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Debra Foli, An Individual; Danny Brown, An v. the Metropolitan Water District of Southern California

April 10, 2012


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is Defendants Metropolitan Water District ("MWD") and Jeffrey Kightlinger's ("Kightlinger," and collectively, "Defendants") motion to dismiss. (Mot. to Dismiss, ECF No. 6) Also before the Court are Plaintiffs' opposition, (Resp. in Opp'n, ECF No. 9), and Defendants' reply, (Reply in Supp., ECF No. 10). The hearing set for the motion on January 26, 2012, was vacated, and the matter taken under submission on the papers. Having considered the parties' arguments and the law, the Court GRANTS Defendants' motion.


Plaintiffs, residents of San Diego, Ventura, and Los Angeles Counties, bring this action against MWD and its General Manager, Kightlinger, asserting claims for violations of 42 U.S.C. § 1983 and California Business & Professions Code section 17200, et seq. ("Unfair Competition Law" or "UCL"), seeking declaratory and injunctive relief.*fn1 Plaintiffs take issue with Defendants' practice of "systematically add[ing] an unapproved drug, hydrofluosilicic acid [("HFSA")], to the water, and then caus[ing] the water to be delivered to water consumers like the Plaintiffs." (Compl. ¶ 17, ECF No. 1) MWD allegedly adds HFSA to the water supply "for the express purpose of administering [HFSA] to the Plaintiffs and other members of the general public receiving their water supply from MWD with the intention of altering their physical structure and body functions to prevent and to treat disease," (id.), despite the fact that HFSA is not approved by the Federal Drug Administration ("FDA") for such use, (id. ¶ 26).


Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "[f]or a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (internal quotation marks omitted).

Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.


1. 42 U.S.C. § 1983

Defendants' primary argument for dismissal is that Plaintiffs are precluded from bringing a § 1983 claim for violations of certain federal statutes, including the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300f, et seq. (Mot. to Dismiss 6--7, ECF No. 6) Defendants rely on Mattoon v. City of Pittsfield, which held that because "the SDWA enforcement scheme is closely analogous to other enforcement schemes found sufficiently comprehensive to evince a clear congressional intent to preempt relief under section 1983, . . . appellants' section 1983 claims are preempted by the SDWA." 980 F.2d 1, 6 (1st Cir. 1992).

In opposition, Plaintiffs do not challenge the conclusion that they cannot bring a § 1983 claim on the basis of a SDWA violation. Contrary to Defendants' characterization, Plaintiffs argue that their complaint is brought to redress violations of the Food, Drug, and Cosmetic Act ("FDCA"), not the SDWA. (Resp. in Opp'n 3--4, ECF No. 9) Even under this characterization, however, the Court agrees with Defendants that Plaintiffs cannot assert a § 1983 claim.

Section 337(a) of the FDCA provides that "all such proceedings for the enforcement, or to restrain violations, of [the FDCA] shall be by and in the name of the United States."*fn2 Interpreting this provision, the Ninth Circuit has held that the FDCA does not provide for a private right of action. PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010) ("[T]he FDCA forbids private rights of action under that statute."); Feidler v. Clark, 714 F.2d 77, 79 (9th Cir. 1983) (holding that the court lacked jurisdiction under the FDCA in a suit brought by a private party); see also Summit Technology, Inc. v. High-Line Med. Instruments Co., Inc., 922 F.Supp. 299, 305 (C.D. Cal. 1996) (citing cases from the Third, Fourth, and Seventh Circuits, and concluding that "[c]courts have generally interpreted [§ 337(a) of the FDCA] to mean that no private right of action exists to redress alleged violations of the FDCA"); Ginochio v. Surgikos, Inc., 864 F. Supp. 948, 957 (N.D. Cal. 1994) ("Given th[e] language and the regulatory nature of the Act, and the fact that Congress has vested the power to enforce the regulatory scheme in the United States, this court concludes that there is no private right of action.").

By suing under 42 U.S.C. § 1983, Plaintiffs attempt to circumvent FDCA's limitation on who may sue to enforce the Act. It is true that § 1983 may be used to "redress the deprivation of federal statutory rights."*fn3 Almond Hill School v. U.S. Dep't of Agric., 768 F.2d 1030, 1035 (9th Cir. 1985) (citing Maine v. Thiboutot, 448 U.S. 1 (1980)). And, "[a]n action to enforce a particular federal statute may lie under section 1983 even though no such action exists under the particular statute itself." Id. (citing Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 18--19 (1981)). Such an action is not available in all instances, however. Relevant here, a ยง 1983 suit is not available to redress the violation of a federal statutory right ...

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