Boring v. Pattillo Indus. Real Estate

426 F.Supp.3d 1341

David BORING, et al., Plaintiffs,

v.PATTILLO INDUSTRIAL REAL ESTATE, et al., Defendants.

CIVIL ACTION NO. 2:19-cv-76-RWS

United States District Court, N.D. Georgia, Gainesville Division.

Signed December 11, 2019

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).¹ 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.

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.²

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).³ 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).

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,⁴ 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.

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).⁵

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.⁶ 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).

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).⁷ 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.

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...