Ward v. Stucke
| Decision Date | 24 July 2019 |
| Docket Number | Case No. 3:18-cv-00263 |
| Citation | 395 F.Supp.3d 940 |
| Parties | Aaron WARD, et al., Plaintiffs, v. Mark J. STUCKE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
James Yskamp, Fair Shake Environmental Legal Services, Pittsburg, PA, for Plaintiffs.
Gary W. Johnson, Joshua Michael Miklowski, Weston Hurd LLP, Cleveland, OH, Joshua C. Berns, Weston Hurd, LLP, Columbus, OH, for Defendants.
ENTRY AND ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
This case is before the Court on the Motion for Judgment on the Pleadings Seeking Dismissal of Count One of Plaintiffs' First Amended Complaint and Dismissal of Counts II and III for Lack of Jurisdiction (Doc. 15) (the "Motion") of Defendants Mark J. Stucke and Mary Anne E. Stucke (the "Defendants"), pursuant to Fed. R. Civ. P. 12(c). Specifically, the Defendants move for judgment on the pleadings on (1) Count One of the Amended Complaint ("Violation of the Clean Water Act – Unauthorized discharges of dredged and/or fill materials") on various grounds, and (2) Counts Two and Three of the Amended Complaint (state law claims for Private Nuisance and Trespass, respectively) on the ground that this Court should decline to exercise supplemental jurisdiction over those two claims. Plaintiffs Aaron Ward and Betsy Ward (the "Plaintiffs") filed a memorandum in opposition to the Motion (Doc. 17) (the "Opposition"), and the Defendants filed a reply memorandum in support of the Motion (Doc. 18) (the "Reply"). The motion is fully briefed and ripe for review. (Docs. 15, 17, 18.) For the reasons discussed below, the Court DENIES the Motion.
Plaintiffs bring a citizen suit under the Clean Water Act, 33 U.S.C. § 1251 et seq. (the "CWA"), pursuant to 33 U.S.C. § 1365. In Count One of the Amended Complaint, they claim that the Defendants violated 33 U.S.C. § 1311 and 33 U.S.C. § 1344 () by making unauthorized discharges of dredged and/or fill material into waters of the United States. (See Am. Cmplt. ¶¶ 74-86.) In addition, Plaintiffs bring two state law claims: private nuisance and trespass. (Id. at ¶¶ 87-108.)
The following four paragraphs are an abbreviated summary of the allegations in the Amended Complaint (Doc. 13). The Court stresses that the following are merely allegations and recognizes that Defendants disagree with many of Plaintiffs' allegations. The case is still at a very early stage and (to the Court's knowledge) no formal discovery has taken place, the parties have not held a Rule 26(f) conference, and the Court has not scheduled an initial pretrial conference with the parties.
On or about July 13, 2015, a heavy rain event occurred that caused the Plaintiffs' land to flood. Plaintiffs were forced to hastily evacuate their home, wading through chest-high water with their three children in order to escape. Their home was completely destroyed, along with personal belongings in the home and two cars parked inside the garage. Plaintiffs could not live in their home for the subsequent eight months. However, they were able to make their home habitable again and live there now.
Plaintiffs' property has continued to flood during storms and heavy rain events. Such flooding—as well as the flooding that occurred on or about July 13, 2015—is alleged to be the result of the Defendants' earlier land-altering activities that changed the flow of surface and subsurface water. Those alleged land-altering activities included that (1) sometime in the 1990s, Defendants and/or their predecessor in ownership installed two grassed waterway channels on Defendants' land that collect and divert water to a private ditch and stream running along Plaintiffs' property that are part of the headwaters of Boyd Creek1 ; and (2) sometime in the fall of 2014, Defendants engaged in a construction project involving excavating some of their land (including some wetland areas) and installing drainage tile throughout their land to drain the natural waterlogged conditions. The drainage tiles alter the natural wet or waterlogged conditions on the land, and they divert infiltrated surface waters and subsurface waters into the private ditch and stream. The land-altering activities involved Defendants' use of mechanized land-clearing equipment or earth moving equipment to discharge dredged material or fill material in and around the land.
Defendants' land is adjacent to Plaintiffs' property and residence. However, from the time that Plaintiffs moved into their residence in 2004 until July 13, 2015, they had never experienced flooding on their property. Prior to Defendants' excavation of the wetland areas and installation of the drainage tiles, those areas would collect and hold water during significant rain events, helping to moderate flood flows and acting as a biological filter prior to water flowing downstream into Boyd Creek.
Neither the Defendants nor their predecessors ever obtained authorization from the Army Corps of Engineers, the United States Environmental Protection Agency, or the Ohio Environmental Protection Agency to install the two grassed waterway channels. Also, Defendants' land-altering activities were not authorized by a permit or authorization issued by the Corps or any other agency pursuant to Section 404(a) of the CWA ( 33 U.S.C. § 1344(a) ). In addition to violating the federal CWA, Plaintiffs claim that Defendants altered their land in an unreasonable manner that caused—and will continue to cause—harm to Plaintiffs' health and property, thus constituting a continuing private nuisance and continuing trespass under Ohio law. Dirt, silt, biological material, road runoff, and other pollutants within discharges from Defendants' land have entered and remain on Plaintiffs' property.
"After the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Courts apply the same analysis to motions for judgment on the pleadings under Rule 12(c) as they apply to motions to dismiss under Federal Rules of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n , 623 F.3d 281, 284 (6th Cir. 2010). The Sixth Circuit "has applied the now familiar pleadings requirements in Twombly and Iqbal to Rule 12(c) motions." Patterson v. Novartis Pharms. Corp. , 451 F. App'x 495, 497 (6th Cir. 2011).
When a party moves for judgment on the pleadings, "[a]ll well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment as a matter of law." Hindel v. Husted , 875 F.3d 344, 346 (6th Cir. 2017) (internal quotation marks omitted). However, the court "need not accept as true legal conclusions or unwarranted factual inferences." JPMorgan Chase Bank, N.A. v. Winget , 510 F.3d 577, 582 (6th Cir. 2007).
"To survive a Rule 12(c) motion, a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory." Hindel , 875 F.3d at 346-47 (internal quotation marks omitted), citing Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( . "[T]he plaintiff must provide the grounds for its entitlement to relief, and that ‘requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.’ " Albrecht v. Treon , 617 F.3d 890, 893 (6th Cir. 2010) (internal citation omitted), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A plaintiff falls short if [the plaintiff] pleads facts ‘merely consistent with a defendant's liability’ or if the alleged facts do not ‘permit the court to infer more than the mere possibility of misconduct.’ " Id. , quoting Iqbal , 556 U.S. at 678-79, 129 S.Ct. 1937. See also Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ().
In addressing a motion for judgment on the pleadings, a court considers the pleadings, which consist of the complaint, the answer, and any written instruments attached as exhibits. See Fed. R. Civ. P. 12(c) ; Fed. R. Civ. P. 7(a) (); Fed. R. Civ. P. 10(c) (). Although allegations in the complaint are the primary focus in assessing a Rule 12(c) motion, a court may also take into account "matters of public record, orders, [and] items appearing in the record of the case." Barany-Snyder v. Weiner , 539 F.3d 327, 332 (6th Cir. 2008). Additionally, a court may consider exhibits attached to a motion for judgment on the pleadings "so long as they are referred to in the Complaint and are central to the claims contained therein." Brent v. Wayne Cty. Dept. of Human Servs. , 901 F.3d 656, 695 (6th Cir. 2018).
In support of their Motion, Defendants make five arguments for why Plaintiffs' CWA claim fails: "(1) the installation of the drain tiles and surface drains does not amount to a ‘discharge’; (2) the dredged or fill material exemption pursuant to 33 [U.S.C.] § 1344(f) applies; (3) the ‘agricultural stormwater discharge’ exemption under 33 [U.S.C.] § 1362(14) applies; (4) the ‘waters of the United States,’ as described in 33 [U.S.C.] § 1362(7) are not...
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