Petition for Writ of Certiorari — Charles G. Kinney, Petitioner v. Three Arch Bay Community Services District, et al.

INDEX TO APPENDIX

Appendix numbers at top of page

Sequential No.

In Document

Appendix A: Oct. 4, 2018 "final" decision by the

Ninth Circuit which denied the petitions for

rehearings filed by Kinney in this appeal ......1

Appendix B: May 23, 2018 dismissal order by the

same panel of the Ninth Circuit that issued 3

dismissals on the same day for Kinney's pending

appeals including one for this CWA appeal.... 3

Appendix C: June 15, 2017 Order re: Motions for

Summary Judgment by USDC Judge Klausner

which ignored the plain language of statutes as to

the requirements for a 60 day notice under the

Clean Water Act for polluters that did not have

NPDES permits, but who were on notice of the

nature of the pollutants and how to correct the

problem for decades [Dk #89]...............6

Appendix D: May 22, 2017 Order re: Defendant's

Motion to Dismiss by USDC Judge Klausner

which ignored the plain language of statutes as to

the entry of TABCSD's default, the failure of

TABCSD to timely object to the first substituted

service, and the repeated refusal of the security

guards hired by TABCSD to allow entry to the

first process server [Dk #69] ...............14

APPENDIX A

Case: 17-55899

10/04/2018 DktEntry: 46

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES G. KINNEY

Plaintiff-Appellant,

V.

No. 17-55899

D.C. No. 8:16-cv-0796-RGK

Central Dist. of Cal. (LA)

THEE ARCH BAY COMMUNITY SERVICES

DISTRICT; et al.,

Defendants-Appellees.

FILED

OCT 42018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ORDER

Before: SILVERMAN, BEA, and WATFORD,

Circuit Judges.

The panel has voted to deny the petition for

panel rehearing.

The full court has been advised of the

petition for rehearing en banc and no judge has

requested a vote on whether to rehear the matter

en bane. See Fed. R. App. P. 35.

--

-----

-----

2

-

-------

Kinney's petition for panel rehearing and

petition for rehearing en banc (Docket Entry No.

45) are denied.

Kinney's request for judicial notice (Docket

Entry No. 45) is denied.

No further filings will be entertained in this

closed case.

-

--

--

3

APPENDIX B

Case: 17-55899 05/23/2018 DktEntry: 44-1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES G. KINNEY

Plaintiff-Appellant,

V.

No. 17-55899

D.C. No. 8:16-cv-0796-RGK

Central Dist. of Cal. (LA)

THEE ARCH BAY COMMUNITY SERVICES

DISTRICT; et al.,

Defendants-Appellees.

FILED

MAY 23 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MEMORANDUM *

Appeals from the United States District Court for

the Central District of California R. Gary

Klausner, District Judge, Presiding

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD,

Circuit Judges.

Charles G. Kinney appeals pro se from the

district court's judgment dismissing his action

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----

4

alleging violations of the Clean Water Act

("CWA"), 33 U.S.C. § 1365. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a

dismissal for lack of subject matter jurisdiction

due to insufficient notice under the CWA.

Washington Trout v. McCain Foods, Inc., 45 F.3d

1351, 1353 (9th Cir. 1995). We affirm.

The district court properly determined that

it lacked subject matter jurisdiction over Kinney's

action because Kinney failed to provide

defendants with adequate notice of the alleged

CWA violations. See 40 C.F.R. § 135.3 (notice

under CWA must provide sufficient information to

permit recipient to identify violation); Washington

Trout, 45 F.3d at 1354-55 (affirming dismissal of

CWA action for lack of subject matter jurisdiction

where notice was "insufficient as required by the

regulations promulgated under the CWA"); see

also Stock West, Inc. v. Confederated Tribes of the

Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.

1989) (stating that the Declaratory Judgment Act

"only creates a remedy and is not an independent

basis for jurisdiction").

The district court did not abuse its

discretion by dismissing Kinney's claims against

defendant Three Arch Bay Community Services

District ("TAB") because Kinney failed to

effectuate timely service of the summons and

complaint on TAB or to show good cause for this

failure. See Fed. R. Civ. P. 4(m) (requiring service

within 90 days after the complaint is filed); In re

Sheehan, 253 F.3d 507, 511-13 (9th Cir. 2001)

(setting forth standard of review and discussing

district court's broad discretion to dismiss the

action without prejudice). For this same reason,

5

the district court did not abuse its discretion by

denying Kinney's motion for entry of default

against TAB. See Fed. R. Civ. P. 55(a) (entry of

default); Aldabe v. Aldabe, 616 F.2d 1089, 1092-93

(9th Cir. 1980) (setting forth standard of review).

The district court did not abuse its

discretion by dismissing the complaint without

leave to amend because amendment would be

futile. See Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting

forth standard of review and explaining that

dismissal without leave to amend is proper when

amendment would be futile).

We reject Kinney's contention that the

district court erred by assigning this case to Judge

Klausner in the Western Division of the U.S.

District Court for the Central District of

California.

We do not consider arguments and

allegations raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.

2009).

The Chaldus' motion to take judicial notice

(Docket Entry No. 14) is granted.

AFFIRMED.

*

This disposition is not appropriate for

publication and is not precedent except as

provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is

suitable for decision without oral argument. See

Fed. R. App. P. 34(a)(2). Kinney's request for oral

argument, set forth in the opening brief, is denied.

APPENDIX C

Case: 8: 16-cv-00796 •06/15/2017 DktEntry: 89

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIF.

CHARLES G. KINNEY

Plaintiff,

V.

D.C. No. 8:16-cv-0796-RGK

Central Dist. of Cal. (LA)

THEE ARCH BAY COMMUNITY SERVICES

DISTRICT; et al.,

Defendants.

CIVIL MINUTES GENERAL

Case No. SA CV 16-00796 RGK (JCx)

Date June 15, 2017

Title CHARLES KINNEY v. THREE ARCH

BAY COMMUNITY SERVICES

DISTRICT, et al

Present: The Honorable R. GARY KLAUSNER,

U.S. DISTRICT JUDGE

Sharon L. Williams (Not Present)

Not Reported N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Not Present

Attorneys Present for Defendants: Not Present

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Proceedings: (IN CHAMBERS) Order Re:

Motions for Summary Judgment (DE 50 and

DE 52)

I. INTRODUCTION

7

On July 10, 2016, Charles Kinney filed a

First Amended Complaint ("FAC") against Three

Arch Bay Community Services District ("TAB"),

Charles Viviani ("Viviani"), and John and Lynn

Chaldu ("Chaldus"). The FAC asserts three

claims arising from alleged violations of the Clean

Water Act ("CWA" or the "Act").

Presently before the Court are Chaldus' and

Viviani's Motions for Summary Judgment. For

the reasons before, the Court DISMISSES the

matter for lack of subject-matter jurisdiction and

DENIES the Motions as moot.

II. FACTUAL BACKGROUND

The following facts are undisputed or from

judicially noticed materials.

Kinney owns a real property on Virginia

Way in Laguna Beach, California (the "City").

Chaldus and Viviani own properties across the

street from Kinney. TAB is a community services

district for the Three Arch Bay subdivision in the

City.

TAB operates a municipal-separate-stormsewer system ("MS4") under a National-PollutantDischarge-Elimination-System ("NPDES") permit.

TAB's MS4 discharges mud, silt, sand, debris,

sediment, and other pollutants along with stormwater runoff from its land. More severe during

rain storms, part of the runoff passes downhill

through Kinney's property, across Virginia Way,

and eventually into the Pacific Ocean.

Kinney accuses Chaldus and Viviani of

impeding the runoff on their properties, thereby

increasing the amount of pollutant deposits on

Kinney's property.

On December 13, 2011,

Kinney sued Chaldus and Viviani in state court

8

asserting nuisance and trespass claims. (State

Compi. paras. 40-50, in Pl.'s Opp'n Chadlus'

Summ. J. Mot. "Pl.'s Opp'n", ECF No. 68, fn. 1).

In 2015, Kinney sent letters to the California

Regional Water Quality Control Board

("CRWQCB") and the Environmental Protection

Agency (EPA) regarding the pollutant discharge

in the Pacific Ocean. (See CRWQCB and EPA

letters, in Pl.'s Opp'n 53-57).

In the FAC, Kinney alleges that Chaldus

and Viviani "discharged pollutants into the

[Pacific Ocean] without a NPDES permit and/or

[violating] the applicable NPDES permit..."

thereby violating the CWA. (FAC para. 12, ECF

No. 14; see also FAC paras. 2, 23, 25, 27).

III. JUDICIAL STANDARD

A matter must be dismissed for lack of

subject-matter jurisdiction.

See Fed.R.Civ.P.

12(b)(1). "A district court may hear evidence and

make findings of fact necessary to rule on the

subject-matter-jurisdiction question prior to

trial..." Rosales v. United States, 824 F.2d 799,

803 (9th Cir. 1987). Where "the jurisdictional

issue and substantive claims are so intertwined

that resol[ving] the jurisdictional question is

dependent on factual issues going to the merits,

the district court should employ the standard

applicable to a motion for summary judgment."

Autery v. United States, 424 F.3d 944, 956 (9th Cir.

2005). Under this standard, the court can dismiss

the matter "only if the material jurisdictional

facts are not in dispute and the moving party is

entitled to prevail as a matter of law." Rosales,

824 F.2d at 803. A court may make jurisdictional

findings on parties' evidence such as declarations,

9

deposition testimony, and other evidence. Omeluk

v. Langsten Slip & Batbyggeri AIS, 52 F.3d 267,

268 (9th Cir. 1995).

IV. DISCUSSION

Chaldus and Viviani contend that Kinney's

FAC fails for thee reasons: (1) statute of

limitations; (2) deficient CWA notices; and (3)

nonviolation of the CWA.

Although the

arguments appear well-reasoned, the Court will

only address the deficient-notice argument

because of its jurisdictional effect.

The CWA proscribes water pollution and

prescribes a citizen-enforcement scheme.

It

"prohibit[s] the discharge of any pollutant from a

point source into navigable water of the United

State without an NPDES permit." Natural Res.

Def. Council v. U.S. E.P.A., 542 F.3d 1235, 1238

(9th Cir. 2008). It allows private citizens to bring a

civil suit "against any person... who is alleged to

[violate] (A) an effluent standard of limitation

under [the Act] or (B) an order issued by the

Administrator [of the EPA] or a State with respect

to a standard or limitation." 33 U.S.C. Sec

1365(a)(1). Under CWA's notice requirement,

however, no citizen suit may be brought until

"sixty days after the plaintiff has given notice of

the alleged violation (i) to the Administrator, (ii)

to the State in which the alleged violation occurs,

and (iii) to any alleged violator of the standard,

limitation, or order." 33 U.S.C. Sec. 1365(b)(1)(A).

In the Ninth Circuit, failure to comply with the

notice requirement deprives the courts of subjectmatter jurisdiction.

Wash. Trout v. McCain

Foods, Inc., 45 F.3d 1351, 1353-54 (9th Cir. 1995);

10

-

Ctr. for Biological Diversity v. Marina Point Dev.

Co., 566 F.3d 794, 800 (9th Cir. 2009).

Kinney fails to adequately notify Chaldus

and Viviani as well as the relevant government

entities.

A. Inadeauate Notice to Chaldus and Viviani

The CWA specifies that "[n]otice... shall be

given in such a manner as the [EPA] shall

prescribe by regulation." 33 U.S.C. Sec. 1365(b).

Under EPA regulation, notice regarding an

alleged violation of a standard, limitation, or order

"shall include sufficient information to permit the

recipient to identify the specific standard,

limitation, or order alleged to have been

violated..." 40 C.F.R. Sec. 135.3(a). Although the

notice "does not need to describe every detail of

every violation, it need[s to] provide enough

information [so] that the defendant can identify

and correct the problem." San Francisco

BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153,

1155 (9th Cir. 2002). In other words, "the notice

must be sufficiently detailed to allow the alleged

violator to know what it is doing wrong so that it

will know what corrective actions will prevent a

lawsuit." Cmty. Assn for Restoration of the Env't

v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir.

2002); San Francisco BayKeeper, 309 F.3d at

1155. Notice must be given for each distinct type

of violation. Cal. Sportfishing Prot. Alliance v.

City of W. Sacramento, 905 F.Supp. 792, 799 (E.D.

Cal. 1995).

Here, erroneously asserts that he gave

Chaldus and Viviani notice through his stateaction complaint. (Pl.'s Opp'n 6; Pl.'s Opp'n

Viviani's Summ. J. Mot. 6, ECF No. 67.) But that

-

complaint does not suffice as a CWA notice.

Although the complaint mentions that stormwater runoff passes through Chaldus' and

Viviani's properties on its way to the ocean, its

thrust and the basis of its claims are flooding on

Virginia Way and flooding and sediment deposits

on Kinney's property. (Compare State Compl.

para. 10, with State Compi. paras. 15, 20, 25, 26,

32.) The state-action complaint does not alleged

any CWA standard, limitation, or order that

Chaldus or Viviani violated. As such, it did not

permit them to identify and correct any real or

potential CWA problem. Indeed, the problem and

the corrective action Kinney identified in the

state-action complaint may lead to, rather than

cure, CWA violations. According to the complaint,

the root problem is "those surface waters could

not travel westward in [a] path toward the ocean."

(Id. para. 48 (emphases added).) The goal of

corrective action identified therein is to stop the

flooding and mud problems on Virginia Way and

on Kinney's property. (Id; paras. 21, 23, 27, 34,

36). Accordingly, a reasonable corrective action

that may address the state-action complaint is to

open up a westward channel for surface waters to

travel toward the ocean, thereby stopping the

flooding and mud problems. This may dump more

pollutants into the Pacific Ocean, or at least may

do nothing to prevent "the discharge of

pollutant[s] from a point source into [the Pacific

Ocean] without an NPDES permit." Natural Res.

Def. Council, 542 F.3d at 1238; see also 33 U.S.C.

Sec. 1362(14) (such a channel would meet the

definition of "point source"). Thus, the state-

12

action complaint does not provide adequate CWA

notice.

In opposition, Kinney cites three NinthCircuit cases to argue adequate notice. (Pl.'s

Opp'n 4, 6.) But these cases do not support his

argument. See Bosma Dairy, 305 F.3d at 948

("[Plaintiff] sent [defendant] a 60-day notice of

intent to sue [defendant] under the citizen suit

provision of the federal CWA.") (emphasis added);

San Francisco BayKeeper, 309 F.3d at 1156

("[Plaintiff] notified [defendant] of its intention to

file suit for violati[ng] the Clean Water Act."

(emphasis added); Waterkeepers N. Cal. v. AG

Indus. Mfg., Inc., 375 F.3d 913, 915 (9th Cir. 2004)

(same). Indeed, "citizen plaintiffs [are required] to

notify alleged violators of their intent to sue"

under the Act. Waterkeepers, 375 F.3d at 916; see

also 40 C.R.R. Sec. 135.2(a) (requiring notice of

intent to file suit under the Act). Kinney's stateaction complaint, however, does not refer to the

CWA, much less his intent to sue thereunder.

Thus, Kinney failed to provide adequate

CWA notice to Chaldus and Viviani; his FAC fails

for lack of jurisdiction.

B. Inadequate Notice to EPA and California

Additionally, Kinney also failed to give

adequate notice to EPA and the State of

California.

Under EPA regulation, notice regarding an

alleged CWA violation "shall include., the person

or person responsible for the alleged violation..."

40 C.F.R. Sec. 135.3(a). Furthermore, "[a] copy of

the notice shall be mailed to the EPA and the

State. 40 C.F.R. Sec. 135.2(a)(1) (emphasis added).

13

Kinney asserts that he notified the EPA

and, through CRWQcG, the State of California, of

Chaldu's and Viviani's violations. But these

notices have two deficiencies. First they named

TAB and the City, not Chaldus and Viviani, as

violators. (See Beggs Deci. Ex. 2 at 30:3-20, ECF

No. 50-4; see also CRWQCB and EPA letters, Pl.'s

Opp'n 53-57 (letters acknowledging allegation sof

CWA violations by TAB and the City without

mentioning Chaldus and Viviani).) Second they

evidently were not copies of the state-court

complaint that Kinney asserts to be notices of the

Chaldus and Viviani.

Thus, Kinney's notices to the government

entities do not suffice as CWA notices; his FAC

fails for this reason also.

EVIDENTIARY OBJECTIONS

To the extent the parties object to any

evidence that the Court relies on in this Order,

those objections are overruled.

CONCLUSION

Accordingly, the Court DISMISSES the matter

for lack of subject-matter jurisdiction and

DENIES Chaldus' and Viviani's Motions for

Summary Judgment as moot. See Omeluk, 52

F.3d at 268.

IT IS SO ORDERED

Initials of Preparer

Fn. 1:

Kinney improperly submitted the state-court

complaint and other exhibits by appending them

to his Opposition. (See Standing Order Regarding

Newly Assigned Cases para. 6.) The state-court

complaint starts on page 15 of the file.

14

APPENDIX

Case: 8:16-cv-00796 05/22/2017 DktEntry: 69

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIF.

CHARLES G. KINNEY

Plaintiff,

V.

D.C. No. 8:16-cv-0796-RGK

Central Dist. of Cal. (LA)

THEE ARCH BAY COMMUNITY SERVICES

DISTRICT; et al.,

Defendants.

CIVIL MINUTES GENERAL

Case No. SA CV 16-00796 RGK (JCx)

Date May 22, 2017

Title CHARLES KINNEY v. THREE ARCH

BAY COMMUNITY SERVICES

DISTRICT, et al

Present: The Honorable R. GARY KLAUSNER,

U.S. DISTRICT JUDGE

Sharon L. Williams (Not Present)

Not Reported N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Not Present

Attorneys Present for Defendants: Not Present

-

Proceedings: (IN CHAMBERS) Order re

Defendant's Motion to Dismiss (DE 38)

On April 27, 2016, Plaintiff filed his

Complaint against Three Arch Bay Community

15

Services District ("TAB") and three individual

defendants alleging violations of the Clean Water

Act. On July 10, 2016, Plaintiff filed a First

Amended Complaint against the same parties. On

September 22, 2016, Plaintiff filed a Proof of

Service indicating that TAB was served on August

12, 2016. According to the Proof of Service, the

summons and complaint were left with a building

security guard. On September 22, 2016, Plaintiff

filed an ex parte application for the Clerk to enter

default against TAB, as TAB had not filed an

answer. On September 27, 2016, the Court denied

Plaintiffs application for default on the ground

that leaving the summons with a security guard

at TAB's place of business did not constitute an

adequate method of service. On November 5,

2016, Plaintiff filed an ex parte application for

reconsideration of the September 27 order. On

November 10, 2016, the Court denied the

application for reconsideration.

On November 21, 2016, the Court held a

Scheduling Conference and set January 10, 2017,

as the last day to amend pleadings. Court records

show that no amended pleadings were filed. On

March 14, 2017, Plaintiff filed a Proof of Service

indicating that the summons and complaint had

been served on TAB on March 14, 2017.

TAB now seeks dismissal of the claims

against it for insufficient service of process. For

the following reasons, the Court grants TAB's

motion.

Federal Rule of Civil Procedure 4(m)

provides that if a defendant is not served within

90 days after the complaint is filed, and there is

no good cause for that failure, a court must either

-

-

16

dismiss the action without prejudice against the

defendant or order that service be made within a

specified time.

As detailed above, court records show that

Plaintiff filed the original complaint on April 27,

2016. Although Plaintiff filed an amended

complaint on July 10, 2016, such filing does not

restart or otherwise toll the 90-day service period.

See Bolden v. City of Topeka, Kan., 441 F.3d 1129,

1148 (10th Cir. 2006); see also 4B Wright & Miller,

Federal Practice and Procedure: Civil 3d §1137, at

377 (2002). Therefore, under Rule 4(m), Plaintiff

was required to serve TAB no later than July 26,

2016. Plaintiff attempted to serve TAB on August

12, 2016. The Court found this service ineffective

because the summons was left with the building

security guard. The Court notes that

notwithstanding the defective method of service,

the date of service was still late by more two

weeks. Plaintiff again attempted service on March

14, 2017, more than seven months after the

deadline passed.

Based on the foregoing, the Court grants

TAB's motion to dismiss pursuant to Rule 4(m)

and Rules 12(b)(4) and (5). The Court dismisses

without prejudice all claims asserted against

TAB for insufficient service of process. Fn. 1

IT IS SO ORDERED.

Initials of Preparer

Fn. 1 The Court will not dismiss the action

against TAB with prejudice, as Plaintiffs failure

to effect timely service of process does not rise to

the level of lack of prosecution.