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Tungett v. Papierski

March 6, 2007

CHARLES L. TUNGETT AND WIFE, MEGAN E. CALDWELL, PLAINTIFFS,
v.
ALFRED V. PAPIERSKI, DEFENDANT.



The opinion of the court was delivered by: Leon Jordan United States District Judge

MEMORANDUM OPINION

This civil action is before the court on plaintiffs' motion for partial summary judgment [doc. 26]. Plaintiffs seek summary judgment as to liability only on all four counts of their complaint, and also as to certain facts. Defendant has responded to the motion [doc. 28] and plaintiffs have filed a reply [doc. 29]. For the reasons that follow, plaintiffs' motion will be denied in its entirety.*fn1

I. Background

Plaintiffs invoke the court's subject matter jurisdiction under the citizen suit provision, 33 U.S.C. § 1365, of the federal Clean Water Act ("CWA"). Their complaint also alleges violations of several provisions of Tennessee's Water Quality Control Act ("WQCA"), Tenn. Code Ann. § 69-3-101 to 69-3-137, along with claims of trespass and public nuisance.

The parties are owners of neighboring real property in Monroe County, Tennessee. Their dispute involves a stream known as Kinser Branch, which flows through each parties' land. Defendant is alleged to have harmed the quality and quantity of Kinser Branch through bulldozing activity purportedly occurring both on his and on plaintiffs' land.

II. Analysis

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If the moving party carries its initial burden of showing that there are no genuine issues of material fact in dispute, the burden shifts to the non-moving party to present specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87. The non-movant's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52.

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In their present motion, plaintiffs offer minimal citation to undisputed material facts and they engage in virtually no legal analysis. "District judges are not archaeologists. They need not excavate masses of papers in search of revealing tidbits . . . because the rules of procedure place [that] burden on the litigants[.]" Baltes, 15 F.3d at 662-63. Courts will not grant summary judgment based on "[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation . . . . It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones." See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (citation and quotation omitted).

III. Analysis

A. Facts

Plaintiffs in part seek summary judgment as to two facts - the location of the parties' boundary line and the location of springs that are "the source of water in Kinser Branch." Under Rule 56, summary judgment may be granted as to claims or matters of law not facts. See Fed. R. Civ. P. 56(a), (c). The court instead anticipates that all uncontroverted facts will be stipulated by the parties in their agreed pretrial order. Plaintiffs' request for summary judgment as to facts will be denied.

B. Clean Water Act

Plaintiffs seek injunctive and declaratory relief under the CWA, which authorizes citizen suits against any person "who is alleged to be in violation of [] an effluent standard or limitation[.]" 33 U.S.C. §1365(a)(1)(A). The effluent standard or limitation(s) at issue in this case are defendant's alleged addition of a pollutant into navigable waters from a point source without a permit. See 33 U.S.C. §§ 1365(f), 1311(a), 1362(12), 1341(a).

The question of whether Kinser Branch is "navigable waters" was not at issue in an earlier motion to dismiss filed by defendant. See Tungett v. Papierski, No. 3:05-CV-289, 2006 WL 51148, at *2 n.1 (E.D. Tenn. Jan. 10, 2006). It is, however, an element of plaintiffs' CWA claim that ...


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