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Waste Action Project v. Fruhling Sand & Topsoil, Inc.

United States District Court, W.D. Washington, Seattle

July 26, 2017





         This matter comes before the Court on Defendant's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. #10. Defendant asserts three bases for dismissal of this matter: 1) the Amended Complaint does not present good faith allegations of fact that constitute a violation occurring on or after the date of the Complaint, and therefore fails to state a claim for which this court has subject matter jurisdiction; 2) Plaintiff lacks standing because there is no injury in fact that can be redressed by this action; and 3) this suit is moot because Defendant achieved a state of complete compliance prior to the filing of the Complaint, there are no continuing or present adverse effects, and the allegedly wrongful behavior could not reasonably be expected to recur. Id. Plaintiff responds that its Amended Complaint meets the applicable pleading standards and therefore Defendant's motion should be denied. Dkt. #16. For the reasons discussed herein, the Court GRANTS Defendant's motion.


         This is a Clean Water Act (“CWA”) citizen suit brought by Plaintiff under section 505 of the CWA, 33 U.S.C. § 1365. Dkts. #1 and #8. Plaintiff alleges that Defendant violated the CWA by discharging pollutants, without authorization, from its asphalt and concrete processing facility located in King County, Washington.

         On January 20, 2017, Plaintiff sent Defendant a Notice of Intent to Sue. Dkt. #8, Ex. 1. Defendant then engaged in a series of actions to remedy the alleged violations contained in the Notice. Dkts. #11 and #12. Plaintiff inspected the site on March 21, 2017, just prior to filing the instant lawsuit. Dkt. #11 at ¶ 9. Defendant asserts that it has been in compliance with its permit since that time. Id. at ¶ ¶ 11-12. Plaintiff alleges ongoing violations and an inability to remain in compliance. See Dkt. #8 at ¶ 39.


         A. Legal Standards

         1. Motions Under Federal Rule of Civil Procedure 12(b)(1)

         A motion to dismiss for lack of subject-matter jurisdiction is either facial or factual. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where, as here, the moving party “convert[s] the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits “or other evidence necessary to satisfy its burden of establishing subject[-]matter jurisdiction.”[1]Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). The party asserting its claims in federal court bears the burden of establishing subject-matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

         2. Motions Under Federal Rule of Civil Procedure 12(b)(6)

         On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, the court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678. This requirement is met when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Absent facial plausibility, Plaintiffs' claims must be dismissed. Twombly, 550 U.S. at 570. Though the Court limits its Rule 12(b)(6) review to allegations of material fact set forth in the complaint, the Court may consider documents for which it has taken judicial notice. See F.R.E. 201; Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).

         B. Subject Matter Jurisdiction

         Defendant moves to dismiss Plaintiff's complaint due to mootness, lack of jurisdiction and the failure to state a claim. Since mootness is jurisdictional, the court will consider this argument first. See United States v. Strong, 489 F.3d 1055, 1059 (9th Cir. 2007) ...

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