Dedham Water Co. v. Cumberland Farms, Inc., Civ. A. No. 82-3155 Mc.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtMcNAUGHT
Citation643 F. Supp. 667
PartiesDEDHAM WATER COMPANY, Plaintiff, v. CUMBERLAND FARMS, INC., et al., Defendants.
Decision Date22 January 1986
Docket NumberCiv. A. No. 82-3155 Mc.

643 F. Supp. 667

DEDHAM WATER COMPANY, Plaintiff,
v.
CUMBERLAND FARMS, INC., et al., Defendants.

Civ. A. No. 82-3155 Mc.

United States District Court, D. Massachusetts.

January 3, 1986.

Judgment Order of January 22, 1986.


Thomas F. Holt, Jr., Edward I. Selig, Joanne Kadishi, Lawrence S. DiCara, DiCara, Selig, Sawyer & Holt, Boston, Mass., for plaintiff.

Allan Van Gestel, Goodwin, Proctor & Hoar, Boston, Mass., for defendants.

MEMORANDUM AND ORDER ON RENEWED MOTION TO DISMISS

McNAUGHT, District Judge.

Defendant Cumberland Farms, Inc, relies in this motion on the recent decision of the First Circuit Court of Appeals in Garcia v. CECOS International, Inc., 761 F.2d 76 (1st Cir., 1985) asserting that this court lacks jurisdiction because the plaintiff "failed to comply with the 60-day notice requirements applicable to citizens' suits under the Resource Conservation and Recovery Act (`RCRA'), the Clean Water Act (`CWA') and the Comprehensive Environmental

643 F. Supp. 668
Response, Compensation and Liability Act (`CERCLA')"

In 1983 I issued a memorandum and order denying the original motion to dismiss, ruling that plaintiff's substantial compliance was sufficient for jurisdictional purposes, recognizing at the same time that a lack of notice would constitute a jurisdictional defect. Dedham Water Company v. Cumberland Farms Dairy, Inc., et al., 588 F.Supp. 515.

Garcia, as plaintiff emphasizes, involved a failure to give any pre-suit notice prior to filing a RCRA citizen suit, a private attorney general action. On the other hand, as defendant points out, the First Circuit held that "failure to provide actual notice to the EPA, the state and the alleged violator (Emphasis supplied) at least 60 days before the commencement of the action forecloses the possibility of jurisdiction under RCRA", 761 F.2d at 83. The Court was not satisfied with any less than rigid compliance with the requirement. "The notice requirement is not a technical wrinkle or superfluous formality that federal courts may waive at will. We believe that it is part of the jurisdictional conferral from Congress that cannot be altered by the courts. We recognize that some other courts have applied a `pragmatic' approach to the sixty day notice provision in environmental statutes. ... We decline to follow the direction ... and instead hold that a citizen must wait sixty days after actual notice before commencing a suit ..." 761 F.2d at 79, 80. The Court thus construed the "statutory prerequisites for the maintenance of the initial action". At 79.

First, it appears clearly that I must reverse my prior denial of the motion to dismiss the Clean Water Act claim. "Substantial compliance" with the notice provision of § 1365(b) of Title 33 is not enough. This Circuit has declined to adopt the "functional" approach. 761 F.2d at 79. As defendant has noted in its Reply...

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7 practice notes
  • In re Acushnet River & New Bedford Harbor Proceed., Civ. A. No. 83-3882-Y.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 6, 1987
    ...is a jurisdictional prerequisite that must be strictly satisfied before bringing suit. Dedham Water Co. v. Cumberland Farms, Inc., 643 F.Supp. 667, 669 (D.Mass.1986) (hereinafter Dedham Water II). In light of these two decisions the defendant Aerovox, Incorporated ("Aerovox") moved this Cou......
  • Dedham Water Co. v. Cumberland Farms Dairy, Inc., No. 86-1216
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 10, 1986
    ...the possibility of jurisdiction under RCRA." Id. at 83. Relying on Garcia, the district court granted appellee's renewed motion, 643 F.Supp. 667. The court ruled that appellant's failure to comply with the 60-day notice requirement deprived it of jurisdiction over the RCRA claim and that th......
  • Dedham Water Co. v. Cumberland Farms Dairy, Inc., No. 88-2080
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 3, 1989
    ...and had not complied with the 60 day notice requirement in RCRA, 42 U.S.C. Sec. 6972. Dedham Water Co. v. Cumberland Farms, Inc., 643 F.Supp. 667 (D.Mass.1986). On appeal, we reversed and held that: (i) a party seeking to recover response costs under CERCLA Sec. 9607 need not comply with th......
  • Roe v. Wert, No. CIV-88-1852-P.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • January 31, 1989
    ...is not required for CERCLA citizens suits. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1082 (1st Cir.1986), rev'g 643 F.Supp. 667 (D.Mass.1986); Walls v. Waste Resource Corp., 823 F.2d 977, 981 (6th Cir.1987); Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 1379 (......
  • Request a trial to view additional results
7 cases
  • In re Acushnet River & New Bedford Harbor Proceed., Civ. A. No. 83-3882-Y.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 6, 1987
    ...is a jurisdictional prerequisite that must be strictly satisfied before bringing suit. Dedham Water Co. v. Cumberland Farms, Inc., 643 F.Supp. 667, 669 (D.Mass.1986) (hereinafter Dedham Water II). In light of these two decisions the defendant Aerovox, Incorporated ("Aerovox") move......
  • Dedham Water Co. v. Cumberland Farms Dairy, Inc., No. 86-1216
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 10, 1986
    ...the possibility of jurisdiction under RCRA." Id. at 83. Relying on Garcia, the district court granted appellee's renewed motion, 643 F.Supp. 667. The court ruled that appellant's failure to comply with the 60-day notice requirement deprived it of jurisdiction over the RCRA claim and th......
  • Dedham Water Co. v. Cumberland Farms Dairy, Inc., No. 88-2080
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 3, 1989
    ...and had not complied with the 60 day notice requirement in RCRA, 42 U.S.C. Sec. 6972. Dedham Water Co. v. Cumberland Farms, Inc., 643 F.Supp. 667 (D.Mass.1986). On appeal, we reversed and held that: (i) a party seeking to recover response costs under CERCLA Sec. 9607 need not comply with th......
  • Roe v. Wert, No. CIV-88-1852-P.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • January 31, 1989
    ...is not required for CERCLA citizens suits. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1082 (1st Cir.1986), rev'g 643 F.Supp. 667 (D.Mass.1986); Walls v. Waste Resource Corp., 823 F.2d 977, 981 (6th Cir.1987); Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 1379 (......
  • Request a trial to view additional results

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