TRESSLER v. SUMMIT TOWNSHIP

Filing 37

MEMORANDUM OPINION AND ORDER - upon consideration of PennDot's Motion to Dismiss (ECF No. 34 ), and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby Ordered as follows: PennDot's Motion to Dismiss (ECF No. [3 4]) is GRANTED. The Court further Grants Plaintiff leave to file a second amended complaint. Plaintiff shall have 14 days from the date of this Order to file a second amended complaint. Responsive pleadings shall be due 14 days after Plaintiff files his second amended complaint. The remaining dates in the Initial Scheduling Order (ECF No. 18 ) remain unchanged, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 2/16/2018. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GRANT TRESSLER,

)

Case No. 3:17-cv-32

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)
)

SUMMIT TOWNSHIP and the
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,

)
)
)
)
)

Defendants.

)

MEMORANDUM OPINION

I.

Introduction
Pending before the Court is a Motion to Dismiss filed by the Department of

Transportation of the Commonwealth of Pennsylvania ("PennDot") (ECF No. 34). For the
reasons explained below, the Court will grant PennDot' s Motion to Dismiss. The Court
will also grant Plaintiff leave to file a second amended complaint.
II.

Jurisdiction
The Court has jurisdiction over Plaintiff's federal claim pursuant to 28 U.S.C. §

1331. The Court has supplemental jurisdiction over Plaintiff's state law claims pursuant to
28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b) because a substantial portion
of the events giving rise to the claims occurred in the Western District of Pennsylvania.

III.

Background

Plaintiff, a property owner in Somerset County, Pennsylvania, brings this action
under§ 1311(a) of the Clean Water Act ("the Act") 1 and the Pennsylvania Clean Streams
Law, 35 Pa. C.S. § 691.1 et seq. ("PCSL"). Plaintiff claims that Summit Township and
PennDot caused-and continue to cause-damage to his property and the waters of the
United States by maintaining a "ditch-and-culvert system" that discharges storm water
and untreated sewage onto his property and, ultimately, into the Casselman River which
borders his property. (See ECF No. 26.)
Plaintiff's Amended Complaint asserts three Counts against Summit Township
and PennDot: (1) a violation of the CWA and the PCSL; (2) common law continuing
trespass; and (3) common law continuing nuisance. (See ECF No. 26.) Plaintiff seeks
declaratory and injunctive relief, as well as statutory civil penalties and compensatory
damages. (Id. at 12-13.)
On December 29, 2017, PennDot filed its Motion to Dismiss Plaintiff's Amended
Complaint (ECF No. 34). 2 PennDot asserts that Plaintiff's claims are barred by Eleventh
Amendment sovereign immunity because PennDot is an arm of the Commonwealth of
Pennsylvania. (See ECF No. 35 at 4-8.)

As the Supreme Court recently explained,
Congress enacted the Clean Water Act in 1972 "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." § 1251(a). One
of the Act's principal tools in achieving that objective is§ 13ll(a), which prohibits
"the discharge of any pollutant by any person," except in express circumstances. A
"discharge of a pollutant" is defined broadly to include "any addition of any
pollutant to navigable waters from any point source," such as a pipe, ditch, or
other "discernible, confined and discrete conveyance."§§ 1362(12), (14).
Nat'l Ass'n of Mfrs. v. Dep't of Def, 138 S. Ct. 617, 623 (2018).
2 Summit Township filed an Answer on 12/13/2017. (ECF No. 31.)
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2

In her Brief in Opposition to PennDot' s Motion to Dismiss, Plaintiff seems to
concede that (1) a state cannot be sued for monetary damages in federal court absent
Congressional abrogation or waiver, neither of which apply here, and (2) that, while state

officials may be sued in their official capacities for prospective injunctive relief, Plaintiff's
Amended Complaint fails to assert any claims against state officials in their official
capacities. (See ECF No. 36 at 2-4.) Having conceded these points, Plaintiff asks this Court
for leave to amend to file a second amended complaint. (See id. at 3-4.) Accordingly, the
Court construes Plaintiff's Brief in Opposition as a motion for leave to file a second
amended complaint.

IV.

Legal Standards
A.

Motion to Dismiss

A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for
"failure to state a claim upon which relief can be granted." Connelly v. Lane Const.

Corp., 809 F.3d 780, 786 (3d Cir. 2016). But detailed pleading is not generally
required. Id. The Rules demand only "a short and plain statement of the claim showing
that the pleader is entitled to relief" 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
(2007) (quoting Fed. R. Civ. P. 8(a)(2)).
Under the pleading regime established by Twombly and Iqbal, a court reviewing
the sufficiency of a complaint must take three steps. 3 First, the court must "tak[e] note of

Although Iqbal described the process as a "two-pronged approach," Iqbal, 556 U.S. at 679, the
Supreme Court noted the elements of the pertinent claim before proceeding with that
approach, id. at 675-79. Thus, the Third Circuit has described the process as a three-step
3

3

the elements [the] plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009). Second, the court should identify allegations that, "because they are no more than
conclusions, are not entitled to the assumption of truth." Id. at 679; see also Burtch v.

Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) ("Mere restatements of the elements
of a claim are not entitled to the assumption of truth.") (citation omitted). Finally, "[w]hen
there are well-pleaded factual allegations, [the] court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S.
at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is
"a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Iqbal, 556 U.S. at 679.

B.

Eleventh Amendment Sovereign Immunity

The Eleventh Amendment states that "[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State." 4 U.S. Const. amend. XI. The Supreme Court "has long 'understood the
Eleventh Amendment to stand not so much for what it says, but for the presupposition ...
which it confirms.'" Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000) (quoting
approach. See Connelly, 809 F.3d at 787; Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir.
2011) (citing Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010)).
4 The Supreme the Court has long held that "the Eleventh Amendment bars a citizen from bringing
suit against the citizen's own State in federal court, even though the express terms of the
Amendment refer only to suits by citizens of another State." Welch v. Texas Dep't of Highways & Pub.
Transp., 483 U.S. 468, 472 (1987) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)).

4

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (internal citations omitted)). This
presupposition is that "the States entered the federal system with their sovereignty intact
[and] that the judicial authority in Article III is limited by this sovereignty .... " Blatchford

v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 779 (1991) (citing Welch, 483 U.S. at 472).
"Accordingly, for over a century now, [the Supreme Court has] made clear that the
Constitution does not provide for federal jurisdiction over suits against nonconsenting
States." Kimel, 528 U.S. 62 at 73, (citing College Savings Bank v. Florida Prepaid Postsecondary

Ed. Expense Bd., 527 U.S. 666, 669-670 (1999)).
But "a state's Eleventh Amendment protection from federal suits-whether
brought by citizens of their state or another-is not absolute." Koslow v. Commonwealth of

Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). Federal courts recognize three exceptions to
Eleventh Amendment sovereign immunity: (1) "Congress may abrogate the States'
Eleventh Amendment immunity when it both unequivocally intends to do so and 'act[s]
pursuant to a valid grant of constitutional authority"' Bd. of Trustees of Univ. of Alabama v.

Garrett, 531 U.S. 356, 363 (2001) (internal citations omitted); (2) "a state may waive its
sovereign immunity by consenting to suit" Koslow, 302 F.3d 161, 168 (3d Cir. 2002) (citing

Coll. Sav. Bank, 527 U.S. at 670) (internal citations omitted)); and (3) a state official may be
sued in his or her official capacity for prospective injunctive relief under the "legal
fiction" of Ex parte Young, 209 U.S. 123 (1908). 5 See Kentucky v. Graham, 473 U.S. 159, 167

s As the Supreme Court has noted, Ex Parte Young rests on the "obvious fiction" that an official
capacity suit seeking prospective injunctive relief "is not really against the State, but rather against
an individual who has been 'stripped of his official representative character' because of his
unlawful conduct." Virginia Office for Prat. & Advocacy v. Stewart, 563 U.S. 247, 267 (2011) (quoting
Ex Parte Young, 209 U.S. at 159-160.) Thus, "Ex parte Young also rests on the 'well-recognized irony

5

(1985) (explaining that "official-capacity actions for prospective relief are not treated as
actions against the State."); see also Edelman v. Jordan, 415 U.S. 651, 677 (holding that "a
federal court's remedial power, consistent with the Eleventh Amendment, is necessarily
limited to prospective injunctive relief.")

V.

Discussion
Plaintiff cannot invoke the first exception to sovereign immunity because "citizen

suits filed pursuant to the provisions of the Clean Water Act do not abrogate a state's
Eleventh Amendment immunity." Duffy v. Kent Cty. Levy Court, Inc., No. CIV. 09-817-SLR,
2011 WL 748487, at *6 (D. Del. Feb. 23, 2011) (citing Burnette v. Carothers, 192 F.3d 52 (2d
Cir. 1999) and Natural Res. Def Council v. California Dep't of Transp., 96 F.3d 420, 423 (9th
Cir. 1996)); see also Chittister v. Dep't of Cmty. & Econ. Dev., 226 F.3d 223, 226 (3d Cir. 2000)
(citing Seminole Tribe, 517 U.S. at 63-73) (holding that Article I of the Constitution does
/1

not" abrogate Eleventh Amendment Immunity) and United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133 (1985) (explaining that Congress "intended to ... exercise its
powers under the Commerce Clause" in enacting the Clean Water Act).
Plaintiff similarly cannot invoke the second exception to sovereign immunity
because "the Pennsylvania legislature has expressly declined to waive its sovereign
immunity by statute." Bukovinsky v. Pennsylvania, 455 F. App'x 163, 165 (3d Cir. 2011)

that an official's unconstitutional conduct constitutes state action under the Fourteenth
Amendment but not the Eleventh Amendment."' Virginia Office for Prat. & Advocacy, 563 U.S. at 272
(quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 105 (1984) (internal quotation
marks omitted)).

6

(citing Lavia v. Pennsylvania Dep't of Corrections, 224 F.3d 190, 195 (3d Cir. 2000) and 42 Pa.
C.S. § 8521(b)); Nails v. Pennsylvania Dep't of Transp., 414 F. App'x 452, 455 (3d Cir. 2011).6
Accordingly, to maintain her claim against PennDot, Plaintiff must satisfy the Ex

parte Young exception to sovereign immunity. However, Plaintiff cannot satisfy Ex parte
Young because Plaintiff failed to sue any state officials in their official capacities. (See
"First Amended Complaint," ECF No. 26.) Therefore, Plaintiff failed to state a plausible
claim for relief against PennDot.
Because Plaintiff failed to state a plausible claim for relief against PennDot, the
Court will grant PennDot's Motion to Dismiss (ECF No. 33).

VI.

Leave to Amend
As noted above, Plaintiff asks this Court for leave to file a second amended

complaint that names state officials in their official capacities and properly seeks
prospective injunctive relief under Ex parte Young.
"[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit
a curative amendment unless such an amendment would be inequitable or futile."

CollegeSource, Inc. v. AcademyOne, Inc., 597 F. App'x 116, 126 (3d Cir. 2015) (quoting Phillips
v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008)). Amendment would be futile "if the
amended complaint would not survive a motion to dismiss for failure to state a claim
upon which relief could be granted." Munchak v. Ruckno, 692 F. App'x 100, 102 (3d Cir.
2017) (internal citations omitted).

42 Pa. C.S. § 8521 reads, "[n]othing contained in this subchapter shall be construed to waive the
immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh
Amendment to the Constitution of the United States."

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The Court finds that amendment would not be futile with respect to a claim for
prospective injunctive relief under Ex parte Young. Therefore, the Court will grant Plaintiff
leave to file a second amended complaint.
An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GRANT TRESSLER,

)

Case No. 3:17-cv-32

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)

)

SUMMIT TOWNSHIP and the
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,

)
)
)
)
)

Defendants.

)

ORDER

NOW, this

I~-/- hday of February, 2018, u pan consideration of PennDot's Motion to

Dismiss (ECF No. 34), and for the reasons set forth in the accompanying Memorandum Opinion, it is
HEREBY ORDERED as follows:
1. PennDot's Motion to Dismiss (ECF No. 34) is GRANTED.

2. The Court FURTHER GRANTS Plaintiff leave to file a second amended complaint.
a. Plaintiff shall have 14 days from the date of this Order to file a second amended
complaint.
b. Responsive pleadings shall be due 14 days after Plaintiff files his second amended
complaint.
3. The remaining dates in the Initial Scheduling Order (ECF 18) remain unchanged.
BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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