Opinion
CIVIL ACTION NO. 2:19-cv-76-RWS
2019-12-11
David BORING, et al., Plaintiffs, v. PATTILLO INDUSTRIAL REAL ESTATE, et al., Defendants.
Tyler Joseph Sniff, Donald D.J. Stack, Stack & Associates, P.C., Bricker S. Daughtry, Fortson Bentley & Griffin, P.A., for Plaintiffs. William R. Wildman, William H. Parkman, Eversheds Sutherland (US) LLP-GA, for Defendants Pattillo Industrial Real Estate, Stone Mountain Industrial Park, Inc., and MC200, LLC. Kevin H. Hudson, Amy E. Salley, Hudson Parrott Walker, LLC, for Defendant Pattillo Construction Corporation. Todd E. Hatcher, Jeffrey N. Gaba, Jr., Gregory, Doyle, Calhoun & Rogers, LLC, for Defendant Gwinnett Industries, Inc. C. Bradford Marsh, David A. Smith, Sara Alexandre, Swift Curie, McGhee & Heirs, LLP, for Defendant Simpson Trucking & Grading, Inc.
Tyler Joseph Sniff, Donald D.J. Stack, Stack & Associates, P.C., Bricker S. Daughtry, Fortson Bentley & Griffin, P.A., for Plaintiffs.
William R. Wildman, William H. Parkman, Eversheds Sutherland (US) LLP-GA, for Defendants Pattillo Industrial Real Estate, Stone Mountain Industrial Park, Inc., and MC200, LLC.
Kevin H. Hudson, Amy E. Salley, Hudson Parrott Walker, LLC, for Defendant Pattillo Construction Corporation.
Todd E. Hatcher, Jeffrey N. Gaba, Jr., Gregory, Doyle, Calhoun & Rogers, LLC, for Defendant Gwinnett Industries, Inc.
C. Bradford Marsh, David A. Smith, Sara Alexandre, Swift Curie, McGhee & Heirs, LLP, for Defendant Simpson Trucking & Grading, Inc.
ORDER
RICHARD W. STORY, United States District Judge
This case is before the Court on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction [34] and Plaintiffs' Motion to Strike [39] a portion of Defendants' Reply. The Court has reviewed the record, and, for the reasons below, both Motions are DENIED.
Background
The Plaintiffs here are seeking to enforce the provisions of the Clean Water Act by way of a citizen-suit. Under the Act, they were required to give Notice to the Defendants and then wait 60 days before suing. They did so, and then they sued. Now, however, the Defendants contend that the Notice was deficient because it failed to comply with the governing regulatory requirements.
After some procedural back-and-forth, in what counts as their initial response to the Amended Complaint, the Defendants filed their Motion to Dismiss. The Plaintiffs filed a Response, and the Defendants filed a Reply.
The next day, the Plaintiffs filed a Motion to Strike [39] a section of the Defendants' Reply, claiming that it raised new arguments that were not included in the original Motion. The Defendants then filed a Response to that Motion, and the Plaintiffs filed a Reply.
Because the substantive questions underlying the two Motions are intertwined, both are addressed together below.
Discussion
I. Clean Water Act Citizen Suits
The Clean Water Act enables citizens to commence a civil action "against any person ... who is alleged to be in violation of ... an effluent standard or limitation under" the Act. 33 U.S.C. § 1365(a)(1) ; Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc., 734 F.3d 1297, 1301 (11th Cir. 2013). For citizen suits, the Act defines different types of "effluent standard[s] or limitation[s]," two of which are relevant here:
(1) ... an unlawful act under subsection (a) of section 1311 of this title; * * *
(7) a permit or condition thereof issued under section 1342 of this title ....
33 U.S.C. § 1365(f). Section 1311(a) states that "the discharge of any pollutant by any person shall be unlawful" unless it complies with one of certain enumerated provisions under the Act. One of those provisions is § 1342, which allows for the issuance of permits by the EPA or by a duly authorized state agency.
The CWA provisions are often referred to by their numbers within the Act. So, throughout, § 1311 is also referred to as § 301, and § 1342 is also referred to as § 402.
Before a citizen can bring a suit, however, he or she first "must provide notice of the alleged violation to the discharger and federal and state authorities and then wait 60 days before filing suit." Black Warrior Riverkeeper, Inc., 734 F.3d at 1302 ; (discussing 33 U.S.C. § 1365(b)(1)(A) ). The purpose of the notice is twofold: (1) to allow the alleged violator the opportunity to remedy the violation; and (2) to allow the EPA or state agency the first opportunity to bring suit. Id.
The content of the notice is governed by regulation. See 40 C.F.R. § 135.1 et. seq. The notice must contain:
sufficient information to permit the recipient to identify the specific standard, limitation, or order which has allegedly been violated, the activity alleged to be in 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 and address of the person giving the notice.
Notably, no court appears to have directly addressed whether the "sufficient information" descriptor applies only to the first item in the list—the specific standard—or whether it applies to the entire provision. Because the issue here concerns the specific standard, the Court does not reach this question.
40 C.F.R. § 135.3(a). The Court "strictly construe[s]" these requirements. Nat'l Parks & Conservation Ass'n, Inc. v. Tennessee Valley Auth., 502 F.3d 1316, 1329 (11th Cir. 2007). If a plaintiff fails to comply, the case must be dismissed. Nat'l Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096, 1097–98 (11th Cir. 1991).
In National Parks & Conservation Ass'n, the Eleventh Circuit addressed an identical provision for notice under the Clean Air Act; however, courts agree that the same standard applies here. See, e.g., Mrosek v. City of Peachtree City, 539 F. App'x 938, 940 (11th Cir. 2013).
Here, the Defendants contend that the case must be dismissed because the Plaintiffs' Notice failed to meet the regulatory requirements.
II. Defendants' Motion to Dismiss
The Defendants incorrectly style their Motion as one to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). While dismissal is mandatory, in the Eleventh Circuit, the notice requirement is "more procedural than jurisdictional" and so, unlike subject matter jurisdiction, cannot be challenged at any point in the litigation. Am. Canoe Ass'n, Inc. v. City Of Attalla, 363 F.3d 1085, 1088 (11th Cir. 2004). Thus Rule 12(b)(1) does not apply.
The Circuits are split on this issue. See Stone v. High Mountain Mining Co., LLC, 2018 WL 1175039, at *4 (D. Colo. Mar. 5, 2018), report and recommendation adopted, 2018 WL 4697309 (D. Colo. July 25, 2018) (collecting cases).
Still, Defendants' error does not invalidate their Motion. See Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1360 at 77) ("Federal courts ... traditionally have entertained certain pre-answer motions that are not expressly provided for by the rules."). Instead, the Court must determine which provision under Rule 12(b) is most analogous to identify the applicable standards and procedures. Id. at 1376 (quoting 5C Wright & Miller, supra, § 1360 at 91).
In Bryant, the court considered a motion to dismiss for failure to exhaust administrative remedies under the PLRA. While there are similarities between that analysis and the analysis here, the court there distinguished only between the Rule provisions regarding matters in abatement—jurisdiction, venue, and service of process—and Rule 12(b)(6), which goes to the merits. Here, because the Plaintiffs claim that certain of Defendants' objections have been waived, the Court must go further.
In so doing, the Court finds that the most analogous rule provision is 12(b)(4), under which a plaintiff can challenge the sufficiency of process. The analogy makes sense because the rule governing service of process prescribes the type of notice a Defendant must receive, and the primary purpose of the CWA's notice provision is to apprise the potential defendants of the potential violation and claim. See Black Warrior Riverkeeper, Inc., 734 F.3d at 1302. Likewise, process relates to personal jurisdiction, rather than subject matter jurisdiction. See Abele v. City of Brooksville, FL, 273 F. App'x 809, 811 (11th Cir. 2008) (citing Prewitt Enter., Inc. v. OPEC, 353 F.3d 916, 925 (11th Cir.2003) ). And the CWA's notice provision is primarily concerned with the rights of parties, not with the power of the Court. Rule 12(b)(4) is therefore a better fit than Rule 12(b)(1).
Rule 12(b)(4) refers to the content of the summons, rather than to the manner of service, which is governed by Rule 12(b)(5).
So, the Defendants' Motion must comply with the requirements of Rule 12(b)(4) and the associated provisions of Rule 12. In particular, that means that a failure to initially challenge the pre-suit notice would constitute a waiver to the challenge. See Fed. R. Civ. P. 12(h). Here of course, the Defendants did raise the challenge in their initial response to the Complaint.
Once the motion is made, the burden is on the Plaintiffs to establish that their Notice met the requirements. The Eleventh Circuit has never stated explicitly which party bears the burden of proof under Rule 12(b)(4). But under the closely-related 12(b)(5), "the party on whose behalf service is made has the burden of establishing its validity." Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1139 (5th Cir. 1980). Although they challenge different aspects of service, in this regard, the two rule provisions are the same. Thus the Court holds that the same burden applies to the Rule 12(b)(4) -like challenge here.
Cases from the 5th Circuit before 1981 are binding on this Court.
With those standards in mind, the Court now turns to Defendants' challenge to Plaintiff's pre-suit Notice.
III. Analysis: Pre-Suit Notice
The Defendants primarily challenge the Notice for lacking a reference to a particular statutory standard. See 33 U.S.C. § 1365(f) (listing standards). In their Reply, they also challenge the Notice for being overbroad and lacking references to specific dates of alleged violations. These challenges are addressed in turn. A. Lack of Statutory Citation
The fundamental disagreement here is whether the requirement that Plaintiffs' pre-suit Notice "shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated" means that the Notice must contain a specific citation to the statute(s) under which Plaintiffs eventually sued. The Court concludes that it does not.
First, the text of the regulation clearly does not require a plaintiff to identify the specific standard. Instead, it requires that the plaintiff "include sufficient information to permit the recipient to identify" that standard. 40 C.F.R. § 135.3(a). While it is true that the Eleventh Circuit requires the Court to "strictly constru[e]" the provision's language, Nat'l Parks & Conservation Ass'n., 502 F.3d at 1329, strict construction does not mean the Court should read into the text a requirement that does not exist there. Rather, the Court gives effect to the particular language of the text, which does not require that the information in the Notice be presented in a particular form , but instead only requires the information be of sufficient quality and quantity to achieve the stated purpose.
Further, the Eleventh Circuit has never explicitly required such a citation. Grayson v. Alabama & Gulf Coast Ry., LLC, 2016 WL 397461, at *3 (N.D. Ala. Feb. 2, 2016). On the contrary, in a concurring opinion, Judge Jordan noted that "the regulation ... does not require that the notice detail the specific standard, limitation, or order alleged to have been violated." Mrosek v. City of Peachtree City, 539 F. App'x 938, 942 (11th Cir. 2013) (Jordan, J., concurring) (emphasis added). Judge Jordan's comment is persuasive for this Court.
By contrast, the two cases cited by the Defendants do not persuade the Court otherwise. The first is totally inapplicable. In Grayson, the plaintiffs cited to the wrong statute in their notice—the notice cited to a statute governing oil spills, 33 U.S.C. § 1321, but the suit was for a discharge under § 1311. The Court held that the notice was deficient. Grayson, 2016 WL 397461, at *3.
The Defendants try to stretch that logic to this case, positing that "[i]f citing the wrong provision of the CWA renders the pre-suit deficient, then certainly citing no provision whatsoever should also render the notice deficient." [Dkt. 34-1 at 9 (emphasis in original) ]. But that is not so, and for obvious reasons: if a plaintiff does opt to cite to a statute, she must cite the correct one, or the notice becomes misleading. Citing an incorrect statute does not permit the recipient to identify the correct standard—it actually frustrates the identification process. See Grayson, 2016 WL 397461, at *3. ("Defendants could not have reasonably understood that Plaintiffs were alleging violations of a provision different from the one cited and quoted in the notice letter."). The same, however, cannot be said when the citation is merely omitted.
The comparison is closer, but still ultimately unavailing, in City of Ashtabula v. Norfolk S. Corp., 633 F. Supp. 2d 519, 525-27 (N.D. Ohio 2009). There, the plaintiffs included a citation to § 402 in their notice but later sued for violations of both § 402 and § 301. Id. at 526. The court there held that the § 301 claims had to be dismissed because that statute was not referenced in the notice. Id. But this Court is not persuaded.
First, for claims under § 301 and § 402 in particular, the omission of one of the two statutes does not necessarily mislead the notice recipient about potential claims under the other. It is true that the definitions provision treats § 301 and § 402 as different "standards." See 33 U.S.C. § 1365(f)(1), (f)(7). It is also true that the Eleventh Circuit treats claims differently depending on whether a defendant has a permit. See Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1005 (11th Cir. 2004) (noting that "the plaintiffs alleged two CWA violations"). But the claims are interrelated: § 301 sets out the general rule that "the discharge of any pollutant by any person shall be unlawful" unless pursuant to another section, including § 402's permitting scheme. 33 U.S.C. § 1311. And § 402 states that "compliance with a permit issued pursuant to this section shall be deemed compliance" with § 301 such that there would be no violation. 33 U.S.C.§ 1342.
The conduct under each statute—the discharge of pollutants—is the same; the only distinction relates to the status of the permit:
The discharging activities are the same, however, whether § 301 or § 402 applies. That is, the only practical difference in this case is that, if the permit was properly terminated, Plaintiffs allege a § 301 claim, and if the permit was not properly terminated, Plaintiffs allege a § 402 claim. The nature of the allegedly unlawful discharge remains the same for either claim.
Jones Creek Inv'rs, LLC v. Columbia Cty., Ga., 2013 WL 1338238, at *9 (S.D. Ga. Mar. 28, 2013). Thus, courts have allowed plaintiffs to give notice citing the statutes in the alternative, because either might be at issue. Id. (citing Purvis v. Douglasville Dev., LLC, 2006 WL 3709610, at *4 (N.D.Ga. Nov. 9, 2006) ). So while the "standards" are set out differently, the same conduct could be said to violate either provision—for any illegal discharge, a party would either have failed to get or abide by a permit, which would violate § 402; and because it failed to follow § 402, the party would also be in violation of § 301. Thus, the Court disagrees with the court in City of Ashtabula that citation of one provision but not the other in the notice categorically bars a claim under the un-cited provision.
In any event, even if § 301 and § 402 are construed as presenting different claims, i.e. , per a stricter reading of § 1365(f), then the issue in City of Ashtabula would no longer bear on the facts here. Assuming the claims are different, that case, not unlike Grayson, would involve a misleading reference, rather than a missing one. Under such a reading, including reference to the one provision and not the other would communicate that the other is not at play, much like with the familiar canon of statutory interpretation, expressio unius est exclusio alterius. See Black's Law Dictionary (6th ed. 1990) at 581. By contrast, the issue here is the omission of any statutory citation, not a misleading citation. So, whichever way the case is analyzed, Defendants' reliance on City of Ashtabula is misplaced.
In sum, given the plain language of the text and the absence of binding authority to the contrary, the Court holds that failure to cite to the specific statutory provisions does not render the Plaintiffs' Notice categorically deficient under 40 C.F.R. § 135.3(a). The question instead is whether Plaintiff's Notice, in the absence of the citation, still meets the regulatory requirement of "sufficient information."
B. Sufficiency of the Notice
In particular, the issue is whether the Plaintiff's Notice, having failed to cite the specific statutes, satisfied the regulatory requirement by giving the Defendants "sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated." 40 C.F.R. § 135.3(a). The Court finds that it does.
The Notice here stated as follows:
The lawsuit will allege that the Developers have violated and remain in violation of the CWA by discharging silt, sediment, and polluted stormwater from Developers' construction activities at the McClure Industrial Park in Jefferson, Georgia to waters of the United States without valid coverage under a National Pollutant Discharge Elimination System ("NPDES") Permit , and by failing to comply with the terms and conditions of NPDES Construction Stormwater General Permits GARlO000l and GAR100003. The illegal discharges have damaged and continue to damage dams, ponds, roads, and properties owned by Notifiers and their use and enjoyment of same. The failure to control stormwater runoff from the McClure Industrial Park has caused the dams to overtop and the roads to flood at West Shores Drive and North Shores Road. The illegal discharges are also a nuisance and trespass to Notifiers' riparian rights. The impacted waters supply drinking water for the City of Jefferson.
[Dkt. 35-1 at 2 (emphasis added) ].
Considering the discussion above, this language clearly suffices. When the Notice discusses the NDPES permits, it can only be referring to the permitting statute § 402 and the associated violation under § 301, the statutes that were in fact the basis for the CWA claim in the Complaint. [Dkt. 21 at 23]. There is no ambiguity there. Indeed, the Eleventh Circuit has held that the permitting statute governs "the vast majority" of these discharge claims: Black Warrior Riverkeeper, Inc., 734 F.3d 1297, 1303 (11th Cir. 2013). So, any recipient savvy enough to have obtained a permit would know the standards to which the Notice refers.
Plaintiffs asked the Court to weigh the fact that because Defendants are the "largest privately held industrial development operation based in the Southeastern United States," they would therefore be more likely to understand the nature of the claim. Although the regulation, which refers to the specific "recipient" of the notice, arguably opens the door for a court to consider the sophistication of the defendant as a factor, the Court does not do so here. It is enough that the Defendants obtained a permit, and thus would have been aware of the statute governing the permitting requirements.
Accordingly, the Court finds that Plaintiffs' pre-suit Notice "include[d] sufficient information to permit the Defendants to identify the specific standard, limitation, or order alleged to have been violated." See 40 C.F.R. § 135.3(a).
C. Defendants' Additional Challenges Raised in Reply
In the Reply brief supporting its Motion, Defendants raise two new arguments that it did not raise initially: first, that the Notice is overbroad and does not invoke specific violations; and second, that the Notice does not properly identify dates of violations as required by the regulation. But because those arguments are new, the Court does not address them.
Instead, the Court must address Plaintiffs' Motion to Strike. Plaintiffs responded to the new arguments by filing a Motion to Strike the offending section from the Reply. The Plaintiffs correctly noted that the arguments were new and that the Court need not consider new arguments made in reply. See Riechmann v. Fla. Dep't of Corr., 940 F.3d 559, 579 (11th Cir. 2019) (citing Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) ) ("[A]rguments raised for the first time in a reply brief are not properly before a reviewing court."). Defendants raised three arguments in Response to the Motion: first, they argue that the arguments are, in fact, not new. Next, they argue that they cannot waive any arguments because the challenge is to the Court's subject matter jurisdiction. And finally, they contend that Rule 12(f), which refers to pleadings, should not apply to their Reply brief. None of these arguments is availing.
First, Defendants' claim that the arguments are not new is wrong. In its Motion and supporting Brief [34], the only issue was the lack of a citation to a statute. And so Defendants responded only to that issue [35]. That the Defendants' Reply [37] prompted a new Motion [39], followed by a Response [42] and another Reply [43] only highlights the problem with such an approach: instead of three briefs, the Court is faced with six; rather than addressing core issues, it must resolve tangential concerns. See Tindall v. H & S Homes, LLC, 2011 WL 5007827, at *2 (M.D. Ga. Oct. 20, 2011) ("Such is the problem when a movant changes theories mid-stream and makes new arguments in their reply brief.").
From the Introduction section: "Plaintiff's notice failed to provide basic information regarding their federal claim: the specific statutory standards Defendants are now alleged to have violated." [Dkt. 34-1 at 2]. And from the Argument section: "Here, Plaintiffs' February 2012 Notice Letter is deficient because it fails to identify any specific section of the CWA that Defendants are alleged to have violated." [Id. at 8], This argument was the entire basis for Defendants' Motion.
The Defendants attempted to justify the new arguments by claiming that Plaintiffs opened the door when they discussed the details of the Notice. But that argument is a non-starter; Plaintiffs only sought to rebut the challenge that they had failed to provide enough information from which the Defendants could identify the relevant standard associated with the conduct at issue.
Next, for the reasons outlined in the Section above, Defendants can and did waive additional challenges to the Notice. This Motion, considered as a challenge under Rule 12(b)(4) rather than a 12(b)(1), does not concern the Court's subject matter jurisdiction. Instead, it addresses whether the Defendants were put on sufficient notice to address the concerns that Plaintiffs sought to raise. Under Rule 12(h), the Defendants were entitled to challenge that Notice on any basis in their initial response to the Complaint. Because they failed to do so as to the additional arguments, these particular challenges have been waived.
Finally, while it is true that Rule 12(f) applies to pleadings and is not the appropriate basis for evaluating the Reply brief, the case law is well-settled that the Court need not consider arguments in reply. See Riechmann v. Fla. Dep't of Corr., 940 F.3d 559, 579 (11th Cir. 2019) (citing Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) ). Whether the Court "strikes" the argument or merely ignores it is a distinction without a practical difference for the purpose of resolving the underlying Motion to Dismiss. Thus, while, the Plaintiffs' Motion is the wrong mechanism for this type of challenge and will be denied, still the Court will not consider new arguments made for the first time in the reply brief.
The proper mechanism for such a challenge is a notice of objection.
Accordingly, the Defendants have waived these challenges to the Notice.
Conclusion
Because the motion to strike is not the proper vehicle for challenging Defendants' improperly raised new arguments in their Reply, Plaintiffs' Motion to Strike is DENIED. However, the Court has not considered those new arguments in its decision. With respect to the challenges properly raised by the Defendants, the Plaintiffs have successfully established that their Notice met the regulatory requirements. Therefore, the Defendants' Motion to Dismiss is DENIED.
SO ORDERED this 11th day of December, 2019.