Ecological Rights Foundation v. Pacific Gas and Electric Company, No. 3:2010cv00121 - Document 171 (N.D. Cal. 2011)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOURTH AMENDED COMPLAINT. Further Case Management Conference set for 10/6/2011 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Signed by Judge Richard Seeborg on 8/25/11. (cl, COURT STAFF) (Filed on 8/25/2011)
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Ecological Rights Foundation v. Pacific Gas and Electric Company Doc. 171 **E-filed 8/25/11** 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 11 For the Northern District of California United States District Court 10 12 ECOLOGICAL RIGHTS FOUNDATION, Plaintiff, v. 13 14 No. C 10-0121 RS ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOURTH AMENDED COMPLAINT PACIFIC GAS AND ELECTRIC COMPANY 15 16 17 Defendant. ____________________________________/ 18 19 Plaintiff Ecological Rights Foundation (“ERF”) brought this action alleging that defendant 20 Pacific Gas and Electric Company (“PG&E”) fails to comply with certain provisions of the Clean 21 Water Act and of the Resource Conservation and Recovery Act (“RCRA”) in connection with its 22 operation of 31 “corporation yards and service centers” in Northern California. PG&E’s motion to 23 dismiss the Clean Water Act claims of the Third Amended complaint was denied. ERF’s claim 24 under RCRA, however, was dismissed with leave to amend, on grounds that the complaint 25 contained virtually no factual allegations to support the claim, and therefore ran afoul of the rule that 26 “[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do 27 not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). 28 Dockets.Justia.com 1 ERF’s Fourth Amended Complaint attempts to address the prior deficiencies of the RCRA 2 claim by copying—nearly verbatim—large portions of text from a “notice of intent to sue” letter 3 that it provided to PG&E prior to first asserting a RCRA claim in this action. ERF had attached a 4 copy of that letter to its prior complaint, and argued that it should be considered in evaluating the 5 sufficiency of the pleading. The order of dismissal rejected that suggestion, observing that treating 6 the contents of the letter as allegations of the complaint would impede meaningful analysis of the 7 adequacy of the factual averments. The fact that the notice letter was not drafted to be a pleading in 8 compliance with Rule 8 of the Federal Rules of Civil Procedure presented numerous problems with 9 attempting to treat it as one, including the liberal interspersion of argument among the factual 11 For the Northern District of California United States District Court 10 assertions. Unfortunately, by simply copying large portions of the text from the notice letter into the 12 body of the complaint, ERF has done little to eliminate the difficulties. Indeed, by simultaneously 13 attempting to expand the claims in certain respects beyond what was expressly addressed in the 14 notice letter, ERF has only exacerbated the issues that the prior order sought to minimize by 15 requiring an amended complaint to be filed. In its opposition to the present motion to dismiss, ERF 16 effectively concedes that the approach it took in amending the RCRA claim has resulted in an 17 unacceptable pleading. 18 ERF proposes that the remedy should be for the Court sua sponte to strike those portions of 19 the pleading that are objectionable, including certain aspects of the claim that ERF acknowledges go 20 beyond what it is entitled to pursue in this action, given the more limited scope of the notice letter. 21 ERF envisions thereafter proceeding to litigate the RCRA claim with the ruling on the motion to 22 dismiss serving as a “clarification” of what the status of the pleadings is and “what allegations are 23 properly before the Court.” 24 PG&E argues that dismissal of the RCRA claim in whole is warranted, but that at a 25 minimum, ERF should be required once again to replead the potentially viable portions of the claim 26 in a manner that fully complies with Rule 8. PG&E is understandably concerned that it will be 27 unable to frame an appropriate response to the pleading in its current form, even with the benefit of 28 a court ruling that addresses which allegations are viable and which are not. 2 As reluctant as the Court is to take on a role that is in some respects more that of an editor 1 2 than an adjudicator, at this stage in the litigation it would not be in the interests of justice to engage 3 in an additional round of pleading and the further motion practice that potentially would follow. 4 Accordingly, this order will specify that portion of the RCRA claim that will be permitted to go 5 forward, and will deny the motion to dismiss to that extent. The motion will otherwise be granted as 6 to the balance of the RCRA claim, without leave to amend.1 7 The notice letter charged PG&E with having violated RCRA through its handling and 10 storage of utility poles that have been treated with pentachlorophenal. The Fourth Amended 11 For the Northern District of California 1. The source of the alleged waste—utility poles treated with pentachlorophenal 9 United States District Court 8 Complaint, however, also asserts RCRA violations arising from PG&E’s storage of, “spools of wire, 12 vehicles, motor oil, fuel, hydraulic fluid, transformers, stacks of gas pipe, gas meters, insulators, 13 aggregates, sand, gravel, asphalt, and contaminated soil”—defined in the complaint as “the 14 Materials.” ERF’s opposition to the motion to dismiss expressly concedes that its notice letter “did 15 not sufficiently identify these additional materials as sources of [a] RCRA violation,” and it 16 acknowledges it cannot pursue a RCRA claim related to them at this juncture. Whether properly 17 characterized as striking of these allegations, or as granting the motion to dismiss in part, this 18 portion of the RCRA claim will not be permitted to go forward. Similarly the complaint goes beyond the notice letter to challenge PG&E’s storage and 19 20 handling of utility poles treated with creosote, chemonite, or copper chromated arsenate, rather than 21 with pentachlorophenal. Although ERF has not expressly conceded that poles treated with these 22 other substances are outside the scope of the notice letter, this portion of the RCRA claim likewise 23 24 1 25 26 27 28 PG&E’s motion also seeks dismissal of the Clean Water Act claim, on the same grounds as it asserted in the prior motion to dismiss. ERF takes PG&E to task for raising again issues that were decided by the prior order, even though PG&E clearly stated it was doing so only to preserve its appellate rights, and despite the fact that PG&E did not burden the Court or ERF by repeating its arguments. It was entirely appropriate for PG&E to include a challenge to the Clean Water Act claim in its present motion, particularly in the manner that it did. That aspect of its motion, however, is denied for the same reasons as set forth in the prior order. 3 1 fails. The motion to dismiss is therefore granted except to the extent that the claim arises from 2 PG&E’s storage and handling of utility poles treated with pentachlorophenal. 3 4 2. Mechanisms of dispersal 5 The notice letter charges PG&E with permitting hazardous wastes related to the poles to be 6 dispersed into the environment through (1) storm water, and (2) vehicles (i.e., tracked by tires). The 7 complaint attempts to expand the methods of dispersal in issue to include airborne particles and 8 tracking on workers’ shoes. Because PG&E would have to address any such dispersion through 9 different remedial efforts, the failure of the notice letter to raise the additional dispersal mechanism precludes ERF from pursuing such claims in this action, and they are also dismissed. 11 For the Northern District of California United States District Court 10 12 3. Specific facilities 13 ERF seeks to pursue its RCRA claim with respect to any and all of the 31 sites identified in 14 its complaint where pentachlorophenal-treated utility poles have in fact been stored, despite only 15 being able to allege actual knowledge of pole storage at a subset of those sites. PG&E seeks to limit 16 the claim to the subset of sites as to which ERF has specifically alleged pole storage took place. 17 PG&E argues that this complaint effectively should be seen as 31 separate lawsuits, and that it 18 should not be subjected to the burdens and expenses of discovery and defense of RCRA claims as to 19 those sites where ERF is only guessing there could be a basis for a claim. 20 Were the 31 sites separately-owned, each owner might very well have a legitimate argument 21 that a plaintiff’s speculation as to the possible presence of poles on the site would not be sufficient 22 to state a claim. In these circumstances, though, where there is no dispute that PG&E stores poles 23 on at least some of the sites, there is no more reason to require plaintiff to allege storage on each site 24 specifically than there would to demand a plaintiff to identify the particular area in which poles are 25 stored on a single site. Additionally, PG&E’s characterization of the burden to it appears 26 overstated. PG&E should be able to provide in discovery a list of the specific sites where poles 27 have been stored during the relevant time period. While ERF would be allowed a reasonable 28 opportunity in discovery to test the accuracy of that list, there would be no grounds for it to conduct 4 1 the full range of RCRA-related discovery for any site not appearing on that list. Accordingly, to the 2 extent PG&E’s motion seeks to limit the RCRA claim to a subset of the 31 sites at the pleading 3 stage, it is denied. 4 5 4. Plausibility 6 Even with the scope of the RCRA claim limited to what the notice letter addressed, PG&E 7 contends the complaint fails to state a plausible claim for relief. PG&E argues that ERF’s 8 allegations supporting the existence of any imminent and substantial endangerment to human health 9 or the environment are too conclusory and not worthy of credence, given that the pentachlorophenal is highly regulated, but ultimately legal to use in the manner employed by PG&E. While PG&E 11 For the Northern District of California United States District Court 10 accuses ERF of having simply “made up” its allegations in response to the prior order’s demand for 12 more detail, those averments cannot simply be ignored. Even assuming PG&E is correct that ERF 13 lacks actual evidence supporting its claims, the adequacy of its pre-suit investigation is not at issue 14 in a motion to dismiss, only the sufficiency of its allegations. Additionally, the fact that ERF cannot 15 identify a violation of any other environmental or safety regulations pertaining to the use and 16 handling of pentachlorophenal and pentachlorophenal-treated poles is not dispositive as to whether 17 the handling and manipulation of the poles in the manners described in the complaint may result in 18 the discharge of solid wastes in violation of RCRA. Accordingly, there is not a basis to dismiss the 19 entirety of the RCRA claim at the pleading stage, and it will be permitted to go forward as limited 20 above. 21 22 5. PG&E’s obligation to respond 23 A defendant’s obligations in responding to a complaint are generally governed by Rule 8(b) 24 of the Federal Rules of Civil Procedure. Because of the requirement to plead in good faith, and the 25 provision in Rule 8(b)(6) that a failure to deny any allegation will be deemed an admission, crafting 26 a careful and conscientious response to a complaint can be a demanding task. Where a complaint 27 includes argument and/or extraneous facts, it is sometimes particularly difficult to find the balance 28 between a defendant’s legitimate interest in admitting no more than absolutely necessary, and fairly 5 1 and truthfully responding to the substance of the claims. Here, PG&E remains obligated to make a 2 good faith effort to admit or deny each material allegation of the RCRA claim in light of the rulings 3 above. PG&E need not, however, take a position as to the accuracy, truth, or relevance of any 4 allegations that either (1) clearly relate only to portions of the claim that have been foreclosed by 5 this order, (2) constitute argument as opposed to assertions of fact, or (3) describe or discuss 6 purported general scientific evidence related to the effects of particular chemicals. If upon receipt of 7 PG&E’s answer, EFR in good faith believes PG&E has failed to respond fairly to the substance of 8 any allegation directly relating to the alleged acts or omissions of PG&E, the parties shall meet and 9 confer to reach agreement regarding PG&E providing an amended answer to address any such concern. While this order does not supersede the provisions of Rule 6(d), no failure by PG&E to 11 For the Northern District of California United States District Court 10 respond directly to any particular assertion in the complaint relating to the RCRA claim will be 12 deemed an admission, absent a clear and deliberate intent by PG&E to avoid responding to a 13 material allegation of fact. 14 15 6. Conclusion 16 The motion to dismiss is denied as to the Clean Water Act Claim. As to the RCRA claim, 17 the motion is denied to the limited extent set forth above and is otherwise granted without leave to 18 amend. PG&E shall file its answer within 20 days of the date of this order. The parties shall appear 19 for a further Case Management Conference on October 6, 2011 at 10:00 a.m., with a joint Case 20 Management Conference Statement to be submitted one week in advance. 21 22 IT IS SO ORDERED. 23 24 25 26 Dated: 8/25/11 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 27 28 6
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