ORDER DENYING DEFENDANTS' MOTION TO DISMISS
This matter is before the Court on Defendants All Star Auto Recycling, Inc., ("All Star"); Joseph Cream, SR., and Joseph Cream, JR.'s ("Defendants") Motion to Dismiss (Doc. #10) Plaintiff California Sportfishing Protection Alliance's ("CSPA")First Amended Complaint ("FAC") (Doc. #7). The motion to dismiss is brought for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion (Doc. 13).*fn1 For the reasons set forth below, the motion to 2 dismiss is DENIED. 3 4
I. FACTUAL ALLEGATIONS AND SUMMARY OF ARGUMENTS
Plaintiff CSPA brings this civil suit under the citizen suit 6 enforcement provisions of the Federal Water Pollution Control Act, 7 33 U.S.C. § 1251, et seq., (known as the Clean Water Act or "CWA") 8 and alleges five causes of action for various violations of the CWA 9 permit conditions as well as a sixth claim under state law for chemical discharges in violation of California's Proposition 65. Plaintiff alleges that Defendants are in violation of the CWA and Proposition 65 because their auto salvage yard facility discharges pollutants into the surface waters of Rice Creek, which flows into and joins Sour Grass Creek and Burch Creek, then drains into the Sacramento River and the San Joaquin River Delta, which are navigable waters of the United States. Plaintiff, a non-profit public benefit corporation whose mission is to preserve and protect the environment, wildlife and natural resources of the water of California, alleges that its members are injured by Defendants' discharges of pollutants because they threaten and impair Plaintiff's ability to use, enjoy, and study the waters at issue. Plaintiff seeks injunctive and declaratory relief, civil penalties and attorney's fees.
Defendants move to dismiss the FAC on the grounds that Plaintiff lacks standing to bring the suit and has failed to properly state the fourth cause of action (Failure to develop and implement an adequate monitoring and reporting program).
Defendants also argue that should the Court dismiss the federal 3 claims, it should not retain jurisdiction over the pendent state 4 law claim. 5 6
1. Rule 12(b)(1) Dismissal
Dismissal is appropriate under Rule 12(b)(1) when the District Court lacks subject matter jurisdiction over the claim. Fed. R.
A Rule 12(B)(1) motion may either attack the sufficiency of the pleadings to establish federal jurisdiction, or allege an actual lack of jurisdiction which exists despite the formal sufficiency of the complaint. Because challenges to standing implicate a federal court's subject matter jurisdiction under Article III of the United States Constitution, they are properly raised in a motion to dismiss under Rule 12(b)(1).
Meaunrit v. ConAgra Foods Inc., 2010 WL 2867393, *3 (N.D. Cal. July 20, 2010) (internal citations omitted). When a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff has the burden of establishing subject matter jurisdiction. See Rattlesnake Coalition v. United States Envtl. Protection Agency, 509 F.3d 1095, 1102, FN 1 (9th Cir. 2007).
There are two permissible jurisdictional attacks under Rule 12(b)(1): a facial attack, where the court's inquiry is limited to the allegations in the complaint; or a factual attack, which permits the court to look beyond the complaint at affidavits or other evidence. Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). "In a facial attack, the 2 challenger asserts that the allegations contained in a complaint 3 are insufficient on their face to invoke federal jurisdiction, 4 whereas in a factual attack, the challenger disputes the truth of 5 the allegations that, by themselves, would otherwise invoke federal 6 jurisdiction." Li v. Chertoff, 482 F.Supp.2d 1172, 1175 (S.D. Cal. 7 2007) (internal citations omitted). 8
If the moving party asserts a facial challenge, the court must 9 assume that the factual allegations asserted in the complaint are true and construe those allegations in the light most favorable to the plaintiff. Id. at 1175, citing Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). If the moving party asserts a factual attack, the court may resolve the factual disputes, looking beyond the complaint to matters of public record, without presuming the truthfulness of the plaintiff's allegations. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
2. Rule 12(b)(6) Dismissal
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 court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), (citing Bell Atl. Corp. v. Twombly, 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 2 that is plausible on its face." Twombly, 550 U.S. at 570. 3
Dismissal is appropriate where the plaintiff fails to state a claim 4 supportable by a cognizable legal theory. Balistreri v. Pacifica 5
Upon granting a motion to dismiss for failure to state a 7 claim, the court has discretion to allow leave to amend the 8 complaint pursuant to Federal Rule of Civil Procedure 15(a). 9
"Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. ...