ORDER GRANTING THE DISTRICT ATTORNEY DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT
This matter comes before the court on Defendants Michael 6 Ramsey in his official capacity, Harold Thomas in his individual 7 capacity, and George Barber in his individual capacity's 8 (collectively "Defendants") Motion to Dismiss First Amended 9 Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(1) and (6) (Doc. #31).*fn1 Plaintiffs Chico Scrap Metal, Inc., and George W. Scott, Sr., individually and as trustee of the George W. Scott, Sr. Revocable Inter Vivos Trust Dated September 25, 1995 (collectively "Plaintiffs") oppose the motion ("Opposition") (Doc. #47). Defendants filed a reply to Plaintiffs' opposition (Doc. #50).
I. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
This action arises out of state enforcement of hazardous waste laws against Plaintiffs at four operating scrap metal facilities. Defendants, all associated with the Butte County District Attorney's Office, initiated an investigation and then allegedly acted with the Department of Toxic Substances Control ("DTSC"), members of which are also defendants in this action, to impose clean-up requirements on Plaintiffs' four commercial properties. Plaintiffs bring three causes of action against Defendants in their First Amended Complaint ("FAC") (Doc. #17). They seek (1) injunctive relief and (2) damages pursuant to 42 U.S.C. § 1983.
Plaintiffs also seek (3) a declaration of the Defendants' legal 2 right to continue enforcing existing clean-up orders. 3
Beginning in 2007, DTSC working with Defendants investigated 4 Plaintiffs for various criminal violations related to the operation 5 of Chico Scrap Metal. Plaintiffs allege that the investigation was 6 not intended to enforce California hazardous waste laws, but that 7 the investigation was instead intended to produce revenue for DTSC 8 and Defendants. Plaintiffs also allege that the motivation for the 9 investigation was not to protect the public health or enforce the law because the primary motivation was revenue generation through the levying of fines and enforcement costs against Plaintiffs.
The investigation culminated in Plaintiffs' agreement to several DTSC consent orders requiring compliance with a DTSC monitored environmental remediation program. Further, Defendants filed criminal felony charges against Plaintiffs, leading to Plaintiffs' pleas of nolo contendere in exchange for a plea agreement. The plea agreement between Plaintiffs and Defendants referenced and incorporated the DTSC consent orders, requiring compliance with them as a term of Plaintiffs' probation.
A. Defendants' 2007 Investigation
In 2007, Defendants started investigating Plaintiffs' business. The first sample taken from Plaintiffs' property was acquired by Defendant Barber and tested by DTSC. Plaintiffs allege that this sample, which was the basis for Defendants' investigation, was taken without a proper sampling plan and was tested improperly by DTSC. Plaintiffs claim that the sample was obtained through the reckless use of unsound testing methods in order to yield evidence of waste, which was subsequently mischaracterized as hazardous. Plaintiffs allege the following 2 improprieties: (1) Defendants had no sampling plan; (2) Defendants 3 did not apply the proper scrap metal industry exemptions to the 4 sample; and (3) the testing performed on the samples was done 5 incorrectly. 6
B. The DTSC Orders and Plaintiffs' Criminal Conviction 7
In 2008, both DTSC and Defendants carried out enforcement 8 actions against Plaintiffs. After DTSC imposed an "Imminent 9
Endangerment Order" shutting down one of Plaintiffs' sites, Plaintiffs agreed to consent orders that permitted DTSC to investigate and monitor Plaintiffs' businesses. The orders also required Plaintiffs to pay fees and costs to DTSC.
In October, 2008, Plaintiffs pleaded nolo contendere to a series of misdemeanors in state court pursuant to a plea agreement with Defendants. Defendants agreed to reduce all charges from felonies to misdemeanors. Plaintiffs agreed to pay $181,000 for investigation and cleanup costs incurred by DTSC up to that point. Further, Plaintiffs agreed to abide by the terms of the DTSC orders. Finally, Plaintiffs were fined $700,000 with $500,000 suspended pending successful completion of Plaintiffs' probation, but no term of imprisonment was imposed. While the plea agreement incorporates the DTSC orders, DTSC was not a party to the plea agreement.
C. Events Leading to the Present Litigation
Plaintiffs allege that they began to question to necessity of DTSC and Defendants' actions for a number of reasons. First, Plaintiffs hired an independent expert in 2009 who was a former manager at the DTSC laboratory. That expert allegedly identified various deficiencies in the testing system used by DTSC on samples 2 taken from Plaintiffs' properties. Then, in 2010 and 2011, 3 Plaintiffs allege that DTSC investigations at two out of four Chico 4 Scrap Metal properties determined that no hazardous waste existed. 5
Plaintiffs claim that DTSC was not willing to modify its orders, 6 even though Plaintiffs' consultants determined that any problems 7 that did exist could be managed by existing procedures at the 8 sites. 9
DTSC subsequently reported to Defendants that Plaintiffs were no longer complying with the DTSC orders. Rather than any concern with Plaintiffs' cleanup efforts, the alleged reason for DTSC's noncompliance report is that Plaintiffs objected to being double-billed by both DTSC and Defendants for the $181,000 in costs preceding the state court conviction.
Plaintiffs filed the present lawsuit to challenge the DTSC consent orders and the actions taken by all defendants leading up to those orders. Plaintiffs do not plead claims arising from the plea agreement.
Defendants' response to Plaintiffs' allegations is emphatic: "This action arises out of the civil and criminal proceedings against Plaintiffs stemming from the finding of hazardous waste at all four of Plaintiffs' scrap metal sites in Butte County." MTD, at 1.
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the 2 court must accept the allegations in the complaint as true and draw 3 all reasonable inferences in favor of the plaintiff. Scheuer v. 4
Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 5 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 6 322 (1972). Assertions that are mere "legal conclusions," however, 7 are not entitled to the assumption of truth. Ashcroft v. Iqbal, 8 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 9 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the ...