United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S REQUEST FOR JUDICIAL
S. Lasnik United States District Judge.
matter comes before the Court on plaintiff City of
Seattle's (“Seattle”) “Motion
Requesting Judicial Notice of Documents in Support of
Plaintiff s Motion to Dismiss Counterclaims and Certain
Defenses.” Dkt. #94. Seattle requests that judicial
notice be taken of eight documents. Id. at 2-3.
filed a complaint against Monsanto in 2016. Dkt. #31. Monsanto
filed counterclaims against Seattle in 2017. Dkt. #63.
Seattle then filed a motion to dismiss Monsanto's
counterclaims, Dkt. #92, along with this request for judicial
notice. Dkt. #94.
April 16, 2013, the United States and the State of Washington
jointly sued Seattle for violations of the Clean Water Act,
see 33 U.S.C. § 1319(b), (d); and the
Washington Water Pollution Control Act, see RCW
§§ 90.48.037, 90.48.144 for the discharge of
pollutants of raw sewage. Ex. 11, Dkt. #76-13 at 2, 10-12.
The suit was resolved by a consent decree (“Consent
Decree”). Ex. 3; Dkt. #76-5; Ex. B, Dkt. #94-1 at
motion to dismiss, the Court considers documents incorporated
into the complaint by reference and matters of which a court
may take judicial notice. Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007) (citation
omitted). The Court may take judicial notice of a fact that
is not subject to reasonable dispute because it is generally
known within the Court's territorial jurisdiction, or
“can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”
Fed.R.Evid. 201(b). This may include undisputed matters of
public record. Carlson v. Wells Fargo Bank, N.A.,
No. C15-0109JLR, 2015 WL 2062394, at *4 (W.D. Wash. May 4,
2015) (citing Harris v. Cnty. of Orange, 682 F.3d
1126, 1131-32 (9th Cir. 2012)).
Exhibits A, B, F, G, H and I
Exhibits A, B, G and H are referenced in Monsanto's
Amended Answer and Counterclaims and are therefore suitable
for judicial notice. Dkt. #91 at ¶¶ 46, 66-67,
see Fed. R. Evid. 201(b). Exhibit F is an
Administrative Order (“AO”) from the State of
Washington's Department of Ecology
(“Ecology”) regarding the West Point Wastewater
Treatment Plant. See Ex. F, Dkt. #94-1 at 123-136.
Exhibit I is a portion of Monsanto's responses to
Requests for Admission from Seattle. See Ex. I, Dkt.
#94-1 at 151-55. Monsanto also has no objection to Exhibits F
or I. See Dkt. #101 at 2.
Exhibits C, D and E
C is a letter from the Environmental Protection Agency
(“EPA”) and Ecology approving Seattle's Final
Plan to Protect Seattle's Waterways as
“substantially conforming to the EPA's CSO
Control Policy and CSO Guidance for Long-Term
Control Plan as well as satisfying the City's NPDES
[National Pollutant Discharge Elimination System] permit
requirement for a CSO Reduction Plan Amendment and WAC
173-2450040.” Ex. C, Dkt. #94-1 at 101. Exhibit D is a
letter from the EPA approving Seattle's Capacity,
Management, Operations, and Maintenance Performance
(“CMOM”) Plan and its Floatables and
Solids Observation Plan. See Ex. D, Dkt. #94-1
at 105. Exhibit E consists of five letters from the EPA and
Ecology imposing stipulated penalties for dry weather
Combined Sewer Outflows (“CSOs”) and Sewer
Outflows (“SOs”). Ex. E, Dkt. #94-1 at 107-121.
All three exhibits reference the Consent Decree.
objects to Exhibits C, D and E (collectively, “the
Exhibits”). Dkt. #101 at 2. Monsanto does not dispute
that letters from the EPA and Ecology generally contain facts
that “can be accurately and readily determined”
and are a source “whose accuracy cannot reasonably be
questioned.” Dkt. #101 at 2-3; see Fed.R.Evid.
201(b). However, Monsanto argues that the Exhibits are not
relevant to the issues before the Court. Id. at 3;
see Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006).
Third Counterclaim alleges that Seattle has violated the
Clean Water Act (“CWA”) and various NPDES
Permits. Dkt. #91 at ¶¶ 180-208. It includes
allegations regarding the adequacy of Seattle's sewer and
treatment systems and the occurrence of Combined Sewer
Outflows (“CSOs”) in rainy and dry weather.
Id. at ¶¶ 186-200. Monsanto seeks “a
Court order enjoining [Seattle] from violating the
substantive and procedural requirements of the CWA and the
City NPDES Permits and requiring [Seattle] to remediate its
discharges of pollutants.” Id. at 86. In its
motion to dismiss, Seattle argued inter alia that
the Consent Decree addresses the same requirements as
Monsanto's CWA counterclaim, and as the EPA is diligently
prosecuting the Consent ...