United States District Court, E.D. Tennessee
For DP Marina, LLC, Plaintiff: James S Whitlock, LEAD ATTORNEY, PRO HAC VICE, Davis & Whitlock, PC, Asheville, NC; Gary A Davis, Gary A. Davis & Associates, Hot Springs, NC.
For City of Chattanooga, Tennessee, Defendant: Adam G Sowatzka, LEAD ATTORNEY, PRO HAC VICE, King & Spalding, LLP (Atlanta), Atlanta, GA; Michael A McMahan, LEAD ATTORNEY, Office of the Chattanooga City Attorney, Chattanooga, TN; Patrick P H Bobo, LEAD ATTORNEY, Chattanooga, Chattanooga, TN; Valerie L Malueg, LEAD ATTORNEY, Office of Chattanooga City Attorney, Chattanooga, TN.
HARRY S. MATTICE, JR., UNITED STATES DISTRICT JUDGE.
Before the Court is Defendant's renewed Motion for Judgment on the Pleadings. (Doc. 44). For the reasons stated herein, the Court will GRANT Defendant's Motion. Plaintiff's federal claims arising prior to July 17, 2012 will be DISMISSED WITH PREJUDICE; those federal claims arising after July 17, 2012 will be DISMISSED
WITHOUT PREJUDICE. The Court will also DISMISS WITHOUT PREJUDICE Plaintiff's state law claims.
On October 13, 2010, a citizens' suit was instituted against the City of Chattanooga (" Defendant" or " the City" ) by the Tennessee Clean Water Network (" TCWN" ) alleging that the City had committed hundreds of violations of the Clean Water Act (" CWA" ) from January 2006 through June 2010. (E.D. Tenn. case no. 1:10-cv-281, Doc. 1) (hereinafter " TCWN case" ). TCWN argued that the City's sewer system " regularly" overflowed " into the Tennessee River its tributaries, and into homes, business and streets" throughout this time period. ( Id. ).
On July 9, 2012, Plaintiff filed its initial Complaint in this action against Defendant, also bringing a citizen's suit pursuant to the Clean Water Act (" CWA" ) in order to address allegedly unlawful and/or unpermitted sewage and wastewater discharges into Browns Ferry Marina from the Tiftonia #1 Pump Station. (Doc. 1). Plaintiff's initial Complaint indicated three such discharges from August 5, 2010 through April 27, 2011. ( Id. ).
Subsequently, on July 17, 2012, the Environmental Protection Agency (" EPA" ) and the State of Tennessee (collectively, " the Government" ) brought suit against the City pursuant to the CWA for " discharges of pollutants" into the Tennessee River and its system of tributaries and basins from at least June 2007 through July 17, 2012. (E.D. Tenn. case no. 1:12-cv-245, Doc. 1) (hereinafter, " Government case" ). The Complaint stated that " hundreds" of violations had occurred during this time period, but it did not contain specific dates or locations for the allegedly unlawful discharges. The Government sought monetary penalties as well as injunctive relief for the alleged violations and lodged a proposed consent decree with the Court. ( Id.; Doc. 2). Pursuant to the Government's request, the Government case and the TCWN case were subsequently consolidated. (Government case, Doc. 5).
On April 24, 2013, after a period of public comment, United States District Judge Curtis L. Collier entered a Consent Decree and final judgment against the City in the consolidated case, providing for injunctive and remedial efforts to bring the City into compliance with the CWA over the course of several years, and imposing a $476,400.00 civil penalty against the City. (Government case, Doc. 12). The Consent Decree provided for additional monetary penalties in the event that the City fails to comply with various portions of the Decree.
The Consent Decree did not contain specific dates or locations for the allegedly unlawful discharges. It did, however, specifically address remedial and preventative efforts for pump stations in general, requiring the City to submit " a schedule for full implementation" of a pump stations operations program within 19 months of the entry of the Consent Decree; these proposals must include procedures and standards for both routine and emergency pump station operations, as well as for preventative maintenance. ( Id. at 30-33, 52-53). Additionally, Appendix C to the Decree provided a list of " Early Action Capital Improvement Projects," which included monitoring and upgrades at the following pump stations: DuPont, Collegedale, East Brainerd, Altamont, Pineville, Citico CSOTF, Enterprise South Industrial Park, Orchard Knobb Sanitary, Friars Branch, and South Chickamauga.
The Consent Decree also contains a section titled " EFFECT OF SETTLEMENT/RESERVATION
OF RIGHTS," which states
73. This Consent Decree resolves the civil claims of the United States and the State for the violations alleged in the Complaint filed in this action through the Date of Lodging of this Consent Decree.
74. This Consent Decree also resolves the civil claims of the TCWN for the violations alleged, or that could have been alleged, in the TCWN Complaint filed in this action through the Date of Lodging of this Consent Decree. In addition, this Consent Decree resolves all civil claims of the TCWN for the penalties associated with any activity subject to a stipulated penalty under this Consent Decree.
. . .
79. This Consent Decree does not limit or affect the rights of any of the Parties against any third parties, not party to this Consent Decree, nor does it limit the rights of third parties, not party to this Consent Decree, against Chattanooga, except as otherwise provided by law.
Id. at 85-87).
Plaintiff in this action filed several motions to amend its Complaint in order to raise additional alleged violations; Defendant filed oppositions to the majority of those Motions, and filed a Motion for Judgment on the pleadings. On September 30, 2013, the Court entered an Order in this action granting Plaintiff's Fourth Motion to Amend and denying Defendant's Motion for Judgment on the Pleadings with leave to refile. (Doc. 37). In that Order, the Court found that the diligent prosecution bar of the Clean Water Act does not apply to the instant action, as Plaintiff initiated its citizen suit prior to the commencement of the government suit against the Defendant. ( Id. at 9-10). The Court noted that neither party had provided sufficient briefing regarding the effect of the Consent Decree entered by Judge Collier in the Government action on April 24, 2013 and that it was not clear to the Court that the Decree would have a preclusive effect on Plaintiff's action. ( Id. at 10-12).
On October 14, 2013, Plaintiff filed its Fifth Amended Complaint, alleging that Defendant discharged pollutants to surface waters without a NPDES permit (count 1), and/or violated the terms of NPDES permit No. TN 0024210 (count 2) on the following dates: August 5, 2010, April 1, 2011, April 27, 2011, December 11, 2011, December 12, 2011, January 27, 2012, January 29, 2012, January 30, 2012, November 1, 2012, January 17, 2013, March 24, 2013, May 5, 2013, July 6, 2013, and July 22, 2013. (Doc. 40 at 7-10). Plaintiff also asserted claims for private nuisance (count 3) and trespass (count 4). ( Id. at 10-11).
On November 1, 2013, Defendant filed a renewed Motion for Judgment on the Pleadings. (Docs. 44-45). Defendant argued that Plaintiff's federal claims are barred by the doctrine of res judicata and again argued that the diligent prosecution bar of the CWA applies to Plaintiff's claims. Defendant also argued that the Court should decline to exercise jurisdiction over Plaintiff's state law claims if the federal claims are dismissed; alternatively, Defendant argues that any of Plaintiff's state law claims arising more than one year prior to the initiation of the instant suit are barred by the TGTLA's one-year statute of limitations. Plaintiff responded in opposition to Defendant's Motion (Doc. 48), and Defendant then filed a Reply brief (Doc. 49).
When a defendant moves for judgment on the pleadings, the Court must construe the complaint in ...