The opinion of the court was delivered by: Judge Michael R. Barrett
This matter is before the Court upon the United States' Motion for Judgment on the Pleadings or, Alternatively, for Summary Judgment (Doc. 11); the City of Cincinnati's Motion for Summary Judgment (Doc. 14); and the City of Cincinnati's Motion for Leave to File Amended Complaint (Doc. 23).
The City has brought this action against the United States in an attempt to collect stormwater system charges billed by the City. Article XIX, Section 7 of the City of Cincinnati Administrative Code requires that the City's division of stormwater management utility "charge a storm drainage service charge based on individual contribution of runoff to the system, benefits enjoyed and service received." The City enacted the Stormwater Management Code, which provides: a storm drainage service charge shall be made on each lot or parcel in the city. Each property's contribution to runoff shall be the primary consideration in setting the service charge.
The City argues that the Clean Water Act, 33 U.S.C. § 1323, waives sovereign immunity and provides that each federal agency shall be subject to, and comply with, all local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any non-governmental entity including the payment of reasonable service charges.
In its Motion for Leave to File Amended Complaint, the City seeks to withdraw its claim under the Tucker Act, and add a claim based on quantum meruit.
Federal Rule of Civil Procedure 15(a) provides: A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
In Foman v. Davis, 371 U.S. 178, 182 (1962), the Supreme Court explained that a motion to amend generally should be granted:
In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given."
The United States argues that the City should not be permitted to amend its Complaint because the amendment is futile on two different grounds. First, the United States argues that the City has not demonstrated a basis for federal jurisdiction because its Complaint and Amended Complaint are based upon state and/or local law. The United States explains that the Clean Water Act provision cited by the City cannot serve as a basis for jurisdiction because waiver of immunity is only relevant as a defense to liability.
Second, the United States argues that the City's quantum meruit claim is barred by res judicata since the City's claims rest upon the same series of transactions which were the subject of an action brought by the City against the United States in the U.S. Court of Federal ...