Opinion

Coastal Environmental Rights Foundation v. Aztec Perlite Company, Inc.

Court: District Court, S.D. California
Filed: Oct 16, 2024
Cited by: 0 cases
Authority: More cited than 31.3%

“Individualized proof from the members is not needed 28 where, as here, declaratory and injunctive relief is sought rather than monetary 1 damages.”

How later courts described this case

“Individualized proof from the members is not needed 28 where, as here, declaratory and injunctive relief is sought rather than monetary 1 damages.”
“Generally, when determining a reasonable hourly rate, the 2 relevant community is the forum in which the district court sits.”
holding organization had standing to sue 18 where members “use[d] the affected area and are persons for whom the aesthetic and 19 recreational values of the area will be lessened by the challenged activity”
“As long as 2 a notice letter is reasonably specific as to the nature and time of the alleged violations, the 3 plaintiff has fulfilled the notice requirement.”

Written by the judges who cited it.

The opinion

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

11 COASTAL ENVIRONMENTAL RIGHTS Case No.: 24-cv-385-RSH-SBC

FOUNDATION,

ORDER GRANTING IN PART AND

Plaintiff,

13 DENYING IN PART PLAINTIFF

v. COASTAL ENVIRONMENTAL

RIGHTS FOUNDATION’S MOTION

AZTEC PERLITE COMPANY, INC.,

15 FOR DEFAULT JUDGMENT

Defendant.

[ECF No. 18]

19 Plaintiff Coastal Environmental Rights Foundation initiated the instant action

20 against Defendant Aztec Perlite Company, Inc. alleging that Defendant operates a perlite

21 manufacturing facility that discharges pollutant-contaminated storm water in violation of

22 the Clean Water Act (“CWA”). Default has been entered against Defendant. ECF No. 16.

23 Before the Court is Plaintiff’s motion for default judgment. ECF No. 18. Pursuant to

24 Local Civil Rule 7.1(d)(1), the Court finds the matter presented appropriate for resolution

25 without oral argument. For the reasons below, the Court grants in part and denies in part

26 Plaintiff’s motion.

27 ///

28 ///

1 I. BACKGROUND

2 A. Factual Background

3 1. The CWA and California’s General Permit

4 The CWA was enacted to “restore and maintain the chemical, physical, and

5 biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Act “prohibits ‘the

6 discharge of any pollutant by any person’ into the waters of the United States without a

7 National Pollutant Discharge Elimination System (‘NPDES’) permit.” Puget

8 Soundkeeper All. v. Port of Tacoma, 104 F.4th 95, 99 (9th Cir. 2024) (quoting 33 U.S.C.

9 § 1311(a)); see Saint John’s Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574

10 F.3d 1054, 1061 (9th Cir. 2009) (“[T]he CWA achieves [its] goal by forbidding or

11 minimizing pollution through the NPDES permitting process.”). “If a discharger is

12 covered by a NPDES permit and complies with that permit, the permit ‘shields’ it from

13 liability under the CWA, even if [the Environmental Protection Agency (“EPA”)]

14 promulgates more stringent limitations over the life of the permit.” Alaska Cmty. Action

15 on Toxics v. Aurora Energy Servs., LLC, 765 F.3d 1169, 1171 (9th Cir. 2014). “However,

16 any violation of the permit’s terms constitutes a violation of the CWA.” Id.

17 “NPDES permits come in two varieties: individual and general.” NRDC v. United

18 States EPA, 279 F.3d 1180, 1183 (9th Cir. 2002). “An individual permit authorizes a

19 specific entity to discharge a pollutant in a specific place and is issued after an informal

20 agency adjudication process.” Id. “General permits, on the other hand, are issued for an

21 entire class of hypothetical dischargers in a given geographical region and are issued

22 pursuant to administrative rulemaking procedures.” Id. “Once a general permit has been

23 issued, an entity seeking coverage generally must submit a ‘notice of intent’ to discharge

24 pursuant to the permit.” Alaska, 765 F.3d at 1171.

25 “Much of the responsibility for administering the NPDES permitting system has

26 been delegated to the states.” WaterKeepers N. Cal. v. AG Indus. Mfg., 375 F.3d 913, 915

27 (9th Cir. 2004) (citing 33 U.S.C. § 1342(b) and Cal. Water Code § 13370). Pursuant to

28 this delegated authority, the California State Water Resources Control Board (“Water

1 Board”) issued California’s General Permit for Storm Water Discharges Associated with

2 Industrial Activities (“General Permit”). See Cal. Sportfishing Prot. All. v. Chico Scrap

3 Metal, Inc., 728 F.3d 868, 871 (9th Cir. 2013).1 The General Permit was amended in

4 2015 and 2018, with these amendments taking effect on July 1, 2020. ECF No. 18-1 at 6.2

5 2. The Aztec Facility

6 Plaintiff makes the following allegations in its Complaint, ECF No. 1 (“Compl.”),

7 which the Court assumes to be true in considering Plaintiff’s default judgment motion.

8 See Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977).

9 Defendant is a suspended California corporation that owns and operates a perlite

10 manufacturing, packaging, and distribution facility (hereinafter, the “Aztec Facility”)

11 located in Escondido, California. Compl. ¶¶ 15, 17, 88. On July 31, 2025, Defendant

12 obtained coverage under the General Permit to conduct industrial operations at the Aztec

13 Facility. Id. ¶ 82. On October 30, 2023, the Water Board terminated Defendant’s

14 enrollment for failure to pay annual fees. Id. ¶ 85.

15 Industrial materials are handled at various locations throughout the Aztec Facility

16 “either outdoors without adequate cover” or “without adequate secondary containment”

17 or other “adequate treatment measures to prevent polluted storm water and non-storm

18 water from being discharged.” Id. ¶ 92. Pollutants therefore “regularly escape” from the

19 Aztec Facility “via spills, dust emissions, wind dispersion, vehicle track out” or other

20 means. Id. ¶ 93. Plaintiff’s monitoring data, taken on March 28, 2022 and December 11,

23 1 Per the default judgment motion, the General Permit is available online at

https://www.waterboards.ca.gov/water_issues/programs/stormwater/igp_20140057dwq.ht

ml (last accessed October 16, 2024). To properly consider Plaintiff’s motion, the Court

25 sua sponte takes judicial notice of the General Permit as a “quasi-judicial, public

document[] of a state agency whose accuracy cannot be reasonably questioned.” San

Diego Coastkeeper v. Pick-Your-Part Auto Wrecking, No. 22-CV-1693 TWR (DDL),

27 2023 U.S. Dist. LEXIS 132675, at *14 (S.D. Cal. July 31, 2023).

2 All citations to electronic case filing (“ECF”) entries refer to the ECF-generated

1 2022, “demonstrates” the Aztec Facility’s storm water discharges include “concentrations

2 of iron, manganese, nitrate and nitrite [‘N+N’], and pH-affecting substances.” Id. ¶ 109;

3 ECF No. 1-2 at 9. All discharges from the Aztec Facility flow into Escondido Creek, San

4 Elijo Lagoon, and then into the Pacific Ocean (collectively, “Receiving Waters”). Compl.

5 ¶ 91.

6 B. Procedural History

7 On February 27, 2024, Plaintiff filed its Complaint in this action under the citizen

8 suit enforcement provision of the CWA.3 Plaintiff alleges Defendant has discharged

9 pollutant-contaminated storm water in violation of the CWA and the requirements of the

10 General Permit since at least November 1, 2018. Id. ¶¶ 122, 130, 140, 145–46, 161.

11 More specifically, Plaintiff brings causes of action for: (1) failure to maintain

12 coverage under a valid NPDES Permit; (2) violation of the General Permit’s discharge

13 prohibitions; (3) violation of the General Permit’s effluent limitations; (4) failure to

14 adequately develop, implement, or revise a Storm Water Pollution Prevention Plan

15 (“SWPPP”); (5) failure to adequately develop, implement, or revise a Monitoring

16 Implementation Plan (“MIP”); (6) failure to properly monitor storm water discharges;

17 and (7) failure to submit accurate and complete annual reports. Id. ¶¶ 163–214.

18 Defendant filed an Answer on April 3, 2024. ECF No. 5.

19 On June 6, 2024, the Court granted Lounsbery Ferguson Altona & Peak LLP’s

20 (“LFAP”) motion to withdraw as Defendant’s counsel of record. ECF No. 10. The Court

21 ordered Defendant to obtain new counsel, pursuant to Local Civil Rule 83.3(j), and to

3 The CWA “provides for citizen enforcement suits.” Sierra Club v. Chevron U.S.A.,

Inc., 834 F.2d 1517, 1519 (9th Cir. 1987) (citing 33 U.S.C. § 1365). “A citizen may bring

27 an action against any person who is alleged to be in violation of an effluent standard or

limitation or an order issued by the EPA or a state agency.” Id. (citing 33 U.S.C. §

1 have this counsel enter a notice of appearance by July 3, 2024. Id. at 3. Per the Court’s

2 Order, LFAP filed a proof of service confirming that it had served the withdrawal order

3 on Defendant via e-mail on June 6, 2024. ECF No. 11.

4 On July 15, 2024, the Court issued an Order to Show Cause (“OSC”) why

5 Defendant’s Answer should not be struck and default entered against it for failure to

6 obtain new counsel. ECF No. 14. The Court again directed Defendant to obtain new

7 counsel and to have counsel enter a notice of appearance and respond by way of a written

8 brief by July 29, 2024. Id. at 3. A copy of the OSC was mailed to Defendant’s provided

9 address. Id.

10 On July 30, 2024, in light of Defendant’s failure to follow the Court’s orders, the

11 Court struck Defendant’s Answer and directed the Clerk of Court to enter default against

12 Defendant pursuant to Federal Rule of Civil Procedure 55(a). ECF Nos. 15 at 1; 16. On

13 August 5, 2024, Plaintiff moved for default judgment against Defendant. ECF No. 18.

14 II. LEGAL STANDARD

15 Federal Rule of Civil Procedure 55 permits a court to enter default judgment upon

16 a party’s application. The entry of default judgment is a two-step process. Eitel v.

17 McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). “First, a party must obtain a clerk’s entry

18 of default under Rule 55(a)[.]” Verbick v. Movement Tech. Co., No. 20-CV-611 TWR

19 (DEB), 2023 U.S. Dist. LEXIS 106778, at *2 (S.D. Cal. Mar. 7, 2023) (internal quotation

20 marks omitted omitted). “The first step, entry of default, is a ministerial matter performed

4 Under Local Civil Rule 83.3(j), “[o]nly natural persons representing their

23 individual interests in propria persona may appear in court without representation by an

attorney permitted to practice pursuant to Civil Local Rule 83.3. All other parties,

including corporations, partnerships and other legal entities, may appear in court only

25 through an attorney permitted to practice pursuant to Civil Local Rule 83.3.” It is

“perfectly appropriate” for a district court to enter default judgment against a corporation

that fails to retain counsel. United States v. High Country Broad. Co., 3 F.3d 1244, 1245

27 (9th Cir. 1993); see Emp. Painters’ Tr. v. Ethan Enterprises, Inc., 480 F.3d 993, 998 (9th

Cir. 2007) (“We have recognized default as a permissible sanction for failure to comply

1 by the clerk and is a prerequisite to a later default judgment.” Faunce v. Martinez, No.

2 21-cv-363-MMA (WVG), 2022 U.S. Dist. LEXIS 216308, at *5 (S.D. Cal. Nov. 30,

3 2022) (internal quotation marks omitted). Second, upon entry of default, a party must file

4 a motion for default judgment. Verbick, 2023 U.S. Dist. LEXIS 106778, at *2. Although

5 default judgments are ordinarily disfavored, a court may grant or deny a motion for

6 default judgment at its discretion. Eitel, 782 F.2d at 1471–72.

7 III. ANALYSIS

8 A. Prerequisites to Entering Default Judgment

9 “When entry of judgment is sought against a party who has failed to plead or

10 otherwise defend, a district court has an affirmative duty to look into its jurisdiction over

11 both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).

12 “Before the Court considers whether to enter default judgment, it must be satisfied that

13 the procedural prerequisites, including subject matter jurisdiction, personal jurisdiction,

14 and adequate service of process, have been met.” Tecnologias Avanzadas RD, SRL v.

15 Riegler, No. 16-cv-06701-EDL, 2017 U.S. Dist. LEXIS 98593, at *5 (N.D. Cal. June 1,

16 2017)). The Court addresses these prerequisites below.

17 1. Subject Matter Jurisdiction

18 Federal subject matter jurisdiction in civil cases exists where: (1) the requirements

19 for diversity jurisdiction are met, or (2) the complaint involves a federal question.

20 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (“Absent diversity of citizenship,

21 federal-question jurisdiction is required.”); see 28 U.S.C. §§ 1331–32. The Court has

22 federal question subject matter jurisdiction over Plaintiff’s CWA claims. See Ecological

23 Rights Found. v. PacifiCorp, No. 23-cv-05179-JST, 2024 U.S. Dist. LEXIS 112772, at

24 *6 (N.D. Cal. June 26, 2024) (holding that the court had federal question jurisdiction over

25 plaintiff’s citizen enforcement suit under the CWA); Remington v. Mathson, No. CV 09-

26 4547 NJV, 2010 U.S. Dist. LEXIS 29187, at *19 (N.D. Cal. Mar. 26, 2010) (“The Court

27 has federal question jurisdiction over this action based on Plaintiff’s federal

28 environmental claims under RCRA, CWA, CERCLA, and EPCRA.”); Cmty. Ass'n for

1 Restoration of the Env't v. Henry Bosma Dairy, 65 F. Supp. 2d 1129, 1134 (E.D. Wash.

2 1999) (“The claimed violations of the CWA present a federal question and give the Court

3 jurisdiction under 28 U.S.C. § 1331.”).

4 The Court must also consider whether Plaintiff complied with the CWA’s notice

5 requirement. See Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 995 (9th Cir.

6 2000) (“If a party seeking to bring a citizen enforcement action has not complied with

7 the CWA’s notice requirement, then the district court in which that action is brought

8 lacks subject matter jurisdiction and must dismiss the action.”). “For a federal court to

9 exercise subject matter jurisdiction over a private CWA claim, the individual or entity

10 bringing the claim ‘must give a 60-day notice of intent to sue.’” Cottonwood Env’t L. Ctr.

11 v. Edwards, 86 F.4th 1255, 1263 (9th Cir. 2023) (quoting Ctr. for Biological Diversity v.

12 Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2009)).

13 Pursuant to 40 C.F.R. § 135.3(a):

14 Notice regarding an alleged violation of an effluent standard or

15 limitation or of an order with respect thereto, shall include sufficient

information to permit the recipient to identify the specific standard,

16 limitation, or order alleged to have been violated, the activity alleged

17 to constitute a violation, the person or persons responsible for the

alleged violation, the location of the alleged violation, the date or

18 dates of such violation, and the full name, address, and telephone

19 number of the person giving notice.

20 “The regulation does not require . . . that plaintiffs list every specific aspect or detail of

21 every alleged violation.” S.F. Baykeeper v. Tosco Corp., 309 F.3d 1153, 1158 (9th Cir.

22 2002) (internal quotation marks omitted). “Notice is sufficient if it is specific enough to

23 give the accused company the opportunity to correct the problem.” Id.

24 In this case, Plaintiff sent a notice of intent to sue letter to Defendant on November

25 28, 2023. ECF No. 1-2 at 1. Plaintiff’s letter identified the alleged pollutants being

26 discharged by Defendant and their source, and described each of Defendant’s alleged

27 violations of the CWA and General Permit, including a range of dates for these

28 violations. See ECF No. 1-2 at 5–23. The Court concludes Plaintiff’s letter sufficiently

1 fulfills the CWA’s notice requirement. See S.F. Baykeeper, 309 F.3d at 1155 (“As long as

2 a notice letter is reasonably specific as to the nature and time of the alleged violations, the

3 plaintiff has fulfilled the notice requirement.”).

4 For the above reasons, the Court concludes the requirements for federal question

5 subject matter jurisdiction under the CWA have been met in this case.

6 2. Standing

7 The Court next considers Plaintiff’s standing to sue. Standing is an “indispensable

8 part” of a plaintiff’s case and “must be supported at each stage of litigation in the same

9 manner as any other essential element of the case.” Cent. Delta Water Agency v. United

10 States, 306 F.3d 938, 947 (9th Cir. 2002). An organization can bring suit in federal court

11 under two theories of standing: by suing on its own behalf, or on behalf of its members.

12 See Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th

13 664, 723 (9th Cir. 2023).

14 Here, Plaintiff brings this suit on behalf of its members. ECF No. 20 at 2. “An

15 organization has standing to bring suit on behalf of its members when: (a) its members

16 would otherwise have standing to sue in their own right; (b) the interests it seeks to

17 protect are germane to the organization’s purposes; and (c) neither the claim asserted nor

18 the relief requested requires the participation of individual members in the lawsuit.”

19 Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000)

20 (internal quotation marks omitted). The Court considers each of these factors below.

21 a. Standing of Individual Members

22 Individual members of the organization have standing to sue in their own right

23 when they have “suffered an ‘injury in fact’ that is (a) concrete and particularized and (b)

24 actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

25 challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,

26 that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.

27 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).

28 ///

1 Here, Plaintiff has sufficiently demonstrated an “injury in fact.” “The ‘injury in

2 fact’ requirement in environmental cases is satisfied if an individual adequately shows

3 that she has an aesthetic or recreational interest in a particular place, or animal, or plant

4 species and that that interest is impaired by a defendant’s conduct.” Ecological Rights,

5 230 F.3d at 1147. “In an environmental case, the ‘relevant showing . . . is not injury to the

6 environment but injury to the plaintiff.” Inland Empire Waterkeeper v. Corona Clay Co.,

7 17 F.4th 826, 832 (9th Cir. 2021).

8 Plaintiff submits the declaration of one of its members, David Drewelow, who

9 states that he has owned and operated a business with a “direct view” of the Aztec

10 Facility since 2002. Declaration of David Drewelow (“Drewelow Decl.,” ECF No. 20-1)

11 ¶ 3. According to Mr. Drewelow, perlite emitted from the Aztec Facility regularly falls

12 on his business property, equipment, and surrounding buildings, cars, roads, and gutters.

13 Id. ¶¶ 4–5. Mr. Drewelow declares he also lives nearby in Encinitas and frequents the San

14 Elijo Lagoon and beach near the lagoon, but is deterred from fully enjoying these areas in

15 light of his concerns regarding the pollutants coming from the Aztec Facility. Id. ¶¶ 7–8,

16 10–11. These factual averments are sufficient to establish an injury in fact. See

17 Ecological Rights Found., 230 F.3d at 1150 (holding organization had standing to sue

18 where members “use[d] the affected area and are persons for whom the aesthetic and

19 recreational values of the area will be lessened by the challenged activity”).

20 Second, Mr. Drewelow’s injury is “fairly traceable” to Defendant’s actions. “An

21 injury is fairly traceable to a challenged action as long as the links in the proffered chain

22 of causation ‘are not hypothetical or tenuous and remain plausib[le].’” Ass’n of Irritated

23 Residents v. EPA, 10 F.4th 937, 943 (9th Cir. 2021) (quoting Maya v. Centex Corp., 658

24 F.3d 1060, 1070 (9th Cir. 2011)). Here, Plaintiff has clearly alleged Defendant violated

25 the CWA and the General Permit by discharging pollutant-contaminated storm water. As

26 noted above, Mr. Drewelow states his enjoyment of activities taking place near

27 Escondido Creek, the San Elijo Lagoon, and the beach near the lagoon have been

28 negatively affected by these alleged violations. This is sufficient to establish the

1 causation element. See Ecological Rights, 230 F.3d at 1152.

2 Finally, Plaintiff has sufficiently shown the injuries of its members could likely be

3 redressed by a favorable decision. “[A] plaintiff can meet the redressability requirement

4 by showing that it is likely, although not certain, that his injury can be redressed by a

5 favorable decision.” Ass’n of Irritated Residents, 10 F.4th at 944. Here, “[s]hould the

6 court find that [Defendant] failed to comply with the CWA, and impose civil penalties, it

7 is well established that would sufficiently redress the injuries of which [Plaintiff]

8 complains.” Cal. Coastkeeper All. v. Cosumnes Corp., No. 2:20-cv-1703 DB, 2023 U.S.

9 Dist. LEXIS 143369, at *13 (E.D. Cal. Aug. 16, 2023) (internal quotation marks

10 omitted); see Laidlaw, 528 U.S. at 186 (civil penalties “encourage defendants to

11 discontinue current violations and deter them from committing future ones” thereby

12 “afford[ing] redress to citizen plaintiffs who are injured or threatened with injury as a

13 consequence of ongoing unlawful conduct.”).

14 b. Germane to Organization’s Purpose

15 Plaintiff has also sufficiently demonstrated the interests it seeks to protect in this

16 action are germane to the organization’s purpose. Plaintiff Coastal Environmental Rights

17 Foundation is a non-profit corporation established “to advocate for the protection and

18 enhancement of coastal natural resources and the quality of life for coastal residents.”

19 Compl. ¶ 18. The discharges from the Aztec Facility are alleged to flow into Escondido

20 Creek, the San Elijo Lagoon, and then into the Pacific Ocean. Id. ¶ 91. The protection of

21 these waters is clearly germane to Plaintiff’s purpose.

22 c. Participation of Individual Members

23 Finally, the Court finds no reason to require the participation of Plaintiff’s

24 individual members in this suit. The relief Plaintiff seeks—in the form of civil penalties,

25 declaratory judgment, and an injunction—do not require the participation of Plaintiff’s

26 individual members. See Associated Gen. Contractors of Am. v. Metro. Water Dist., 159

27 F.3d 1178, 1181 (9th Cir. 1998) (“Individualized proof from the members is not needed

28 where, as here, declaratory and injunctive relief is sought rather than monetary

1 damages.”); S.F. Baykeeper v. W. Bay Sanitary Dist., 791 F. Supp. 2d 719, 752 (N.D.

2 Cal. 2011) (“Where, as here, associational plaintiffs do not seek individualized relief for

3 their members that would require individualized proof, the participation of individual

4 members is not required.”).

5 d. Conclusion

6 For the above reasons, the Court concludes Plaintiff has sufficiently established it

7 has standing to pursue this suit.

8 3. Personal Jurisdiction

9 The Court next considers whether it may exercise personal jurisdiction over

10 Defendant. See Veeck v. Commodity Enters., Inc., 487 F.2d 423, 426 (9th Cir. 1973)

11 (“The district court’s lack of in personam jurisdiction over the appellants renders void its

12 default judgment against them.”). Here, because Defendant is a California corporation

13 (albeit suspended) with a physical address in California, the Court is satisfied it may

14 exercise personal jurisdiction over Defendant. See Goodyear Dunlop Tires Operations,

15 S.A. v. Brown, 564 U.S. 915, 924 (2011) (citing domicile, place of incorporation, and

16 principal place of business as bases for the exercise of personal jurisdiction over

17 corporations); FFM Mushrooms Inc. v. Rain Forest Produce Inc., No. 20-cv-08201-

18 VKD, 2021 U.S. Dist. LEXIS 131315, at *5 (N.D. Cal. June 3, 2021) (“A district court

19 may exercise general personal jurisdiction over a corporation that is incorporated or has

20 its principal place of business in the state where the district court is located.”); Feiya

21 Cosmetics, LLC v. Beyond Beauty Int’l, LLC, No. C-10-00967 JCS, 2011 U.S. Dist.

22 LEXIS 111769, at *17 (N.D. Cal. Aug. 29, 2011) (holding court had personal jurisdiction

23 over a suspended California corporation with a physical address in California).

24 4. Service of Process

25 As a final procedural prerequisite, the Court evaluates whether Defendant was

26 properly served. See Folkmanis, Inc. v. Uptown Toys LLC, No. 18-cv-00955-EMC, 2018

27 U.S. Dist. LEXIS 156569, at *4 (N.D. Cal. Sep. 13, 2018) (“In deciding whether to grant

28 or deny default judgment, the Court must first assess the adequacy of the service of

1 process on the party against whom default is requested because, if service were improper,

2 that may well explain the failure of a defendant to appear in a lawsuit.”) (internal

3 quotation marks omitted).

4 Under Federal Rule of Civil Procedure 4(h)(1), a corporation may be served “in the

5 manner prescribed by Rule 4(e)(1) for serving an individual” or “by delivering a copy of

6 the summons and of the complaint to an officer, a managing or general agent, or any

7 other agent authorized by appointment or by law to receive service of process[.]” Fed. R.

8 Civ. P. 4(h)(1). Federal Rule of Civil Procedure 4(e)(1), in turn, allows for service by

9 “following state law for serving a summons in an action brought in courts of general

10 jurisdiction in the state where the district court is located or where service is made.” Fed.

11 R. Civ. P. 4(e)(1). Under California law, a corporation may be served by delivering a

12 copy of the summons and complaint to the person designated as agent for service of

13 process. Cal. Civ. Proc. Code § 416.10(a).

14 Here, Plaintiff’s proof of service indicates Defendant was served via its registered

15 agent for service of process. ECF No. 4. This is sufficient for the Court to find Defendant

16 was properly served in this case. See Bay Bread, LLC v. Lemonade Rest. Grp., LLC, No.

17 3:21-cv-02979-JD, 2023 U.S. Dist. LEXIS 20493, at *3 (N.D. Cal. Feb. 7, 2023)

18 (corporate defendant properly served through registered agent for service of process);

19 Rapid Growth Tech. SDN Bhd. v. Kraco Enter., LLC, No. CV 18-3850-MWF (Ex), 2018

20 U.S. Dist. LEXIS 245001, at *4 (C.D. Cal. Dec. 21, 2018) (same).

21 B. Entry of Default Judgment

22 Having determined the prerequisites for entering default judgment have been met,

23 the Court turns to the merits of Plaintiff’s motion.

24 ///

25 ///

26 ///

27 ///

28 ///

1 The decision to grant or deny default judgment lies within the discretion of the

2 district court. Eitel, 782 F.2d at 1471. The Ninth Circuit has enumerated seven factors—

3 known as the Eitel factors—that a court may consider when exercising its discretion:

(1) the possibility of prejudice to the plaintiff, (2) the merits of

5 plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4)

the sum of money at stake in the action, (5) the possibility of a dispute

concerning material facts, (6) whether the default was due to

7 excusable neglect, and (7) the strong policy underlying the Federal

Rules of Civil Procedure favoring decisions on the merits.

9 Id. at 1471–72. The Court addresses each of the Eitel factors below.

10 1. Factor I: Possibility of Prejudice to Plaintiff

11 The first Eitel factor evaluates whether a plaintiff will suffer prejudice if default

12 judgment is not entered. Here, because Defendant has not retained counsel, litigation in

13 this case cannot continue. Absent a default judgment, Plaintiff would likely be without

14 recourse. Defendant could avoid liability by simply not retaining new counsel. The first

15 Eitel factor, therefore, weighs in favor of granting default judgment. See Williams v. La

16 Perla N. Am., Inc., No. 3:23-cv-01633-JSC, 2024 U.S. Dist. LEXIS 81697, at *6 (N.D.

17 Cal. May 2, 2024) (reasoning plaintiff would suffer prejudice in absence of default

18 judgment where defendant had failed to obtain substitute counsel); Baker v. Wehinger,

19 No. CV 18-5800-DMG (Ex), 2022 U.S. Dist. LEXIS 175611, at *5 (C.D. Cal. Sep. 27,

20 2022) (same); SEC v. Blockvest, LLC, No. 18CV2287-GPB(MSB), 2020 U.S. Dist.

21 LEXIS 154988, at *6 (S.D. Cal. Aug. 26, 2020) (same).

22 2. Factors II and III: Merits of Plaintiff’s Substantive Claim and

23 Sufficiency of the Complaint

24 The second and third Eitel factors focus on the sufficiency of Plaintiff’s Complaint.

25 “To warrant entering a default judgment, a complaint’s allegations must be sufficient to

26 state a claim upon which relief can be granted.” Talavera Hair Prods. v. Taizhou

27 Yunsung Elec. Appliance Co., No. 18-CV-823 JLS (JLB), 2021 U.S. Dist. LEXIS

28 149179, at *32 (S.D. Cal. Aug. 6, 2021) (citing Danning v. Lavine, 572 F.2d 1386, 1388

1 (9th Cir. 1978)). A complaint satisfies this standard when the claims cross the “line from

2 conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (internal quotation

3 marks omitted). “A party seeking default judgment bears the burden of demonstrating to

4 the Court that the complaint is sufficient on its face and that the Eitel factors weigh in

5 favor of granting default judgment.” Verbick, 2023 U.S. Dist. LEXIS 106778, at *3–4

6 (internal quotation marks omitted). In a default judgment context, “the general rule is that

7 well-pled allegations in the complaint regarding liability are deemed true.” Fair Hous. v.

8 Combs, 285 F.3d 899, 906 (9th Cir. 2002). A court “is not required to make detailed

9 findings of fact.” Id.

10 a. Claim 1: Failure to Maintain Coverage

11 “Section 301(a) of the CWA prohibits the discharge of any pollutant from any

12 point source into navigable waters unless the discharge complies with certain other

13 sections of the CWA.” NRDC v. Cnty. of L.A., 725 F.3d 1194, 1198 (9th Cir. 2013). “One

14 of those sections is section 402, which provides for the issuance of NPDES permits.” Id.

15 “In nearly all cases, an NPDES permit is required before anyone may lawfully discharge

16 a pollutant from a point source into the navigable waters of the United States.” Id.

17 California’s General Permit covers industrial dischargers. See S.F. Baykeeper, 309 F.3d

18 at 1156. “Industrial facilities in California must either comply with the requirements of

19 the General Permit or obtain an individualized NPDES permit allowing a variance.” Id.

20 Here, Plaintiff alleges Defendant has discharged and continues to discharge

21 polluted storm water from the Aztec Facility into Escondido Creek, Olivenhain Dam and

22 Reservoir, San Dieguito Reservoir, San Dieguito River, San Elijo Lagoon, and the Pacific

23 Ocean without an NPDES permit. Compl. ¶ 165; ECF No. 1-2 at 3 (“Escondido Creek is

24 the waterbody nearest the [Aztec Facility]. Escondido Creek flows into the San Elijo

25 Lagoon and eventually the Pacific Ocean.”).5 According to Plaintiff, Defendant obtained

5 The Court may consider Plaintiff’s November 28, 2023 notice of intent to sue letter

1 coverage under the General Permit on July 31, 2015, but allowed its enrollment to lapse

2 on October 30, 2023, after Defendant failed to pay the required annual fees. Id. ¶¶ 82, 85.

3 Plaintiff has sufficiently pleaded a claim against Defendant for the discharge of pollutants

4 from a point source into navigable waters without an NPDES permit. 6

5 b. Claim 2: Violation of Discharge Prohibitions

6 California’s General Permit outlines several prohibitions regarding industrial storm

7 water and non-storm water discharges. First, under Section III.B of the General Permit,

8 “discharges of liquids or materials other than storm water, either directly or indirectly to

9 waters of the United States, are prohibited unless authorized by another NPDES permit.”

10 General Permit § III.B; Compl. ¶ 41. Second, Section III.C prohibits “[i]ndustrial storm

11 water discharges and authorized [non-storm water discharges] that contain pollutants that

12 cause or threaten to cause pollution, contamination, or nuisance[.]” General Permit §

13 III.C; Compl. ¶ 42. Finally, Section III.D prohibits discharges that “violate any discharge

14 prohibitions contained in applicable Regional Water Board Water Quality Control Plans

15 (Basin Plans), or statewide water quality control plans and policies[.]” General Permit §

1265, 1267 (9th Cir. 1987) (“If a complaint is accompanied by attached documents, the

court is not limited by the allegations contained in the complaint. These documents are

19 part of the complaint and may be considered in determining whether the plaintiff can

prove any set of facts in support of the claim.”).

6 The “discharge of a pollutant” is defined by the CWA to mean “any addition of

21 any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).

A “point source” is defined as “any discernible, confined and discrete

conveyance…from which pollutants are or may be discharged.” Id. § 1362(14).

23 The term “pollutant” is defined as “dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and

25 industrial, municipal, and agricultural waste discharged into water.” Id. § 1362(6).

Finally, the CWA defines “navigable waters” to mean the “waters of the United

States.” 33 U.S.C. § 1362(7). The “waters of the United States” encompasses “only those

27 relatively permanent, standing or continuously flowing bodies of water forming

geographic[al] features that are described in ordinary parlance as streams, oceans, rivers,

1 III.D; Compl. ¶ 43.

2 Here, Plaintiff alleges Defendant has discharged pollutants in violation of Sections

3 III.B, III.C and III.D of the General Permit. Compl. ¶¶ 175–77. Specifically, Plaintiff

4 alleges storm water monitoring data—collected on March 28, 2022 and December 11,

5 2022—demonstrates the Aztec Facility discharged and continues to discharge

6 “concentrations of iron, manganese, [N+N], and pH-affecting substances[.]” Id. ¶ 109;

7 ECF No. 1-2 at 8. According to Plaintiff, these discharges are: (1) not authorized by an

8 NPDES permit in violation of Section III.B; (2) cause or threaten to cause pollution,

9 contamination, or nuisance in violation of Section III.B; and (3) in excess of the water

10 quality objectives set forth in the San Diego Basin Plan in violation of Section III.C.

11 Compl. ¶¶ 109–11.

12 The Court determines the above allegations are sufficient to plead plausible

13 violations of Sections III.B, III.C and III.D of the General Permit. See Ctr. for Cmty.

14 Action & Env't Just. v. Friends of Riverside Airport, LLC, No. EDCV 17-1091 JGB

15 (KKx), 2017 U.S. Dist. LEXIS 232218, at *36 (C.D. Cal. Sep. 28, 2017) (“A plausible

16 violation of [defendant’s] General Permit conditions can [] be inferred from its alleged

17 discharge of [chemicals] into surrounding waterways.”); see also San Diego Coastkeeper,

18 2023 U.S. Dist. LEXIS 132675, at *38–39 (plaintiff plausibly alleged CWA violations

19 based on at least one discharge prohibition under the General Permit in light of

20 allegations of fluid spills and leaks mobilized by storm water).

21 c. Claim 3: Violation of Effluent Limitations

22 “Every NPDES permit must set forth effluent limitations that is, certain

23 restriction[s] . . . on [the] quantities, rates, and concentrations of chemical, physical,

24 biological, and other constituents which are discharged from point sources into navigable

25 waters.” Food & Water Watch v. United States EPA, 20 F.4th 506, 510 (9th Cir. 2021)

26 (internal quotation marks omitted). “The effluent limitations and the guidelines have long

27 been understood to be determined according to the best available or practicable

28 technology.” Our Children’s Earth Found. v. EPA, 527 F.3d 842, 848 (9th Cir. 2008).

1 Under the General Permit, facility operators must “reduce or prevent discharges of

2 pollutants in their storm water discharge” through the implementation of “Best

3 Management Practices” (“BMPs”) that employ the “Best Available Technology

4 Economically Achievable” (“BAT”) for toxic pollutants and the “Best Conventional

5 Pollutant Control Technology” (“BCT”) for conventional pollutants. General Permit §

6 V.A Compl. ¶ 46; see Nat. Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 863 F.2d

7 1420, 1424 (9th Cir. 1988). The General Permit incorporates a “multiple objective

8 performance measurement system that includes” Numeric Action Levels (“NALs”).

9 General Permit § I.N. NALs “are numeric parameters for common stormwater pollutants

10 established based on either the benchmark values in the EPA’s 2008 Multi-Sector

11 General Permit for Stormwater Discharges or previously gathered California industrial

12 storm water discharge monitoring data.” Waterkeeper v. SSA Terminals, LLC, 702 F.

13 Supp. 3d 903, 920 (C.D. Cal. 2023); Compl. ¶ 49.

14 According to Plaintiff, sampling data of the Aztec Facility’s storm water

15 discharges shows Defendant exceeded EPA benchmarks for iron and N+N on March 28,

16 2022, and for iron and zinc on December 11, 2022. ECF No. 1-2 at 8, 25; 18-1 at 12. This

17 is sufficient to make a plausible claim for violations of EPA’s effluent limitations. See

18 Waterkeeper, 702 F. Supp. 3d at 924 (“[A] defendant’s alleged failure to comply with

19 EPA benchmarks or NALs is relevant to assessing whether their treatment measures

20 achieve BAT and BCT standards.”); Ctr. for Cmty. Action, 2017 U.S. Dist. LEXIS

21 232218, at *37 (“Consistent exceedances of the EPA Benchmarks also plausibly allege

22 [defendant’s] FRA's failure to implement proper BATs/BCTs.”).

23 d. Claim 4: SWPPP Deficiencies

24 Under the General Permit, dischargers must develop and implement a “site-specific

25 SWPPP” for each facility covered by the permit. General Permit § X.A; see Ecological

26 Rights, 230 F.3d at 1145. The SWPPPs must include, among other things: the facility

27 name and contact information, a site map, a list of industrial materials, a description of

28 potential pollutant sources, an assessment of potential pollutant sources, minimum BMPs,

1 advanced BMPs (if applicable), an MIP, an annual comprehensive facility compliance

2 evaluation, the date the SWPPP was initially prepared, and the date of each SWPPP

3 amendment (if applicable). General Permit § X.A; Compl. ¶ 67. Plaintiff submitted a

4 SWPPP on July 31, 2015, and an “amended or updated” SWPPP on June 4, 2020.

5 Id. ¶ 132.

6 Plaintiff alleges Defendant’s SWPPPs are deficient for multiple reasons, including

7 but not limited to, failing to include: (1) detailed information about Defendant’s pollution

8 prevention team; (2) an adequate description of potential pollutant sources; (3) a

9 description of the Aztec Facility’s industrial processes; (4) an adequate assessment of

10 pollutant sources; (5) minimum BMPs; and (6) an adequate site map. Id. ¶¶ 134–39. For

11 example, Plaintiff alleges the SWPPP’s site map fails to “accurately reflect all drainage

12 areas, discharge points, and flow direction” continues to describe these deficiencies with

13 greater detail. Id. ¶ 139.

14 These allegations are sufficient to make a plausible claim for failure to comply

15 with the General Permit’s SWPPP requirements. See Waterkeeper, 702 F. Supp. 3d at

16 924 (finding similar allegations sufficient to plead a plausible claim for violation of

17 SWPPP requirements); Coastal Envtl., 2017 U.S. Dist. LEXIS 202649, at *39 (S.D. Cal.

18 Dec. 8, 2017) (same).

19 e. Claims 5: MIP Deficiencies

20 Under the General Permit, dischargers are required to prepare an MIP “in

21 accordance with the requirements of the General Permit.” General Permit § X.I. The MIP

22 “shall include” a number of specific items, including an identification of team members

23 assigned to conduct monitoring requirements and a description of discharge locations,

24 visual observation procedures, and visual observation response procedures. Id.

25 Plaintiff contends Defendant has conducted and continues to conduct operations at

26 the Aztec Facility “with an inadequately developed, implemented, and/or revised MIP.”

27 Compl. ¶ 147. Plaintiff similarly alleges that Defendant has failed “to develop and/or

28 implement a MIP that requires the collection of storm water samples ‘from each draining

1 area at all discharge locations’ at the Facility in violation of the Industrial General

2 Permit,” citing the provision of the General Permit governing “Monitoring.” Id. ¶ 152.

3 Plaintiff could be alleging that Defendant: (1) did not prepare an MIP; (2) did prepare an

4 MIP, but the contents of the MIP are deficient in some way; or (3) prepared an MIP that

5 meets all the requirements of the General Permit, but has not properly implemented it. It

6 is unclear from the Complaint—and Plaintiff does not specify in its briefing—which of

7 these theories underlies Claim 5.

8 Nonetheless, the context in which Claim 5 is presented in the Complaint suggests

9 that Plaintiff is alleging the last of these theories. The Complaint alleges a number of

10 ways Defendant violated the General Permit’s monitoring requirements. Id. ¶¶ 148–155

11 (failure to collect stormwater samples); 156–57 (failure to sample and test for pollutants);

12 158–59 (failure to conduct visual observations). Plaintiff’s theory on Claim 5 therefore

13 appears to be that Defendant failed to comply with the requirements for implementing an

14 MIP by failing to monitor. But Defendant’s alleged violations of the General Permit’s

15 monitoring requirement are already the subject of a different claim—Claim 6. If this is

16 the crux of Claim 5, the Court is unable to determine—and Plaintiff has not adequately

17 explained—how Claims 5 and 6 would not simply be repetitive articulations of the same

18 failure to monitor. For the above reasons, the Court does not find Claim 5 sufficiently

19 pleaded.

20 f. Claim 6: Failure to Monitor

21 Under the General Permit, dischargers are required to collect and analyze storm

22 water samples from four qualifying storm events: two within the first half of each

23 reporting year (July 1 to December 31) and two within the second half of each reporting

24 year (January 1 to June 30) “from each drainage area at all discharge locations.” General

25 Permit §§ XI.B.2, XI.B.4. The samples must then be analyzed according to various

26 parameters and the results submitted to the Water Board’s Storm Water Multiple

27 Application and Report Tracking System (“SMARTS”). Id. §§ XI.B.6, XI.B.11. Plaintiff

28 alleges Defendant did not collect the required samples, analyze them, or upload the

1 results of this analysis to SMARTS as required. Compl. ¶¶ 202–204; ECF No. 1-2 at 19.

2 This is sufficient to make a plausible claim for violation of the General Permit’s

3 monitoring requirements.

4 g. Claim 7: Failure to Report

5 The General Permit requires dischargers to certify and submit an annual report via

6 SMARTS no later than July 15th “following each reporting year.” General Permit §

7 XVI.A. The Annual Report must include: (1) a checklist that indicates whether the

8 discharger complied with and has addressed all applicable requirements of the General

9 Permit; (2) an explanation for any non-compliance within the reporting year; (3) an

10 identification of all revisions made to the SWPPP; and (4) the date(s) of the annual

11 evaluation. Id. § XVI.B. According to Plaintiff, although Defendant certified and

12 submitted five annual reports pursuant to the General Permit, each of Defendant’s reports

13 were improperly certified given Defendant’s violation of numerous provisions of the

14 General Permit. ECF No. 1-2 at 22–23. The Court concludes Plaintiff has adequately set

15 forth a plausible claim for violation of the General Permit’s annual reporting

16 requirements.

17 3. Factors IV: Sum of Money at Stake

18 Under the fourth Eitel factor, courts consider “whether the damages sought are

19 proportional to the alleged harm.” Talavera, 2021 U.S. Dist. LEXIS 149179, at *39.

20 “Default judgment is disfavored where the sum of money at stake is too large or

21 unreasonable in relation to defendant’s conduct.” Vogel v. Rite Aid Corp., 992 F. Supp.

22 2d 998, 1012 (C.D. Cal. 2014).

23 Here, Plaintiff seeks civil penalties in the total amount of $11,997,000. ECF No.

24 18-1 at 24. Although this sum is significant, the Court has the discretion to reduce the

25 amount of civil penalties imposed. See Sw. Marine, Inc., 236 F.3d at 1001. The fourth

26 Eitel factor is, therefore, neutral. See G & G Closed Circuit Events LLC v. Halstead, No.

27 CV-20-02105-PHX-ESW, 2022 U.S. Dist. LEXIS 38621, at *7 (D. Ariz. Mar. 4, 2022)

28 (“Where the Court has the discretion to reduce a plaintiff’s requested monetary award,

1 the fourth Eitel factor becomes neutral.”); Twitch Interactive, Inc. v. Johnston, No. 16-cv-

2 03404-BLF, 2018 U.S. Dist. LEXIS 184300, at *22 (N.D. Cal. Jan. 22, 2018) (finding

3 fourth factor neutral where court had discretion to tailor damages).

4 4. Factor V: Possibility of Factual Dispute

5 Turning to the fifth Eitel factor, the Court considers the possibility of dispute as to

6 any material facts in the case. Since Plaintiff’s factual allegations are presumed true and

7 Defendant has failed to obtain substitute counsel and oppose the default judgment

8 motion, no factual disputes have been identified that would preclude the entry of default

9 judgment. This factor, therefore, favors the entry of default judgment.

10 5. Factor VI: Reason for Default

11 The sixth Eitel factor considers the possibility that a defendant’s default resulted

12 from excusable neglect. Here, Defendant was properly served in this case and even filed

13 an Answer (albeit one that was later stricken). ECF No. 5. The record indicates

14 Defendant was also served with the instant default judgment motion via Defendant’s

15 registered agent for service of process. ECF No. 18-4 at 2. The Court finds this factor

16 weighs in favor of granting default judgment. See SEC v. Blockvest, LLC, No.

17 18CV2287-GPB(MSB), 2020 U.S. Dist. LEXIS 154988, at *9 (S.D. Cal. Aug. 26, 2020)

18 (defendant’s default was not due to excusable neglect where defendant was properly

19 served and filed an answer); H.I.S.C. v. Franmar Int’l Imps., No. 3:16-cv-00480-BEN-

20 WVG, 2018 U.S. Dist. LEXIS 238405, at *6 (S.D. Cal. Apr. 4, 2018) (“[A] court may

21 find excusable neglect to be lacking where a defendant was properly served with the

22 complaint and notice of default judgment.”).

23 6. Factor VII: Policy Favoring Merits Decision

24 The seventh and last Eitel factor emphasizes the general rule that “[c]ases should

25 be decided upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472.

26 However, “this preference, standing alone, is not dispositive.” PepsiCo, Inc. v. Cal. Sec.

27 Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002) (internal quotation marks omitted). In

28 the present case, although Defendant appeared, it has since failed to retain new counsel

1 despite repeated opportunities to do so. Under these circumstances, the seventh Eitel

2 factor “does not preclude the Court from entering default judgment against the Defaulting

3 Defendants.” Staniforth v. Total Wealth Mgmt., Inc., No. 14-cv-1899-GPC-JLB, 2023

4 U.S. Dist. LEXIS 98640, at *21 (S.D. Cal. June 2, 2023); see SEC v. Blockvest, LLC, No.

5 18CV2287-GPB(MSB), 2020 U.S. Dist. LEXIS 154988, at *9 (S.D. Cal. Aug. 26, 2020).

6 7. Summary of Eitel Factors

7 For the above reasons, the Court grants Plaintiff’s Motion for Default Judgment,

8 with respect to Claims 1, 2, 3, 4, 6 and 7. The Court denies Plaintiff’s Motion with

9 respect to Claim 5.

10 C. Relief Requested

11 The Court turns next to Defendant’s request for relief. Pursuant to Rule 54 of the

12 Federal Rules of Civil Procedure, the remedies sought in a default judgment motion

13 “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.”

14 Fed. R. Civ. P. 54(c). Here, Defendant seeks: (1) $11,997,000 in civil penalties;

15 (2) declaratory relief; (3) injunctive relief; (4) $34,465 in attorneys’ fees; and (5) $968.52

16 in costs. ECF No. 18-1 at 21–26. This is consistent with the relief requested in the

17 Complaint. Compl. ¶ 215.

18 1. Civil Penalties

19 The CWA provides for civil penalties “not to exceed [$66,712] per day for each

20 violation” payable to the U.S. Treasury. 33 U.S.C. § 1319(d); 40 CFR § 19.4, Table 1

21 (adjustment of civil monetary penalties for inflation). “If a district court finds a violation,

22 then civil penalties under 33 U.S.C. § 1319(d) are mandatory.” Sw. Marine, Inc., 236

23 F.3d at 1001. The Court “has discretion to set the amount of a penalty (up to the statutory

24 maximum)[.]” Id.

25 ///

26 ///

27 ///

28 ///

1 In determining the amount of civil penalties to impose:

2 [T]he court shall consider the seriousness of the violation or

3 violations, the economic benefit (if any) resulting from the violation,

any history of such violations, any good-faith efforts to comply with

4 the applicable requirements, the economic impact of the penalty on

5 the violator, and such other matters as justice may require.

6 1/33 U.S.C. § 1319(d). “Courts employ a variety of methods for exercising their discretion

7 calculating a civil penalty under the CWA.” Californians v. Kernen Constr. Co., No.

8 || 4:20-cv-01348 YGR, 2021 U.S. Dist. LEXIS 86674, at *9 n.2 (N.D. Cal. May 2, 2021).

9 || Two commonly used methods are the top-down and bottom-up approaches. See United

10 || States v. Bayley, No. 3:20-cv-05867-DGE, 2023 U.S. Dist. LEXIS 73018, at *26—27

11 |}(W.D. Wash. Apr. 26, 2023). “The top-down approach calculates the maximum penalty

12 |Jallowed by the CWA and then adjusts downward based on the statutory penalty

13 || factors|.]” Jd. (internal quotation marks omitted). “The bottom-up approach begins by

14 || calculating the economic benefit of noncompliance and then adjusts upward based on the

15 || statutory penalty factors|.|” Jd. (internal quotation marks omitted).

16 As Defendant has not meaningfully participated in this litigation, the Court lacks

17 information as to what economic benefit Defendant may have derived from

18 ||noncompliance. For these reasons, the Court adopts the top-down approach. See L.A.

19 || Waterkeeper v. A & A Metal Recycling, Inc., No. CV-15-4326-MWE (JEMx), 2015 □□□

20 || Dist. LEXIS 156792, at *18 (C.D. Cal. Nov. 18, 2015) (adopting top-down approach in

21 || calculating civil penalties in default judgment context).

22 Here, Plaintiff requests that the Court impose $11,997,000 in penalties, for 3,999

23 || violations of the CWA, at $3,000 per violation, broken down as follows:

24 Claim Number Calculation Method Civil Penalty

5 of Amount

Violations

26 || | Claim 1: Failure to 163 Calculated daily from $489,000

7 Maintain Coverage October 30, 2023 to February

27, 2024

1 Claim Number Calculation Method Civil Penalty

> of Amount

Violations

3 || | Claim 2: Violation 157 Based on number of days $471,000

4 of Discharge during which precipitation

Prohibitions was recorded in the region at

5 or above .1 inches

8 Claim 3: Violation 4 For exceeding benchmarks $12,000

of Effluent for iron and N+N on March

9 || | Limitations 28, 2022. and iron and zinc

10 on December 11, 2022

Claim 4: SWPPP 1,825’ | For daily violations within $5,475,000

11 |] | Deficiencies five-year period preceding the

12 60-day notice period

Claim 5: MIP 1,825 For daily violations within $5,475,000

13 || | Deficiencies five-year period preceding the

14 60-day notice period

15 Claim 6: Failure to 20 For failure to collect four $60,000

16 || | Monitor samples during each reporting

period from 2018 to 2023

17 Claim 7: Failure to 5 For erroneous certification of $15,000

18 || | Report Annual Reports for past five

ears

19 |! Totals 3,999 $11,997,000

21 ||ECF No. 18-1 at 9-10, 12, 15-18, 24. The statutory maximum amount of penalties the

22 || Court could impose for 3,999 violations of the CWA is $266,781,288.

23 a. Statutory Factors

24 Looking to the statutory factors, Defendant’s violations for the discharge of storm

WI" “In citizen enforcement actions the five-year statute of limitations period is tolled

sixty days before the filing of the complaint, to accommodate the statutorily-mandated

sixty-day notice period.” Sierra Club, 834 F.2d at 1524.

1 water containing pollutants are serious, warranting a $3000 per violation penalty. See

2 Californians v. Kernen Constr. Co., No. 4:20-cv-01348 YGR, 2021 U.S. Dist. LEXIS

3 86674, at *13 (N.D. Cal. May 2, 2021). Nevertheless, the remainder of Defendant’s

4 violations—arising from a failure to implement adequate plans, technologies, monitoring,

5 and other preventative procedures and mechanisms—are less grave. Id. The Court will

6 lower the penalty for these failures to $1500 per violation, noting that the total amount of

7 penalties still reflects the seriousness of Defendant’s non-compliance. Inland Empire

8 Waterkeeper v. Corona Clay Co., No. 8:18-cv-00333 DOC (DFM), 2024 U.S. Dist.

9 LEXIS 1258, at *6 (C.D. Cal. Jan. 2, 2024) (lowering penalty to $150 for violations

10 arising “out of Defendant’s failure to implement plans, technologies, monitoring, and

11 other preventative procedures and mechanisms required by the CWA, and to comply with

12 related reporting requirements.”); Californians, 2021 U.S. Dist. LEXIS 86674, at *13

13 (lowering penalty to $50 and $500 per violation for “defendants’ undisputed failure to

14 implement plans, technologies, monitoring, and other preventative procedures and

15 mechanisms required by the CWA and General Permit, and to comply with related

16 reporting requirements.”).

17 Turning to the other statutory factors, because Defendant has not meaningfully

18 litigated this action, the Court does not have information regarding the economic benefits

19 (if any) Defendant derived from its violations or any economic impact the penalty would

20 have on Defendant. These factors do not justify a further reduction. See Cal. Sportfishing

21 Prot. All. v. Callaway, No. 2:12-cv-0843 JAM CKD, 2012 U.S. Dist. LEXIS 116719, at

22 *4 (E.D. Cal. Aug. 17, 2012) (“Because defendant has not responded to the complaint,

23 the court has no evidence before it regarding economic benefit resulting from the

24 violations, good faith efforts to comply, the economic impact of the penalty on defendant

25 or any other evidence favoring a reduction of the penalty.”).

26 Finally, there is no evidence of Defendant’s good faith efforts to comply with the

27 applicable requirements. On July 19, 2021, representatives of the San Diego Water Board

28 and City of Escondido inspected the Aztec Facility and noted several violations of the

1 CWA and General Permit. Compl. ¶ 126; ECF No. 18-3 at 2–28. A Facility Inspection

2 Report was prepared that included recommendations as to how Defendant could take

3 corrective action. ECF No. 18-3 at 6–7. Despite this, storm water samples taken by

4 Plaintiff afterwards on March 28, 2022 and December 11, 2022 still showed that the

5 Aztec Facility was in violation of the General Permit. ECF No. 1-2 at 8. This factor does

6 not justify any additional reduction.

7 b. Other Reductions

8 The Court makes the following additional modifications to Plaintiff’s calculation

9 of civil penalties:

10  Claim 1: Plaintiff requests that penalties for Claim 1 be calculated based on

11 the number of days between October 30, 2023 and February 27, 2024. ECF No. 18-1 at 9.

12 The number of days between October 30, 2023 and February 27, 2024 is 120, however,

13 not 163. The Court reduces the number of violations for Claim 1 to 120.

14  Claim 2: Plaintiff requests that penalties for Claim 2 be based on the number

15 of days during which precipitation was recorded in the region at or above .1 inches. ECF

16 No. 18-1 at 10. However, because the CWA “provides for relief for unlawful discharge,

17 the appropriate measure [for civil penalties] is the number of days when [plaintiff] had

18 data to prove [defendant’s] unlawful discharge.” Coastal Environmental Rights

19 Foundation v. National Steel & Metals, Inc., Case No. 3:16-cv-00291-CAB-JLB, (S.D.

20 Cal. Aug. 10, 2016), ECF No. 18-3 at 58; L.A. Waterkeeper, 2015 U.S. Dist. LEXIS

21 156792, at *22–23 (reducing number of violations to “number of dates that Plaintiff

22 provided sampling data demonstrating that Defendants’ storm water discharges exceeded

23 EPA Benchmarks”). Because Plaintiff possesses sampling data for two days—March 28,

24 2022 and December 11, 2022—the Court reduces the number of violations to two.

25  Claim 3: Plaintiff requests that penalties for Claim 3 be calculated for each

26 time Defendant exceeded EPA benchmarks: for iron and N+N on March 28, 2022 and for

27 iron and zinc on December 11, 2022. With respect to the General Permit’s effluent

28 limitations, “NAL exceedances alone do not constitute violations of the General

1 || Permit|.]” Waterkeeper, 702 F. Supp. 3d at 921. Rather, “a defendant’s alleged failure to

2 ||comply with EPA benchmarks or NALs is relevant to assessing whether their treatment

3 |}measures achieve BAT and BCT standards.” Jd. at 921; see Baykeeper, 619 F. Supp. 2d

4 ||at 944. Consequently, the Court “declines to hold Defendants responsible for each and

5 }/every pollutant that exceeded EPA Benchmarks on the same day as separate violations

6 ||because it would be unfair to penalize Defendants repeatedly for what the Court

7 |}considers to be a single act (ze, failure to implement adequate BMPs).” L.A.

8 || Waterkeeper, 2015 U.S. Dist. LEXIS 156792, at *23. The Court reduces the number of

9 || violations with respect to Claim 3 from four to two.

10 e Claim 5: The Court did not enter default judgment in Plaintiff's favor, and

11 || will not impose civil penalties, as to Claim 5.

12 c. Summary

13 For the reasons stated, the Court imposes civil penalties in the total amount of

14 $2,967,000, broken down as follows:

1D Claim Number | Per Violation Penalty | Civil Penalty Amount

16 of

7 Violations

Claim 1: Failure to 120 $1,500 $180,000

18 Maintain Coverage

19 Claim 2: Violation 2 $3,000 $6,000

of Discharge

20 || | Prohibitions

1 Claim 3: Violation 2 $3,000 $6,000

of Effluent

22 || | Limitations

93 || | Claim 4: SWPPP 1,825 $1,500 $2,737,500

Deficiencies

24 || | Claim 5: MIP N/A N/A N/A

95 || | Deficiencies

97 || | Claim 6: Failure to 20 $1,500 $30,000

Monitor

1 Claim 7: Failure to 5 $1,500 $7,500

Report

Totals 1974 $2,967,000

4 This amount is consistent with the range of penalties imposed by courts in other

5 CWA cases. See Sw. Marine, Inc., 236 F.3d at 1002 (affirming imposition of $799,000 in

6 penalties assessed at $1,000 per violation for 799 violations); Californians, 2021 U.S.

7 Dist. LEXIS 86674, at *12 (imposing $2,087,750 in penalties assessed at $50-$10,000

8 per violation for 9,641 violations); Coastal Environmental Rights Foundation, ECF No.

9 10 at 56, 59 (imposing $3,177,000 in penalties assessed at $3,000 per violation for 1059

10 violations); L.A. Waterkeeper, 2015 U.S. Dist. LEXIS 156792, at *23 (imposing

11 $4,764,000 in penalties for 1,588 violations).

12 2. Declaratory Relief

13 Plaintiff requests that the Court declare “Defendant to have violated and to be in

14 violation of the [General Permit] and Section 301(a) of the CWA, 33 U.S.C. §1311(a).”

15 ECF No. 18-1 at 21. “The granting of declaratory relief rests in the sound discretion of

16 the [] court exercised in the public interest.” Nat. Res. Def. Council, Inc. v. United States

17 EPA, 966 F.2d 1292, 1299 (9th Cir. 1992) (internal quotation marks omitted).

18 “Declaratory relief is appropriate ‘(1) when the judgment will serve a useful purpose in

19 clarifying and settling the legal relations in issue, and (2) when it will terminate and

20 afford relief from the uncertainty, insecurity, and controversy giving rise to the

21 proceeding.’” Guerra v. Sutton, 783 F.2d 1371, 1376 (9th Cir. 1986) (quoting Bilbrey v.

22 Brown, 738 F.2d 1462, 1470 (9th Cir. 1984)).

23 Here, Plaintiff has not provided an explanation as to how declaratory relief would

24 serve a useful purpose or clarify any issues not already addressed by its substantive

25 claims. See Minn. Life Ins. Co. v. Philpot, No. 11cv00812 BTM (POR), 2012 U.S. Dist.

26 LEXIS 139595, at *32 (S.D. Cal. Sep. 27, 2012) (“When claims for declaratory relief are

27 duplicative of other claims, then declaratory relief is therefore unnecessary and

28 redundant.”); Ricon v. Recontrust Co., No. 09cv937-IEG-JMA, 2009 U.S. Dist. LEXIS

1 67807, at *17 (S.D. Cal. Aug. 4, 2009) (rejecting declaratory judgment claim where

2 Plaintiff offered “no reasons to believe declaratory judgment will resolve any issues aside

3 from those already addressed by the substantive claims”); Sanchez v. United States

4 Bancorp, No. 09-CV-00718-IEG (JMA), 2009 U.S. Dist. LEXIS 89752, at *20 (S.D. Cal.

5 Sep. 25, 2009) (same). For these reasons, the Court denies Plaintiff’s request for

6 declaratory relief.

7 3. Permanent Injunctive Relief

8 Plaintiff requests that the Court enter an injunction “requiring Defendant’s

9 compliance with the [General Permit]’s Effluent Limitation V.A and Receiving Water

10 Limitation VI.A.” ECF No. 18-1 at 21. The CWA authorizes a district court to order

11 injunctive relief “to impel future compliance with the Act[.]” Friends of the Earth, 528

12 U.S. at 173. “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test

13 before a court may grant such relief.” Monsanto Co. v. Geertson Seed Farms, 561 U.S.

14 139, 156 (2010). Under this test, “[a] plaintiff must demonstrate: (1) that it has suffered

15 an irreparable injury; (2) that remedies available at law, such as monetary damages, are

16 inadequate to compensate for that injury; (3) that, considering the balance of hardships

17 between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the

18 public interest would not be disserved by a permanent injunction.” Id. at 156–57. A

19 district court “has broad latitude in fashioning equitable relief when necessary to remedy

20 an established wrong.” Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981, 986 (9th Cir.

21 1994).

22 Federal Rule of Civil Procedure 65(d) requires that any injunction “state its terms

23 specifically” and “describe in reasonable detail—and not by referring to the complaint or

24 other document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d); Reno Air

25 Racing Ass’n v. McCord, 452 F.3d 1126, 1132 (9th Cir. 2006) (“If an injunction does not

26 clearly describe prohibited or required conduct, it is not enforceable by contempt.”)

27 (internal quotation marks omitted). Here, Plaintiff’s request is comparable to an “obey-

28 the-law” injunction that does “little more than order [Defendant] to obey the law.” SEC v.

1 Goble, 682 F.3d 934, 949 (11th Cir. 2012). Although the Ninth Circuit has not

2 categorically “adopted a rule against ‘obey the law’ injunctions per se,” FTC v.

3 EDebitPay, LLC, 695 F.3d 938, 944 (9th Cir. 2012), the language of an injunction must

4 still “be reasonably clear so that ordinary persons will know precisely what action is

5 proscribed,” Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 859 F.2d

6 681, 685 (9th Cir. 1988) (internal quotation marks omitted).

7 Plaintiff’s proposed injunction does not meet this standard. The proposed

8 injunction does not describe what specific acts Defendant is required to do or refrain from

9 doing beyond compliance with the General Permit. Plaintiff’s request is also not “tailored

10 to remedy the specific harm alleged.” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941

11 F.2d 970, 974 (9th Cir. 1991). The proposed injunction is not limited to the Aztec Facility

12 at issue in the Complaint. It also mandates that Defendant comply with the General

13 Permit’s Receiving Water Limitation VI.A, even though Plaintiff did not assert a claim

14 alleging Defendant violated this limitation.

15 For these reasons, the Court denies Plaintiff’s request for injunctive relief. See Su

16 v. Fillet, No. 23-cv-00167-SK, 2023 U.S. Dist. LEXIS 236211, at *30 (N.D. Cal. Oct. 12,

17 2023) (“[T]he Court declines to enjoin Defendants from future violations of ERISA.”);

18 Roman v. MSL Capital, LLC, No. EDCV 17-2066 JGB (SPx), 2019 U.S. Dist. LEXIS

19 114803, at *12 (C.D. Cal. July 9, 2019) (denying request for permanent injunction “to

20 prevent future violations of the fair housing laws by Defendants”), aff’d, 820 F. App’x

21 592, 593 (9th Cir. 2020); see also Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531–32

22 (11th Cir. 1996) (vacating injunction requiring defendants not to discharge storm water

23 into the waters of the United States from its development property “if such discharge

24 would be in violation of the Clean Water Act”).

25 4. Attorney’s Fees and Costs under the CWA

26 Plaintiff requests $34,465 in attorney’s fees and $968.52 in costs incurred litigating

27 this suit. ECF No. 18-1 at 25–26.

28 ///

1 Section 505(d) of the CWA provides that:

2 The court, in issuing any final order in any action brought pursuant to

3 this section, may award costs of litigation (including reasonable

attorney and expert witness fees) to any prevailing or substantially

4 prevailing party, whenever the court determines such award is

5 appropriate.

6 33 U.S.C. § 1365(d); see Saint John’s, 574 F.3d at 1058. “In order to award attorney’s

7 fees under § 1365(d), a district court must make two findings.” Id. “First, it must find that

8 the fee applicant is a ‘prevailing or substantially prevailing party.’” Id. “Second, it must

9 find that an award of attorney’s fees is ‘appropriate.’” Id.

10 Turning to the above factors, the Court concludes Plaintiff is a prevailing or

11 substantially prevailing party in this action. “[T]he threshold for sufficient relief to confer

12 prevailing party status is not high.” Id. at 1059. “‘If the plaintiff has succeeded on any

13 significant issue in litigation which achieve[d] some of the benefit the parties sought in

14 bringing suit, the plaintiff has crossed the threshold to a fee award of some kind.’” Id.

15 (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789

16 (1989)). Here, Plaintiff successfully obtained a default judgment and the imposition of

17 civil penalties against Defendant for violations of the General Permit and CWA.

18 An award of attorney’s fees is also appropriate in this case. A “district court may

19 deny attorney’s fees to a prevailing plaintiff under § 1365(d) only where there are special

20 circumstances” and a denial of fees on this basis is “extremely rare.” Id. at 1064. The

21 Court does not find this is a case presenting the type of special circumstances that would

22 warrant a denial of fees. See Resurrection Bay Conservation All. v. City of Seward, 640

23 F.3d 1087, 1092–93 (9th Cir. 2011) (collecting cases where special circumstances

24 precluded an award of attorneys’ fees).

25 The remaining question before the Court, then, is whether the fees and costs

26 Plaintiff seeks are reasonable and properly supported.

27 ///

28 ///

1 a. Attorneys’ Fees

2 In the Ninth Circuit, district courts “have a duty to ensure that claims for attorneys’

3 are reasonable and a district court does not discharge that duty simply by taking at

4 || face value the word of the prevailing party’s lawyer for the number of hours expended on

5 case[.|” Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th Cir. 2018)

6 || (internal quotation marks and citation omitted). “In a case in which a defendant fails to

7 ||appear or otherwise defend itself . . . the burden of scrutinizing an attorney’s fee

8 ||request—like other burdens—necessarily shifts to the court.” Jd.: see Currie v. Shaw, No.

9 || 13-cv-1515, 2014 U.S. Dist. LEXIS 96076, at *5—6 (D. Or. June 6, 2014) (“Even absent

10 |/objections from the opposing party, as in a default-;udgment case, the court has an

11 ||independent duty to review a fee petition for reasonableness.”).

12 Here, Plaintiff seeks $34,465 in attorneys’ fees, broken down as follows:

Requested

16 || __NatalieClagett [| | 83504 816,135

884,465 |

18 || Declaration of Livia B. Beaudin (“Beaudin Decl.,” ECF No. 18-2) 4 13-15; 18-3 at 36-

19 ||37. The Court assesses the reasonableness of Defendant’s fees requests using the

20 || “lodestar” method, whereby the Court multiplies “the number of hours the prevailing

21 ||party reasonably expended on the litigation by a reasonable hourly rate.” Camacho v.

22 Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (internal quotation marks

23 omitted); see, e.g., Vogel, 893 F.3d at 1160 n.4 (“For more than 30 years, the lodestar

24 ||approach has been used by district courts across the country to calculate reasonable

25 || attorney’s fee awards in cases that result in default judgments.’”’).

26 The Court begins with the reasonableness of the rates charged by □□□□□□□□□□□

27 || attorneys. Reasonable attorneys’ fees are calculated according to “the prevailing market

28 ||rates in the relevant community|.]” Blum v. Stenson, 465 U.S. 886, 895 (1984); see

1 Camacho, 523 F.3d at 979 (“Generally, when determining a reasonable hourly rate, the

2 relevant community is the forum in which the district court sits.”). Here, Ms. Beaudin and

3 Ms. Clagett’s requested rates of $650 and $350 are commensurate with the rates found

4 reasonable by courts in this District for attorneys of similar experience levels. See, e.g.,

5 Soler v. Cty. of San Diego, No. 14-cv-2470-MMA-RBB, 2021 U.S. Dist. LEXIS 114484,

6 at *15 (S.D. Cal. June 18, 2021) (“[C]ourts in this District have awarded hourly rates for

7 work performed in civil cases by attorneys with significant experience anywhere in range

8 of $550 per hour to more than $1000 per hour.”) (collecting cases); Kinder v. Woodbolt

9 Distrib., LLC, No. 18-cv-2713-DMS-AGS, 2021 U.S. Dist. LEXIS 64275, at *26 (S.D.

10 Cal. Apr. 1, 2021) (adopting as reasonable rates between $345 to $745 per hour for

11 associate attorneys).

12 The Court also finds the number of hours expended by Plaintiff’s attorneys

13 reasonable. Plaintiff’s attorneys undertook numerous tasks in this case, including

14 investigating the Aztec Facility and its impact on local waterways, collecting the

15 information necessary to initiate this action, drafting the notice of intent to sue letter, and

16 preparing and filing the complaint, request for entry of default, and default judgment

17 motion. ECF No. 18-1 at 25; see Docket. The total number of hours expended is

18 reasonable for these tasks.8

19 For the above reasons, the Court grants Plaintiff’s request for attorneys’ fees in the

20 amount of $34,465.

21 b. Costs

22 Attorneys are entitled to recover “those out-of-pocket expenses that would

23 normally be charged to a fee paying client.” Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.

24 1994) (internal quotation marks omitted). Here, Plaintiff seeks $968.52 in costs

25 comprising: (1) $405 in filing fees; (2) $85.50 for service of the complaint and summons;

8 Plaintiff is also not seeking fees for work its counsel incurred on this matter prior

1 $13.02 for mailing of the 60-day notice of intent to sue letter and complaint and

2 |}summons; and (4) $190 and $275 in lab testing for sampling and analysis of Defendant’s

3 ||storm water discharges. ECF No. 18-1 at 26; Beaudin Decl. | 15. The Court grants the

4 || request for costs as reasonable in this case.

5 CONCLUSION

6 For the above reasons, the Court GRANTS IN PART and DENIES IN PART

7 || Plaintiff's motion for default judgment. Specifically:

8 1. The Court GRANTS default judgment in Plaintiffs favor and against

9 ||Defendant with respect to Claims 1, 2, 3, 4, 6 and 7. The Court DENIES default

10 ||judgment with respect to Claim 5.

11 2. The Court GRANTS IN PART Plaintiff's request for civil penalties.

12 ||Defendants shall pay $2,967,000 in civil penalties pursuant to Section 309(d) of the

13 ||CWA. This payment shall be made to the U.S. Treasury within one hundred and twenty

14 ||(120) days from the date of this Order.

15 3. The Court DENIES Plaintiff's request for declaratory relief.

16 4. The Court DENIES Plaintiffs request for injunctive relief.

17 5. The Court AWARDS Plaintiff attorneys’ fees in the amount of $34,465.

18 6. The Court AWARDS Plaintiff costs in the amount of $968.52.

19 7. The Clerk of Court is DIRECTED to enter judgment accordingly and close

20 || the file.

21 IT IS SO ORDERED.

22 || Dated: October 16, 2024 fekut C Lou>

Hon. Robert S. Huie

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.