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Baykeeper v. West Bay Sanitary District

January 11, 2011


The opinion of the court was delivered by: Edward M. Chen United States Magistrate Judge


(Docket Nos. 39, 43, 44, and 59)

Before the Court is Defendant West Bay Sanitary District's ("Defendant" or "West Bay")

Rule 12(c) Motion for Judgment on the Pleadings/Rule 56 Motion for Partial Summary Judgment. Also before the Court are Defendant's Motion for a Protective Order and the parties' Motions for Judicial Notice. Defendant seeks judgment on portions of the Clean Water Act claims raised in Count I as well as the state law claims asserted in Count III. Defendant alternatively requests that the decline to exercise supplemental jurisdiction over the state law claims raised in Count III.

On December 1, 2010, the Court expedited briefing and advanced the hearing date for the pending motion based on Defendant's assertion that a favorable ruling would obviate the need for a considerable amount of discovery. After considering the parties' briefs, the arguments raised at the December 22, 2010 hearing, and the entire record of this case, the Court will DENY each party's Motion for Judicial Notice, GRANT-IN-PART and DENY-IN-PART Defendant's Rule 12(c)/Rule 56 motion, and DENY Defendant's Motion for a Protective Order for the reasons set forth herein.


Plaintiff San Francisco Baykeeper is a non-profit corporation aiming to "protect and enhance the water quality of the San Francisco Bay-Delta Estuary and its tributaries . . . ." Compl. ¶ 12. Its members use the San Francisco Bay, as well as nearby lakes and creeks, "to sail, swim, windsurf, picnic, hike, and/or for aesthetic enjoyment." Compl. ¶ 14. Defendant

West Bay Sanitary District ("Defendant" or "West Bay") is the political entity that owns and operates the sewage collection system (the "Collection System") serving some 55,000 people in the City of Menlo Park and neighboring cities, towns, and counties. Compl. & Answer ¶¶ 21-23. The Collection System is made up of pipes and manmade conveyances amounting to some 210 miles of sewer line. Compl. & Answer ¶¶ 24-25. The Collection System conveys sewage to the Un Menlo Park Pumping Station and from there to the South Bayside System Authority Wastewater Treatment Plant, which is jointly owned and operated by the District and three other municipalities. Compl. & Answer ¶¶ 28, 29. Plaintiff also alleges that the Collection System runs through watersheds (including creeks, lakes, and channels) that drain into the Bay and its tributaries. Compl. ¶ 43. The Collection System has overflowed and discharged raw or partially treated sewage at least 162 times since September 28, 2004. Compl. ¶¶ 34, 101; Answer ¶ 34. Plaintiff alleges that many of these sanitary sewer overflows ("SSOs") flow into surface waters and Municipal Separate Storm Sewer Systems ("MS4s") owned and operated not by West Bay but by nearby municipalities. Compl. ¶ 35. According to Plaintiff, these MS4s discharge into San Francisco Bay and its tributaries. Compl. ¶ 44.

Plaintiff alleges that SSOs from the Collection System result in the discharge of pollutants into "waters of the United States" directly, as well as indirectly via the MS4s. Count I asserts that Defendant is therefore in violation of Clean Water Act § 301(a) for discharging pollutants from a "point source" into waters of the United States without a NPDES permit. Count III alleges West Bay violated several municipal ordinances and codes; such alleged violations do not depend on whether pollutants reached waters of the United States. Plaintiff seeks an injunction enjoining the District from discharging SSOs without a National Pollutant Discharge Elimination System ("NPDES") permit, a writ of mandate directing the District to implement a program ensuring compliance with each statute and local ordinance cited in the Complaint, and an award of civil penalties and costs.

A. Rule 12(c)

In a motion for judgment on the pleadings under Rule 12(c), as with Rule 12(b)(6), the question is whether the complaint contains sufficient factual allegations which, taken as true, state a facially plausible claim for relief. See, e.g., Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (stating that, "[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face") (internal quotation marks omitted); Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (noting that "[a] motion for judgment on the pleadings is treated much like a Rule 12(b)(6) motion to dismiss . . . to survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true") (internal quotation marks omitted).


B. Rule 56

Under Federal Rule of Civil Procedure 56, summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of fact is genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252.

At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in the non-movant's favor. See id. at 255. Where the nonmoving party has the ultimate burden of proof, the party moving for summary judgment may prevail on such a motion simply by pointing to the nonmoving party's failure "to make a showing sufficient to establish the ...

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