Paolino v. JF Realty, LLC
| Decision Date | 26 July 2012 |
| Docket Number | C.A. No. 12-39-ML |
| Parties | LOUIS PAOLINO and MARIE ISSA, Plaintiffs v. JF REALTY, LLC, JOSEPH I. FERREIRA ROBERT YABROUDY, LKQ ROUTE 16 USED AUTO PARTS, INC., DBA ADVANCED AUTO RECYCLING, JOSEPH I. FERREIRA, TRUSTEE OF THE JOSEPH I. FERREIRA TRUST, Defendants |
| Court | U.S. District Court — District of Rhode Island |
This is the third effort by Louis Paolino and Marie Issa (together, the "Plaintiffs") to bring a citizen suit under the CWA. The Plaintiffs seek damages for alleged contamination from an abutting former dump site onto the Plaintiffs' property. The contaminated property (the "Property"), located on Curran Road in the Town of Cumberland, Rhode Island, comprises 39 acres and contains approximately 2,000 automobiles in various stages of recycling. The Property is owned and/or controlled by JF Realty, LLC ("JF"), of which Joseph I. Ferreira ("Ferreira") is the only member. In 1984, Ferreira began using the Property for an automobile salvage business. Since 2005, it has been leased to a Massachusetts corporation, LKQ Route 16 Used Auto Parts, Inc. d/b/a Advanced Auto Recycling ("LKQ," together with JF, Ferreira andRobert Yabroudy ("Yabroudy"), the "Defendants"). The matter is before the Court on the Defendants' motion to dismiss the Plaintiffs' most recent complaint (the "Complaint") for failure to establish a mandatory prerequisite.
In 1985, the Plaintiffs acquired a five acre lot abutting the Property from LM Nursing Services, Inc. ("LM"),2 of which they are the officers and directors. The Complaint alleges, inter alia, that Ferreira has filled in wetlands without a permit and that Ferreira and/or his enterprise are discharging hazardous materials and oil into public waters. With respect to the Plaintiffs' property, the Plaintiffs allege that (1) Ferreira has relocated a drainage ditch which directs contaminated water onto the plaintiffs' property, Complaint ¶ 26; (2) storm water runoff is transporting vehicular fluids (motor oil, antifreeze, battery acid, etc.) onto the Plaintiffs' property, id. ¶ 46 ; and (3) the Defendants have been continuously trespassing by erecting a stormwater discharge system on the Plaintiffs' property in 2007 and by installing additional rip-rap and terra tubes in late 2010. Id. 55 51, 52.
Litigation in connection with these allegations began in 2006, when Plaintiffs filed a complaint in Rhode Island State court. After the Plaintiffs added claims under various federal environmental statutes in their third amended complaint, the Defendants removed the case to this Court on September 4, 2009.
On March 30, 2011, Chief Judge Steven J. McAuliffe3 issued an order dismissing all federal claims without prejudice for lack of proper notice and remanding all state claims to the Rhode Island Superior Court.4 After setting out, in great detail, the strict notice requirements of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the Resource Conservation and Recovery Act ("RCRA") and the Clean Water Act ("CWA"), Chief Judge McAuliffe concluded that the Plaintiffs had failed to comply with the notice requirements of the various federal statutes they had invoked; e.g., that they had failed to serve proper notice on the registered agents of LKW and the Ferreira Trust. The notice itself was deficient in that it did not contain the Plaintiffs' full contact information; it was not served on all the appropriate state and federal agencies; and it did notcontain "sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated." LM Nursing Serv., Inc. v. Ferreira, No. 09-cv-413-SJM-DLM, 2011 WL 1222894 at *8. Moreover, the Plaintiffs had failed to provide copies of the complaint to the Attorney General of the United States and the Administrator of the Environmental Protection Agency ("EPA") as required under the CWA and CERCLA. Id.
On June 6, 2011, the Plaintiffs filed a new complaint, see Paolino et al v. JF Realty, LLC et al, C.A. No. 11-228-ML, against the Defendants. That complaint included Yabroudy, whose involvement appears to be limited to having filed a notice for a Rhode Island Department of Environmental Management ("RIDEM") permit, in which he identified himself as treasurer of the Joseph Ferreira Trust and JF. Plaintiffs again asserted claims under the CWA and for trespass. Together with this second complaint, the Plaintiffs also sought a temporary restraining order ("TRO") against the Defendants. Following a hearing before this Court on June 21, 2011, the motion for TRO was denied.
In the course of a preliminary injunction hearing on August 18, 2011, this Court raised the issue of jurisdiction in pointing out that the most current pre-litigation notice again lacked the Plaintiffs' full contact information. The parties were directed to submit memoranda whether the mandatory notice requirements of the CWA had been met. Within a week of the hearing, the partiessubmitted a stipulation of dismissal and the Court dismissed the action without prejudice.
The Complaint now before this Court was filed on January 20, 2012. Although the Plaintiffs again include allegations of trespass on their land, the one-count Complaint is limited to an allegation of violations of the CWA. On February 14, 2012, the Defendants filed a motion to dismiss on the ground that the Plaintiffs, once again, failed to allege or establish a mandatory prerequisite. Specifically, the Defendants assert that (1) the contents of Plaintiffs' pre-suit notice was defective under 40 CFR § 135.3(a); (2) service on Yabroudy was defective under § 135.2; and (3) the Plaintiffs failed to comply with § 135.4, which required them to mail an as-filed and date-stamped copy of the Complaint to various recipients. The Defendants seek dismissal of the Complaint with prejudice for the Plaintiffs' repeated failure to cure deficiencies and comply with the mandatory prerequisites under the CWA even after being provided with detailed instructions by Chief Judge McAuliffe. Mot. Dismiss at 9. The Defendants also point out that the Plaintiffs' repeated attempts at bringing this suit has drawn on the Defendants' time and resources. Id.
In their response, filed on March 2, 2012, the Plaintiffs maintain that (1) the fifteen-page pre-suit letter was reasonably specific; (2) service of the letter on Yabroudy, although apparently sent to the wrong address, was proper because the pre-suit letter in the previous case was also sent to him at that same address and had been accepted there; and (3) although Plaintiffs apparently did not send a copy of the Complaint to the Attorney General and the Administrator and the Regional Administrator of the EPA until after Defendants had filed their motion to dismiss, "[t]he CWA does not contain any time limit for such service or sanction for non-compliance." Pltfs.' Obj. at 2. The Defendants filed a reply on March 12, 2012 in which they again urge the Court to dismiss the Complaint with prejudice. Defs.' Reply at 4.
Rule 12 of the Federal Rules of Civil Procedure governs the dismissal of a complaint. A case may be dismissed, inter alia, for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), or for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).5 The standard of review under subsection 12(b)(1) is "similar to that accorded a dismissal for failure to state a claim" under subsection 12(b)(6). Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995); Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd. of Puerto Rico, 189 F.3d 1, 14 n.10 (1st Cir. 1999)("The standard of review . . . is the same for failure to state a claim and for lack of jurisdiction."). However, "[w]hile the court generally may not consider materials outside the pleadings on a Rule 12(b)(6) motion, it may consider such materials on a Rule 12(b)(1) motion." Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002).
In a jurisdictional challenge, the burden of proving jurisdiction is on the party invoking it. Murphy v. United States, 45 F.3d at 522; Mercado Arocho v. United States, 455 F. Supp.2d 15, 17 (D.P.R. 2006)("Plaintiff shall meet the "burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.'")(citations omitted).
As the First Circuit has explained, "[t]here are two types of challenges to a court's subject matter jurisdiction: facial challenges and factual challenges." Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007). In a facial challenge, the Court considers whether "the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff's] complaint are taken as true for purposes of the motion.'" Id. (citation omitted). In a factual challenge, however, "'a court's power to make findings of fact and to weigh the evidence depends on whether the factual attack on jurisdiction also implicates the merits of the plaintiff's cause of action.'" Id. (quoting Garcia v. Copenhaver, Bell & Assocs., 104F.3d 1256, 1261 (11th Cir. 1997). See also Hernandez-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1st Cir. 2005)("Where a party challenges the accuracy of the pleaded jurisdictional facts, the court may conduct a broad inquiry, taking evidence and making findings of fact."); Valentin v. Hospital Bella Vista, 254 F.3d at 364 (). In other words, in a factual attack, "the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties." Id. at 363.
The CWA contains a Citizen suit provision which permits a civil...
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