By Marco Antonio Ornelas and Rebecca Andrews

The U.S. District Court for the Eastern District of Louisiana recently dismissed a federal Clean Water Act citizen suit due to an insufficient pre-suit notice and insufficient allegations to support plaintiffs’ right to relief. [Stevens v. St. Tammany Parish Government, et al, ___F.Supp.3d___, Case No. 20-928 (E.D. La. Jul. 23, 2020).]

Factual and Procedural Background

On March 17, 2020, Terri Lewis Stevens, Craig Rivera and Jennifer Rivera (plaintiffs) brought suit against St. Tammany Parish Government (STPG) and the Louisiana Department of Environmental Quality (LDEQ) for violations of the Clean Water Act (CWA) and a Louisiana Pollutant Discharge Elimination System (LPDES) permit. In the initial complaint, plaintiffs alleged that sanitary sewer overflows, along with other pollutants, spilled from STPG’s drainage ditches and onto their property before being discharged into various waters of the United States. Plaintiffs alleged LDEQ failed to enforce the applicable Louisiana state laws and LPDES permit.

On April 27, 2020, prior to receiving an answer from LDEQ and STPG, plaintiffs filed the First Amended Complaint (FAC). In the FAC, plaintiffs sought additional remedies specific to LDEQ’s lack of enforcement of the CWA. Plaintiffs also added more claims against LDEQ, including Fifth and Fourteenth Amendment violations and unconstitutional takings of their property.

On May 12, 2020, STPG filed a motion to dismiss plaintiffs’ complaint and the FAC, pursuant to Federal Rules of Civil Procedure Rule 12(b)(6). LDEQ filed a motion to dismiss for lack of jurisdiction. On June 3, 2020, plaintiffs filed for permission to file a Second Amended Complaint (SAC), prior to STPG and LDEQ’s response to the initial complaint of March 17.

On June 20, 2020, Plaintiffs dismissed LDEQ without prejudice. On June 23, 2020, the court heard oral arguments for the remaining STPG motion to dismiss.

The District Court’s Decision

STPG argued that plaintiffs’ complaint and FAC should be dismissed on the doctrine of res judicata and that plaintiffs failed to provide adequate pre-suite notice. Plaintiffs did not oppose STPG’s motion to dismiss. Instead, plaintiffs moved to dismiss STPG’s motion on the grounds that the SAC rendered STPG’s motion moot.

Determining the Mootness of STPG’s Motion to Dismiss

The court first considered plaintiff’s mootness arguments. To determine whether the SAC rendered STPG’s pending motion to dismiss moot, the court considered whether the SAC would cure the alleged defects. Here, the court found that the SAC did not cure the alleged defects because it added very little new information. The court noted that the lawsuit centered around the events already litigated in the state court. Even in the SAC, plaintiffs did not add materially different facts or assist the court in determining whether there was a claim upon which relief may be granted. Accordingly, the court determined that STPG’s motion to dismiss was not moot.

STPG’s Res Judicata Claim

The court next considered STPG’s motion to dismiss on the doctrine of res judicata. Res judicata is a doctrine that bars parties from litigating a matter that has already been finalized by a court. The court began by noting that STPG had not yet answered the initial complaint filed on March 17, 2020. Typically, res judicata is plead in answer to a complaint and not in a motion before an answer. However, when res judicata is apparent in the pleadings, a dismissal may be appropriate. Here, the court found that res judicata was apparent in plaintiffs’ complaints and supplemental documents because plaintiffs repeatedly referenced the state court litigation. The court determined that since the res judicata was apparent in the pleadings, it was appropriate for STPG to assert the defense before answering plaintiffs’ complaint.

The court then turned to applicable law regarding res judicata in Louisiana. The court found that if a valid final judgment was in favor of the defendant, and the same parties are involved in subsequent litigation, all causes of action existing at the time of the judgment are barred from future causes of action if they arise out of the same transaction. In Louisiana, a judgement is made final whenever it is rendered by a court with jurisdiction over both the subject matter and the parties after proper notice was given.

Plaintiffs previously filed suit in the 22nd Judicial District Court for the state of Louisiana against STPG for the same conduct. After five years of litigation, the state court issued a final judgment in favor of STPG. While the judgment was on appeal, plaintiffs brought suit in the U.S. District Court for the Eastern District of Louisiana. Here, the court determined that the state court judgment was finalized and in favor of STPG. Additionally, the parties in both the state court litigation and the present litigation were identical. Finally, the court noted that Plaintiffs’ allegations arose out of the original complaint in the state court litigation and that no new allegations had been made since the state court’s final judgment. The court concluded by holding that all but the CWA claims were barred from proceeding before the court.

The court then proceeded to address whether the Louisiana state court could have exercised jurisdiction over plaintiff’s CWA claims to determine whether res judicata applied to the claim. The court noted a circuit split as to whether CWA claims could be brought in state courts. The court mentioned that the Third and Ninth Circuit issued decisions holding that federal courts had exclusive jurisdiction over CWA suits. Instead of ruling on the matter, the court considered whether the CWA claim asserted in the present lawsuit met the pleading standards under Rule 12(b)(6).

Pre-Suit Notice

The court next considered whether plaintiffs pre-suit notice was adequate. STPG argued that under Rule 12(b)(6), plaintiffs did not state a claim because they did not provide the required pre-suit notice under the CWA and they failed to specify evidence of a CWA violation. The CWA requires notice to be given to a defendant before filing suit. The notice must be specific and contain the type of violation, the person(s) responsible for the violation, the location and date(s) of the violation, along with the full name, address and telephone number of the person giving notice.

Here, STPG argued that plaintiffs’ pre-suit notice was vague and overly broad. Plaintiffs argued that the parties’ litigation history overcomes any notice deficiencies. The court determined that the notice was inadequate because it lacked the specific effluent standard or limitation being violated, the person or persons responsible for the alleged violation, and the date(s) of the violation. The court determined that plaintiffs failed to plead a facially plausible claim.

Alternatively, the court reasoned that even if plaintiffs satisfied the pre-suit notice requirement, they still failed to state a CWA claim in their subsequent pleadings. The court based this on the SAC’s lack of explicit connection between STPG’s actions and the pollution of waters of the United States. The court noted plaintiffs’ inference that the runoff from STPG’s discharge would end up in waters of the United States, along with the assumption that permit noncompliance was an automatic violation of the CWA, was insufficient. With those statements and nothing more, the court concluded that Plaintiffs did not state a claim upon which relief may be granted.

Conclusion and Implications

This case highlights the importance of an adequate pre-suit notice and adequate pleading under the federal Clean Water Act. Parties wishing to bring suit under the Clean Water Act must provide a detailed pre-suit notice to violating parties and avoid inferences in their complaints. The court’s opinion is available online at: https://www.govinfo.gov/content/pkg/USCOURTS-laed-2_20-cv-00928/pdf/USCOURTS-laed-2_20-cv-00928-0.pdf