Paolino v. JF Realty, LLC

United States Court of Appeals
For the First Circuit
No. 12-2031
LOUIS PAOLINO; MARIE ISSA,
Plaintiffs, Appellants,
v.
JF REALTY, LLC; JOSEPH I. FERREIRA; ROBERT YABROUDY;
LKQ ROUTE 16 USED AUTO PARTS, INC., d/b/a Advanced Auto
Recycling; JOSEPH I. FERREIRA, Trustee of The Joseph I.
Ferreira Trust,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and Casper,* District Judge.
Michael J. O'Neill, with whom McGregor & Associates, P.C., was
on brief, for appellants.
Christopher M. Kilian was on brief for Conservation Law
Foundation, amicus curiae.
Robert Clark Corrente, with whom Christopher L. Ayers and
Burns & Levinson LLP, were on brief, for appellees.
March 13, 2013
*
of the District of Massachusetts, sitting by designation.
LYNCH, Chief Judge. This appeal presents an issue of
first impression in the First Circuit as to the standard for
measuring the sufficiency of the mandatory pre-suit notice which
must be given at least sixty days before a citizen enforcement
action may be brought under the federal Clean Water Act (CWA), 33
U.S.C. § 1251 et seq. Failure to comply with the CWA's sixty-day
notice requirement bars such an action and calls for dismissal of
the suit. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 32-33
(1989).
The required contents of pre-suit notice are prescribed
in 40 C.F.R. § 135.3, and assessing whether these requirements have
been met is a functional, fact-dependent, and case-specific
inquiry. Where the information contained in pre-suit notice
identifies the potential plaintiffs, provides basic contact
information, and allows the putative defendants to identify and
remedy the alleged violations, we hold that these requirements have
been satisfied and that the enforcement action may proceed. This
does not mean that the defendants are precluded from asserting
defenses under Fed. R. Civ. P. 12(b)(6); only that the suit is not
barred in the district court.
This holding requires us to find error in the district
court's dismissal of this case. We reverse, in part, and remand
for further proceedings consistent with this opinion.
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I.
Plaintiffs Louis Paolino and Marie Issa appeal from a
district court order dismissing with prejudice their most recent
attempt to bring a citizen enforcement action against the
defendants pursuant to 33 U.S.C. § 1365(a). Plaintiffs' two
previous citizen suits were dismissed without prejudice due to
defects in the service or contents of earlier pre-suit notices.1
An overview of the CWA, including its provisions
governing citizen enforcement actions, helps to explain our
conclusion. Congress adopted the CWA in 1972 "to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). To that end, the CWA
prohibits the discharge of any pollutant into navigable waters, id.§ 1311(a), unless authorized by a valid National Pollutant
Discharge Elimination System (NPDES) permit, id. § 1342. NPDES
1
Plaintiffs originally filed suit in Rhode Island state court
in 2006. After plaintiffs amended the complaint to include counts
under the CWA, the Resource Conservation and Recovery Act (RCRA),
42 U.S.C. § 6901 et seq., and the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§ 9601 et seq., defendants removed the case to federal court and
asserted that pre-suit notice was inadequate. On March 30, 2011,
the court dismissed plaintiffs' federal claims without prejudice
for failure to comply with the notice requirements of the various
statutes invoked, and remanded the remaining state claims to the
Rhode Island Superior Court. LM Nursing Serv., Inc. v. Ferreira,
No. 09-CV-413-SJM-DLM, 2011 WL 1222894, at *9 (D.R.I. Mar. 30,
2011).
On June 6, 2011, plaintiffs filed a new federal complaint
against the defendants in the District of Rhode Island, which was
dismissed without prejudice by stipulation when notice was
defective.
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permits may be issued by the EPA or an authorized state, id.§ 1352(a), (b); 40 C.F.R. § 123.25, and incorporate both state
water quality standards and federal effluent limitations, 33 U.S.C.
§ 1342(a)(3), (b)(1)(A); 40 C.F.R. § 123.25.2 In Rhode Island, the
NPDES is administered by the Department of Environmental Management
(DEM) through the Rhode Island Pollutant Discharge Elimination
System (RIPDES) permit program. See, e.g., Approval of Rhode
Island's NPDES Program, 49 Fed. Reg. 39,063, 39,063 (Oct. 3, 1984);
Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d
9, 14-16 (1st Cir. 2012).
State and federal authorities are authorized to enforce
the CWA through suit. 33 U.S.C. §§ 1319, 1342(b)(7). In addition,
private citizens are given a more limited enforcement role. A
citizen may bring a civil enforcement action in federal district
court against an NPDES permit holder for failure to comply with
that permit's conditions. 33 U.S.C. § 1365(a)(1) (authorizing
citizen suits); see also id. §§ 1319(a)-(b), 1342(h)-(i)
(describing state and federal enforcement actions for violations of
2
States and the federal government share responsibility for
achieving the CWA's purposes. States are primarily responsible for
adopting ambient water quality standards within their territory,
which designate, inter alia, acceptable levels for various
hazardous materials. 33 U.S.C. § 1313(c)(2)(A). These standards,
in turn, supplement technology-based effluent limitations,
established by the Administrator of the EPA, on individual
discharges of pollutants into navigable waters. See, e.g., 33
U.S.C. §§ 1311(b)(1)(A)-(C) & (e), 1312(a), 1313(d)(1)(A), (d)(2),
(e)(3)(A).
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discharge permit conditions). If the citizen prevails, the
district court may award to him or her injunctive relief and
attorneys' fees, and impose civil penalties on the defendant
payable to the United States Treasury. Id. § 1365(a), (d); see
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 185 (2000).
At least sixty days before initiating such an action,
however, a citizen plaintiff must give notice of the alleged
violations to the state in which they occurred, the EPA
Administrator, and the putative defendant(s). 33 U.S.C.
§ 1365(b)(1)(A). Additionally, no citizen suit may be brought if
the "Administrator or State has commenced and is diligently
prosecuting" an enforcement action for these alleged violations
prior to the date on which the citizen files her complaint. Id.§ 1365(b)(1)(B). In cases such as this one, with a long history of
environmental enforcement at the site, this may impose a
significant limitation on citizen suits. See, e.g., Piney Run
Pres. Ass'n v. Cnty. Comm'rs Of Carroll Cnty., Md., 523 F.3d 453,
455 (4th Cir. 2008).
The CWA does not describe the service or contents of pre-
suit notice, providing instead that "[n]otice . . . shall be given
in such manner as the [EPA] Administrator shall prescribe by
regulation." 33 U.S.C. § 1365(b)(2). These regulations are
contained in 40 C.F.R. Part 135, and are discussed below.
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In this case, the plaintiffs jointly own a five-acre
property in the Town of Cumberland, Rhode Island. Their property
sits downhill from and abuts the southwestern edge of a larger
thirty-nine-acre property (the "Property") owned by defendant JF
Realty, LLC, of which defendant Joseph I. Ferreira is the only
member.3 Since 1984, Ferreira has used or permitted others to use
the Property to operate an automobile salvage and recycling
business. The Property is currently leased for that purpose to the
defendant LKQ Route 16 Used Auto Parts, Inc., and contains
approximately 2,000 automobiles in various stages of recycling.
Plaintiffs filed this action in the District of Rhode
Island on January 20, 2012. The complaint contains a single count,
which alleges that the defendants are in continuing violation of
CWA §§ 1311, 1313, and 1342 because (1) they do not have a valid
RIPDES permit in the name of the actual owner and operator of the
Property; and (2) they are continually discharging pollutants into
United States waters at levels in excess of state water quality
standards, federal effluent limitations, and other restrictions
imposed by their RIPDES permit.
On October 7, 2011 -- more than ninety days before filing
their complaint -- plaintiffs sent notice (the "Notice") of the
3
In 1997, Ferreira transferred the Property to Joseph I.
Ferreira, Trustee of the Joseph I. Ferreira Trust, which
subsequently transferred the Property to JF Realty, LLC, the
Property's current owner, in 2005.
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alleged violations to the relevant parties, including each of the
defendants, as required under 33 U.S.C. § 1365(b). Whether that
Notice was properly served on each defendant is a separate issue
which we address later. The Notice is fifteen pages long, and
attaches and incorporates by reference an additional fifteen-page
report prepared by an environmental consulting group on the
plaintiffs' behalf.
Defendants filed their motion to dismiss the complaint on
February 14, 2012, arguing that plaintiffs had failed to allege or
establish several mandatory prerequisites to a citizen suit under
the CWA. Specifically, defendants asserted that (1) plaintiffs'
pre-suit Notice did not describe the alleged CWA violations with
the specificity required under 40 C.F.R. § 135.3(a); (2)
plaintiffs' service of the Notice on defendant Robert Yabroudy was
defective under 40 C.F.R. § 135.2; and (3) plaintiffs did not mail
an as-filed and date-stamped copy of the complaint to the EPA
Administrator, EPA Regional Administrator, and U.S. Attorney
General, as required by 40 C.F.R. § 135.4. Defendants also
requested that the district court dismiss the complaint with
prejudice based upon plaintiffs' previous failures to comply with
the CWA's notice requirements.
The district court issued an order on July 26, 2012,
dismissing the complaint under Fed. R. Civ. P. 12(b)(1) for lack of
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subject matter jurisdiction.4 Paolino v. JF Realty, LLC, C.A. No.
12-39-ML, 2012 WL 3061594 (D.R.I. July 26, 2012). It found that
plaintiffs' pre-suit Notice suffered from each of the deficiencies
alleged in the motion to dismiss, and agreed that a dismissal with
prejudice was in order as to all defendants on the first ground.
This timely appeal followed.
We limit our review to the sufficiency of plaintiffs'
pre-suit Notice and the adequacy of service on defendant Yabroudy.5
II.
The primary issue on appeal is whether the district court
erred in finding that the contents of plaintiffs' pre-suit Notice
were insufficiently specific to satisfy the requirements set forth
in 40 C.F.R. § 135.3(a). Our review of that determination is de
novo. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir.
2001).
4
Most courts to consider this issue have concluded that the
CWA's pre-suit notice provisions at least implicate the subject
matter jurisdiction of the federal courts. City of Newburgh v.
Sarna, 690 F. Supp. 2d 136, 151-52 (S.D.N.Y. 2010) (collecting
cases). Whether we treat the CWA's notice requirements as strictly
jurisdictional or not, they remain mandatory conditions precedent
to the filing of a citizen suit. See Alphas Co., Inc. v. Dan Tudor
& Sons Sales, Inc., 679 F.3d 35, 40 (1st Cir.), cert. denied, 133
S. Ct. 652 (2012).
5
The district court also found plaintiffs' pre-suit Notice
deficient under 40 C.F.R. § 135.4, but did not conclude that this
was an independent basis which would justify dismissing the case.
Paolino, 2012 WL 3061594, at *7.
-8-
In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 59-60 (1987), the Supreme Court
explained that the CWA's pre-suit notice requirements serve two
purposes, each related to the supplementary role Congress
envisioned for citizen enforcement actions. First, pre-suit notice
allows federal and state agencies to initiate their own enforcement
action against an alleged violator, obviating the need for a
citizen suit. Id. at 59-60; see also 33 U.S.C. § 1365(b)(1)(B)
(barring citizen suits where "the Administrator or State has
commenced and is diligently prosecuting" its own civil or criminal
action). Similarly, the second purpose of notice "is to give [the
alleged violator] an opportunity to bring itself into complete
compliance with the Act and thus likewise render unnecessary a
citizen suit." Gwaltney, 484 U.S. at 60; see also Hallstrom, 493
U.S. at 29 (relying on Gwaltney in identifying same purposes for
parallel notice requirements under the RCRA).
Congress entrusted to the EPA the task of determining
what information a pre-suit notice letter would need to include in
order to achieve these purposes. 33 U.S.C. § 1365(b). In the
CWA's legislative history, Congress clarified that these
implementing regulations "should not require notice that places
impossible or unnecessary burdens on citizens but rather should be
confined to requiring information necessary to give a clear
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indication of the citizens' intent." S. Rep. No. 92-414, at 80
(1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3745.
Pursuant to these directives, the EPA adopted 40 C.F.R.
§ 135.3. In the relevant part, § 135.3 states that pre-suit
notice:
shall include sufficient information to permit
the recipient to identify the specific
standard, limitation, or order alleged to have
been violated, the activity alleged to
constitute a violation, the person or persons
responsible for the alleged violation, the
location of the alleged violation, the date or
dates of such violation, and the full name,
address, and telephone number of the person
giving notice.
Id. § 135.3(a).
The key language in § 135.3(a) is that pre-suit notice
must permit "the recipient" to identify the listed information,
i.e., the specific standard at issue, the dates on which violations
of that standard are said to have occurred, and the activities and
parties responsible for causing those violations. See Pub.
Interest Research Grp. of N.J., Inc. v. Hercules, Inc., 50 F.3d
1239, 1248 (3d Cir. 1995). Our sister circuits are in relative
agreement that this language indicates the appropriate measure of
sufficiency under § 135.3(a) is whether the notice's contents place
the defendant in a position to remedy the violations alleged. See,
e.g., S.F. BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1158 (9th
Cir. 2002) ("Notice is sufficient if it is specific enough 'to give
the accused company the opportunity to correct the problem.'"
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(quoting Atl. States Legal Found., Inc. v. Stroh Die Casting Co.,
116 F.3d 814, 819 (7th Cir. 1997))); Atl. States, 116 F.3d at 819-
20 (finding that "notice must be sufficiently specific to inform
the alleged violator about what it is doing wrong, so that it will
know what corrective actions will avert a lawsuit," and that "[t]he
key to notice is to give the accused company the opportunity to
correct the problem"). We agree.
The adequacy of the information contained in pre-suit
notice will depend upon, inter alia, the nature of the purported
violations, the prior regulatory history of the site, and the
actions or inactions of the particular defendants. For example,
where, as here, the alleged violations concern the unlawful
discharge of pollutants, several courts have found that only those
discharges for which the notice identifies a particular pollutant
will withstand a sufficiency challenge. Friends of the Earth, Inc.
v. Gaston Copper Recycling Corp., 629 F.3d 387, 401 (4th Cir.
2011); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City
of New York, 273 F.3d 481, 487-88 (2d Cir. 2001); see also Brod v.
Omya, Inc., 653 F.3d 156, 169 (2d Cir. 2011) (same under RCRA
notice requirements (citing Catskill, 273 F.3d at 487)). Since
that was done here, we do not decide whether it is always required.
Moreover, in many cases, there must be sufficient facts
asserted about the mechanisms and sources involved in these
unlawful discharges so that the defendants may take appropriate
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remedial action. Cf. Alt. States, 116 F.3d at 819-20 (finding
earlier pre-suit notice sufficient for new violations alleged in
amended complaint where the source of violations was adequately
disclosed).
The CWA does not require, however, that a citizen
plaintiff "list every specific aspect or detail of every alleged
violation," or "describe every ramification of a violation."
Hercules, 50 F.3d at 1248. This is so because, "in investigating
one aspect" of an alleged violation, "the other aspects of that
violation . . . will of necessity come under scrutiny" by the
putative defendant. Id. Thus, the Ninth Circuit has twice found
that a notice letter alleging continuing unlawful discharges of
pollutants need not list every date on which such discharges
occurred. Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d
913 (9th Cir. 2004); BayKeeper, 309 F.3d 1153. In both cases,
other information in the notice letter concerning the cause and
source of the alleged discharges permitted the defendants to
identify an adequate number of specific dates on which these
discharges occurred and to take remedial action. Waterkeepers, 375
F.3d at 917-18 (violations caused on "every rain event over 0.1
inches" (internal quotation marks omitted)); BayKeeper, 309 F.3d at
1159 (violations caused "on each day when the wind has been
sufficiently strong to blow" pollutants into adjacent slough
(internal quotation marks omitted)). Similarly, the Third Circuit
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in Hercules held that a sufficiently alleged discharge violation in
pre-suit notice also informed the defendants of "any subsequently
discovered monitoring, reporting or recordkeeping violation that is
directly related to the discharge violation." 50 F.3d at 1248.
"In short, the Clean Water Act's notice provisions and their
enforcing regulations require no more than 'reasonable
specificity.'" BayKeeper, 309 F.3d at 1158 (quoting Catskill, 273
F.3d at 488); Natural Res. Council of Me. v. Int'l Paper Co., 424
F. Supp. 2d 235, 249 (D. Me. 2006).
In the present dispute, the defendants launch an omnibus
attack on the contents of plaintiffs' October 7 Notice letter.
They assert that the Notice did not contain sufficient information
to identify: (1) the specific standard or limitation at issue, (2)
the activity alleged to have caused a violation of that standard or
limitation, and (3) the particular defendant responsible for that
violative activity.6 The district court granted defendants' motion
to dismiss on the first of these grounds, finding that the Notice
"fail[ed] to provide sufficiently specific information for the
recipients to identify which CWA standard is being violated."
Paolino, 2012 WL 3061594, at *7.
6
For the first time in their Response Brief, defendants
assert that the contents of the Notice letter are also insufficient
to identify the date and location of the alleged violations. Our
discussion of the Notice's contents will demonstrate that, even if
the defendants have not waived this argument, it is without merit.
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Plaintiffs respond that this conclusion was erroneous in
two respects: first, § 135.3(a) does not require that the pre-suit
notice itself identify the specific standard at issue, but rather
that it contain sufficient information to place the defendants in
a position to do so; and second, even if it did, the Notice
identifies the specific standard or limitation at issue throughout.
The information in plaintiffs' October 7 pre-suit Notice,
as we soon describe, was at least adequate to allow the defendants
to identify and remedy several of the alleged CWA violations. At
the outset of the Notice, plaintiffs restate the basic allegations
in the complaint, namely that defendants are in continuing
violations of CWA §§ 1311, 1313, and 1342 because (1) their RIPDES
permit is not in the name of the Property's current owner and
operator, and (2) the Property is continually discharging
pollutants into United States waters. Most of the Notice concerns
the second of these allegations, and so we begin our discussion
there.
On pages three and four of the Notice, plaintiffs
describe in some detail the mechanisms through which they allege
the Property is discharging pollutants into navigable waters.
Specifically, the Notice states that in 1984 defendant Ferreira
relocated a drainage ditch from the Property onto the plaintiffs'
land, creating an "Intermittent Stream." This Intermittent Stream
flows through the plaintiffs' property into the Curran Brook, which
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eventually discharges into the Robin Hollow Reservoir--a source of
drinking water for the City of Pawtucket, Rhode Island. The Notice
asserts that defendants use the Intermittent Stream to drain a
contaminated pond on the rear of the Property and to divert
otherwise hazardous storm water runoff from the Property into the
pathway leading to the Reservoir.
As to the specific pollutants at issue, the Notice also
contains a three-page list of individual dates, from November of
2002 to September of 2011, on which reported measures or
observations of hazardous materials on the Property, or in its
runoff, exceeded allowable levels under Rhode Island water quality
standards.7 These entries vary in specificity, but none fails to
identify a particular pollutant discharge said to be in violation
of the terms of defendants' RIPDES permit. For example, the
following is among the shortest entries in the list:
2. On March 11, 2004, runoff from the
Property sampled by [the Pawtucket Water
Supply Board], analyzed to contain 8 ug/l of
MBTE (none allowed).
From this information alone, defendants can identify the pollutant
at issue (methyl tertiary butyl ether), the purported standard
7
The Notice also quotes the relevant language from
defendant's RIPDES permit providing that violations of state water
quality standards are unlawful, and cites additional authority in
support of this proposition. See Santa Monica Baykeeper v. Int'l
Metals Ekco, Ltd., 619 F. Supp. 2d 936, 947 (C.D. Cal. 2009).
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under Rhode Island law (0 micrograms per liter), and the alleged
violation (an amount of MBTE in excess of 0 ug/l).
Other entries on the three-page list note turbidity
measurements in discharges from the Property said to exceed those
on which Rhode Island's DEM based its March 2, 2010 Notice of
Violation to the defendants. Treating these allegations as
accurate, defendants may identify the required information under
§ 135.3(a) by turning to the contents of this March 2 Notice.
In concluding that this list was insufficiently specific,
the district court noted that "not one of the listed items
identifies 'the specific standard [or] limitation' of the CWA that
has allegedly been violated." Paolino, 2012 WL 3061594, at *6
(alteration in original). But given the other information which
was provided, 40 C.F.R. § 135.3(a) did not require such
identification. The information contained in the list permitted
the defendants to identify these standards themselves and to remedy
the alleged violations if accurate. See Int'l Paper Co., 424 F.
Supp. 2d at 249.
Plaintiffs' Notice letter also contains sufficient
information for the defendants to identify and remedy the alleged
violations arising from the Property's purportedly invalid RIPDES
permit. On pages six and seven, the Notice furnishes the relevant
permit's identification number (Permit No. RIR 50M006), date of
issuance (July 3, 2007), and original recipient (Joseph Ferreira
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Trust). It asserts that this permit is invalid on two grounds:
first, the permit was issued to the Joseph I. Ferreira Trust in
July 2007, which was not the Property's owner or operator at that
time; and second, defendants' attempted transfer of the RIPDES
permit to the Property's actual owner and operator in October 2010
did "not satisfy the requirements of [RIPDES Regulation Rule
22(b)]." See 25-16 R.I. Code R. 14 § 22(b) (setting out
requirements for RIPDES permit transfers to new property owners).
In addition to providing its own historical narrative
describing these violations, the Notice also notes that the DEM
independently attempted to resolve these issues in a September 23,
2010 letter addressed to defendant Robert Yabroudy of the Joseph I.
Ferreira Trust. As with the alleged enforcement proceedings
concerning the property's turbidity levels, described above, the
defendants may avail themselves of this letter, and any related
enforcement proceedings arising from it, in identifying the
particulars of the two grounds for invalidity.
Defendants also argue that, notwithstanding its
specificity as to the nature and dates of the violations, the
Notice "did not make any effort to identify the person or persons
responsible for each alleged violation." We disagree. At a
minimum, the information in the Notice did allow the defendants to
determine each other's responsibility for the individual
violations, as required under § 135.3(a). As an example, from the
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dates provided for the individual unlawful discharges in the three-
page list, the defendants may determine who owned or controlled the
Property at that time. Additionally, in describing the DEM's
enforcement efforts on the Property, the Notice identifies the
specific defendant whom the DEM treated as responsible for the
issues addressed in the relevant notice letter. Rec. App'x at 35
(concerning DEM water quality violations: "On April 9, 2008, DEM
issued a Notice of Intent to Enforce to the Joseph I. Ferreira
Trust" and "On March 2, 2010, DEM issued a Notice of Violation to
JF Realty LLC and Joseph Ferreira"); id. at 36 (concerning sampling
and reporting violations: "On September 23, 2010, Eric Beck of DEM
sent a letter to Robert Yabroudy of Joseph Ferreira Trust"). It is
also worth mentioning that, in light of the Property's extensive
history of changing hands amongst the defendants, they are in a
much better position than the plaintiffs to determine their
respective responsibilities during the dates in question. Cf.
BayKeeper, 309 F.3d at 1158 (finding that "[the defendant] is
obviously in a better position than [the plaintiff] to identify the
exact dates, or additional dates" on which violations occurred).
For these reasons, we reverse the district court's
dismissal for lack of subject matter jurisdiction with respect to
plaintiffs' claims arising from the list of discharge violations
and the invalid RIPDES permit. If on remand the plaintiffs press
other claims, not discussed here, which fail to meet this test,
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defendants may move to dismiss those claims. Cf. Hercules, 50 F.3d
at 1253 (remanding to the district court with instruction to
"reinstate those discharge violations which are of the same type
. . . as the discharge violations included in the plaintiffs' 60-
day notice letter"). Nothing in this opinion precludes the
defendants from raising other defenses under Fed. R. Civ. P.
12(b)(6). See, e.g., Catskill, 273 F.3d at 485; Jones v. City of
Lakeland, 224 F.3d 518, 520 (6th Cir. 2000).
III.
The district court also held that, as to defendant Robert
Yabroudy,8 an independent basis for dismissal was that plaintiffs'
service of pre-suit notice was defective under 40 C.F.R. § 135.2.
In the relevant part, § 135.2 states that service of notice on
"individual[s] and corporation[s] . . . shall be accomplished by
certified mail addressed to, or by personal service upon, the owner
or managing agent of the building, plant, installation, vessel,
facility, or activity alleged to be in violation." 40 C.F.R.
§ 135.2(a)(1). We review the district court's factual findings
concerning service on Yabroudy for clear error, and its ultimate
legal conclusion based upon those findings de novo. Gill v. United
States, 471 F.3d 204, 205 (1st Cir. 2006).
8
According to the Complaint, Yabroudy has represented to the
DEM that he acts as treasurer for defendants Joseph I. Ferreira
Trust and Advanced Auto Recycling.
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There is no dispute that plaintiffs sent to each of the
defendants by certified mail a copy of the Notice on October 7,
2011. Each of these copies was received and signed for by the
relevant defendant, except for the Notice addressed to Yabroudy.
That copy of the Notice was sent to the Property's street address,
and returned by the post office with the parcel marked "Refused."
Other boxes on the certified mailing form, such as "Attempted --
Not Known" and "Unclaimed," were not checked.
We cannot conclude that the district court erred in
finding that this Notice was defective. In his April 20, 2010
deposition, Yabroudy provided to plaintiffs his personal and work
addresses, both of which were different than the Property's
address. Although plaintiffs maintain that Yabroudy continued to
work at the Property after this date, this did not ensure that he
would receive notice sent there.9 At the very least, it was not
clearly erroneous for the district court to conclude "that the
notice . . . was not sent to Yabroudy at his residential or work
address." Paolino, 2012 WL 3061594, at *5.
9
Plaintiffs note that an earlier March 2011 notice letter in
this litigation was successfully served on Yabroudy at the
Property's address. This evidence, also before the district court,
does not establish that the October 7 Notice was properly served,
which must be independently shown. Cf. United States v. DuPont,
972 F.2d 337 (Table) (1st Cir. 1992) (finding undelivered notice to
prior address effective where recipient failed to show sender's
actual knowledge of new address).
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Moreover, as the district court noted, it "[wa]s not
required . . . to infer . . . that Mr. Yabroudy received and read
the [Notice] Letter when it was delivered" based upon its being
marked as "Refused." Id. (third alteration in original) (internal
quotation marks omitted). The record does not reveal to whom at
the Property the post office attempted to deliver the Notice
addressed to Yabroudy. This case is not about the principle that
a defendant may not render notice defective by refusing its
delivery herself. See, e.g., Comm. on Grievances of the U.S. Dist.
Court for the E. Dist. of N.Y. v. Feinman, 239 F.3d 498, 499 (2d
Cir. 2001); Patmon & Young Prof'l Corp. v. Comm'r of Internal
Revenue, 55 F.3d 216, 218 (6th Cir. 1995).
Finally, we reject plaintiffs' argument that neither the
CWA nor § 135.2 prescribe the address to which notice must be sent
for an individually named defendant, as if that negated the
requirement of service of process. The CWA does state that a
citizen suit may not be commenced "prior to sixty days after the
plaintiff has given notice of the alleged violation . . . to any
alleged violator." 33 U.S.C. § 1365(b)(1)(A) (emphasis added).
Since the purpose of notice under the CWA is to provide the
recipient with an opportunity to correct the violations alleged
therein, see Gwaltney, 484 U.S. at 60, there is no reason to vary
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the usual requirements.10 Accordingly, plaintiffs' CWA claims
against Yabroudy were properly dismissed. See City of Newburgh v.
Sarna, 690 F. Supp. 2d 136, 153 (S.D.N.Y. 2010).
IV.
The judgment of the district court is reversed, in part,
and the case is remanded for further proceedings consistent with
this opinion. No costs are awarded.
10
Plaintiffs read our opinion in Valentin, 254 F.3d at 363-64,
to require that the defendants submit an affidavit from Yabroudy,
or other material of evidentiary quality, showing that Yabroudy did
not receive actual notice of their intention to file suit. Not so.
Defendants' proffer of Yabroudy's deposition testimony, in
conjunction with the certified mailing form showing the Notice
addressed to Yabroudy had not been delivered, was enough to shift
the burden to the plaintiffs to prove that notice was effective.
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