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Midshore Riverkeeper Conservancy, Inc v. Franzoni

United States District Court, D. Maryland

December 17, 2019

JAMES FRANZONI, et al., Defendants.


          Stephanie A. Gallagher United States District Judge

         Plaintiff Midshore Riverkeeper Conservancy, Inc., now known as ShoreRivers, Inc. (“Riverkeepers”), filed a Second Amended Complaint against Defendants James Franzoni, Michael Schaefer, The Point at Pintail, LLC, and New Pintail Point, LLC (collectively “Defendants”), seeking to (1) enforce Section 7002(a)(1)(B) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.§ 6972(a)(1)(B), and (2) enforce Section 301 of the Clean Water Act (“CWA”), 33 U.S.C. § 1311(a). ECF 40-2. Three of the Defendants, Michael Schaefer, New Pintail Point, LLC, and The Point at Pintail, LLC (“the Schaefer Defendants”), filed a Motion to Dismiss the Second Amended Complaint, with a supporting memorandum of law (collectively, “the Motion”). ECF 49, 51.[1] This Court has considered that Motion, along with Riverkeepers's Opposition, ECF 52, and the Schaefer Defendants' Reply, ECF 56. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, the Schaefer Defendants' Motion will be granted in part and denied in part.


         The facts below are derived from the Second Amended Complaint and accepted as true for the purposes of this Motion. Riverkeepers is a 501(c)(3) non-profit corporation working to restore and protect the Wye River and its associated waterways. ECF 47, ¶ 4. Riverkeepers's members include more than one thousand individuals and families. Id.

         Defendants Franzoni and Schaefer are co-owners of the two LLC Defendants. Id. ¶ 5. Defendants own and operate the Pintail Point Shooting Clay School (“Pintail Point”), “a recreational sporting clay course and shooting range that is open year-round and located along the Wye River” in Queenstown, Maryland. Id. Pintail Point consists of roughly 300 acres, including a large pond, plus four miles of shoreline along the Wye River. Id. ¶ 17. Riverkeepers alleges, on information and belief, that “the shooting range has 25 shooting stations that are positioned such that shooting can occur directly over the large pond or such that spent lead shot lands on downward slopes that drain to either the pond or the Wye River itself through manmade drainage ditches.” Id. Riverkeepers also alleges, upon information and belief, that shooting occurs over, or in close proximity to, agricultural land, where crops are harvested. Id. ¶ 18. Riverkeepers alleges that lead shot has been used at Pintail Point since the shooting range opened almost thirty years ago. Id. ¶ 20. Spent lead shot “is abandoned and left to leach into the surrounding environment, ” with no efforts to clean it up or dispose of it. Id.

         In early 2015, Franzoni allowed Riverkeepers to test for lead at Pintail Point. Id. ¶ 22. The sample results indicated dangerously high levels of lead, prompting Riverkeepers to request further testing. Id. At that time, however, Franzoni denied further access. Id. Franzoni engaged in additional discussions with Riverkeepers over the ensuing months, and represented that he would arrange for lead abatement, stop planting crops near the shooting range, and cease shooting lead. Id. ¶¶ 23-28. In early 2017, Franzoni hired MT2, a remedial services company, to perform a site visit and conduct lead testing. Id. ¶ 29. MT2's report confirmed “dangerously elevated levels of lead at Pintail Point.” Id.

         On July 7, 2017, Riverkeepers sent a notice (“the Notice”) to Franzoni, Schaefer, and their LLCs, and copied relevant government officials, including the Environmental Protection Agency and the Maryland Department of the Environment. ECF 47-2. The Notice, consisting of twelve pages plus additional exhibits, advised that Riverkeepers intended to file suit “pursuant to Section 7002(a)(1)(B)” of the RCRA, alleging “that Owners/Operators' past and continuing disposal of lead shot at Pintail Point presents an imminent and substantial endangerment to health and the environment.” ECF 47-2 at 3. The Notice also stated that Riverkeepers intended to file a citizen suit under the CWA, alleging “that Owners/Operators' past and continuing practices at Pintail Point, since at least March 19, 2012, has [sic] resulted in unlawful discharges of pollutants from a point source into waters of the United States, without the authorization of a National Pollutant Discharge Elimination System (‘NPDES') permit.” Id.

         After receiving Riverkeepers's Notice, Franzoni informed the Riverkeepers board that shooting operations at Pintail Point would cease. ECF 47, ¶ 31. Franzoni then wrote to Schaefer to demand that they agree to cease commercial shooting at Pintail Point, despite their ownership dispute. Id. ¶ 32. However, presumably because of the dispute between Franzoni and Schaefer as co-owners, shooting at the range continued as of the date of the Second Amended Complaint. Id. ¶ 33.


         The Schaefer Defendants have filed a motion to dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF 49. A defendant is permitted to test the legal sufficiency of a complaint by way of a motion to dismiss. See, e.g., In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.”

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Rule 8(a)(2), which provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Id. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions.'”); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S.__, 135 S.Ct. 346, 346 (2014) (per curiam).

         Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Id. at 556 (internal quotation marks omitted).

         In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However, a court is not required to accept legal conclusions drawn from the facts. Papasan v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

         Courts generally do not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999) (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint, ” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[] on the face of the complaint, '” Goodman, 494 F.3d at 464 (emphasis omitted) (quoting Forst, 4 F.3d at 250).

         III. ANALYSIS

         A. Adequacy of Notice

         In addition to their Rule 12(b)(6) motion, as to both the RCRA and the CWA counts, the Schaefer Defendants seek dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), alleging that Riverkeepers's notice of intent to sue was inadequate. Specifically, the RCRA provides:

No action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to (i) the Administrator; (ii) the State in which the alleged endangerment may occur; (iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B), except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III of this chapter.

42 U.S.C. § 6972(b)(2)(A) (2012). Similarly, the CWA provides:

No action may be commenced under subsection (a)(1) of this section 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 any alleged violator of the standard, limitation, or order . . ..

33 U.S.C. § 1365(b)(1)(A). The Supreme Court has explained that the pre-filing notice requirement for citizen suits is a “mandatory, not optional, condition precedent.” Hallstrom v. Tillamook County, 493 U.S. 20, 26 (1989); see also Id. at 31. Congress implemented the notice requirement to allow government agencies, in the first instance, to enforce the relevant regulations, and to allow the alleged ...

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