United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE
matter is before me on the Defendant's motion to dismiss
(Doc. No. 13) pursuant to Fed.R.Civ.P. 12(b)(1),
Plaintiff's opposition (Doc. No. 29), and Defendant's
reply (Doc. 32). In addition, the Plaintiff's motion to
strike portions of Paul Bauman's affidavit (Doc. No. 26)
is also at issue.
Matt Cooper brings this action against the Toledo Area
Sanitary District seeking declaratory and injunctive relief
for alleged violations of the Clean Water Act, 33 U.S.C.
§ 1365(a), the Ohio Water Pollution Control Act, 33
U.S.C. § 1251 et seq., and Ohio Rev. Code § 6111.
(Doc. No. 1 at ¶ 81). The Plaintiff contends the
Defendant failed to comply with the National Pollution
Discharge Elimination System, Permit No. OHG 870001,
regarding the discharge of pesticides near or in the waters
of the state.
motion, the Defendant seeks dismissal for lack of subject
matter jurisdiction for three reasons. First, the Defendant
contends Plaintiff did not meet the statutory notice
requirements necessary to trigger federal jurisdiction under
the Clean Water Act. Second, Defendant contends that because
there are no current violations, the complaint is not
redressable thereby undermining the Plaintiff's standing
to bring suit. Third, the Defendant argues its subsequent
actions to correct any deficiencies render Plaintiff's
claim moot. The Plaintiff vigorously contests the motion.
Sixth Circuit recently affirmed the standard of review in a
motion to dismiss under Fed.
“Challenges to subject-matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) ‘come in two
varieties: a facial attack or a factual attack.'”
Carrier v. Corp. v. Outokumpu Oyj, 673 F.3d 430, 440
(6th Cir. 2012) (quoting Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007)). “A facial attack on the subject-matter
jurisdiction” . . . . “questions the sufficiency
of the pleading.” Gentek Bldg. Prods., Inc.,
491 F.3d at 330 (citing Ohio Nat'l Life Ins. Co. v.
United States, 922 F.2d 320, 325 (6th Cir. 1990)).
“When reviewing a facial attack, a district court takes
the allegations in the complaint as true, ” just as in
a Rule 12(b)(6) motion. Id. (citing Ohio
Nat'l Life Ins. Co., 922 F.2d at 325). . . .
A factual attack, on the other hand, raises a factual
controversy requiring the district court to “weigh the
conflicting evidence to arrival at the factual predicate that
subject-matter does or does not exist.” Gentek
Bldg. Prods., Inc., 491 F.3d at 330 (citing Ohio
Nat'l Life Ins. Co., 922 F.2d at 325).
Wayside Church v. Van Buren County, 847 F.3d 812,
816-17 (6th Cir. 2017).
reviewing a factual challenge, a court may examine evidence,
including evidence outside of the pleadings, of its power to
hear a case. Cartwright v. Garner, 751 F.3d 752,
759-60 (6th Cir. 2014). It is axiomatic that the
“[p]laintiff bears the burden of establishing that
subject matter jurisdiction exists.” Id.
Clean Water Act was enacted with the purpose of restoring and
maintaining the chemical, physical and biological integrity
of the nation's waters. 33 U.S.C. § 1251(a).
“The Clean Water Act permits citizen suits
‘against any person (including . . . any other
governmental . . . agency to the extent permitted by the
eleventh amendment to the Constitution) who is alleged to be
in violation of an effluent standard or limitation, '
relevantly defined here as “a permit or condition
thereof issued under [the NPDES program].” Askins
v. Ohio Dept. of Agriculture, 809 F.3d 868, 872 (6th
Cir. 2016) citing 33 U.S.C. § 1365(a)(1), (f)(6).
courts have jurisdiction over citizen suits seeking
enforcement of the Clean Water Act. 33 U.S.C. § 1365(a).
A citizen suit must provide notice “prior to sixty days
after the plaintiff has given notice of the alleged violation
(i) to the Administrator, (ii) to the State in which the
alleged violation occurs, and (iii) to ...