United States District Court, W.D. Washington, Seattle
ORDER ON PENDING MOTIONS
RICARDO S. MARTINEZ, District Judge.
This matter comes before the Court on Plaintiff's first and second Motion for Leave to File First and Second Amended and Supplemental Complaints (Dkt. ## 13, 29); Plaintiff's first and second Motion for Discovery LCR 37 Joint Submission (Dkt. ## 14, 30); and Defendants' Motion for Summary Judgment (Dkt. # 22). For the reasons that follow, the motions for leave to amend will be granted, the first LCR 37 Joint Submission will be deferred pending receipt of additional briefing, the second LCR 37 Joint Submission will be granted in part, and the motion for summary judgment will be denied with leave to renew.
This is a Clean Water Act ("CWA") citizen suit brought by Plaintiff Waste Action Project ("WAP") under section 505 of the CWA, 33 U.S.C. § 1365. WAP alleges that Defendant Buckley Recycling Center, Inc. ("BRC") violated the CWA by discharging pollutants, without authorization, from an industrial and materials storage facility located in King County, Washington. WAP provided BRC notice of its intent to sue by letter dated May 3, 2013. The CWA requires that citizen plaintiffs provide notice to potential defendants of the alleged violation and their intent to file a citizen suit at least sixty days before filing the complaint. 33 U.S.C. § 1365(b). WAP acted in accordance with the notice requirement and filed suit on July 8, 2013.
After receiving initial discovery and conducting a site visit on December 17, 2013, WAP sought leave to amend and supplement the original complaint to include additional CWA violations. WAP stated that the new claims concerned "alleged unpermitted discharges of pollutants, including leachate and process wastewater, from the [BRC] facility and from particular structures or features constructed on the facility to adjacent ditches via direct hydrological connection"; "alleged discharges of fill material to wetlands and the adjacent ditches without a permit from the United States Army Corps of Engineers under CWA Section 404, 33 U.S.C. § 1344"; and "the joint liability of Ronald Shear, the individual responsible for controlling BRC, Inc.'s operations for all alleged CWA violations." Dkt. # 29, p. 4. WAP sent BRC and Mr. Shear notice letters informing them of its intent to incorporate the additional allegations into the current lawsuit. See Dkt. # 13-1, pp. 37-59, 61-65. WAP then filed its first motion to amend prior to the date that the sixty-day notice period expired. See Dkt. # 13.
BRC opposed WAP's first motion to amend on the basis that the Court lacked jurisdiction to consider the amendments until expiration of the notice period. Dkt. # 19. After making that argument, and despite knowing that WAP sought to add additional allegations in light of ongoing factual discovery, BRC filed a motion for summary judgment seeking dismissal of the original complaint. In its briefing, BRC proclaimed that "BRC is entitled to a ruling on the Complaint as originally pled." Dkt. # 28, p. 2. BRC's motion was supported only by the declaration Ronald Shear, who is BRC's operations manager and the individual that WAP sought leave to join as an additional defendant. See Dkt. # 23. BRC's motion was filed on January 29, 2014, about five and a half months before the scheduled close of discovery. Dkt. # 22.
WAP opposed the motion on several grounds including an argument that the motion was subject to denial under Fed. R. Civ. 56(d), and it moved to strike Shear's declaration as improper expert opinion testimony. It also requested the Court to direct BRC to show cause why BRC should not be sanctioned under Fed.R.Civ.P. 56(h) for filing a bad faith declaration in support of its motion. Dkt. # 24.
WAP filed a second motion seeking leave to amend its complaint and join additional defendants on March 27, 2014. The new amendments concern an alleged violation of Section 4005(a) of the Resource Conservation and Recovery Act ("RCRA"), as amended, 42 U.S.C. § 6945(a), for operating an open dump. The RCRA also imposes a sixty-day notice period under 42 U.S.C. § 6972(b)(1)(A), and although WAP served notice of the claims to the BRC and additional potential defendants on or about March 11, 2014, WAP's second motion was filed in advance of the end of the notice period. BRC did not, however, oppose WAP's second motion for leave to amend.
A. WAP's First and Second Motion to Amend
Federal Rule of Civil Procedure 15(a)(2) directs a court to grant leave to amend if justice so requires. "A district court should grant leave to amend...unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lacey v. Maricopa, 693 F.3d 896, 926 (9th Cir. 2012). In other words, "requests for leave to amend should be granted with extreme liberality...." Mirmehdi v. United States, 689 F.3d 975, 985 (9th Cir. 2012).
For a Rule 15(a) motion, the non-moving party bears the burden of persuading the court that leave should not be granted. Breakdown Services, Ltd. v. Now Casting, Inc., 550 F.Supp.2d 1123, 1132 (C.D. Cal 2007) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186-87 (9th Cir. 1987). The court considers the following five factors in its analysis when leave to amend is requested: (1) bad faith, (2) undue delay, (3) prejudice to opposing party, (4) futility of amendment, and (5) whether the complaint was previously amended. United States v. Corinthian Colleges, 665 F.3d 984, 995 (9th Cir. 2011). Ordinarily, there is a presumption that leave to amend should be granted absent a strong showing of one of the five factors. Eminence Capitol, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
As an initial matter, the sixty day notice period has now expired for the allegations asserted in both the proposed First Amended Complaint and the proposed Second Amended Complaint. See Dkt. # 29-1, ¶ 6 (alleging first and second supplemental notice letters were served on January 2, 2014), ¶ 7 (alleging RCRA notice letter was served on March 11, 2014). BRC challenged the first motion to amend on the ground that the Court lacked jurisdiction to consider WAP's proposed amendments prior to expiration of the CWA notice period. Because the sixty-day period has expired, BRC's jurisdictional challenge is now moot. Similarly, the sixty day notice period has also expired for the alleged RCRA violations such that WAP's second motion seeking leave to amend is properly before the Court. As previously noted, BRC does not oppose WAP's second motion for leave to amend.
BRC did not offer a substantive challenge to either motion, nor has it claimed that it has cured any of the alleged violations. BRC has failed to address the Rule 15(a) factors and there is no evidence from which the Court could conclude that the requested amendments were sought in bad faith or were the product of undue delay, or that amendment will prejudice BRC. Having considered the record and found no reason why leave to amend should not be given, the Court grants WAP's first and second motions for leave to amend.
The second motion for leave to amend also seeks an eight month continuance of the trial date and other scheduling deadlines. BRC has not opposed this request. "A [scheduling order] may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The Court finds good cause to extend the deadlines in this case considering the factually-intensive nature of WAP's new allegations as well as the inclusion of ...