California Communities Against Toxics v. Armorcast Products Company, Inc.

Filing 57

MINUTES (IN CHAMBERS): ORDER by Judge Percy Anderson: Before the Court is a Motion to Dismiss Second Amended Complaint filed by defendants Armorcast Products Company, Inc. and Ari Aleong (Docket No. 40). Defendants challenge the sufficiency of the Se cond Amended Complaint filed by plaintiff California Communities Against Toxics. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for February 9, 2015, is vacated, and the matter taken off calendar. Court denies Defendants' Motion to Dismiss. Defendants shall file their Answer to the SAC no later than February 23, 2015. In its November 12, 2014 minute o rder granting Defendants' Motion to Dismiss the FAC, the Court stated that it would issue a Scheduling Order if and when Plaintiff alleged a viable claim that it had standing to pursue. Because the Court has denied Defendants' Motion to Dismiss the SAC, the Court will issue a separate Scheduling Order. See document for details. (smo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5728 PA (FFMx)

Title

California Communities Against Toxics v. Armorcast Products Company, Inc.

Present: The
Honorable

Date

February 9, 2015

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Stephen Montes Kerr

Not Reported

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS - COURT ORDER

Before the Court is a Motion to Dismiss Second Amended Complaint filed by defendants
Armorcast Products Company, Inc. (“Armorcast”) and Ari Aleong (collectively “Defendants”) (Docket
No. 40). Defendants challenge the sufficiency of the Second Amended Complaint (“SAC”) filed by
plaintiff California Communities Against Toxics (“Plaintiff”). Pursuant to Rule 78 of the Federal Rules
of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision
without oral argument. The hearing calendared for February 9, 2015, is vacated, and the matter taken
off calendar.
I.

Factual and Procedural Background

Plaintiff commenced this action on July 23, 2014. After Armorcast filed a Motion to Dismiss the
original Complaint, Plaintiff filed a First Amended Complaint (“FAC”) as a matter of right. See Fed. R.
Civ. P. 15(a)(1)(B). Armorcast moved to dismiss the FAC on numerous grands, including that Plaintiff
lacked standing to pursue its claims. The Court granted Armorcast’s Motion to Dismiss the FAC with
leave to amend. Plaintiff subsequently filed its SAC. The SAC alleges claims pursuant to the Federal
Water Pollution Control Act (“Clean Water Act”), 33 U.S.C. §§ 1251-1387, against Armorcast and Ari
Aleong, Armorcast’s Director of Technology. According to the SAC, storm water at Armorcast’s
facility in North Hollywood is channeled to a storm drain that discharges to Los Angeles County’s
municipal storm water sewer system and eventually flows into the Tujunga Wash and the Los Angeles
River. Plaintiff alleges that this storm water contains levels of total suspended solids (“TSS”), oil and
grease (“O&G”), and iron in excess of the benchmark levels set by the Environmental Protection
Agency (“EPA”) and in violation of the Best Available Technology Economically Achievable (“BAT”)
and Best Conventional Pollutant Control Technology (“BCT”) standards mandated by the General
Storm Water Permit (“General Permit”) issued by California under the authority granted to it by the
EPA’s National Pollutant Discharge Elimination System (“NPDES”). The General Permit requires
permittees such as Armorcast to implement Best Management Practices (“BMPs”) that achieve BAT
and BCT for particular categories of pollutants.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5728 PA (FFMx)

Title

California Communities Against Toxics v. Armorcast Products Company, Inc.

II.

Date

February 9, 2015

Legal Standard

Generally, plaintiffs in federal court are required to give only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). While the Federal Rules allow
a court to dismiss a cause of action for “failure to state a claim upon which relief can be granted,” they
also require all pleadings to be “construed so as to do justice.” Fed. R. Civ. P. 12(b)(6), 8(e). The
purpose of Rule 8(a)(2) is to “‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167
L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80
(1957)). The Ninth Circuit is particularly hostile to motions to dismiss under Rule 12(b)(6). See, e.g.,
Gilligan v. Jamco Dev. Corp. , 108 F.3d 246, 248–49 (9th Cir. 1997) (“The Rule 8 standard contains a
powerful presumption against rejecting pleadings for failure to state a claim.”) (internal quotation
omitted).
However, in Twombly, the Supreme Court rejected the notion that “a wholly conclusory
statement of a claim would survive a motion to dismiss whenever the pleadings left open the possibility
that a plaintiff might later establish some set of undisclosed facts to support recovery.” Twombly, 550
U.S. at 561, 127 S. Ct. at 1968 (internal quotation omitted). Instead, the Court adopted a “plausibility
standard,” in which the complaint must “raise a reasonable expectation that discovery will reveal
evidence of [the alleged infraction].” Id. at 556, 127 S. Ct. at 1965. For a complaint to meet this
standard, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Id. at 555, 127 S. Ct. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure §1216, pp.
235–36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than . . . a statement of facts
that merely creates a suspicion [of] a legally cognizable right of action”) (alteration in original)); Daniel
v. County of Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002) (“‘All allegations of material fact are
taken as true and construed in the light most favorable to the nonmoving party.’”) (quoting Burgert v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000)). “[A] plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.
Ct. at 1964–65 (internal quotations omitted). In construing the Twombly standard, the Supreme Court
has advised that “a court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129
S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).
III.

Analysis

Armorcast’s Motion to Dismiss asserts that Plaintiff has not alleged sufficient facts to establish
that it has standing to pursue its claims. Armorcast also contends that the SAC is deficient because it
includes allegations that exceed the scope of the pre-litigation notice required by the Clean Water Act
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5728 PA (FFMx)

Date

February 9, 2015

Title

California Communities Against Toxics v. Armorcast Products Company, Inc.

and seeks to impose liability based on the application of EPA benchmark levels that are not applicable
to Armorcast.
A.

Plaintiff’s Associational Standing

Article III of the United States Constitution requires that a litigant have standing to invoke the
power of a federal court. Because Article III’s standing requirements limit subject matter jurisdiction, a
plaintiff’s standing to pursue a claim is properly challenged by a Federal Rule of Civil Procedure
12(b)(1) motion to dismiss. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th
Cir. 2010). Plaintiff, which is pursuing its claims based on the alleged injuries suffered by its members,
must allege sufficient facts to satisfy the requirements for associational standing. Krottner v. Starbucks
Corp., 628 F.3d 1139, 1141 (9th Cir. 2010) (“The party asserting federal jurisdiction bears the burden of
establishing these [standing] requirements at every stage of the litigation . . . .”). Associational standing
has three requirements:
[A]n association has standing to bring suit on behalf of its members when:
(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members.
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383
(1977). “Although the first two requirements are constitutional in nature, the third is prudential.” Or.
Advocacy Ctr. v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003). “Associational standing is reserved for
organizations that ‘express the[] collective views and protect the[] collective interests’ of their
members.” Fleck & Assocs., Inc. v. Phoenix, 471 F.3d 1100, 1106 (9th Cir. 2006) (quoting Hunt, 432
U.S. at 345, 97 S. Ct. at 2442). To satisfy the requirements for associational standing, the association’s
members must possess sufficient “indicia of membership—enough to satisfy the purposes that undergird
the concept of associational standing: that the organization is sufficiently identified with and subject to
the influence of those it seeks to represent as to have a ‘personal stake in the outcome of the
controversy.’” Or. Advocacy Ctr., 322 F.3d at 1111 (quoting Village of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 261, 97 S. Ct. 555, 560, 50 L. Ed. 2d 450 (1977)).
For the purpose of ruling on a motion to dismiss for lack of standing, the Court must accept as
true all material allegations of the complaint and must construe the complaint in favor of the
complaining party. Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). Rule 12(b)(1)
jurisdictional attacks can be either facial or factual. In a facial attack, the allegations are presumed true
and the “challenger asserts that the[y] are insufficient on their face to invoke federal jurisdiction.” Safe
Air For Everyone v. Meyer, 373 F. 3d 1035, 1039 (9th Cir. 2004). “By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal
jurisdiction.” Id. Courts should refrain from resolving factual issues where “the jurisdictional issue and
substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 3 of 7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5728 PA (FFMx)

Date

February 9, 2015

Title

California Communities Against Toxics v. Armorcast Products Company, Inc.

factual issues going to the merits.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); see
also Safe Air, 373 F. 3d at 1039; Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage
Leasehold & Easement, 524 F. 3d 1090, 1094 (9th Cir. 2008) (“As a general rule, when the question of
jurisdiction and the merits of the action are intertwined, dismissal for lack of subject matter jurisdiction
is improper.”).
The Supreme Court has held that to have standing under the Constitution, a party must show it
has suffered an “injury in fact,” that there is a “causal connection between the injury” and the
defendant’s complained-of conduct, and that it is likely “that the injury will be redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136-37, 119 L. Ed.
2d 351 (1992). To demonstrate an “injury in fact,” a plaintiff must establish an “invasion of a legally
protected interest which is (a) concrete and particularized [citations] and (b) ‘actual or imminent, not
“conjectural” or ‘hypothetical.’” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136 (citations omitted). To meet
this test, the “line of causation” between the alleged conduct and injury must not be “too attenuated,”
and “the prospect of obtaining relief from the injury” must not be “too speculative.” Allen v. Wright,
468 U.S. 737, 752, 104 S. Ct. 3315, 3325, 82 L. Ed. 2d 556 (1984); Maya, 658 F.3d at 1070.
The party invoking federal jurisdiction bears the burden of establishing these elements. See
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 608, 107 L. Ed. 2d 603 (1990).
Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case,
each element must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the
litigation. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883-889, 110 S. Ct. 3177, 3186-89, 111 L.
Ed. 2d 695 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114-15 & n.31, 99 S. Ct.
1601, 1615-16, 60 L. Ed. 2d 66 (1979).
Plaintiff alleges in the SAC that it is “an unincorporated non-profit association” with “members
who live, recreate and work in and around waters in the vicinity of” Armorcast’s facility. Plaintiff is
“dedicated to the preservation, protection, and defense of the environment, particularly with respect to
areas and waters near urban industrial communities.” The SAC alleges that Plaintiff’s members include
an individual identified as Robina Suwol, who resides “in and around the Los Angeles River and enjoys
using the Tujunga Wash and Los Angeles River for recreation and other activities” into which
Armorcast “has caused, is causing, and will continue to cause pollutants to be discharged.” Plaintiff
asserts that the interests of its “members, including Robina Suwol, have been, are being, and will
continue to be adversely affected by Defendants’ failure to comply with the Clean Water Act” and that
Defendants’ continuing acts and omissions “will irreparably harm Plaintiff and its members.”
Unlike when it dismissed the FAC with leave to amend because the FAC did not contain
sufficient well-pleaded facts to satisfy the requirements for Plaintiff’s asserted associational standing,
the Court concludes that the SAC alleges sufficient facts to survive Defendants’ facial challenge to its
standing. Specifically, the SAC alleges sufficient facts describing Plaintiff’s organizational structure,
the number and type of members, the location of those members, and how the members influence the
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 4 of 7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5728 PA (FFMx)

Date

February 9, 2015

Title

California Communities Against Toxics v. Armorcast Products Company, Inc.

organization. Although Defendants posit alternative theories and explanations in an effort to call
Plaintiff’s standing allegations into doubt, the Court nevertheless concludes that the SAC’s allegations
in support of Plaintiff’s standing are sufficiently plausible to satisfy the Twombly standard and survive
Defendants’ facial standing challenge.
In response to Defendants’ factual challenge to Plaintiff’s standing, Plaintiff submitted evidence
in support of its Opposition to Defendants’ Motion to Dismiss. Defendants filed evidentiary objections
to much of that evidence. In response to Defendants’ evidentiary objections, Plaintiff subsequently filed
a Request for Leave to File Response to Defendants’ Objections to Evidence (Docket No. 49)
(“Response to Objections”) that attaches supplemental declarations and exhibits that cure at least some
of the deficiencies identified in Defendants’ evidentiary objections. Defendants have filed an
Opposition to Plaintiff’s Response to Objections in which Defendants contend that Plaintiff’s Response
to Objections is an impermissible surreply that Plaintiff did not seek permission to file in accordance
with the requirements for an ex parte application. Although Defendants are correct that Plaintiff should
have proffered its evidence in an admissible form at the time it filed its Opposition, and that the
“Request” should have but did not comply with Local Rule 7-19’s requirements for an ex parte
application, to strike that evidence, and dismiss the SAC with leave to amend, as the Court would have
to do because that evidence, at a minimum, establishes that amendment would not be futile, would do
nothing more than unnecessarily delay these proceedings.1/ Moreover, the Response to Objections is not
a surreply but is instead simply a response to Defendants’ evidentiary objections. In any event, based on
the admissible evidence Plaintiff submitted in support of its Opposition, and the additional admissible
evidence Plaintiff filed with its Response to Objections, which the Court grants leave to file,2/ the Court
concludes that Plaintiff has submitted sufficient admissible evidence of its standing to survive
Defendants’ factual challenge.
B.

Sufficiency of Plaintiff’s 60-Day Notice

Defendants contend that the SAC fails to state a claim because the SAC includes allegations that
were not disclosed in the Pre-Litigation Notice required by the Clean Water Act. Defendants also argue
that the 60-day notice did not provide defendant Ari Aleong with adequate notice. “‘[C]ompliance with
the 60-day notice provision is a mandatory, not optional, condition precedent for suit.’” Ctr. for

1/

In the future, the Court expects both parties to comply with the Federal Rules of Civil Procedure,
the Local Rules, and the Orders of this Court. The failure to do so may result in the imposition of
sanctions.
2/

Plaintiff subsequently filed an Ex Parte Application for Leave to File a Response (Docket No.
54), to which Defendants filed an Opposition. Because the Court has granted leave for Plaintiff to file
its Response to Objections, the Court denies the Ex Parte Application as moot. The Court believes that
the parties should have been able to resolve these evidentiary and procedural issues without Court
intervention through an adequate meet and confer process.
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 5 of 7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5728 PA (FFMx)

Date

February 9, 2015

Title

California Communities Against Toxics v. Armorcast Products Company, Inc.

Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2008) (quoting Hallstrom v.
Tillamook Cnty., 493 U.S. 20, 26, 304, 309, 107 L. Ed. 2d 237 (1989)). According to regulations
adopted by the EPA, the notice “‘shall include sufficient information to permit the recipient to identify
the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute
a 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, address, and telephone number of the
person giving notice.’” Id. at 801 (quoting 40 C.F.R. § 135.3(a)). The Ninth Circuit has “sometimes
been slightly forgiving to plaintiffs in this area, but even at our most lenient we have never abandoned
the requirement that there be a true notice that tells a target precisely what it allegedly did wrong, and
when. The target is not required to play a guessing game in that respect.” Id.
Here, although the SAC makes several allegations concerning conduct that was not included in
the 60-day notice, the SAC repeats many of the allegations that were contained in the 60-day notice.
Additionally, the 60-day notice was addressed to Mr. Aleong, among others, and included him in its
definition of “Armorcast” used throughout the remainder of the notice. Plaintiff has, therefore,
complied with the 60-day notice requirements for most of the allegations and theories of liability
contained in the SAC against both Armorcast and Mr. Aleong. The SAC is therefore not subject to
dismissal for failure to comply with the 60-day notice requirement. To the extent that Plaintiff failed to
comply with the 60-day notice requirement with respect to a limited number of the SAC’s allegations, a
Federal Rule of Civil Procedure 12(b) motion was not the proper procedural vehicle for challenging the
adequacy of those allegations. At this stage of the litigation, and presented with a Rule 12(b) motion to
dismiss, the Court cannot strike only those portions of the SAC that may exceed the scope of the 60-day
notice. The Court therefore denies Defendants’ Motion to Dismiss without prejudice. Defendants may
raise issues related to the adequacy of the 60-day notice and whether the notice a sufficiently precise
description of particular factual allegations and theories of liability contained in the SAC through a
timely and procedurally proper motion.
C.

Application of EPA Benchmark Values

Defendants assert that the SAC fails to state a claim because Plaintiff has relied on EPA
benchmark values that do not apply to Defendants. Plaintiff responds that Defendants have
misconstrued the SAC and that Plaintiff is not seeking to hold Defendants liable for violating the
benchmark values. Instead, according the Plaintiff, it has cited the benchmark values for pH, total
suspended solids, oil and grease, and iron only as one factor to consider in determining if Defendants
have complied with the BAT and BCT standards.
The Court concludes that Plaintiff has not impermissibly sought to enforce benchmark values
that do not expressly apply to Defendants. “EPA Benchmarks are relevant guidelines that should be
used to evaluate the efficacy of a facility’s BMPs, but . . . samples in excess of those benchmarks do not
necessarily constitute a violation of the General Permit.” Santa Monica Baykeeper v. Int’l Metals Ekco,
Ltd., 619 F. Supp. 2d 936, 945 (C.D. Cal. 2009); see also id. at 946 (“The Clean Water Act, the General
Permit, and applicable regulations suggest that the approach to compliance with permits requires
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 6 of 7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5728 PA (FFMx)

Date

February 9, 2015

Title

California Communities Against Toxics v. Armorcast Products Company, Inc.

assessments based both on industry-wide standards and on an individualized and flexible approach.”).
As the Court held in Santa Monica Baykeeper, Plaintiff’s citations to the EPA benchmark values are
used as support for Plaintiff’s allegations that Defendants have failed to utilize BAT and BCT as
required by the General Permit. Plaintiff is not seeking to impose liability solely on the basis of the
EPA benchmark values. The Court therefore declines to grant Defendants’ Motion to Dismiss.
CONCLUSION
For all of the foregoing reasons, the Court denies Defendants’ Motion to Dismiss. Defendants
shall file their Answer to the SAC no later than February 23, 2015. In its November 12, 2014 minute
order granting Defendants’ Motion to Dismiss the FAC, the Court stated that it would issue a
Scheduling Order if and when Plaintiff alleged a viable claim that it had standing to pursue. Because
the Court has denied Defendants’ Motion to Dismiss the SAC, the Court will issue a separate
Scheduling Order.
IT IS SO ORDERED.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 7 of 7