throbber
Case 2:17-cv-01349-KJM-CKD Document 129 Filed 07/06/20 Page 1 of 4
`
`
`SHARI M. HOWARD (IL Bar No. 6289779)
`Trial Attorney
`
`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Defense Section
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044
`Telephone: (202) 305-0999
`Facsimile No.: (202) 514-8865
`
`MICHAEL L. WILLIAMS (D.C. Bar No. 471618)
`GEOFFRY C. COOK (D.C. Bar No. 460301)
`Trial Attorneys
`
`U.S. Department of Justice
`Civil Division, Environmental Tort Litigation Section
`P.O. Box 340, Ben Franklin Station
`Washington, DC 20044
`Telephone: (202) 307-3839
`Facsimile No.: (202) 616-4473
`
`Attorneys for the United States of America
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`
`RIO LINDA ELVERTA COMMUNITY
`WATER DISTRICT,
`
` Plaintiff,
`
`vs.
`
`THE UNITED STATES OF AMERICA, ET
`AL.,
`
` Defendants.
`SACRAMENTO SUBURBAN WATER
`DISTRICT,
`
` Plaintiff,
`
`vs.
`
`ELEMENTIS CHROMIUM
`INCORPORATED, ET AL.,
`
` Defendants.
`
`Case No. 2:17-cv-01349-KJM-GGH
`
`UNITED STATES OF AMERICA’S
`MOTION TO DISMISS FOR LACK OF
`SUBJECT-MATTER JURISDICTION
`AND FAILURE TO STATE A CLAIM
`
`Case No. 2:17-cv-01353-KJM-GGH
`
`
`Judge: Kimberly J. Mueller
`Date: September 25, 2020
`Time: 10:00 A.M.
`Ctrm: 3
`Actions filed: June 30, 2017
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO
`STATE A CLAIM
`
`
`
`
`
`

`

`Case 2:17-cv-01349-KJM-CKD Document 129 Filed 07/06/20 Page 2 of 4
`
`
`UNITED STATES OF AMERICA’S MOTION TO DISMISS FOR LACK OF
`SUBJECT-MATTER JURISDICTION AND FAILURE TO STATE A CLAIM
`
`
` Defendant United States of America (“United States”), pursuant to Federal Rule of Civil
`
`Procedure 12(b)(1), hereby moves to dismiss the Complaint of Plaintiff, Rio Linda Elverta
`
`Community Water District, and Second Amended Complaint of Plaintiff, Sacramento Suburban
`
`Water District, (collectively “Plaintiffs” or “Water Districts”), in the above-captioned related
`
`matters1 for lack of subject-matter jurisdiction because: (1)(a) Section 113(h) of the
`
`Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42
`
`U.S.C. § 113(h), bars Plaintiffs’ challenges to the ongoing CERCLA response actions; (b) the
`
`Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6972(b)(2)(B)(ii)-(iii)
`
`prohibits Plaintiffs’ RCRA claim because CERCLA response actions are ongoing; and (c)
`
`Plaintiffs have not alleged an injury-in-fact sufficient to demonstrate Article III standing to raise
`
`their RCRA or CERCLA claims(Count 1 and Count 8); (2) The discretionary function exception
`
`to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, bars Plaintiffs’ FTCA
`
`tort claims (Counts 2-4 and 7) for lack of subject-matter jurisdiction; (3) No waiver of sovereign
`
`immunity is pled or available for Plaintiffs’ Cal. Civil Code § 1882 claim (Count 7); and (4)
`
`Plaintiffs’ alleged CERCLA response costs are not necessary and consistent with the National
`
`Contingency Plan (Count 8). In addition, to the extent other defendants file a motion to dismiss
`
`by July 6, 2020, pursuant to this Court’s February 7, 2020 stipulated order, See Orders, ¶II(3)(a)
`
`(ECF104, Sacramento Suburban; ECF 96, Rio Linda Elverta), the United States joins in these
`
`motions to dismiss.
`
`
`
`1The Court previously ordered that the above-captioned matters are related within the meaning of
`Local Rule 123(a). See ECF 7, Related Case Order (08/03/2017).
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO
`STATE A CLAIM
`
`
`
`

`

`Case 2:17-cv-01349-KJM-CKD Document 129 Filed 07/06/20 Page 3 of 4
`
`
`The Court should grant this motion to dismiss all of Plaintiffs’ claims against the United
`
`States for the reasons set forth in the accompanying Memorandum of Law2, Statement of Facts,
`
`Declarations of Philip H. Mook and Steven K. Mayer, and Exhibits 1-73, filed in support of this
`
`motion to dismiss.
`
`Counsel for Defendant United States herby certifies that consistent with the Federal Rules
`
`of Civil Procedure and the Court’s Standing Order, Defendant United States has exhausted effort
`
`to meet and confer with Plaintiffs’ counsel regarding the substance of this Motion via emails
`
`exchanged between June 30, 2020, and July 1, 2020. Plaintiffs do not consent to the relief
`
`sought in this motion. Per agreement of the parties, hard copy courtesy copies will not be
`
`provided at this time due to COVID-19, but will be provided to the Court in advance of the
`
`Court’s hearing.
`
`
`
`Date: July 6, 2020
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Letitia J. Grishaw
`Chief, Environmental Defense Section
`
`Martha Mann
`Assistant Chief, Environmental Defense Section
`
`s/ Shari M. Howard
`SHARI M. HOWARD (IL Bar No. 6289779)
`Trial Attorney
`
`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Defense Section
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044
`
`
`2 The Court previously enlarged the page limit for the United States’ Memorandum of Law by 15
`pages, not to exceed 35 pages. See ECF 108, Stipulation and Order (3/10/2020).
`UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO
`STATE A CLAIM
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`

`

`Case 2:17-cv-01349-KJM-CKD Document 129 Filed 07/06/20 Page 4 of 4
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Telephone: (202) 305-0999
`Facsimile No.: (202) 514-8865
`shari.howard@usdoj.gov
`
`Ethan P. Davis
`Acting Assistant Attorney General, Civil Division
`
`
`J. Patrick Glynn
`Director, Torts Branch
`
`Christina M. Falk
`Assistant Director, Torts Branch
`
`
`
`s/ Michael L. Williams
`Michael L. Williams (DC Bar # 471618)
`Geoffrey C. Cook (DC Bar #460301)
`Trial Attorneys, Tort Branch
`Environmental Tort Litigation
`P.O. Box 340
`Ben Franklin Station
`Washington, DC 20004
`Phone: 202-616-4224
`Telephone: (202) 307-3839
`Facsimile No.: (202) 616-4473
`michael.l.williams@usdoj.gov
`geoffery.c.cook@usdoj.gov
`
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that on July 6, 2020, the foregoing Motion to Dismiss for Lack of
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Subject-Matter Jurisdiction And Failure To State A Claim and referenced supporting
`
`Memorandum in Support, Statement of Facts, Declarations of Philip H. Mook and Steven K.
`
`Mayer, and Exhibits 1-73, were filed via the U.S. District Court’s CM/ECF electronic filing
`
`system and a copy thereof was served upon all counsel of record.
`
`
`
`
`
`
`
`
`
`
`
`
`s/ Michael L. Williams
`MICHAEL L. WILLIAMS
`
`
`
`UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO
`STATE A CLAIM
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket