Waste Action Project v. Port of Olympia

Filing 53

ORDER denying Plaintiff's 41 Motion for Leave to Amend, signed by Judge Benjamin H. Settle. (ERA)

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7
8

CASE NO. C17-5445 BHS

WASTE ACTION PROJECT,
Plaintiff,

9
10

v.

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND

PORT OF OLYMPIA,

11

Defendant.

12
13

This matter comes before the Court on Plaintiff Waste Action Project’s (“WAP”)

14

motion for leave to amend. Dkt. 41. The Court has considered the pleadings filed in

15

support of and in opposition to the motion and the remainder of the file and hereby denies

16

the motion for the reasons stated herein.

17
18

I.

PROCEDURAL HISTORY

On June 12, 2017, WAP filed a citizen suit under section 505 of the Clean Water

19

Act as amended, 33 U.S.C. § 1365a, against Defendant Port of Olympia (“Port”). Dkt. 1.

20

WAP alleged that the Port had “discharged stormwater containing levels of pollutants

21

that exceed the benchmark values established by” the relevant permits. Id. ¶ 21.

22

ORDER - 1

1

On October 23, 2017, WAP sent the Port a notice letter informing the Port of

2

alleged “illicit discharges of grain dust and process wastewater from dust control

3

operations . . . .” Dkt. 41-1, ¶ 34.

4

The Court has granted numerous stipulated extensions of various deadlines based

5

on assertions that the parties were actively discussing settlement. See, e.g., Dkt. 28.

6

However, on September 26, 2018, the Court issued a new scheduling order setting the

7

date for amended pleadings as November 6, 2018. Dkt. 38.

8

On April 18, 2019, WAP filed the instant motion for leave to amend the complaint

9

to add claims regarding the alleged illicit discharges of dust. Dkt. 41. On April 29, 2019,

10

the Port responded. Dkt. 44. On May 3, 2019, WAP replied. Dkt. 47. On May 7, 2019,

11

the Port filed a surreply requesting that the Court strike WAP’s reference to the reason

12

for the breakdown in settlement negotiations. Dkt. 50. 1

13
14

II. DISCUSSION
Once the deadline to amend pleadings has passed, the moving party must establish

15

“good cause” to amend. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608–09

16

(9th Cir. 1992). “Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad

17

faith of the party seeking to interpose an amendment and the prejudice to the opposing

18

party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party

19

seeking the amendment.” Id. “If [the moving] party was not diligent, the inquiry should

20
21
22

1

The Court grants the motion to strike because the identified argument is irrelevant.

ORDER - 2

1

end.” Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017)

2

(quoting Johnson, 975 F.2d at 609).

3

In this case, WAP has failed to establish diligence, thus ending the inquiry. First,

4

WAP’s arguments regarding any prejudice the Port may suffer are irrelevant. Dkt. 47 at

5

1–3. Second, WAP’s diligence arguments are without merit. WAP argues that the

6

parties could not settle “this case” without a further action by the Washington

7

Department of Ecology, which has not occurred. Id. at 4. While waiting for an

8

administrative action is certainly an excuse for being unable to prosecute this case,

9

WAP’s proposed claims are not in this case, and WAP provides no explanation for why

10

the proposed claims could not have been added earlier despite the administrative

11

proceeding.

12

WAP also argues that settlement discussions did not fully dissolve until March 28,

13

2019. Dkt. 47 at 4. WAP provides no explanation for why it could not add claims to its

14

complaint that were presented to the Port in its notice letter while settlement negotiations

15

were ongoing. It is entirely possible that WAP intended to settle the current claims and

16

then immediately file a new complaint based on the dust claims. Thus, settlement

17

negotiations regarding current claims is no excuse for failure to add noticed claims.

18

Finally, WAP argues that “[c]ourts have found plaintiffs demonstrated diligence

19

despite longer delays than that presented here.” Dkt 47 at 4. While true, that is an

20

insufficient excuse for essentially doing nothing procedurally with respect to the noticed

21

claims. If anything, WAP could have included in one of the parties’ stipulated motions

22

for an extension that its failure to act on the noticed claims was not a lack of diligence but

ORDER - 3

1

a deliberate decision to save the Court’s and the parties’ resources. Moreover, it is

2

unclear whether the Port would have even objected to a timely motion to amend. The

3

Court is aware of the judicial inefficiencies involved with WAP filing a new complaint

4

that could be consolidated with this action, but binding precedent requires a finding of

5

diligence, which is completely lacking here.

6
7
8
9

III. ORDER
Therefore, it is hereby ORDERED that WAP’s motion for leave to amend, Dkt.
41, is DENIED.
Dated this 7th day of June, 2019.

A

10
11

BENJAMIN H. SETTLE
United States District Judge

12
13
14
15
16
17
18
19
20
21
22

ORDER - 4