United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO DISMISS.
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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
Motions Under Federal Rule of Civil Procedure 12(b)(1)
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.”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).
Motions Under Federal Rule of Civil Procedure 12(b)(6)
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).
Subject Matter Jurisdiction
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) ...