Paolino v. JF Realty, LLC

Mar 13: In the U.S. Court of Appeals, First Circuit, Case No. 12-2031. Appealed from the United States District Court of Rhode Island, Providence. The appeal presents an issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given at least sixty days before a citizen enforcement action may be brought under the federal Clean Water Act (CWA).

 

    Failure to comply with the CWA's sixty-day notice requirement bars such an action and calls for dismissal of the suit. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 32-33 (1989). The required contents of pre-suit notice are prescribed in 40 C.F.R. § 135.3, and assessing whether these requirements have been met is a functional, fact-dependent, and case-specific inquiry.

 

    The Appeals Court rules that, "Where the information contained in pre-suit notice identifies the potential plaintiffs, provides basic contact information, and allows the putative defendants to identify and remedy the alleged violations, we hold that these requirements have been satisfied and that the enforcement action may proceed. This does not mean that the defendants are precluded from asserting defenses under Fed. R. Civ. P. 12(b)(6); only that the suit is not barred in the district court. This holding requires us to find error in the district court's dismissal of this case. We reverse, in part, and remand for further proceedings consistent with this opinion."

 

    Defendants in the case filed their motion to dismiss the complaint on February 14, 2012, arguing that plaintiffs had failed to allege or establish several mandatory prerequisites to a citizen suit under the CWA. Specifically, defendants asserted that: (1) plaintiffs' pre-suit Notice did not describe the alleged CWA violations with the specificity required under 40 C.F.R. § 135.3(a); (2) plaintiffs' service of the Notice on defendant Robert Yabroudy was defective under 40 C.F.R. § 135.2; and (3) plaintiffs did not mail an as-filed and date-stamped copy of the complaint to the EPA Administrator, EPA Regional Administrator, and U.S. Attorney General, as required by 40 C.F.R. § 135.4. Defendants also requested that the district court dismiss the complaint with prejudice based upon plaintiffs' previous failures to comply with the CWA's notice requirements.

 

    The district court issued an order on July 26, 2012, dismissing the complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. "It found that plaintiffs' pre-suit Notice suffered from each of the deficiencies alleged in the motion to dismiss, and agreed that a dismissal with prejudice was in order as to all defendants on the first ground."

 

    In reversing the district court, in part the Appeals Court found, "The information contained in the list permitted the defendants to identify these standards themselves and to remedy the alleged violations if accurate. . . Plaintiffs' Notice letter also contains sufficient information for the defendants to identify and remedy the alleged violations arising from the Property's purportedly invalid RIPDES permit." The Appeals Court also disagreed with defendants claim that the Notice "did not make any effort to identify the person or persons responsible for each alleged violation" and said, "the Notice identifies the specific defendant whom the DEM treated as responsible for the issues addressed in the relevant notice letter."

 

    The Appeals Court ruled in part, ". . .we reverse the district court's dismissal for lack of subject matter jurisdiction with respect to plaintiffs' claims arising from the list of discharge violations and the invalid RIPDES permit. If on remand the plaintiffs press

other claims, not discussed here, which fail to meet this test, defendants may move to dismiss those claims. . . Nothing in this opinion precludes the defendants from raising other defenses under Fed. R. Civ. P. 12(b)(6). . ."

 

    Access the complete opinion (click here). [Water/CWA, #CA1]

 

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