United States District Court, D. Maryland
MIDSHORE RIVERKEEPER CONSERVANCY, INC., now known as SHORERIVERS, INC., Plaintiff,
JAMES FRANZONI, et al., Defendants.
Stephanie A. Gallagher United States District Judge
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. 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.
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.
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.
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.
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.
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.
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.”
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,
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).
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
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).
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).
Adequacy of Notice
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
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 ...