United States District Court, C.D. California
CIVIL MINUTES - GENERAL
PERCY ANDERSON, District Judge.
Proceedings: IN CHAMBERS - COURT ORDER
Before the Court is a Motion to Dismiss and to Strike Specified Allegations filed by defendant Weber M s, Inc. ("Defendant") (Docket No. 14). Defendant challenges the sufficiency of the first, second, and third causes of action in the Complaint filed by plaintiff California Communities Against Toxics ("Plaintiff"). Plaintiff has filed an Opposition. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds this matter appropriate for decision without oral argument. The hearing calendared for May 4, 2015, is vacated, and the matter taken off calendar.
Plaintiff commenced this action on January 8, 2015. The Complaint alleges claims pursuant to the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. § 1251, et seq., against Defendant. According to the Complaint, Defendant's m forging facility located in Paramount, California discharges polluted storm water and non-storm water pollutants to Los Angeles County's municipal storm water sewer system, which eventually flows into the Los Angeles River. Plaintiff alleges this water contains levels of total suspended solids, oil and grease, copper, and zinc in excess of the benchmark levels set by the Environmental Protection Agency ("EPA") and in violation of the Best Available Technology Economically Achievable ("BAT") and Best Conventional Pollutant Control Technology ("BCT") standards mandated by the General Storm Water Permit ("General Permit") issued by California under the authority granted to it by the EPA's National Pollutant Discharge Elimination System ("NPDES"). The General Permit requires permittees such as Defendant to implement Best Management Practices ("BMPs") that achieve BAT and BCT for particular categories of pollutants.
Plaintiff's Complaint alleges five causes of action: (1) failure to implement the best available and best conventional treatment technologies in violation of Permit Conditions and the Act, 33 U.S.C. §§ 1311, 1342; (2) discharges of contaminated storm water in violation of Permit Conditions and the Act, 33 U.S.C. §§ 1311, 1342; (3) failure to prepare, implement, review, and update an adequate storm water pollution prevention plan ("SWPPP") in violation of Permit Conditions and the Act, 33 U.S.C. §§ 1311, 1342; (4) failure to develop and implement an adequate monitoring and reporting program in violation of Permit Conditions and the Act, 33 U.S.C. §§ 1311, 1342; and (5) false certification of compliance in annual report in violation of Permit Conditions and the Act, 33 U.S.C. §§ 1311, 1342.
Defendant now moves to dismiss the first three causes of action pursuant to Fed.R.Civ.P. 12(b)(1) because Plaintiff "failed to provide the proper statutory notice which is a jurisdictional precondition to the filing of any citizen suit." (Motion at 1.) Defendant additionally argues specific allegations in the Complaint that were not mentioned in the Notice should be stricken.
II. Legal Standard
Under Rule 12(b)(1), the challenger asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Plaintiff bears the burden of establishing that the court has subject matter jurisdiction to hear the action. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal Rule of Civil Procedure 12(f) provides that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Because of the limited importance of pleadings in federal practice, ' motions to strike pursuant to Rule 12(f) are disfavored." Estate of Migliaccio v. Midland Nat'l. Life Ins. Co., 436 F.Supp.2d 1095, 1100 (C.D. Cal. 2006) (quoting Bureerong v. Uvawas, 922 F.Supp. 1450, 1478 (C.D. Cal. 1996)). "Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation." Clark v. State Farm Mut. Auto. Ins. Co., 231 F.R.D. 405, 406 (C.D. Cal. 2005) (quoting Cal. Dept. of Toxic Substances Control v. Alco Pacific, Inc., 217 F.Supp.2d 1028, 1033 (C.D. Cal. 2002)). "Moreover, when considering a motion to strike, courts must view the pleading in the light more favorable to the pleader." Id. (quoting Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000)).
The citizen suit provision of the Clean Water Act requires a citizen plaintiff to give sixty days' notice of the alleged violations to the EPA, the State, and the violator prior to bringing suit. California Sportfishing Prot. Alliance v. City of W. Sacramento, 905 F.Supp. 792, 796 (E.D. Cal. 1995). Defendant contends dismissal of the first three causes of action is appropriate because Plaintiff's Pre-Litigation Notice (the "Notice") does not contain sufficient allegations to support those claims. Specifically, Defendant contends Plaintiff's Notice does not provide any detail about the activities alleged to constitute a violation of the General Permit requirements and provides no suggested corrective actions. (Motion at 7.)
"[C]ompliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit.'" Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2008) (quoting Hallstrom v. Tillamook Cnty., 493 U.S. 20, 26, 304, 309, 107 L.Ed.2d 237 (1989)). According to regulations adopted by the EPA, the notice "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.'" Id. at 801 (quoting 40 C.F.R. § 135.3(a)). The Ninth Circuit has "sometimes been slightly forgiving to plaintiffs in this area, but even at our most lenient we have never abandoned the requirement that there be a true notice that tells a target precisely what it allegedly did wrong, and when. The target is not required to play a guessing game in that respect." Id.
As an initial matter, Plaintiff correctly claims that Defendant adds provisions to the notice requirement that are not present. First, Section 135.33(a) does not require a notice sender to understand in advance of sending the notice the cause of a violation. Instead, Section 135.3(a) requires the notice to provide sufficient information for the recipient to identify "the activity alleged to constitute a violation." Defendant also suggests Section 135.3(a) requires that the notice provide "suggested corrective actions." However, no such requirement appears in Section 135.3(a). "[A]s long as a notice letter is reasonably specific as to the nature and time of the alleged violations, the plaintiff has fulfilled the notice requirement. The letter does not need to describe every detail ...