KHATCHIKIAN v. PORT IMPERIAL FERRY CORPORATION et al

Filing 78

OPINION. Signed by Judge Kevin McNulty on 3/16/2023. (ld)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA AND
STATE OF NEW JERSEY EX REL.
RAFI KHATCHIKIAN AND IVAN
TORRES

Civ. No. 2:16-2388 (KM) (AME)

Plaintiffs/Relators,
OPINION

v.
PORT IMPERIAL FERRY
CORPORATION, et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:

Plaintiffs Rafi Khatchikian and Ivan Torres were previously employed by
Defendant Port Imperial Ferry Corporation d/b/a NY Waterway (“Port
Imperial”), which operates a fleet of commercial ferries and multiple boat
maintenance facilities. Plaintiffs, suing as relators under the Clean Water Act,
33 U.S.C. § 1251 et seq. (“CWA”), claim that Port Imperial violated federal
environmental laws by routinely dumping raw sewage, boat fuel, oil, and other
materials into New Jersey’s and New York’s waterways, and that they were
essentially fired in retaliation for objecting to it.
Now before the Court is Port Imperial’s renewed motion to dismiss Count
6 of the Amended Complaint, which contains Plaintiffs’ remaining CWA claims.
For the following reasons, Port Imperial’s motion is GRANTED.
To be clear, this dismissal and its predecessor (DE 38, 39) do not operate
as an approval of the dumping practices alleged. Rather, they largely reflect
jurisdictional and other legal defects, as well as bars to the assertion of these
environmental violations in the guise of private causes of action on behalf of
employees.

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I.

BACKGROUND
A. Factual Allegations1
Port Imperial is a Weehawken-based corporation that operates over thirty

ferry vessels in multiple major waterways in New Jersey and New York,
including the Hudson River, East River, New York Bay, and Raritan Bay.
(Compl. ¶¶ 1, 13, 105.)2 Its president and founder is Arthur Imperatore Sr. and
its vice president is Alan Warren. (Id. ¶¶ 14, 15.) Beginning in 2004, Port
Imperial’s fleet was partially owned by Billybey Ferry Company, LLC, a New
Jersey company formed by William Wachtel to take over debt payments of
approximately sixteen Port Imperial ferries. (Id. ¶¶ 16-18, 112.) Port Imperial
continued to operate and maintain those sixteen ferries and ultimately
acquired Billybey’s assets in 2016.3 (Id. ¶¶ 112-13.)
Port Imperial also operates a ferry passenger terminal and two
maintenance docks: a larger one (“the work dock”) that provides maintenance,
repairs, and refueling, and a smaller one (“the secondary dock”) that provides

In this section, I set forth only the factual allegations that pertain specifically to
Plaintiffs’ CWA claims, as they are the only live claims that remain in the case. A fuller
summary of the facts alleged in the Amended Complaint can be found in Section II of
my October 7, 2021 Opinion. (DE 38.)
1

2

Certain citations to the record are abbreviated as follows:
“DE” = Docket entry number in this case
“Compl.” = Plaintiffs’ First Amended Complaint and Demand for Jury
Trial (DE 10)
“First MTD Op.” = October 7, 2021 Opinion granting in part Defendants’
motions to dismiss (DE 38)
“Mot.” = Brief in Support of Defendants’ Renewed Motion to Dismiss
Count Six (DE 62-1)
“Opp.” = Plaintiffs’ Memorandum in Opposition to Port Imperial Ferry
Corporation’s Motion to Dismiss Count Six of the First Amended
Complaint (DE 69)

As part of this 2016 acquisition, Port Imperial entered into a leaseback
agreement with Billybey, which provided that Billybey would collect revenue from two
ferries while Port Imperial operated and maintained them. (Compl. ¶ 114.)
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refueling and “light maintenance” for Port Imperial’s “premier” vessels. (Id.
¶¶ 13, 107, 110-11.) The work dock is located in Weehawken and sits on
“water land” belonging to Romulus, another company owned by Imperatore. (Id.
¶¶ 13, 16, 109.)
Plaintiffs Khatchikian and Torres were both employed by Port Imperial at
its maintenance docks until 2015. Khatchikian worked as a fueler from 2013 to
2015, while Torres worked as a fueler and mechanic from 2011 to 2015. (Id.
¶¶ 11, 12, 120-22, 124-25.) As detailed below, both allege that they witnessed
Port Imperial’s employees routinely dumping sewage, garbage, oil, fuel, and
other pollutants into the Hudson River and other waterways in which Port
Imperial’s ferries operated. (Id. ¶ 3.) Indeed, they themselves were instructed to
dump these pollutants as part of their employment and were “expected to
individually take the blame” if authorities ever discovered it. (Id. ¶¶ 34, 37,
116, 150-51, 153.)
Ultimately, Khatchikian alleges, his employment was terminated after he
notified supervisors and union management that available equipment was
insufficient to properly dispose of raw sewage and that their method of
disposing of vessels’ sewage was illegal. (Id. ¶¶ 34, 141, 157-59.) Torres alleges
that he was “compelled to terminate” his own employment after complaining
about the pollution. (Id. ¶¶ 37, 160.)
Both before and after his termination, Khatchikian sought to observe and
document Defendants’ pollution. His observations, photographs, and videos
constitute part of the factual basis of the complaint, summarized in the
following sections.
1. Illegal Discharge of Sewage
One of the duties of a fueler was to dispose of sewage from vessels. Both
Khatchikian and Torres believed that the “proper” way to dispose of sewage was
to connect vessels to an intake hose that emptied into the municipal sewage
system. (Compl. ¶¶ 127, 129-32.)

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Port Imperial, however, allegedly had multiple routine practices for
illegally dumping pollutants. First, dock workers would use either a stationary
or portable pump to empty vessels’ sewage directly into the Hudson River. (Id.
¶¶ 146-47, 150-51.) Second, some ferries were equipped with on-board pumps
that would be used to pump out sewage when the ferries were in open water or
when docked. (Id. ¶ 148.) Third, some ferries were equipped with a pipe under
the vessel leading to the sewage holding tank that crewmembers would open
while the ferry was in motion, allowing gravity and suction to empty sewage
directly into the water. (Id. ¶¶ 117, 149.) Moreover, dock workers would also
put the chemical “Aqua Kem” into the ferries’ sewage tanks to reduce the odor
of sewage when it was discharged, and they would run vessels’ propellers to
disperse the sewage once it was released into the waters of the Hudson. (Id.
¶¶ 144, 171-72.)
All told, this practice of pollution was allegedly a “nightly” routine at Port
Imperial’s work dock, and it also occurred, though “not as common[ly,]” at Port
Imperial’s secondary maintenance dock.4 (Id. ¶ 133.) Given the size of vessels’
sewage holding tanks and the frequency of illegal dumping of sewage, Plaintiffs
estimate that Port Imperial “could easily discharge over 2,000 gallons of raw
sewage from 20 vessels directly into the Hudson River in a single day.” (Id.
¶ 156.)
Plaintiffs allege that these illegal methods of dumping sewage were
dictated by their supervisors and that Port Imperial was aware of these
practices. (Id. ¶¶ 150-51, 153-54.) Plaintiffs allege that Port Imperial Vice
President Alan Warren personally instructed Torres to illegally dump sewage
into the Hudson River, stating “the Coast Guard isn’t around, so just do what
you gotta do.” (Id. ¶ 162.) Indeed, Khatchikian states that on one occasion, he

Plaintiffs’ complaint also alleges that sewage was “sometimes” dumped at Port
Imperial’s passenger terminal when ferry vessels were moored there overnight. (Compl.
¶ 147.)
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saw Warren watching the illegal discharge of sewage in the Hudson River. (Id.
¶ 162.)
In further support of these allegations, Plaintiffs provide numerous
photographs that depict various Port Imperial vessels pumping brown-colored
liquid into nearby waters. (Id. ¶¶ 2, 150, 155.) Plaintiffs provide a nonexhaustive list of individual ferries allegedly involved in such pollution. (See id.
¶¶ 115-17, 119, 168.) Khatchikian also alleges that in October 2018, partially
in response to information provided by Plaintiffs, the Environmental Protection
Agency placed fluorescent dye into the sewage holding tank of a Port Imperial
vessel, as a test. (Id. ¶ 207.) The following day, Khatchikian observed Port
Imperial employees discharging sewage into the Hudson River, as evidenced by
fluorescent dye in the river water, and then using the boat’s propeller to
disperse the dyed sewage. (Id. ¶ 208.)
2. Illegal Discharge of Polluted Bilge Water
Khatchikian and Torres maintain that they witnessed multiple Port
Imperial ferries “routinely” discharge bilge water that was polluted with “oil,
fuel, lubricants, and coolant” directly into the Hudson River. (Compl. ¶¶ 167,
169.) To conceal the pollution in discharged bilge water, Port Imperial
mechanics allegedly would mix bilge water with liquid detergent before
discharging it, and then run a vessel’s propellers to churn and disperse the
water. (Id. ¶¶ 167-69, 171.) Plaintiffs name the individual ferries involved in
such pollution and provide first names or initials for mechanics said to have
participated in these practices. (See id. ¶¶ 118, 168.) Additionally, Khatchikian
states that after he left Port Imperial’s employ, he observed the discharge of oil
and other pollutants from Port Imperial vessels into the Hudson River on at
least three separate occasions: June 25, June 27, and September 23, 2018. (Id.
¶¶ 204-06.)
3. Other Alleged Violations of Environmental Laws
Plaintiffs also allege, albeit more briefly, that Port Imperial illegally
discharged other pollutants into nearby waterways, improperly disposed of

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ship-related refuse, and tried to conceal their violations of environmental law
from both government authorities and the public.
First, they allege that Port Imperial’s vessels dumped “hundreds of
gallons of coolant” into the waterways. (Compl. ¶ 173.) They claim that when
vessels were damaged—a “common and ordinary occurrence”—and leaking
coolant, Port Imperial would ask mechanics and fuelers, including Plaintiffs, to
regularly replenish the coolant but would avoid getting the leaks repaired until
they were informed of an impending Coast Guard inspection. (Id. ¶¶ 174-77.)
Second, they state that Torres witnessed Port Imperial employees
routinely polluting the Hudson River with used batteries and aluminum
shavings while repairing Port Imperial’s vessels at both maintenance docks. (Id.
¶¶ 178-80.) No further detail is given.
Third, Plaintiffs maintain that Port Imperial “failed to follow proper
disposal procedures” for oil filters and fuel filters. (Id. ¶ 165.) In support of this
claim, they provide a photograph dated March 14, 2015, that purportedly
depicts used oil filters in a dumpster. (Ibid.)
Finally, Plaintiffs state that Port Imperial aimed to hide their
environmental violations, for instance by concealing oil and fuel filters that
they improperly disposed of in black plastic garbage bags. (Id. ¶ 3.) In another
instance, Khatchikian claims that he accidentally caused a fuel spill of
“somewhere between 300 and 350 gallons of fuel” into the Hudson River and
notified Warren, who told him that “if anybody asks,” he should report that the
spill was between 30 and 60 gallons. (Id. ¶¶ 170, 185-86.)
B. Procedural History
Plaintiffs commenced this action on April 28, 2016. (DE 1.) On November
17, 2020, Plaintiffs filed their operative Amended Complaint alleging that Port
Imperial, along with Arthur Imperatore, Alan Warren, Romulus Development
Corp. (“Romulus”), Billybey Ferry Company, LLC (“Billybey”), and William

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Wachtel5 (collectively, the “Defendants”) 1) violated and conspired to violate the
federal False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. (Counts 1 and 2); 2)
violated and conspired to violate the New Jersey False Claims Act (“NJFCA”),
N.J. Stat. Ann. § 2A:32C-1 et seq. (Counts 3 and 4); 3) violated the CWA,
formally referred to as the Federal Water Pollution Prevention and Control Act,
33 U.S.C. § 1251 et seq. (Count 6); and 4) violated the New Jersey Racketeer
Influenced and Corrupt Organizations Act (“NJRICO”), N.J. Stat. Ann. § 2C:411 et seq. (Count 7) (Compl. ¶¶ 220-51, 261-88.) Additionally, Plaintiffs claimed
that Port Imperial retaliated against Khatchikian in violation of the FCA, 31
U.S.C. § 3730(h) (Count 8).6 (Compl. ¶¶ 289-94.)
On April 2, 2021, Port Imperial, Arthur Imperatore, Romulus, and Billbey
filed a motion to dismiss Plaintiffs’ amended complaint, arguing that 1)
Plaintiffs failed to state claims under the FCA, NJFCA, and NJRICO, or for
retaliation; 2) Plaintiffs failed “to allege liability on behalf of the individual
defendants”; and 3) this Court lacks subject matter jurisdiction over Plaintiffs’
CWA claims. (DE 19.) Alan Warren filed a separate motion to dismiss on May
23, 2021, similarly arguing that Plaintiffs failed to state viable, plausible claims
in their complaint. (DE 27, 28.) On October 7, 2021, I granted the motions in
part, dismissing Counts 1, 2, 3, 4, 7, and 8. (DE 38) As to Plaintiffs’ remaining
CWA claims (Count 6), I denied the motions to dismiss without prejudice to
renewal following jurisdictional discovery on the issue of subject matter
jurisdiction—specifically, evidence regarding the timing and content of
Plaintiffs’ purported communications with the Defendants which, in Plaintiffs’
view, satisfy the 60-day pre-suit notice requirement under the CWA.
It is apparent from the docket that despite being added as a named defendant,
William Wachtel has not appeared or otherwise participated in this case to date. In
fact, it is unclear whether he was ever served. I understand Plaintiffs to have
abandoned their claims against Mr. Wachtel individually.
5

In Count 5 of their Amended Complaint, Plaintiffs also alleged that defendants
violated the federal Act to Prevent Pollution from Ships, 33 U.S.C. § 1901 et seq., and
retaliated against Khatchikian in violation of the NJFCA. (Compl. ¶¶ 252-60, 295-300.)
However, Plaintiffs withdrew those claims on July 16, 2021. (DE 33.)
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Jurisdictional discovery closed on June 27, 2022. (DE 59.) On July 29,
2022, the same group of Defendants renewed their motions to dismiss, with
Alan Warren again moving separately, asserting that the Court lacks subject
matter jurisdiction over Plaintiffs’ remaining CWA claims because Plaintiffs
failed to comply with that statute’s pre-suit notice requirement. (DE 61; DE
62.) On September 27, 2022, Plaintiffs filed a brief in opposition to the renewed
motions. (DE 69.) On November 8, 2022, the moving Defendants filed reply
briefs. (DE 74; DE 75.) On February 9, 2023, Plaintiffs voluntarily dismissed
their claims against defendants Alan Warren, Arthur Imperatore, Romulus, and
Billybey. That dismissal rendered Warren’s motion (DE 63) moot, and left Port
Imperial as the only remaining defendant with a motion pending (DE 62).
Port Imperial’s renewed motion to dismiss Count 6 of the amended
complaint, now fully briefed and ripe for decision, is the subject of this opinion.
II.

LEGAL STANDARD
Federal courts, as courts of limited jurisdiction, have an obligation to

establish subject matter jurisdiction, raising it sua sponte if necessary See
Liberty Mut. Ins. Co. v. Ward Trucking Co., 48 F.3d 742, 750 (3d Cir. 1995). If a
court determines at any time that it lacks subject matter jurisdiction, it must
dismiss the action because subject matter jurisdiction “calls into question the
very legitimacy of a court’s adjudicatory authority.” See Council Tree
Commc’ns., Inc. v. FCC, 503 F.3d 284, 292 (3d Cir. 2007).
A motion to dismiss for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) may be brought as a facial or factual challenge. See Church of the
Universal Bhd. v. Farmington Twp. Supervisors, 296 F. App’x 285, 288 (3d Cir.
2008). Where the motion challenges jurisdiction on the face of the complaint,
the court only considers the allegations of the complaint and documents
referred to therein in the light most favorable to the plaintiff. Gould Elecs., Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). The standard of
review in a facial challenge is treated like a Rule 12(b)(6) motion to dismiss, in

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that the court must assume that the complaint’s well-pleaded factual
allegations are true. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).
By contrast, where the existence of subject matter jurisdiction is
challenged factually, “no presumptive truthfulness attaches to the plaintiff’s
allegations,” and the court may consider evidence outside the pleadings to
satisfy itself of its power to hear the case. Id. Thus “Rule 12(b)(1) does not
provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming
the truth of the plaintiff’s allegations.” CNA v. United States, 535 F.3d 132, 144
(3d Cir. 2008).
III.

DISCUSSION
Port Imperial previously moved to dismiss Plaintiffs’ CWA claims for lack

of subject matter jurisdiction, arguing that 1) Plaintiffs did not comply with the
CWA’s 60-day pre-suit notification requirement, and 2) Plaintiffs allege past
violations whereas only ongoing violations are redressable under the CWA. In
my October 7, 2021 Opinion, I ruled that Plaintiffs had alleged ongoing
violations of the CWA, but that their compliance with the CWA’s pre-suit notice
provision remained an open question. (MTD Op. at 17-23.) To resolve this
lingering issue, I ordered limited jurisdictional discovery to determine whether
Plaintiffs did, in fact, satisfy this jurisdictional prerequisite.7 The record, as it
Plaintiffs reassert their prior argument that the CWA notice provision is not
jurisdictional and “ask the Court to reconsider its earlier ruling to the contrary.” (Opp.
at 7.) I decline their invitation to do so. I noted in my previous Opinion that the Third
Circuit has explicitly categorized the CWA’s pre-suit notification requirement as a
“jurisdictional prerequisite.” (MTD Op. at 18 (citing Pub. Interest Research Group v.
Windall, 51 F.3d 1179, 1189 n.15 (3d Cir. 1995)). Less than a year after I issued that
Opinion, the Third Circuit addressed this very issue in Shark River Cleanup Coalition
v. Township of Wall, 47 F.4th 126 (3d Cir. 2022). There, the Third Circuit reiterated its
previous characterization of the notice provision as jurisdictional but noted the
possibility that such notice may be better characterized as “quasi-jurisdictional.” Id. at
133 n. 10. Nevertheless, the Court opined that “[a]dequacy of notice is a legal question
even if it is not strictly jurisdictional.” Id. (citing Friends of the Earth, Inc. v. Gaston
Copper Recycling, Corp., 629 F.3d 387, 400 (4th Cir. 2011) (describing sufficiency of
notice as a “legal defense”)). Equipped with this guidance from the Third Circuit, I will
proceed in accordance with my earlier ruling, with the caveat that even if the CWA’s
notice requirement is not strictly jurisdictional, inadequate notice still requires
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has been developed, indicates that Plaintiffs did not comply with the CWA’s 60day pre-suit notification requirement. As a result, this Court lacks subject
matter jurisdiction over Plaintiffs’ CWA claims, which therefore must be
dismissed.
The CWA provides that a citizen may not commence an action “prior to
sixty days after the plaintiff has given notice of the alleged violation (i) to the
Administrator [of the Environmental Protection Agency], (ii) to the State in
which the alleged violation occurs, and (iii) to any alleged violator[.]” 33 USC §
1365(b)(1)(A). Fulfilling the pre-suit notification requirement is a “mandatory,
not optional, condition precedent for suit.” Public Interest Research Group v.
Hercules, Inc., 50 F.3d 1239, 1249 (3d Cir. 1995) (quoting Hallstrom v.
Tillamook County, 493 U.S. 20, 26 (1989)).
Plaintiffs commenced the present action when they filed their initial
complaint on April 28, 2016. See Fed. R. Civ. P. 3 (“A civil action is commenced
by filing a complaint with the court.”).8 In order to comply with the CWA’s 60day notice provision, then, Plaintiffs would have to have provided Port Imperial
and others notice of the alleged violations by February 28, 2016. Plaintiffs have
failed to identify any correspondence with Port Imperial, the EPA, or any other
defendant or government agency regarding the alleged CWA violations prior to
that date.9 That failure alone warrants dismissal.
dismissal. Even assuming that the Rule 12(b)(1) motion would need to be converted to
one for summary judgment pursuant to Rule 12(d), no concerns of fair notice arise. I
afforded the parties the opportunity for discovery on the issue, and they have
presented the evidence they regard as pertinent.
District Courts around the country have regularly held that the rule regarding
when an action is commenced is the same for CWA suits as it is for any other type of
action. See, e.g, Cal. Sportfishing Prot. All. v. USA Waste of Cal., Inc., No. 11-CV-2663,
2012 WL 2339810, at *4-5 (E.D. Cal. June 19, 2012) (“[a]n action alleging violations of
the CWA is ‘commenced’ when the CWA claim appears in the complaint”); Olympians
for Pub. Accountability v. Port of Olympia, No. C09-5756, 2011 WL 62147, at *3 (W.D.
Wash. Jan. 7, 2011) (finding that a CWA action was “commenced” when it appeared
for the first time in the amended complaint).
8

Indeed, the only cited relevant correspondence prior to the commencement of
this action was a March 2016 exchange in which Mr. Khatchikian’s prior counsel sent
9

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Plaintiffs argue, contrary to the clear language of Fed. R. Civ. P. 3, that
the present action was not “commenced” until it was “both filed and served on
the Defendant.” (Opp. at 11 (emphasis added).) This must be so, say Plaintiffs,
because their pleading is a “hybrid complaint” that contains both CWA and
FCA claims, and they could not provide CWA notice since the FCA required
them to file their complaint under seal. (Opp. at 11.) Plaintiffs imply that when
a plaintiff brings these two types of claims together, the FCA’s secrecy
requirement trumps the CWA’s pre-suit notification requirement. Setting aside
the fact that Plaintiffs provide no legal support for this proposition,10 the
argument is flawed for practical reasons. To the extent any conflict exists
between Plaintiffs’ obligations under the CWA and the FCA, this conflict was
created by Plaintiffs themselves. Indeed, there is no reason Plaintiffs could not
have sent Defendants notice of the alleged CWA violations even if they intended
to later file their hybrid CWA/FCA complaint under seal. Moreover, Plaintiffs
could easily have bifurcated their CWA and FCA claims, filing one complaint
containing the FCA claims under seal and filing a second complaint containing
the CWA claims on the public docket following the 60-day notice period.
Port Imperial an un-filed wrongful termination complaint that included “written
allegations about [Port Imperial’s] routine practice of discharging hundreds of gallons
of human waste into the Hudson River.” (Opp. at 2.) Threatening to bring an action for
wrongful termination does not constitute adequate notice of intent to sue under the
CWA, even if the communication was sent 60 days prior to filing.
Plaintiffs draw inspiration for their theory from the Second Circuit’s decision in
Dague v. City of Burlington, 935 F.2d 1344 (2d Cir. 1991), which involved a “hybrid
complaint” that contained CWA claims brought in conjunction with claims under the
Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a). However,
Dague—a decision that is not binding on this Court in any event—is irrelevant to the
present action. This is because the holding in Dague was limited to CWA suits that
include allegations of hazardous waste violations brought under subchapter III of the
RCRA, which are excepted from the RCRA’s analogous 60-day waiting period. Because
the purpose of this exception in the RCRA is to prevent delay in addressing emergent
hazardous waste violations, the Court in Dague excused the CWA’s 60-day delay
requirement for this very specific situation. Id. at 1353-1354. The CWA/RCRA “hybrid”
in Dague does not present an appropriate or even useful application to the
combination of CWA and sealed FCA claims at issue here.
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Finally, Plaintiffs’ theory is untenable as it would allow any claimant to
circumvent the CWA’s 60-day pre-suit notification by tacking on an FCA claim
to create a “hybrid complaint” that would have to remain secret while
environmental violations remain ongoing. This would directly contravene the
legislative purpose of the CWA’s notice requirement, which is to “afford[] an
opportunity for the alleged violator to bring itself into compliance with the
CWA, or for the enforcer of first resort, the EPA, or the appropriate state
agency, to institute an enforcement action.” City of Newburgh, v. Sarna, 690 F.
Supp. 2d 136, 147 (citing Hallstrom v. Tillamook County, 493 U.S. 20, 29
(1989); see also Friend of Earth v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 17576 (2000) (“the purpose of the notice to the alleged violator is to give it an
opportunity to bring itself into complete compliance with the Act and thus …
render unnecessary a citizen suit”) (quoting Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987) (internal quotations
omitted)). For these reasons, I decline to adopt the “hybrid complaint”
exception to Fed. R. Civ. P. 3 that Plaintiffs propose.11
Because Plaintiffs failed to comply with the CWA’s 60-day pre-suit
notification requirement, this Court lacks subject matter jurisdiction over
Plaintiffs’ CWA claims, and what remains of the Amended Complaint must be
dismissed.

Given that this action was in fact commenced in 2016, I decline to address
certain October 2018 letters cited by Plaintiffs. Plaintiffs argue that these constituted
adequate CWA notice, and that such notice was “augmented” by communications
about the case between the U.S. Attorney’s Office for the District of New Jersey and
Defendants’ counsel. (Opp. at 16-17; see also Mot. at 9-10.) But correspondence
stating that an unnamed “client” intended to “file a complaint against [Port Imperial]
after the statutory 60-day waiting period” does not provide adequate notice of a
complaint that had been filed more than two years earlier. (See Mot. 4-5 (quoting one
of Plaintiffs’ October 2018 letters in full).)
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IV.

CONCLUSION
For the reasons set forth above, Port Imperial’s motion to dismiss is

GRANTED.
Because the parties have had the opportunity to take discovery, and it is
clear that amendment would be futile, this dismissal will be entered with
prejudice.
An appropriate order follows.
Dated: March 16, 2023
/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

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