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Affholter v. Franklin County Water District

November 12, 2008


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge


(Docs. 135, 141, 142, 143, 147, 150, 196)


This case concerns the alleged discharge of pollutants from various public and private wastewater treatment, refuse, and disposal facilities, irrigation canals, and other facilities in Merced County. Before the court for decision is Defendant City of Merced's ("City") Motion to Dismiss a number of Plaintiffs from the Fourth Amended Complaint for failing to comply with the notice requirements of the Clean Water Act ("CWA") and the Resource Recovery and Conservation Act ("RCRA").

Most, but not all, of the other Defendants filed similar motions to dismiss, incorporating by reference the City's legal arguments. (See Doc. 142 (Merced Irrigation District ("MID"); Merced Irrigation District/Merced Drainage District No. 1 ("MDD 1")); Doc. 150 (the County of Merced ("County")); Doc. 147 (Franklin County Water District ("FCWD")); Doc. 141 (Merck & Co. Inc., Amsted Industries, Inc., and Baltimore Aircoil Company Inc.); Doc. 143 (Meadowbrook Water Company of Merced, Inc.); and Doc. 196 (Track Four, Inc).) These Defendants assert the same ground for dismissal as the City, but identify different lists of Plaintiffs who purportedly failed to timely file the required notices with each Defendant.*fn1


It is not practical or necessary to review the timing and content of the various notices and claims received by each defendant, as the parties appear not to dispute when various groups of Plaintiffs provided notice of their claims in this case. By way of example, Plaintiffs' counsel sent the City its initial notice of intent to file suit under the CWA on January 4, 2004, attaching a list of individuals on whose behalf the notice was sent. Plaintiffs filed their initial complaint on March 8, 2007. Subsequently, on March 22, 2007, Plaintiffs filed a supplemental notice of intent to file suit under the CWA and RCRA. Plaintiffs filed a series of amended complaints, culminating in the filling of the Fourth Amended Complaint ("FAC") on July 7, 2008. However, certain of the individual Plaintiffs named in the FAC were not included in the original CWA/RCRA notices. Amended notices identifying the new Plaintiffs were served over the period from August 29 through September 22, 2008.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. See Fed. R. Civ. Pr. 12(b)(1). Federal courts are limited in jurisdiction; it is presumed that a case lies outside the jurisdiction of the federal courts unless Plaintiff proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221 (9th Cir. 1993); Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). The party asserting jurisdiction has the burden of proof when a 12(b)(1) motion is filed. See Sopack v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995); Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). "When considering a motion to dismiss pursuant to 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989). Defendant may "rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.) (citations omitted), cert. denied, 493 U.S. 993 (1989).

Lack of subject matter jurisdiction can be raised at any time by any party. Fed. R. Civ. Pro. 12(h); Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951).


A. CWA/RCRA Notice Requirement

Defendants argue that certain Plaintiffs failed to comply with the notice requirements of the CWA and/or RCRA.

The CWA provides a private right of action for claims "against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation...." 33 U.S.C. § 1365(a)(1).

The CWA's notice provision provides that "[n]o action may be commenced--(1) under subsection (a)(1) of this section--(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator [of the Environmental Protection Agency ("EPA")], (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order...." 33 U.S.C. § 1365(b). The implementing regulations explain that a notice regarding an alleged violation of an effluent standard, limitation, or order "shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice." 40 C.F.R. § 135.3.

RCRA provides a similar private right of action for violations of that statute:

(a) In general

Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf--

(1)(A) against any person ... who is alleged to be condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or in ...

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