San Diego Coastkeeper v. United States International Boundary and Water Commission

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 SAN DIEGO COASTKEEPER, et al., Case No.: 3:24-cv-663-JES-VET

12 Plaintiffs,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART MOTION TO

DISMISS

14 UNITED STATES INTERNATIONAL

BOUNDARY AND WATER

15 [ECF No. 13]

COMMISSION, et al.,

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Defendants.

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Pending before the Court is Defendant Veolia Water West Operating Services, Inc.’s

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(“Veolia”) motion to dismiss. ECF No. 13. Plaintiffs filed an opposition, and Veolia filed

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a reply.1 ECF Nos. 20, 23. On October 16, 2024, the Court held a hearing and took the

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matter under submission. ECF No. 30. After due consideration and for the reasons

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discussed below, the Court GRANTS IN PART and DENIES IN PART Veolia’s motion

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to dismiss.

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//

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27 1 The other defendants in the matter, the United States International Boundary and Water Commission

(“IBWC”) and Maria-Elena Giner in her official capacity as Commissioner of the IBWC, filed a response

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1 I. BACKGROUND

2 This is a civil lawsuit brought under the citizen suit enforcement provision of the

3 Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (“Clean Water Act” or

4 “CWA”). ECF No. 1 ¶ 1. Plaintiffs San Diego Coastkeeper (“Coastkeeper”) and Coastal

5 Environment Rights Foundation (“CERF”) are non-profit organizations located in San

6 Diego that focus on protecting and restoring coastal waters and resources and the

7 communities that depend on them. Id. ¶¶ 38-39. Plaintiffs sue the IBWC and Veolia as

8 alleged owners of the South Bay International Wastewater Treatment Plant (“SBIWTP”)

9 and associated canyon collector systems and structures (collectively, “the Facility”). Id. ¶

10 2.

11 Plaintiffs allege that Defendants have a long history of discharging pollutants into

12 the Tijuana River and Estuary and the Pacific Ocean, in violation of the Clean Water Act.

13 Pursuant to a treaty between the United States and Mexico, two entities were established

14 to preside over water quality issues of rivers and streams at the US/Mexico border—the

15 IBWC on the United States side and La Comision Internacional de Limites y Aguas

16 (“CILA”) on the Mexican side. Id. ¶ 14. Plaintiffs allege that IBWC, through the Facility,

17 is to intercept and treat dry weather wastewater flows from Mexico, divert them to the

18 SBIWTP, and treat them before discharging them to the ocean. Id. ¶ 15.

19 Under the Clean Water Act, point source discharges of pollutants of navigable

20 waters are regulated by National Pollutant Discharge Elimination System Permits

21 (“NPDES”). Id. ¶¶ 2, 46. The EPA delegated NPDES permitting authority to California,

22 with the San Diego Regional Water Quality Control Board (the “Board”) serving as the

23 state regulatory agency that issued the NPDES permit governing the Facility’s operations

24 and discharges.2 Id. ¶ 2, 52. Plaintiffs allege that the Permit includes provisions that govern:

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27 2 The NPDES permit regulating the Facility are as alleged NPDES Order No. R9-2014-0009, NPDES

No. CA0108928, and Order No. R9-2021-0001, NPDES No. CA0108928, as amended by Order No. R9-

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1 (1) Effluent Limitations; (2) Receiving Water Limitations; (3) Discharge Prohibitions; (4)

2 Reporting Requirements for the Self-Monitoring Reports; (5) requirement to provide

3 access to regional scientific studies; and (6) Tijuana River Valley Monitoring Report

4 (“TRVMP”) submission requirements. Id. ¶ 56.

5 On December 18 , 2023, the Board issued an order to address non-compliance with

6 the Permit’s effluent limitations. ECF No. 13-1 at 7. The Board originally set a deadline of

7 August 15, 2024, for the IBWC to come into compliance with the Permit’s effluent

8 limitations. Id. The Board continues to monitor compliance under the Permit, and the

9 parties have filed status reports with the Court updating on the status of the compliance.

10 ECF Nos. 26, 28-29, 33-36, 39.

11 On January 30, 2024, Plaintiffs issued a notice letter of intent to sue regarding the

12 NPDES permit. Id. ¶ 2-3, Exs. 1, 2. On April 11, 1024, Plaintiffs filed the complaint in this

13 case. Id. Plaintiffs allege five causes of action: (1) Discharges of Waste in violation of the

14 Permit’s Effluent Limitations; (2) Discharges in violation of the Permit’s Section 3

15 Discharge Prohibits; (3) Discharges in violation of the Permit’s Receiving Water

16 Limitations in Section 5; (4) Failure to submit Self-monitoring reports; (5) Failure to

17 submit the TRVMP Within 90 Days of the Effective Date of Order No. R9-2021-0001. Id.

18 ¶¶ 154-198.

19 Since its filing, the parties and the Court have held several hearings in this case, and

20 its current procedural posture is that Claim 1 is stayed pending a rain event, Claim 3 is

21 stayed pending the Supreme Court case San Francisco v. Environmental Protection

22 Agency, Claim 2 is stayed to the extent it overlaps with Claim 3. Claim 2 is otherwise not

23 stayed and the stay on Claim 5 has been lifted.

24 Pending now before the Court is Veolia’s motion to dismiss. Veolia brings the

25 motion to dismiss under several grounds. First, Veolia challenges whether this Court has

26 subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Second, Veolia

27 challenges the complaint for failure to state a claim against it under Federal Rule of Civil

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1 Procedure 12(b)(6). Finally, Veolia argues that the first and fifth claims should be

2 dismissed under the primary jurisdiction doctrine or under ripeness.

3 II. REQUEST FOR JUDICIAL NOTICE

4 Related to this motion, Veolia requests that the Court take judicial notice of several

5 documents: (1) the NPDES Permit attached as Exhibit 1 to Plaintiffs’ complaint and (2)

6 the December 2023 Time Schedule Order (“TSO”) issued by the Board attached as

7 Exhibit C to the Declaration of Rebecca Roberts. ECF No. 13-4. In their opposition to the

8 motion, Plaintiffs object to taking judicial notice of the TSO. ECF No. 20 at 29-30.

9 Plaintiffs also object to consideration of Exhibits A, B, D, and E attached to the Roberts

10 Declaration as facts and documents outside the complaint that are not properly considered

11 on a motion to dismiss. Id. These exhibits are generally orders, meeting minutes, and

12 reports issued by the Board. See ECF No. 13-2 at ¶¶ 2, 3, 5, 6.

13 In turn, Plaintiffs request that the Court take judicial notice of Exhibits 3, 7, 9, 10,

14 11, 12, 13, 14, 15, and 16 submitted in support of their opposition to the motion. ECF No.

15 20-3. These exhibits generally appear to be documents (such as reports, logs,

16 announcements, violations) from the IBWC or the Board. Id. Two of the exhibits,

17 Exhibits 13 and 14, are Statements of Information from two Veolia entities downloaded

18 from the California Secretary of State’s website. Id. Veolia argues that the Court may

19 take judicial notice of the existence of the documents, their dates, and the existence of the

20 contents within, but not the truth of the matter asserted within because the facts are under

21 dispute. ECF No. 23 at 3-5.

22 On a motion to dismiss, a “court may take judicial notice of ‘matters of public

23 record.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). However, courts

24 may not take judicial notice of a fact that is “subject to reasonable dispute.” Fed. R. Evid

25 201(b). Consistent with this line, courts often take judicial notice of the existence of

26 documents but not take notice of the factual truth of the contents, if those are subject to

27 reasonable dispute. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999-1000 (9th

28 Cir. 2018) (“Just because the document itself is susceptible to judicial notice does not

1 mean that every assertion of fact within that document is judicially noticeable for its

2 truth.”); see also EVO Brands, LLC v. Al Khalifa Grp. LLC, 657 F. Supp. 3d 1312, 1322

3 (C.D. Cal. 2023) (taking notice of government website but not of factual truth of

4 contents); United States v. S. California Edison Co., 300 F. Supp. 2d 964, 974 (E.D. Cal.

5 2004).

6 The Court takes judicial notice of the documents requested by the parties as they

7 generally appear to be documents related to administrative proceedings before the Board.

8 However, for these documents, the Court does not rely on the factual contents and

9 statements from these documents to resolve this motion and declines to take judicial

10 notice of all facts contained therein. For the two exhibits that are from the California

11 Secretary of States website, the Court takes judicial notice of the full documents. No Cost

12 Conf., Inc. v. Windstream Commc’ns, Inc., 940 F. Supp. 2d 1285, 1296 (S.D. Cal. 2013)

13 (“The printout from the Secretary of State's website is subject to judicial notice as a

14 public record and as containing facts the accuracy of which cannot reasonably be

15 disputed.”). Accordingly, the request for judicial notice is GRANTED IN PART and

16 DENIED IN PART.

17 III. MOTION TO DISMISS UNDER 12(b)(1)

18 Veolia first argues that this Court lacks subject matter jurisdiction over it because

19 Plaintiffs failed to provide adequate notice under the CWA.

20 A. Legal Standard

21 Dismissal pursuant to Rule 12(b)(1) is appropriate when either the complaint or

22 evidence extrinsic to the complaint demonstrates that the court lacks subject matter

23 jurisdiction over the action. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

24 Rule 12(b)(1) jurisdictional challenges can be either factual or facial. Safe Air for Everyone

25 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts

26 that the allegations contained in a complaint are insufficient on their face to invoke federal

27 jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the

28 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. In

1 resolving a factual challenge, a district court may review evidence extrinsic to the

2 complaint. Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th

3 Cir. 2003)). In a factual attack on jurisdiction, the court need not presume the truthfulness

4 of the plaintiff's allegations. Safe Air, 373 F.3d at 1039.

5 The CWA requires that any person or organization bringing a citizen suit to provide

6 60-days notice to “any alleged violator of the standard, limitation, or order.” 33 U.S.C. §

7 1365(b)(1)(A). This notice requirement is considered a jurisdictional requirement before

8 the Court may hear claims brought pursuant to that notice. Ctr. For Biological Diversity v.

9 Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2009) (“[T]he giving of a 60–day

10 notice is not simply a desideratum; it is a jurisdictional necessity.”).

11 Regulations promulgated by the EPA set forth the information that must be provided

12 in the pre-suit notice:

13 Notice regarding an alleged violation of an effluent standard or limitation or

of an order with respect thereto, shall include sufficient information to permit

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the recipient to identify the specific standard, limitation, or order alleged to

15 have been violated, the activity alleged to constitute a violation, the person or

persons responsible for the alleged violation, the location of the alleged

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violation, the date or dates of such violation, and the full name, address, and

17 telephone number of the person giving notice.

18 40 C.F.R. § 135.3.

19 The Ninth Circuit has “strictly construed” the CWA’s notice requirements. See

20 Hallstrom v. Tillamook Cty., 493 U.S. 20, 31 (1989); Nat. Res. Defense Council v. Sw.

21 Marine, Inc., 236 F.3d 985, 998 (9th Cir. 2000). The “Ninth Circuit, even at its most

22 lenient, requires notice to inform the targeted party ‘precisely what it allegedly did wrong,

23 and when.’” San Francisco Herring Assoc. v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847,

24 857 (N.D. Cal. 2015) (citation omitted). Conversely, plaintiffs do not need to “‘list every

25 specific aspect or detail of every alleged violation’” but only needs to be “reasonably

26 specific” as to the nature and time of the alleged violation. Id. The question of whether the

27 notice requirement has been met “turns on the overall sufficiency of the notice.” Klamath-

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1 Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 651 (9th Cir. 2015) (citation and

2 internal quotation marks omitted).

3 B. Analysis

4 Veolia argues that the notice is not sufficient for several reasons. First, Veolia argues

5 that the notice does not name the proper entity, Veolia Water West Operating Services,

6 Inc. ECF No. 13-1 at 20. Second, Veolia argues that the notice letter was only addressed

7 to the IBWC Commissioner, Giner, and only puts the IBWC on notice, not Veolia. Id.

8 Third, Veolia alleges that while the notice letter alleges various permit violations, it fails

9 to explain why Veolia is subject to the Permit and what Veolia specifically did wrong. Id.

10 at 20-21. Finally, Veolia argues that the letter does not put it on notice that it could be

11 subject to civil penalties. Id. at 21.

12 The notice letter was addressed to the following entities:

13 Maria-Elena Giner, Commissioner Veolia Water North America–West, LLC

International Boundary & Water PO Box 430239

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Commission San Diego, CA 92143

15 United States Section

4191 North Mesa St. Veolia Water North America-West LLC

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El Paso, TX 79902 Agent for Service of Process

17 CT Corporation system

South Bay International Treatment Plant 330 N. Brand Blvd,

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2995 Clearwater Way Glendale, CA 91203

19 San Diego, CA 92154

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As to the first argument, the entity that the notice letter is directed to is Veolia Water

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North America-West, LLC, rather than Veolia Water West Operating Services, Inc.

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Plaintiffs argue that this argument puts form over function—because Veolia Water West

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had enough information to identify itself as the responsible party. ECF No. 20 at 14.

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Plaintiffs submit a declaration stating that the two entities share the same Chief Executive

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Officer, registered agent, principal address, and mailing address. Id. at 14-15.

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The Court finds the case Puget Soundkeeper Alliance v. Louis Dreyfus Commodities

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LLC, No. C14-803RAJ, 2016 WL 7718644 (W.D. Wash. Mar. 11, 2016), to be instructive.

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1 That court considered “whether proper service of a notice of intent to sue on one member

2 of a group of related corporate entities sharing the same address and registered agent may

3 serve as proper service as to all of the alleged violators within that group.” Id. at *4. The

4 court noted that the CWA’s requirement should be strictly construed but weighed this

5 against whether it would be “exceedingly formalistic” to permit the interrelated companies

6 to “dodge” notice. Id. The court surveyed district court cases within this Circuit on both

7 sides. Id. at *5. Ultimately, the court sided with the plaintiff, finding the notice addressed

8 to one of the entities “sufficed to give the Defendants a reasonable opportunity to identify

9 which of them was the responsible owner or operator at the time of the violations,” giving

10 them a “fair and reasonable opportunity to remediate any problems identified in the

11 notices.” Id. at *6. The court found that this result served the primary purposes driving the

12 CWA’s notice requirement and was supported by practical policy. Id. (“Elevating form

13 over substance and finding improper service where interrelated corporations share common

14 ownership, registered agents, and mailing addresses could encourage shell games to

15 frustrate proper service.”). The Court finds that the same reasoning applies here.

16 As to the second argument, that the letter was addressed only to IBWC

17 Commissioner, Giner, and only puts the IBWC on notice, the Court is also unpersuaded.

18 Even though the greeting of the letter does state “Dear Commissioner Giner,” as stated

19 above, the letter was served on the Veolia entity. See ECF No. 1-2 at 1. Further, the first

20 paragraph of the letter states that the letter is “regarding the United States Section of the

21 International Boundary & Water Commission and Veolia Water North America – West

22 LLC (collectively ‘IBWC’) violations of the Clean Water Act” and lists the NPDES

23 permits at issue. Id. Thus, despite the greeting, a Veolia entity received the letter through

24 its agent for service of process and the remainder of the letter should put it on notice that

25 the letter is also directed at it, not just IBWC. Finding otherwise would also put form over

26 function for the notice letter requirement. See Waste Action Project v. First Student, Inc.,

27 No. 3:23-CV-05084-DGE, 2023 WL 4296515, at *5 (W.D. Wash. June 30, 2023) (finding

28 letter served purpose even where it “was not directly addressed to [defendant], [defendant]

1 accepted service of the letter and the letter clearly indicated violations of specific permit

2 conditions with which [defendant] was involved and for which it could face potential

3 liability”).

4 As to the third argument, Veolia argues that the notice letter does not explain why it

5 is subject to the permit and what it specifically did wrong. Relevant to this argument, courts

6 have distinguished the CWA’s notice requirement from Rule 12(b)(6) pleading standards.3

7 Waste Action Project, 2023 WL 4296515, at *6. The EPA regulations require that the

8 notice letter “include sufficient information to permit the recipient to identify the specific

9 standard, limitation, or order alleged to have been violated” and “the activity alleged to

10 constitute a violation.” 40 C.F.R. § 135.3(a). These requirements serve dual purposes: (1)

11 allowing “Government agencies to take responsibility for enforcing environmental

12 regulations, thus obviating the need for citizen suits[;]” and (2) giving “the alleged violator

13 ‘an opportunity to bring itself into complete compliance with the Act and thus likewise

14 render unnecessary a citizen suit.’” Hallstrom v. Tillamook Cnty., 493 U.S. 20, 29 (1989)

15 (cleaned up). With these purposes in mind, the notice letter “require[s] no more than

16 ‘reasonable specificity.’” San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153,

17 1158 (9th Cir. 2002); see Paolino v. JF Realty, LLC, 710 F.3d 31, 40 (1st Cir. 2013) (letter

18 must give sufficient details for “the defendants to determine each other’s responsibility for

19 the individual violations”) (emphasis in original).

20 Here, it is true that the notice letter generally attempts to collectively treat IBWC

21 and Veolia. ECF No. 1-2 at 1 (referencing both entities collectively as “IBWC”). The letter

22 does state the relationship between the two—that IBWC contracts with Veolia to “operate

23 and maintain the Facility.” Id. at 2. In other places in the notice letter, Plaintiffs state that

24 Veolia and IBWC collectively own and control the facilities and equipment. See, e.g., id.

25 at 8 (“IBWC and Veolia own and/or exercise control over pipes and conveyances between

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3 Veolia also raises a Rule 12(b)(6) ground for dismissal, which the Court will separately address below

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1 diversion structures, pump stations, and the wastewater treatment plant. . . . As such, IBWC

2 and Veolia control the operation and maintenance of the canyon collector systems and have

3 a measure of control over the waste”); id. at 16 (“IBWC and Veolia, as owners and/or

4 operators of the Facility, have failed, and continue to fail, to properly operate and maintain

5 the Facility.”). Notably, Veolia does not appear to argue that the notice letter generally fails

6 to give sufficient information to identify the permits or violations at issue, but only that it

7 did not sufficiently identify Veolia’s role. However, the regulations do not appear to require

8 that level of specificity in the notice letter. The notice letter appears to sufficiently identify

9 the violations that put the defendants collectively on notice of the violations and therefore,

10 an opportunity to bring itself in compliance. See Paolino, 710 F.3d at 40 (notice sufficient

11 because defendants themselves could figure out who was responsible at what time for the

12 violations identified); San Francisco BayKeeper, 309 F.3d at 1158 (lack of exact dates did

13 not defeat sufficient notice because it permitted the recipients to identify the dates at issue).

14 Finally, as to the fourth argument, Veolia argues that the notice letter also fails

15 because it does state that it could be subject to civil penalties. Plaintiffs counter that the

16 regulations do not require the citizen suitor to list all potential remedies. ECF No. 20 at 17.

17 Further, Plaintiffs point out that the cases Veolia cites only support the proposition that the

18 plaintiff could only seek civil penalties for violations identified in the notice letter, not that

19 the notice letter was insufficient. Id. The Court agrees. Failure to specifically state that

20 Veolia may be subject to civil penalties in a notice letter does not defeat the sufficiency of

21 the notice letter itself.

22 Accordingly, for the reasons stated above, the Court finds that the notice letter is

23 sufficient as to Veolia and DENIES the motion to dismiss for lack of jurisdiction.

24 //

25 //

26 //

27 //

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1 IV. MOTION TO DISMISS UNDER 12(b)(6)

2 Veolia next argues that the complaint should be dismissed against it for failure to

3 state a claim under Rule 12(b)(6).

4 A. Legal Standard

5 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to

6 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d

7 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all

8 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 556 U.S.

9 544, 555 (2007). The court need not accept as true legal conclusions cast as factual

10 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the

11 elements of a cause of action, supported by mere conclusory statements” are insufficient).

12 A complaint must “state a claim for relief that is plausible on its face.” Twombly,

13 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non-conclusory

14 factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the reasonable inferences

15 drawn from those facts must show a plausible—not just a possible—claim for relief.

16 Twombly, 550 U.S. at 556; Iqbal, 557 U.S. at 679; Moss v. U.S. Secret Service, 572 F.3d

17 962, 969 (9th Cir. 2009). The focus is on the complaint, as opposed to any new facts alleged

18 in, for example, the opposition to a defendant’s motion to dismiss. See Schneider v.

19 California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), reversed and

20 remanded on other grounds as stated in 345 F.3d 716 (9th Cir. 2003). “Determining

21 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

22 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,

23 557 U.S. at 679. The “mere possibility of misconduct” or “unadorned, the defendant-

24 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.;

25 see also Moss, 572 F.3d at 969.

26 //

27 //

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1 C. Analysis

2 Veolia argues that the complaint impermissibly collectively references the

3 defendants together and does not set forth the liability for each defendant. ECF No. 13-1

4 at 22-23. The allegations referencing Veolia specifically in the complaint are as follows:

5 ¶ 8: USIBWC and Veolia have discharged and continue to discharge

pollutants such as fecal bacteria, contaminated sediment, heavy metals, and

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toxic chemicals, some of which have been banned in the United States such

7 as DDT, Benzidine, and Polychlorinated Biphenyls (“PCBs”), into the

Tijuana River and Estuary, and the Pacific Ocean (collectively “Receiving

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Waters”) in violation of the express terms and conditions of the Permit and

9 Clean Water Act, 33 U.S.C. Section 1342.

10 ¶ 36: Veolia is an active Delaware Limited Liability Company and at all

11 relevant times the Operator of Facility. Veolia contracts with USIBWC to

operate and maintain the SBIWTP and its associated infrastructure in San

12 Diego, California.

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¶ 93: USIBWC contracts with Veolia to operate and maintain the Facility

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¶ 126: USIBWC and Veolia, as owners and/or operators of the Facility, have

15 failed, and continue to fail, to properly operate and maintain the Facility.

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ECF No. 1.

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As noted above, courts have differentiated between the standards for a sufficient

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notice letter as compared to sufficiency of the allegations of a complaint under Rule

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12(b)(6). “Allowing a court to draw reasonable inferences from a pleading as to a

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defendant’s potential liability is different than the notice necessary to inform the

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appropriate agencies of the alleged violations under the CWA.” Waste Action Project, 2023

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WL 4296515, at *6. In that case, even though the notice letter was found to be sufficient,

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the complaint was dismissed under 12(b)(6) because the complaint referenced the

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defendants collectively. The court relied on cases that permit such “shotgun pleading”

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where defendants are not distinguished. Id. at *7 (collecting cases that granted motions to

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dismiss where the complaint failed to make a distinction between the various defendants

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and who committed which actions).

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1 The Court finds that the complaint here warrants the same result. The conflating of

2 Veolia with IBWC amounts to impermissible shotgun pleading. However, the Court will

3 grant Plaintiff an opportunity to amend the complaint. See Fed. R. Civ. P. 12(a)(2) (the

4 court should “freely give leave [to amend] when justice so requires”). In its opposition to

5 the motion to dismiss, Plaintiffs identified various allegations they would add to the

6 complaint to clarify the allegations against Veolia individually. See ECF No. 20 at 21.

7 Accordingly, the Court GRANTS Veolia’s motion to dismiss the complaint against it

8 under Rule 12(b)(6) and also GRANTS Plaintiffs leave to amend the complaint to add

9 specific allegations against Veolia. The amended complaint must be filed within 21 days

10 of this order.

11 V. PRIMARY JURISDICTION AND RIPENESS

12 Veolia next argues that Claims 1 and 5 should be dismissed under the primary

13 jurisdiction doctrine and ripeness.

14 A. Legal Standard

15 “Primary jurisdiction is a prudential doctrine that permits courts to determine ‘that

16 an otherwise cognizable claim implicates technical and policy questions that should be

17 addressed in the first instance by the agency with regulatory authority over the relevant

18 industry rather than by the judicial branch.’” Astiana v. Hain Celestial Grp., Inc., 783 F.3d

19 753, 760 (9th Cir. 2015) (quoting Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th

20 Cir. 2008)). When evaluating whether this doctrine should apply to a case, the court should

21 consider the following: “(1) the need to resolve an issue that (2) has been placed by

22 Congress within the jurisdiction of an administrative body having regulatory authority (3)

23 pursuant to a statute that subjects an industry or activity to a comprehensive regulatory

24 authority that (4) requires expertise or uniformity in administration.” Syntek Semiconductor

25 Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002).

26 The question is not whether the case will invoke the expertise of the federal agencies,

27 but it is applied in a “limited set of circumstances that requires resolution of an issue of

28 first impressions, or of a particularly complicated issue that Congress has committed to a

1 regulatory agency.” Astiana, 783 F.3d at 760 (citation and quotation marks omitted).

2 Practically, the court should also consider if invoking the doctrine would “needlessly delay

3 the resolution of the claims.” Id. The choice to invoke the doctrine is in the sound discretion

4 of the district court. Syntek, 307 F.3d at 781. If a court were to find primary jurisdiction to

5 be appropriate, it may choose to either stay the proceedings or dismiss the case. Astiana,

6 783 F.3d at 761 (“When the purpose of primary jurisdiction is for ‘parties [to] pursue their

7 administrative remedies,’ a district court will ‘[n]ormally’ dismiss the case without

8 prejudice. However, when a court invokes primary jurisdiction ‘but further judicial

9 proceedings are contemplated, then jurisdiction should be retained by a stay of

10 proceedings, not relinquished by a dismissal.’”) (citation omitted).

11 Ripeness prevents the courts from issuing advisory opinions and declaring rights in

12 hypothetical cases, but to limit themselves to adjudicating “live cases or controversies.”

13 Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000). The

14 ripeness inquiry consists of two components. Id. First, the constitutional component is

15 temporal in scope, asking whether there exists a “constitutional case or controversy, that

16 the issues presented are definite and concrete, not hypothetical or abstract, . . . [and]

17 whether the plaintiffs face a realistic danger of sustaining a direct injury.” Id. (cleaned up).

18 Second, the prudential component considers “the fitness of the issue for judicial decision

19 and the hardship to the parties of withholding court consideration.” Id. at 1141. ripeness.

20 B. Analysis

21 With regards to Claims 1 and 5, the Court finds it prudent to review the litigation

22 history so far on these claims. Previously, Defendant IBWC moved to stay the same two

23 claims. ECF No. 15. The basis of that request was so that the Board’s enforcement

24 proceedings could proceed, eliminating duplicative effort and potentially conflicting

25 actions, so that the issues could be limited before proceeding in front of this Court. The

26 Court granted the initial motion to stay, and has since partially extended the stays.

27 Currently, Claim 1 is stayed pending a rain event and the original stay on Claim 5 was

28 lifted. In its latest joint status report to the Court, the parties represent that they have met

1 and conferred on Claim 5 and that they expect it to drop out of the case when IBWC

2 commences water quality sampling pursuant to its TRVMP Plan. ECF No. 39. On Claim

3 1, the Court has another hearing set for March 26, 2025, where the parties will update the

4 Court on if a rain event has occurred in San Diego, to evaluate whether that claim should

5 proceed.

6 Given this procedural posture, the Court finds that a continued stay, with periodic

7 status updates from the parties like they have provided so far, is the appropriate way to

8 proceed with these claims. Even though the previous stay on the claims were granted based

9 on a different legal theory rather than primary jurisdiction, similar considerations apply.

10 The effluent limitations issue is currently in front of the Board and efficiency dictates that

11 what this Court has to address could be limited after a stay pending those results. A stay

12 also balances the interests of efficiency with still providing an avenue for Plaintiffs to

13 pursue their rights should the issues not fully be resolved by the Board.

14 As to Veolia’s ripeness arguments, the arguments that Veolia makes in support of

15 its position that these claims are not ripe also center around the idea that the Board is

16 monitoring the alleged violations already. Veolia argues that until the Board’s remediation

17 plan is implemented, it is not clear how post-remediation effluent discharges will be

18 calculated, and that this case would interfere with the Board’s management of a CWA

19 issue. The Court is not persuaded that these arguments go to ripeness. The effluent

20 limitation violations that were included in the notice letter and in the complaint have

21 already occurred, and Plaintiffs allege injury from these violations. Even though the Board

22 is currently implementing a remediation plan, this does not make the matter not ripe,

23 particularly where the CWA itself permits citizen suits. Again, a stay such as the one that

24 is already in place, is an appropriate way to balance the interests at issue.

25 Accordingly, the Court GRANTS IN PART and DENIES IN PART Veolia’s

26 motion to dismiss Claim 1 and 5 on these grounds. The stay on Claim 1 remains in effect

27 as previously set. Claim 5 remains no longer stayed, but given the parties representation to

28 the Court that the Claim 5 will drop out of the case when the IBWC commences water

1 quality sampling pursuant to the TRVMP Plan, the Court will not dismiss this claim now

2 and will wait for the parties to make the request at the appropriate time.

3 VI. MOTION TO STRIKE

4 Finally, Veolia requests that, if the Court does not dismiss the complaint, that it strike

5 the allegations regarding civil penalties (in the operative complaint, paragraphs 161, 168,

6 180, 189, 196, and 199(d)). ECF No. 13-1 at 28-29. Veolia argues that these allegations

7 should be stricken because the notice regarding civil penalties was insufficient and that

8 Veolia is not the permit holder. Id.

9 Rule 12(f) of the Federal Rules of Civil Procedure permits a district court to “strike

10 from a pleading an insufficient defense or any redundant, immaterial, impertinent, or

11 scandalous matter.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.

12 2010). However, “Rule 12(f) does not authorize district courts to strike claims for damages

13 on the ground that such claims are precluded as a matter of law.” Id. at 974-75. Indeed

14 other courts have held that civil penalties under other federal statutes are damages that are

15 not appropriate to be stricken under Rule 12(f). See, e.g., Taylor v. Populus Grp., LLC, No.

16 20-CV-0473-BAS-DEB, 2020 WL 6131727, at *3 (S.D. Cal. Oct. 19, 2020) (denying

17 motion to strike PAGA civil penalties because “a Rule 12(f) motion is not a proper vehicle

18 to attack a plaintiff’s request for damages”); Byrd v. Masonite Corp., 215 F. Supp. 3d 859,

19 869-70 (C.D. Cal. 2016) (denying motion to strike UCL penalties where motion to strike

20 was in actuality “an attempt to have certain portions of the complaint dismissed” as a matter

21 of law).

22 Consistent with the above, a Rule 12(f) motion is not the proper vehicle to dismiss

23 certain allegations in the complaint that relate to damages. Accordingly, the motion to

24 strike Is DENIED.

25 //

26 //

27 //

28 //

1 Vil. CONCLUSION

2 After due consideration and for the reasons discussed above, the Court GRANTS

3 || IN PART and DENIES IN PART Veolia’s motion to dismiss. Plaintiffs are permitted to

4 || file an amended complaint within 21 days of this order. Defendant Veolia must respond

5 ||to the new amended complaint within 14 days if Plaintiff files an amended complaint

6 || against it.

7 IT IS SO ORDERED.

8

9 Dated: February 14, 2025 “| ie SS smmeo ot

10 Honorable James E. Simmons Jr.

il United States District Judge

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