 42 U.S.C. S 9601(23), (24) (footnotes
 omitted).

As we explained in United States v. Rohm and Haas Co.,
 "[i]n general, removal actions are short term responses to a
 release or threat of release while remedial actions involve
 long term 

. Here, while appellants
 fail to recognize explicitly the distinction between"removal"
 and "remedial" actions and do not attempt to place ESI's
 consultant fees in either category, given the character of the
 costs at issue we believe that if the activities involved here
 are included within the definition of "response costs," it is
 because they are "removal" rather than "remedial" actions.
 Cf. 

the parties agreed that if the
 government's oversight activities were deemed "necessary
 costs of response," it would be because they were removal
 actions rather than remedial actions).

Although the district court believed that ESI's consulting
 fees are best characterized as those of an "ordinary expert
 witness," appellants contest that statement by indicating
 rather cryptically in their brief that ESI has been
 appellants' environmental consultant for "fifteen years with
 respect to the Property's `detoxification,' " and therefore
 contend that we cannot consider ESI to be an "expert
 witness" retained only for litigation purposes. While
 appellants fail to cite an applicable portion of the record in
 support of that statement, our review of the parties'
 submissions confirms that Cohen testified at his deposition
 that appellants had retained ESI as a consultant as early
 as 1987 or 1988. See SA at 527.

                                31



Nevertheless, based on our study of the record, exercising
 plenary review we conclude that the district court did not
 err in concluding that ESI's consulting fees for which
 appellants seek reimbursement were litigation-related
 expenses. Inasmuch as private parties may not recoup
 litigation-related expenses in an action to recover response
 costs pursuant to section 107(a)(4)(B) of CERCLA, see Key
 Tronic Corp. v. United States, 

, 819-20, 

, 1967 (1994); Redland Soccer Club, Inc. v.
 Department of the Army, 

, 850 (3d Cir. 1995),
 and appellants do not claim to have incurred any other
 costs which fall within the definition of "necessary costs of
 response," we agree with the district court's disposition of
 the CERCLA claim.

In Redland Soccer Club, we determined that the Redland
 plaintiffs' litigation costs, which included attorney's fees,
 health risk assessments and expert witness fees, were not
 "response costs" under any of the statutory definitions
 found in section 9601 of 

&
 n.12 (citing, inter alia, Key Tronic 

,
 114 S.Ct. at 1967, which held that litigation-related
 attorney's fees were not recoverable in a private response
 cost recovery action). In reaching our result, wefirst
 observed that "under section [107], plaintiffs may only
 recover response costs which are necessary and consistent
 with the [National Contingency Plan]." 

Second,
 we found that "[t]he heart of these definitions of removal
 and remedy are `directed at containing and cleaning up
 hazardous releases.' . . . [T]herefore[,] . . . `necessary costs
 of response' must be necessary to the containment and
 cleanup of hazardous releases." 

States v.
 Hardage, 

, 1448 (10th Cir. 1992) (alteration
 in original) (internal quotation marks omitted)). Given that
 the costs incurred were all litigation-related expenses
 unrelated to any remedial or response action at the
 property itself, we stated that "we do not believe the district
 court erred in determining that plaintiffs' costs are not
 response costs because they are not `monies . . . expended
 to clean up sites or to prevent further releases of hazardous
 chemicals.' " 

Soccer Club, Inc. v.
 Department of Army, 

, 1435 (M.D. Pa.
 1992), aff 'd in relevant part, 

(3d Cir. 1995)).

                               32



Here, as in Redland, the record required the district court
 to reach its conclusion that the costs for which the parties
 involved were seeking reimbursement were litigation-related
 expenses, and thus do not fall within the definition of
 "necessary costs of response." We first point out that,
 notwithstanding appellants' use of ESI's services prior to
 the commencement of this litigation, the billing statements
 that appellants submitted as proof of the amounts
 expended for ESI's service were for "consulting fees."
 Importantly, the billing statements cover services that ESI
 rendered in connection with the Property intermittently
 from November 1996 to May 1998. See SA at 1-17.
 Obviously, inasmuch as appellants filed their complaint in
 the district court in March 1997, appellants are seeking
 reimbursement for consulting services rendered just prior
 to the time that they commenced this litigation, as well as
 reimbursement for services during the duration of the
 proceedings in the district court. The timing of the
 transactions demonstrates that the district court correctly
 concluded that ESI performed consulting services in
 anticipation of appellants instituting this litigation, and also
 performed consulting work during the pendency of this
 litigation.

In this connection, we find it significant that Cohen
 prepared an expert report for purposes of this litigation on
 behalf of ESI for appellants dated April 28, 1998, see app.
 at 412a, and that ESI correspondingly recorded a
 significant charge on its billing statement to USLR for that
 billing period. See SA at 13. The only reasonable inference
 we can draw from these circumstances is that the
 "consulting fee" that appellants paid to ESI for that time
 period represented, at least in significant part, ESI's
 payment for its preparation of the expert report.

Second, we note that the record reflects, and it is not
 disputed, that as appellants' environmental consultant,
 ESI's responsibilities were limited to reviewing Essex's
 quarterly reports it submitted to the DEP, and to providing
 appellants with a summary or analysis of Essex's progress
 in completing its remediation and detoxification efforts in
 accordance with the approved Clean-Up Plan. See app. at
 466a; see also SA at 527. Indeed, ESI was not involved in

                                33



Essex's cleanup effort; it neither performed an investigation
 of the Property nor gathered data for that purpose. In our
 view, the nature of Essex's responsibilities toward its
 clients as described in the record thus confirms that it was
 retained to assess, for litigation purposes, whether Essex
 was complying with its contractual responsibility to cleanup
 the Property pursuant to the requirements set out in the
 Clean-Up Plan.

Moreover, it is relevant to our analysis that Berger's
 deposition testimony, as appellants' designated Rule
 30(b)(6) witness, is far from illuminating on the necessary
 costs of response issue. Contrary to the spirit of Rule
 30(b)(6), Berger's evasive answers provide us with little
 assistance in determining the exact purpose for which
 appellants retained ESI, the nature of ESI's services that
 are referenced cryptically in the billing invoices in the
 record, and whether the costs incurred in relation thereto
 were the result of litigation-related consultation or were
 incurred in connection with work performed for some other
 purpose. Berger's responses clearly do not suggest that
 ESI's consulting fees were anything other than expenses
 incurred in connection with the lawsuit that appellants
 eventually might file if they were not satisfied with Essex's
 progress (and ultimately did file) against appellees. We only
 need cite the following colloquy between Essex's counsel
 and Berger, which occurred at his deposition, to illustrate
 our point:

       Q: [Referring to the invoices for ESI] Mr. Berger, have
        you ever seen those bills before?

       A. I have no idea.

       Q. Well, then look through them.

       A. I could look through them for the next five hours
        and I would have no idea. We've 90 properties. I get
        bills from people. There are bills going into 1997 and
        before. I have no idea whether I have ever seen these
        bills or any other bills you might put in front of me
        today.
Q. Mr. Berger, other than the charges represented in
 those bills, are there any other costs that have been

                         34



expended by any plaintiff for any environmental
 consulting or removal or remediation with respect to
 the Black Horse Lane property?

A. I have no idea.

Q. Do you know a man named Mr. Irving Cohen?

A. Yes.

Q. How long have you known him?

A. I would say about ten years.

Q. And in what capacity do you know him?

A. Mr. Cohen was the president of Enviro-Sciences. It's
 an environmental consulting firm.

Q. Has that firm ever been used by [appellant] Black
 Horse Lane Associates?

A. I have no idea.

Q. Looking through the exhibits, if you could, could
 you tell me whether those bills appear to indicate that
 such was the case?

A. These bills are--at least the ones that I can see here
 --are from Enviro-Sciences, Inc. They reference Essex
 Chem, and I will tell you that every one references
 Essex Chem, except for those that reference Black
 Horse Lane, which is the subject property of this
 lawsuit. Other than that, I can't tell you anything
 about these bills. All I'm doing is reading from the bills
 for you.

Q. Turn to the bills that talk about Black Horse Lane,
 Phase One, I believe.

A. There's a bill dated 10-16-97 that says `Phase One,
 Black Horse Lane.'

Q. All right. To what does that bill refer?

A. I don't understand the question.
       Q. What does Phase One, Black Horse Lane refer to?

       A. I have no idea.

                                35



       Q. Did you ever order a Phase One on Black Horse
        Lane?

       A. I have no idea.

       Q. Do you have an understanding what the phrase
        `Phase One' means?

       A. Yes, I do.

       Q. What is that?

       A. It's a preliminary environmental report which
        basically points out areas of potential environmental
        concern.

       Q. Does it include any invasive testing, as far as you
        know?

       A. Typically, no.

       Q. Do you have any idea why Black Horse Lane would
        have ordered a Phase One at or about the time period
        for which the bill is indicated?

       A. Sitting here today, I have no idea why we did or
        didn't. I suspect if we did, in fact, order one a year ago,
        at that point I had a reason for it, but I don't know
        what that reason would be sitting here today. If, in
        fact, we did order a Phase One. I don't recall that
        either.

App. at 544a. Our review of the remainder of Berger's
 deposition testimony regarding the nature of ESI's
 consulting work for appellants confirms that he failed to
 offer any useful information concerning the factual basis for
 appellants' CERCLA response cost claim relating to the fees
 paid for ESI's services. See generally app. at 544a-49a.

Given the totality of the information in the record, we
 agree with the district court's assessment of the nature of
 ESI's consulting responsibilities to its client during the time
 period for which appellants seek reimbursement. We believe
 that the record requires the conclusion that ESI's work was
 designed to assess, for potential or actual litigation
 purposes, the extent of Essex's remediation efforts and its
 progress in that regard. Accordingly, ESI's consulting fees
 charged in connection with its services are not"response

                                36



costs" that are recoverable in a private cost recovery suit
 pursuant to section 107(a)(4)(B) of CERCLA.12

In any event, assuming arguendo that we were to accept
 appellants' position that ESI's consulting fees were not for
 strictly "litigation costs" in the sense that appellants
 retained ESI's services during the relevant time period
 solely to assist them in preparing to litigate this matter, we
 nevertheless would reach the result we do, primarily for two
 reasons. First, appellants cannot reasonably deny that the
 record demonstrates that ESI's role was limited to
 evaluating Essex's progress on the cleanup effort and to
 reporting its progress (or lack thereof) to appellants. Indeed,
 it is significant that neither appellants nor ESI have played
 any role in the containment and cleanup of the Property. At
 best, it appears that ESI served as appellants'
 environmental advisor in relation to the Property, and that
 appellants simply monitored, for their own benefit, Essex's
 progress in its cleanup efforts. Given that neither ESI nor
 appellants were involved in any capacity in the actual
 environmental cleanup of the Property, it is clear that the
 fees appellants paid in connection with ESI's consulting
 work did not relate to any remedial or response action at
 the Property. As in Redland, the funds for which appellants
 seek reimbursement were not "necessary to the
 containment and clean up of hazardous releases," see
 

(emphasis added), inasmuch as
 appellants simply had no involvement in any remedial or
 removal actions on the Property. Cf. Key Tronic 

, 114 S.Ct. at 1967 (stating that "some lawyers'
 _________________________________________________________________

12. Again, we have not overlooked the circumstance that there are
 references in the record to the fact that Cohen performed some
 undefined environmental work for appellants prior to the dates found on
 the billing invoices in the record. See, e.g. , app. at 546a (Berger
 testifying
 that he had a "general recollection" that Cohen of ESI performed
 "environmental work" for Black Horse Lane Associates prior to February
 14, 1997). Nevertheless, as we previously stated, the invoices submitted
 indicate that the environmental consulting for which appellants seek
 reimbursement in this cost recovery claim began in November 1996 and
 continued intermittently through May 1998. Thus, while it appears that
 ESI performed work for appellants prior to its work for which they seek
 reimbursement, that fact is irrelevant inasmuch as appellants only seek
 reimbursement for those amounts listed on the billing invoices.
                                37



work that is closely tied to the actual cleanup may
 constitute a necessary cost of response in and of itself
 under the terms of S 104(a)(4)(B)," andfinding that the
 component of claim that covers attorneys' work in
 identifying other potentially responsible parties fell within
 that category).

Second, inasmuch as ESI's role was limited to reviewing
 the manner in which Essex was performing its legal
 obligation to remediate the Property and reporting Essex's
 progress to appellants, we think it fair to characterize ESI
 as an "overseer" of Essex's progress on behalf of appellants.
 But our decision in Rohm & Haas precludes appellants
 from recovering such "oversight" costs as"response costs"
 pursuant to section 107(a)(4)(B) of CERCLA. In Rohm &
 Haas, we held that the EPA could not recover from the
 statutory responsible party the cost of its "oversight" of the
 remedial actions performed and paid for by the private
 party. 

. The oversight costs the EPA
 incurred there included "direct costs (i.e. , hiring contractors
 to provide sampling support and field investigation) and
 indirect costs (i.e., travel costs, payroll, hiring contractors to
 review [defendants'] work"). 

n.4 (emphasis
 added). We stated that the "key issue" was whether
 CERCLA's definition of "removal" should be read "to
 encompass the government's activity in overseeing a
 removal or remedial action paid for and conducted by
 private parties." 

In reaching our conclusion, we looked to the definition of
 "removal" found in section 101(23) of CERCLA, and noted
 that "[n]owhere in the definition of removal is there an
 explicit reference to oversight of activities conducted and
 paid for by a private party." 

Moreover, we
 reviewed the five categories in the definition of removal,
 with particular focus on the third of the five, i.e., "such
 actions as may be necessary to monitor, assess, and
 evaluate the release or threat of release of hazardous
 substances," as the EPA argued that it was that aspect of
 the definition that applied to permit recovery of the
 oversight costs it sought. In analyzing this language, we
 rejected the EPA's argument that it supported the relief
 requested, explaining our holding as follows:

                                38



       Examined in a vacuum, this language could be
       understood to encompass at least some oversight of the
         activities of a private party, particularly private
         activities focusing on assessment of the risk. On the
         other hand, it is at least as plausible to read this
         language as referring only to actual monitoring of a
         release or threat of release rather than oversight of the
         monitoring and assessment activities of others. This
         latter reading would be consistent with an
         understanding of the definition that distinguishes at all
         stages--assessment, response formulation, and
         execution--between actions taken to define the scope
         of the risk created by a release or threatened release
         and actions taken to evaluate the performance of
         others to determine whether they are meeting their
         legal obligations. We believe a reading of the statutory
         definition that embraces this distinction is
         linguistically the more plausible one.

 

We further concluded that"[a]ll things
  considered, we cannot say that clause [3] of the removal
  definition is sufficient to constitute the clear statement of
  intent required by [National Cable Television Ass'n, Inc. v.
  United States, 

, 342, 

, 1149-50
  (1974) ("NCTA")]."13 

  _________________________________________________________________

 13. Obviously, we premised our result in Rohm & Haas on our
  application of the NCTA doctrine, which we believed required the EPA to
  demonstrate "a clear statement of congressional intent" for it to
recover
  the oversight costs as response costs. 

, 1276. But our
  application of the NCTA doctrine does not undermine our reliance on our
  statutory interpretation analysis in Rohm & Haas as germane here.
  Plainly put, we reach our result because the language of the relevant
  statutory provisions requires that we do so. Indeed, the only plausible
  basis for finding that appellants' oversight actions through ESI are
  "removal" activities is if they fall within the third category of
"removal"
  actions, i.e., actions "necessary to monitor, assess, and evaluate the
  release or threat of release of hazardous substances." But as we
  explained in Rohm & Haas, this language plainly refers to actual
  monitoring, assessment or evaluation "of a release or a threat of
release."
  

(emphasis added). Here, ESI's oversight activities, to the
  extent that we are willing for the sake of argument to deem them
  monitoring, assessment or evaluation activities, were not related to the
  release or threat of release of hazardous substances. Rather, the object
  of ESI's reports, insofar as we can tell from the record, was to analyze
  Essex's removal activities, including its cleanup, disposal, monitoring
  and assessment actions, as described in its quarterly reports to the
DEP.

                                 39
Our interpretation of the removal definition as excluding
 the sort of "oversight" costs that the EPA sought in Rohm &
 Haas compels the conclusion that appellants cannot
 recover the funds paid to ESI for its consultant work, even
 though appellants are private entities rather than a
 governmental agency. As in Rohm & Haas, appellants seek
 reimbursement from Essex, the responsible party, for costs
 appellants incurred in monitoring the responsible party's
 compliance with its legal obligations. See Rohm & 

n.23 ("The oversight costs here held to be
 non-recoverable are incurred at a different level of
 supervision. They are the costs of overseeing the
 performance of the entity that has assumed responsibility
 for the cleanup."). Indeed, there is no dispute in this case
 that Essex is bound contractually to complete remediation
 and detoxification of the Property, and that appellants have
 not assisted Essex in meeting its statutory and contractual
 obligations. In this sense, then, the district court was
 correct in its observation that the costs for which
 appellants seek reimbursement were not incurred as a
 result of appellants' actions in cleaning up the Property.

Obviously then, inasmuch as our holding in Rohm &
 Haas precludes the EPA from seeking reimbursement for
 "oversight" costs incurred in overseeing the performance of
 a private entity where a private party has assumed
 responsibility for the cleanup, an analysis of the scope of
 the "removal" definition necessarily requires us to reach the
 same result in a situation where a private party seeks
 reimbursement for overseeing another private party's legal
 obligation to cleanup a property. In short, we are satisfied
 that Congress did not intend section 107(a)(4)(B) to provide
 a private party with a cause of action against a responsible
 party for reimbursement of the party's expenses in
 retaining an environmental consultant for oversight
 purposes without direct involvement in the responsible
 party's remediation and detoxification efforts.

In sum, we are convinced that the district court correctly
 determined that appellants could not recover, pursuant to
 section 107(a)(4)(B) of CERCLA, the monies they expended
 in consulting fees in connection with ESI's services during
 the relevant time period. We will affirm the district court's

                                40



dismissal of appellants' private cost recovery action pleaded
 in count III of the amended complaint.14

B. District Court's Final Order of
 December 16, 1999
 Appellants next contend that the district court erred in
  affirming the magistrate judge's letter opinion and order
  entered June 30, 1999, which granted appellees' motion for
  discovery sanctions against appellants pursuant to Rule
  37(b) and (d).15 As we previously mentioned, the magistrate
  _________________________________________________________________

 14. We also will dismiss appellants' Spill Act claim under Count IV. See
  

. Moreover, as we previously mentioned, count V of the
  complaint pleaded a claim for "damages" stemming from appellees'
  alleged "acts, omissions and breaches." App. at 66a. The district court
  dismissed this count, stating that "[b]ecause plaintiffs have failed to
  adduce sufficient evidence in support of their breach of contract
claims,
  they cannot recover the damages outlined in Count Five of the
  Complaint." 

Inasmuch as we agree with the district court's
  dismissal of counts I through IV of the complaint, we will affirm the
  district court's dismissal of count V, as there is no independent
  substantive basis for appellants' claim for relief.

 15. Appellants also maintain that the district court erred in dismissing
  appellees' counterclaim without prejudice. The counterclaim sought a
  declaratory judgment that remediation of the Property under the
  Agreement included use of "engineering and institutional controls," and
  an order requiring appellants to consent to them. App. at 80a-81a.
  Appellees explain that their counterclaim actually sought an order
  compelling appellants to consent to their use of a Classification
  Exception Area ("CEA"), which is "a remediation by passive rather than
  active means." App. at 845a.

 As we previously mentioned, appellants initially sought partial
   summary judgment to dismiss the counterclaim with prejudice, but the
   district court denied their motion in its order of August 10, 1999,
   reasoning that appellants failed to demonstrate that they were entitled
to
   judgment as a matter of law. The court observed that appellants failed
   to cite any authority in support of the motion, and"merely allege[d]
that
   `Plaintiffs do not and need not consent' to the engineering and
   institutional controls." App. at 16. After the court dismissed the
   amended complaint in its entirety, appellees moved for summary
   judgment on the counterclaim. After oral argument on appellees' motion,
   the court entered an order dismissing the counterclaim without

                                 41



 judge agreed with appellees' argument that Berger's
  conduct warranted a sanction in the form of precluding
  appellants from asserting a position and introducing
  evidence contrary to the position Berger asserted during his
  deposition. In addition, the magistrate judge concluded that
  Berger's lack of preparedness at his deposition justified the
  imposition of monetary sanctions pursuant to Rule 37(d) in
  the form of costs and attorney's fees associated with taking
  the deposition and bringing the sanctions motion before the
  court. App. at 22a. The magistrate judge clearly set forth
  the factual and legal basis for his ruling, relying primarily
  on the Court of Appeals for the Fifth Circuit's decision in
  Resolution Trust Corp. v. Southern Union Co., 

  (5th Cir. 1993) ("Southern Union"):

        Here, Berger was not completely prepared on any
         occasion for which he sat for a deposition. Further, his
  _________________________________________________________________

 prejudice, because, in its view, there was no current case or controversy
  with respect to the subject matter of the counterclaim.

 We have reviewed the entire record, and we agree with the district
  court's disposition of the counterclaim. It appears that the appellees
  instituted the counterclaim in response to certain statements by
  appellants to the effect that they would not consent to the use of a CEA
  to remediate the Property, and would oppose any application that Essex
  made to the DEP for that purpose. Appellees' br. at 14. Nevertheless,
the
  court's dismissal of the counterclaim was appropriate because appellees
  do not dispute that Essex has not applied for a CEA, and presently
  cannot do so. Accordingly, appellants' threats to the effect that they
  would not consent to the use of a CEA do not present a controversy ripe
  for resolution, and the court did not err in dismissing the counterclaim
  without prejudice for lack of subject matter jurisdiction. See, e.g.,
  Philadelphia Fed'n of Teachers v. Ridge, 

, 323 (3d Cir.
  1998) (discussing and applying ripeness doctrine in context of claims
  seeking declaratory relief, and noting that "[t]he function of the
  ripeness
  doctrine is to prevent federal courts, `through avoidance of premature
  adjudication, from entangling themselves in abstract disagreements.' ")
  (quoting Abbot Labs v. Gardner, 

, 148, 

  (1967), overruled on other grounds, Califano v. Sanders, 

,
  105, 

(1977)); The Presbytery of N.J. v. 

(addressing ripeness issue in context of suit seeking declaratory
  relief and stating that "[i]t is the plaintiff 's responsibility to
allege
  facts
  that invoke the court's jurisdiction").

                                 42



        lack of preparation cannot be a mere oversight but is,
         instead, a clear demonstration of bad faith. This is
         obvious from Berger's repeated denial of any knowledge
         of his status as a 30(b)(6) witness despite being present
         at the deposition and being asked each and every time
       he appeared if he had knowledge of his status. Further,
       Berger, as did the plaintiffs' witness in Resolution Trust
       Corp., even denied knowledge of documents which he
       himself had signed, claiming that he had no
       recollection of such documents despite acknowledging
       that he normally did not sign anything that he did not
       read first. These infractions would not be so
       detrimental if Berger were no so consistent with his
       apparent incompetence and lack of cooperation. Had
       he taken the time to prepare in the slightest as Rule
       30(b)(6) requires, he might have been fully prepared for
       at least one deposition. Additionally, Berger's actions
       are magnified by his status as a member of the Bar.

App. at 21a.

In affirming the magistrate judge's order, the district
 court provided its reasons on the record:

       I read the record. It is appalling. It is appalling.

       [Berger] did nothing except show his face only under
       the threat of court orders. When he showed up, he
       knew he was a 30(b)(6) witness and, notwithstanding
       the fact that he knew he was a 30(b)(6) witness, he
       refused to answer questions in an intelligent way. He
       refused to prepare, as you are required to prepare
       under 30(b)(6), to intelligently answer questions and
       just literally thumbed his nose at the defendants and,
       frankly, at the Court.

       . . . .

       I'm satisfied, based upon my review of the record--and
        I defy anyone to look at the record here which was
        created by Mr. Berger--that the actions taken by[the
        magistrate judge] were well within his discretion and
        do not constitute either an abuse of discretion or are
        they contrary to law or shocking to the conscience of
        the Court.

                                43



       One, in order to come to that conclusion, one must
       live in the shoes of [the magistrate judge] in trying to
       conduct orderly discovery in this matter.

       One must review meticulously the record of
       noncompliance by Mr. Berger in this matter.

       [The magistrate judge] did not issue this opinion
       lightly. [The magistrate judge] was fully cognizant of
         the totality of the facts surrounding this matter, which
         border upon almost conscious disregard of the Court
         and the court rules. . . .

        Affirmed.

 App. at 836a, 843a-44a.

 Appellants make two arguments in support of their
  request to vacate the monetary sanctions order. 16 They first
  claim that the district court abused its discretion in
  affirming the magistrate judge's monetary sanctions
  because the court misunderstood the requirements for

  imposing sanctions pursuant to Rule 37(d). They assert
  that Rule 37 required as a prerequisite to imposing a
  monetary sanction that the court first issue an order
  compelling appellants to supply the requested discovery
  responses, and then find that they failed to do so. See
  Reply Br. at 29. They further claim that pursuant to Rule
  37(d), "a party making a motion based upon an alleged
  violation of Rule 37(d) must certify that the movant has in
  good faith conferred or attempted to confer with the party
  failing to answer or respond in an effort to obtain such
  answer or response without court action," but that there
  was no such "good faith" effort by appellees to resolve the
  _________________________________________________________________

 16. Appellants also claim that the court abused its discretion in
granting
  appellees' motion pursuant to Rule 37(b) to the extent that it precluded
  appellants from asserting at trial a position which differs from
Berger's
  testimony. Given that we are affirming the summary judgment
  dismissing the amended complaint in its entirety, we need not address
  this argument. Also, appellants apparently contend that the court erred
  in awarding a monetary sanction pursuant to Rule 37(b)(2). This
  argument is without merit, as it is clear to us that the court awarded
  attorney's fees and costs pursuant to subdivision (d) of Rule 37 rather
  than subdivision (b). See App. at 22a (citing Rule 37(d)).

                                 44



 dispute without court action. Reply Br. at 30 (internal
  quotation marks omitted).

 Finally, they rely on the fact that Rule 37(d) states that
  sanctions may be imposed when a party, inter alia, "fails
  . . . to appear before the officer who is to take the
  deposition, after being served with a proper notice." Here,
  they argue that we should apply the "fails to appear"
  language literally, and that sanctions were inappropriate in
     this case because Berger appeared for his deposition after
     the magistrate judge's October 15, 1998 order and"testified
     under oath for more than seventeen hours." Br. at 59-60. In
     support of their literal reading of Rule 37(d), they rely
     primarily on the Court of Appeals for the First Circuit's
     opinion in R.W. International Corp. v. Welsh Foods, Inc., 

(1st Cir. 1991), which stated that "Rule 37(d)
     sanctions apply only when a deponent `literally fails to
     show up for a deposition session.' " 

n.2 (quoting
     Salahuddin v. Harris, 

, 1131 (2d Cir. 1986)).

 Their second argument is based on their interpretation of
  Berger's behavior during his deposition. They claim that
  even if we agree with the magistrate judge's finding that
  Rule 37(d) could support the imposition of sanctions when
  a Rule 30(b)(6) witness provides inadequate and evasive
  answers, the record demonstrates that Berger's deposition
  did not present a situation warranting sanctions. They
  claim that "[a] fair examination of the transcript of Mr.
  Berger's 570-page deposition confirms that Mr. Berger
  testified fully and in good faith in response to Defendants'
  questioning." In any event, they maintain that"any
  `violation' of Rule 30(b)(6) which might be said to have
  existed was minimal, and indeed, paled in comparison with
  the extraordinarily broad discovery obtained by Defendants
  in this matter." Br. at 63.

 We are not persuaded by either contention. Beginning
  with appellants' interpretation of the language of Rule 37(d),17
  _________________________________________________________________

 17. Rule 37(d) provides:

          (d) Failure of Party to Attend at Own Deposition or Serve Answers
     to
           Interrogatories or Respond to Request for Inspection. If a party
or
     an
            officer, director, or managing agent of a party or a person
     designated

                                   45



 they simply are incorrect that the magistrate judge
  committed an error of law in awarding a monetary sanction
  to appellees. Initially, we point out that unlike subdivision
  (b) of Rule 37, on its face subdivision (d) does not require
  the court, prior to imposing sanctions, to have issued an
  order compelling discovery. See Al Barnett & Son, Inc. v.
  Outboard Marine Corp., 

, 35 (3d Cir. 1979) ("[A]
  direct order by the Court, as Rule 37(a) and (b) requires, is
  not a necessary predicate to imposing penalties under Rule
    37(d)."), repudiated on other grounds, Alexander v. Gino's
    Inc., 

(3d Cir. 1980); compare Fed. R. Civ. P.
    37(b)(2) ("If a party . . . or a person designated under Rule
    30(b)(6) . . . fails to obey an order to provide or permit
    discovery, including an order made under subdivision (a) of
    this rule . . . .") with Fed. R. Civ. P. 37(d) (stating that if the
    party fails, inter alia, to appear for a deposition, "the court
    . . . may make such orders in regard to the failure as are
    just"). Moreover, while appellants claim that subdivision (d)
    _________________________________________________________________

            under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails
(
    1) to
            appear before the officer who is to take the deposition, after
    being
          served with a proper notice, or (2) to serve answers or
objections
   to
          interrogatories submitted under Rule 33, after proper service of
   the
          interrogatories, or (3) to serve a written response to a request
   for
          inspection submitted under Rule 34, after proper service of the
          request, the court in which the action is pending on motion may
          make such orders in regard to the failure as are just, and among
          others it may take any action authorized under subparagraphs (A),
          (B), and (C) of subdivision (b)(2) of this rule. Any motion
   specifying
          a failure under clause (2) or (3) of this subdivision shall
include
   a
          certification that the movant has in good faith conferred or
          attempted to confer with the party failing to answer or respond
in
   an
          effort to obtain such answer or response without court action. In
          lieu of any order or in addition thereto, the court shall require
   the
          party failing to act or the attorney advising that party or both
to
   pay
          the reasonable expenses, including attorney's fees, caused by the
          failure unless the court finds that the failure was substantially
          justified or that other circumstances make an award of expenses
          unjust.

           The failure to act described in this subdivision may not be
           excused on the ground that the discovery sought is objectionable
           unless the party failing to act has a pending motion for a
    protective
           order as provided by Rule 26(c).

                                    46
requires the party seeking sanctions to certify in their
 motion papers that they conferred or attempted to confer in
 good faith with the party failing to answer or respond in an
 effort to avoid court intervention, subdivision (d) explicitly
 only requires such a certification where the motion specifies
 a failure "under clause (2) or (3) of this subdivision." Fed.
 R. Civ. P. 37(d). Here, appellees made the motion for
 sanctions based on clause (1) of subdivision (d), which
 deals with a party's failure "(1) to appear before the officer
 who is to take the deposition." 

while we recognize that the court's statement
 in Welsh Foods supports appellants' interpretation of the
 language of Rule 37(d)--namely that it requires an actual
 "no show" to satisfy the "fails to appear" requirement in
 subdivision (1)--they apparently have overlooked the
 circumstance that the magistrate judge's decision relied on
 Southern Union, 

. Importantly, in Southern
 Union the Court of Appeals for the Fifth Circuit rejected a
 literal interpretation of Rule 37(d) in situations where
 the uncooperative deponent is a party's Rule 30(b)(6)
 designated witness.

In Southern Union the defendant Southern Union Co.
 ("Southern Union") served notice on the RTC that it
 intended to depose it pursuant to Rule 30(b)(6), and set
 forth with specificity ten discrete topics with which the
 deponent was to be familiar. After the RTC designated two
 individuals as Rule 30(b)(6) deponents, Southern Union's
 representatives traveled from Washington, D.C. to Dallas,
 Texas, to conduct the depositions. Neither representative,
 however, possessed any knowledge relevant to the matters
 designated in the Rule 30(b)(6) notice. Consequently,
 Southern Union moved for sanctions, and the district court
 granted the motion, awarding costs and fees incurred in
 deposing the RTC's two witnesses and in identifying
 ultimately the proper deponent with knowledge of the
 relevant facts. See 

Relying upon the Court of Appeals for the Second
 Circuit's opinion in Salahuddin, a case cited subsequently
 in Welsh Foods, the RTC contended that sanctions
 pursuant to Rule 37(d) were not appropriate because both
 witnesses literally appeared for their depositions, albeit that

                                47



neither was helpful or forthcoming with pertinent
 information. The Court of Appeals for the Fifth Circuit
 rejected that argument, reasoning:

       Were we here faced with a case involving the deposition
        of a natural person we might be inclined to agree with
        the reading of Rule 37(d) by our Second Circuit
        colleagues [in Salahuddin]. The deposition of a
        corporation, however, poses a different problem, as
        reflected by Rule 30(b)(6). Rule 30(b)(6) streamlines the
        discovery process. It places the burden of identifying
        responsive witnesses for a corporation on the
        corporation. Obviously, this presents a potential for
        abuse which is not extant where the party noticing the
        deposition specifies the deponent. When a corporation
        or association designates a person to testify on its
        behalf, the corporation appears vicariously through
        that agent. If that agent is not knowledgeable about
        relevant facts, and the principal has failed to designate
        an available, knowledgeable, and readily identifiable
        witness, then the appearance is, for all practical
        purposes, no appearance at all.

       In the instant case, RTC possessed documents that
       clearly identified [the eventual deponent] as having
       personal knowledge of the subject of the deposition.
       RTC did not furnish those documents or designate
       [that deponent] until after it had designated Perry and
       Wieting, obliged Southern Union's counsel to travel
       from Washington, D.C. to Dallas for a useless
       deposition, and been served with Southern Union's
       motion for sanctions. The finding that RTC did not
       make a meaningful effort to acquit its duty to designate
       an appropriate witness is manifest. The district court
       did not abuse its discretion in awarding fees and costs
       under Rule 37(d).

Following the reasoning in Southern Union, several courts
 similarly have read the phrase "fails . . . to appear" in Rule
 37(d) pragmatically in light of the purposes of Rule 30(b)(6)
 and the parties' obligations thereunder. See, e.g., Starlight
 Int'l Inc. v. Herlihy, 

, 639 (D. Kan. 1999)

                               48



("Corporations, partnerships, and joint ventures have a
 duty to make a conscientious, good-faith effort to designate
 knowledgeable persons for Rule 30(b)(6) depositions and to
 prepare them to fully and unevasively answer questions
 about the designated subject matter."); The Bank of New
 York v. Meridien Biao Bank Tanzania Ltd., 

,
 151 (S.D.N.Y. 1997) (" `Producing an unprepared witness is
 tantamount to a failure to appear.' ") (quoting United States
 v. Taylor, 

, 363 (M.D.N.C. 1996)); 

("[I]nadequate preparation of a Rule
 30(b)(6) designee can be sanctioned based on the lack of
 good faith, prejudice to the opposing side, and disruption of
 the proceedings."); Zappia Middle East Constr. Co. v. The
 Emirate of Abu Dhabi, No. 94-1942, 

, at *8
 (S.D.N.Y. Nov. 17, 1995) (agreeing with rule announced in
 Southern Union that providing a wholly inadequate witness
 may amount to non-appearance under Rule 30(b)(6), but
 finding that sanctions were not warranted in the
 circumstances of that case); Municipal Subdistrict, Northern
 Colo. Water Conservancy District v. OXY USA, Inc. , 

, 710 (Colo. 1999) (en banc) (following Southern 

, and holding that trial court may issue
 sanctions for failure to appear under Col. R. Civ. P. 37(d)--
 the state's analogue to Fed. R. Civ. P. 37(d)--when a
 corporation designates a deponent who appears but is
 unable to answer all the questions specified in the Col. R.
 Civ. P. 30(b)(6) notice); see also, e.g., Turner v. Hudson
 Transit Lines, Inc., 

, 78-79 (S.D.N.Y. 1991)
 ("[A] party that fails to provide witnesses knowledgeable in
 the areas requested in a Rule 30(b)(6) notice is likewise
 subject to sanctions."); Thomas v. Hoffman-LaRoche, Inc.,
 

, 525 (N.D. Miss. 1989) ("Sanctions are
 appropriate when a party fails to comply with a request
 under Rule 30(b)(6) to provide a knowledgeable deponent to
 testify on behalf of the organization."); see generally Boland
 Marine & Mfg. Co. v. M/V Bright Field, No. 97-3097, 

, at *3 (E.D. La. May 3, 1999) (acknowledging
 the rule announced in Southern Union butfinding that
 deponent was prepared adequately and that sanctions were
 not warranted).

We agree with the distinction the Court of Appeals drew

                                49



in Southern Union, and find its analysis persuasive.18 In
 reality if a Rule 30(b)(6) witness is unable to give useful
 information he is no more present for the deposition than
 would be a deponent who physically appears for the
 deposition but sleeps through it. Indeed, we believe that the
 purpose behind Rule 30(b)(6) undoubtedly is frustrated in
 the situation in which a corporate party produces a witness
 who is unable and/or unwilling to provide the necessary
 factual information on the entity's behalf. See generally
 Fed. R. Civ. P. 30 advisory committee's notes (stating that
 the procedure outlined in subdivision (b)(6) should be
 viewed as "an added facility for discovery" and would "curb
 the `bandying' by which officers or managing agents of a
 corporation are deposed in turn but each disclaims
 knowledge" of relevant facts). "For courts to permit litigants
 to disregard the responsibilities that attend the conduct of
 litigation would be tantamount to `encouraging dilatory
 tactics.' " Al Barnett & Son, 

(quoting
 Cine Forty-Second Street Theatre v. Allied Artists Pictures
 Corp., 

, 1068 (2d Cir. 1979)). Thus, we hold
 that when a witness is designated by a corporate party to
 speak on its behalf pursuant to Rule 30(b)(6), "[p]roducing
 an unprepared witness is tantamount to a failure to
 appear" that is sanctionable under Rule 37(d). See 

. Accordingly, we conclude that the
 district court did not commit an error of law in affirming
 the magistrate judge's sanctions order entered pursuant to
 Rule 37(d), as the magistrate correctly applied the Court of
 Appeals for the Fifth Circuit's construction, which we
 _________________________________________________________________

18. We point out that the cases appellants cite in addition to Welsh
 Foods in further support of their argument are equally unhelpful, as
 none of them involved a situation in which the uncooperative and/or
 unknowledgeable witness was a corporate entity's Rule 30(b)(6) designee.
 See, e.g., Estrada v. Rowland, 

, 405-06 (9th Cir. 1995)
 (deponent was plaintiff pursuing action pursuant to 42 U.S.C. S 1983
 against prison officials); Aziz v. Wright, 

, 588-89 (8th Cir.
 1994) (same); 

(same); Stevens v.
 Greyhound Lines, Inc., 

, 1228 (7th Cir. 1983) (deponent
 was plaintiff in employment discrimination suit); SEC v. Research
 Automation Corp., 

, 587 (2d Cir. 1975) (deponent was
 individual defendant and president of corporate defendant).

                                50



approve, of the phrase "fails . . . to appear" in Southern
 Union.

We reject appellants' final contention that Berger's
 responses during his deposition did not support the district
 court's finding that he failed to cooperate with appellees'
 attorneys, and that his conduct was tantamount to a
 failure to appear that warranted sanctions under Rule
 37(d). To the contrary, our review of Berger's deposition
 testimony in its entirety confirms the observations of both
 the magistrate judge and the district court on this point.
 Indeed, throughout his lengthy deposition, Berger failed to
 offer meaningful testimony about most, if not all, of the
 items specified in the notice of deposition. While we need
 not recite every instance in which Berger's testimony was
 incomplete and unhelpful on the specified topics, we believe
 that two examples of his uncooperative attitude and his
 flagrant disregard for his obligation as a Rule 30(b)(6)
 witness amply illustrate our point.
First, when Berger was asked about the Agreement he
 signed between USLR and Essex, he stated that he had no
 recollection of (1) seeing or signing the Agreement, (2)
 negotiating the Agreement (or who participated in its
 negotiation), (3) drafting the various provisions in the
 Agreement (or who participated in its drafting), or (4) the
 circumstances surrounding the purchase of the Property,
 i.e., if he attended the closing and where it occurred, even
 though he admitted that he was personally involved in the
 purchase of the Property and "probably negotiated the
 contract." See app. at 525a. Second, when asked about any
 and all cleanup costs appellants' incurred as a result of the
 contamination on the Property, Berger testified that he did
 not know: (1) whether appellants spent any money to
 cleanup hazardous waste; (2) whether appellants performed
 any environmental evaluation or investigation on the
 Property, whether they incurred costs in doing so, and
 whether there are any records that such tests were
 performed; (3) whether appellants hired ESI to perform
 consulting services for the Property, and if so, the dates
 and purposes for which appellants retained ESI; (4)
 whether ESI's billing statements in the record reflected
 work performed on the Property or other unrelated services;

                                51



and (5) whether appellants performed any removal or
 remedial actions on the Property. App. at 521a, 523-25a,
 544a-49a.

Obviously, as appellants' Rule 30(b)(6) witness, Berger
 should have been prepared to discuss these and other
 topics designated in the notice of deposition. Instead, he
 divulged as little information as possible in every area that
 appellees identified. Moreover, Berger's uncooperative
 attitude is demonstrated further by statements in which he
 claimed that he was unaware that he was appellants'
 designated Rule 30(b)(6) representative, did not know what
 the phrase "Rule 30(b)(6) representative" meant, and was
 not familiar with Rule 30(b)(6) or what it required him to
 do. App. at 513a-14a, 527a, 544a. He also admitted at one
 point that he did not recall whether he reviewed the notice
 of deposition prior to the date of the deposition, app. at
 527a, and later stated clearly that he had not bothered to
 read it at all. App. at 610. Simply put, we find his professed
 ignorance on these points particularly unconvincing given
 that he obtained undergraduate and law degrees from
 prestigious universities and has been licensed to practice
 law since "either [19]65 or [19]66." App. at 508a.

In any event, we believe that the magistrate judge's
 finding that Berger engaged in discovery abuses plainly is
 justified on this record. The magistrate judge had ample
 evidence of Berger's failure to cooperate, which in turn
 rendered his deposition a virtual non-event. Accordingly, we
 will affirm the monetary sanctions ordered pursuant to
 Rule 37(d).

IV. CONCLUSION

For the foregoing reasons, the district court's orders of
 August 10, 1999, and December 16, 1999, will be affirmed.

A True Copy:
 Teste:

       Clerk of the United States Court of Appeals
        for the Third Circuit

                                52