United States District Court, M.D. Tennessee, Columbia Division
before the Court are Motions to Dismiss (Doc. Nos. 13 and 14)
filed by Defendants ACC, LLC (“ACC”) and T&K
Construction, LLC (“T&K”), respectively.
Plaintiff has filed Responses, each Defendant has filed a
Reply, and the parties have filed supplemental materials.
action was filed by Plaintiff StarLink Logistics, Inc.
against Defendants ACC and T&K for alleged violations of
the Clean Water Act (“CWA”) and Tennessee's
Water Quality Control Act (“TWQCA”). Plaintiff
also alleges state law claims for nuisance and negligence.
Plaintiff has asserted 25 violations of a Tennessee General
Permit for Stormwater Associated with Construction Activity
(CGP”) issued to Defendants by the Tennessee Department
of Environment and Conservation (“TDEC”), which
is the state agency responsible for implementing National
Pollutant Discharge Elimination System (“NPDES”)
permits pursuant to the CWA.
and ACC own adjacent properties in Maury County, Tennessee.
ACC's property includes a former industrial landfill that
received industrial waste from 1981 to 1993 and a
“Waste Relocation Area” where industrial waste
that had been buried was relocated between 2012 and 2016.
Defendant T&K was hired by ACC to handle the waste
relocation. Plaintiff's adjacent property includes
several miles of Sugar Creek and Arrow Lake. In this action,
Plaintiff alleges that during rain events, sediment-laden
stormwater leaves ACC's property, where soil has been
disturbed by construction activities associated with the
Waste Relocation Area, and flows onto Plaintiff's
property and into Sugar Creek and Arrow Lake. Plaintiff
alleges, among other things, that Defendants have failed
properly to maintain sediment control mechanisms for their
construction activities. Plaintiff alleges 25 violations of
the CGP, resulting in measurable degradation of
the water quality in Sugar Creek and Arrow Lake.
and ACC are counterparties not only in this lawsuit, but also
in a related federal lawsuit styled StarLink Logistics,
LLC v. ACC, LLC and Smelter Service Corp. Defendants
allege that Plaintiff and ACC are counterparties to a state
court action styled StarLink Logistics, Inc. v. ACC, LLC,
et al. The parties vehemently dispute whether the
three actions are alike or different, whether any of them is
duplicative of the other, and whether any of them should
preclude any other. Given the ruling herein, the Court will
not referee that dispute at this time.
asks the Court to dismiss Plaintiff's Complaint for lack
of subject-matter jurisdiction, pursuant to Fed.R.Civ.P.
12(b)(1) and for failure to state a claim, pursuant to
Fed.R.Civ.P. 12(b)(6). It also asks the Court to dismiss
Plaintiff's state law claims as barred by the applicable
statutes of limitations. And in its supplemental brief, ACC
requests dismissal of this case, pursuant to Fed.R.Civ.P.
12(b)(6), as duplicative of the two related lawsuits.
asks the Court to dismiss Plaintiff's claims for lack of
subject-matter jurisdiction, pursuant to Rule 12(b)(1) and
for failure to state a claim pursuant to Rule 12(b)(6).
T&K also asks the Court to dismiss Plaintiff's state
law claims as barred by the applicable statutes of
limitation. And in its supplemental brief, T&K asks the
Court to dismiss Plaintiff's Complaint, pursuant to Rule
12(b)(6), as barred by the rule against claim-splitting.
TO DISMISS STANDARDS
12(b)(1) - Subject Matter Jurisdiction
to dismiss for lack of subject-matter jurisdiction under
Fed.R.Civ.P. 12(b)(1) generally come in two varieties: facial
attacks and factual attacks. Gentek Bldg. Products, Inc.
v. Sherman-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007). A facial attack questions merely the sufficiency of
the pleading. When reviewing a facial attack, a district
court takes the allegations in the complaint as true.
Id. If those allegations establish federal claims,
jurisdiction exists. Id.
factual attack raises a factual controversy concerning
whether subject-matter jurisdiction exists. Gentek,
491 F.3d at 330. Where there is a factual attack on the
subject-matter jurisdiction of the Court under Fed.R.Civ.P.
12(b)(1), no presumptive truthfulness applies to the
allegations. When a party attacks the factual existence of
subject-matter jurisdiction, the Court must weigh the
conflicting evidence to arrive at the factual predicate that
subject-matter jurisdiction does or does not exist.
Id. In making its decision, the district court has
wide discretion to allow affidavits, documents, and even a
limited evidentiary hearing to resolve jurisdictional facts.
Id.; see also Cunningham v. Rapid
Response Monitoring Servs., Inc., 251 F.Supp.3d 1187,
1192 (M.D. Tenn. 2017). As always, the party invoking federal
jurisdiction has the burden to prove that jurisdiction.
Global Technology, Inc. v. Yubei (XinXiang) Power
Steering Sys. Co., Ltd., 807 F.3d 806, 810 (6th Cir.
make a factual attack on subject-matter jurisdiction in this
case. AAC specifically notes the factual (as opposed to
facial) nature of its attack (Doc. No. 13-1 at 7), and the
allegations and arguments of T&K reflect a factual attack
12(b)(6) - ...