Waste Action Project v. First Student Inc
3:23-cv-05084
W.D. Wash.Jun 30, 2023Background
- Plaintiff Waste Action Project (WAP) alleges First Student’s Tacoma Facility #20229 discharged stormwater in violation of its Washington ISGP NPDES permit and failed to comply with monitoring, SWPPP, corrective-action, and recordkeeping requirements.
- Strata Environmental Services provided and managed the facility’s Stormwater Pollution Prevention Plan (SWPPP) and is named as a defendant, but the complaint contains almost no facts specific to Strata.
- WAP sent 60-day CWA notice letters in Sept.–Oct. 2022; one letter was addressed to “First Student, Inc. #20229 C/O Strata Env,” and Strata accepted service.
- Strata moved to dismiss under Fed. R. Civ. P. 12(b)(1) (lack of subject-matter jurisdiction for inadequate pre-suit notice) and 12(b)(6) (failure to state a claim / shotgun pleading).
- The court held the pre-suit notice was sufficiently received by Strata (denying the 12(b)(1) dismissal) but found the complaint impermissibly engaged in shotgun pleading as to Strata and granted 12(b)(6) dismissal with leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of CWA 60‑day notice to Strata (jurisdiction) | WAP: notice need only let recipients identify alleged violations and responsible parties; letter referenced Strata and was sent to managing-agent address. | Strata: letter was addressed only to First Student; “C/O” shows letter not directed to Strata; Strata not managing agent. | Court: Notice adequate—Strata received notice, was involved in SWPPP, and letter allowed identification of issues; 12(b)(1) denied. |
| Use of extrinsic evidence in jurisdictional attack | WAP: court may consider affidavits showing Strata’s role. | Strata: challenged consideration of some filings. | Court: For factual 12(b)(1) attacks, court may consider evidence beyond pleadings; it did so here. |
| Sufficiency of pleading against Strata (12(b)(6)) | WAP: the complaint alleges violations against First Student and Strata collectively; that suffices. | Strata: complaint lacks factual allegations specific to Strata; conflates entities. | Court: Complaint is shotgun pleading—fails to plausibly allege Strata’s liability; 12(b)(6) granted. |
| Leave to amend | WAP: should be allowed to cure pleading defects. | Strata: (opposed to the extent amendment would be futile). | Court: Granted leave to amend; plaintiff has 21 days to file an amended complaint. |
Key Cases Cited
- Hallstrom v. Tillamook Cnty., 493 U.S. 20 (1989) (explains purpose of CWA 60‑day notice and agency opportunity to address violations)
- Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985 (9th Cir. 2000) (CWA notice requirement is strictly construed)
- Ctr. For Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794 (9th Cir. 2009) (60‑day notice is jurisdictional prerequisite for citizen suits)
- Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) (distinguishes facial vs. factual jurisdictional attacks)
- Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) (factual 12(b)(1) attacks permit evidence beyond pleadings)
- McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988) (courts may review affidavits and testimony to resolve jurisdictional facts)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: allegations must permit plausible inference of liability)
- Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001) (describes and affirms dismissal for shotgun pleading)
- Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) (leave to amend should be freely given unless amendment would be futile)
- Gompper v. VISX, Inc., 298 F.3d 893 (9th Cir. 2002) (dismissal without leave improper unless pleading cannot be saved by amendment)