can proceed directly against the violator. When the plaintiff
elects this later course, the Administrator has the right to
intervene in the suit, but he is not required to be a participant
in such litigation and his absence does not render the action
Accordingly, defendants' motions to strike the EPA and Browner
from the amended complaint are granted. Further, because
defendants moved to dismiss the initial complaint before they
were served with the amended complaint, and because the amended
complaint does not materially differ from the initial complaint,
defendants' motions to dismiss the initial complaint are deemed
motions to dismiss the amended complaint.*fn1
II. Motion to Dismiss Standards
On a Rule 12 motion to dismiss, the Court generally must accept
the factual allegations contained in the complaint as true, and
draw all reasonable inferences in favor of the non-movant; it
should not dismiss the complaint "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122
L.Ed.2d 517 (1993) (noting that factual allegations in the
complaint must be accepted as true on motion to dismiss); Press
v. Quick & Reilly, Inc., 218 F.3d 121, 128 (2d Cir. 2000)
(same). In order to survive dismissal, a plaintiff must assert a
cognizable claim and allege facts that, if true, would support
such a claim. See Boddie v. Schnieder, 105 F.3d 857, 860 (2d
Cir. 1997). A pro se litigant's complaint, "however inartfully
pleaded," must be held to a "less stringent standard than
formal pleadings drafted by lawyers. . . ." Haines v. Kerner,
404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).
On a Rule 12(b)(1) motion challenging the district court's
subject matter jurisdiction, the Court may resolve the disputed
jurisdictional fact issues by referring to evidence outside of
the pleadings, such as affidavits, and if necessary, hold an
evidentiary hearing. See Zappia Middle East Constr. Co. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). However,
when matters outside the pleadings are presented on a motion to
dismiss for failure to state a claim under Rule 12(b)(6),
generally the district court must either exclude the additional
material and decide the motion on the complaint alone or convert
the motion to one for summary judgment and afford all parties the
opportunity to present supporting material. See Morelli v.
Cedel, 141 F.3d 39, 46 (2d Cir. 1998) (citing Carter v.
Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569
On a 12(b)(2) motion the plaintiff bears the burden of
demonstrating that the court has jurisdiction over the defendant.
See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 784 (2d Cir. 1999); Kernan v. Kurz-Hastings, Inc.,
175 F.3d 236, 240 (2d Cir. 1999) (citing Metropolitan Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d
Cir. 1996)). Since the parties have not conducted discovery, the
plaintiff need persuade the court only that its factual
allegations constitute a prima facie showing of jurisdiction over
the defendants. See Kernan 175 F.3d at 240; Jazini v. Nissan
Motor Co., 148 F.3d 181, 184 (2d Cir. 1998). The plaintiff's
prima facie showing may be established solely by pleading, in
good faith, legally sufficient allegations of jurisdiction. See
Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197
(2d Cir. 1990). The pleadings and any affidavits are construed in
the light most favorable to the plaintiff and all doubts are
resolved in its favor. A.I. Trade Finance, Inc. v. Petra Bank,
989 F.2d 76, 79-80 (2d Cir. 1993).
Similarly, on a Rule 12(b)(3) motion to dismiss based on
improper venue, the burden of showing that venue in the forum
district is proper falls on the plaintiff. See, e.g., Blass v.
Capital Int'l Security Group, No. 99-CV-5738 (FB), 2001 WL
301137, at *2 (E.D.N.Y. Mar. 23, 2001). In a case involving
multiple claims, the plaintiff must show that venue is proper for
each claim asserted, but dismissal of an improperly venued claim
is not warranted if it is factually related to a properly venued
claim and the claims could be considered "one cause of action
with two grounds of relief." 17 James Wm. Moore et al., Moore's
Federal Practice § 110.05 (3d ed. 1997). The court must take all
allegations in the complaint as true, unless contradicted by the
defendants' affidavits. See 5A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure: Civil 2d § 1352 (1990 &
Supp. 1999). When an allegation is so challenged "[a] court may
examine facts outside the complaint to determine whether venue is
proper. The court must draw all reasonable inferences and resolve
all factual conflicts in favor of the plaintiff." Id.
(citations omitted). If the defendants prevail on their Rule
12(b)(3) motion, the court has the power to dismiss or transfer
the case to any district in which it could have been brought.
See 28 U.S.C. § 1406(a); see also Minnette v. Time Warner,
997 F.2d 1023, 1026 (2d Cir. 1993) (holding that "[w]hether
dismissal or transfer is appropriate lies within the sound
discretion of the district court").
Defendants argue that the complaint should be dismissed for
lack of standing because plaintiffs have not alleged an injury
in-fact, or alternatively, that any alleged injury is not
redressable by this action. (See, e.g., New York State Thruway
Auth.'s Br. at 4-5; New Jersey Defs. Br. at 5-13.)
An organization such as No More Tolls may have standing to
"seek judicial relief from injury to itself and to vindicate
whatever rights and immunities the association itself may enjoy.
Moreover, in attempting to secure relief from injury to itself
the association may assert the rights of its members, at least so
long as the challenged infractions adversely affect its members'
associational ties." Warth v. Seldin, 422 U.S. 490, 511, 95
S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975) (citing NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449 458-60, 78 S.Ct. 1163, 1169-171,
2 L.Ed.2d 1488 (1958); Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 183-87, 71 S.Ct. 624, 654-57, 95 L.Ed.
817 (1951) (Jackson J., concurring)). No More Tolls, however, has
not asserted injury to itself.
Even in the absence of injury to itself, an association may
have standing solely as the representative of its members. See
Warth, 422 U.S. at 511, 95 S.Ct. at 2211. To have standing as
the representative of its members, No More Tolls must satisfy the
of a case or controversy. See Sierra Club v. Morton,
405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The only known member
of No More Tolls is McKeown. Thus, plaintiffs must establish
that: (1) McKeown has suffered an "injury in fact" — "an invasion
of a legally protected interest which is concrete and
particularized" and "actual or imminent, not `conjectural' or
`hypothetical'"; (2) "there is a causal connection between the
injury and the conduct complained of — the injury has to be
`fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action
of some third party not before the court"; and (3) "it must be
`likely,' as opposed to merely `speculative,' that the injury
will be `redressed by a favorable decision.'" Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119
L.Ed.2d 351 (1992); accord, e.g., Warth, 422 U.S. at 511, 95
S.Ct. at 2211-12; Sierra Club, 405 U.S. at 734-41, 92 S.Ct. at
The only personalized injuries alleged in the amended complaint
are that McKeown "has sustained damages as a result of the
operation of toll booths" (Am.Compl. ¶ 10) and that
"[d]efendant[s'] operation of toll booths damage the business,
property and health of the [p]laintiff" in violation of antitrust
laws (Am.Compl. ¶ 83). Neither of those allegations is concrete
or particularized, nor do they constitute a "distinct and
palpable injury." Gladstone Realtors v. Village of Bellwood,
441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979);
Sierra Club v. SCM Corp., 747 F.2d 99, 103 (2d Cir. 1984).
Additionally, there are no facts alleged that support an
Moreover, plaintiffs' allegations that the toll booths have a
negative impact on the environment are based on the premise that
toll booth increase motor vehicle toxic tailpipe emissions.
(Am.Compl. ¶ 29-41.) Even if the operation of toll booths
increases toxic tailpipe emissions, the emissions are caused by
the vehicles owned by millions of people not parties to this
action. If all toll booths were removed from the mid-Atlantic
states, as plaintiffs seek, millions of drivers would still
experience backups, traffic jams and delays that increase
tailpipe emissions. Accordingly, plaintiffs have not established
that the injury complained of is "fairly . . . traceable to the
challenged action of defendant[s], and not . . . the result [of]
the independent action of some third party not before the court."
Lujan, 504 U.S. at 560, 112 S.Ct. at 2136. Nor have they
demonstrated that the elimination of toll booths would redress
injuries to plaintiffs.
Further, even if plaintiffs could establish that they have
standing to sue, they failed to comply with the mandatory notice
requirement with respect to the Maryland and New Jersey
The CAA, CWA and RCRA require that 60 days prior to filing a
suit, a plaintiff must send notice of the alleged violations to
the defendant, the state where the violation occurred, and to the
EPA. See 42 U.S.C. § 7604; 42 U.S.C. § 6972; 33 U.S.C. § 1365.
The Supreme Court has held that compliance with the RCRA notice
requirements, which are almost identical to the CAA and CWA
notice requirements, is mandatory. See Hallstrom v. Tillamook
County, 493 U.S. 20, 26, 110 S.Ct. 304, 308-09, 107 L.Ed.2d 237
(1989) ("compliance with the 60-day notice provision is a
mandatory, not optional, condition precedent to suit").
The Maryland Transportation Authority and John D. Porcari aver
that plaintiffs did not notify them of their intent to bring
suit. (See Porcari Aff. ¶ 6.) Plaintiffs have not offered any
evidence to the contrary. Accordingly, plaintiffs' CAA, CWA and
RCRA claims against the Maryland Transportation Authority and
John D. Porcari are dismissed.*fn3
The New Jersey defendants do not contest receipt of plaintiffs'
notice of intent to sue.*fn4 They argue that the information
contained in the notice did not contain sufficient information.
The CAA requires that
Notices to the Administrator, States, and alleged
violators regarding violation of an emission standard
or limitation or an order issued with respect to an
emission standard or limitation, shall include
sufficient information to permit the recipient to
identify the specific standard, limitation, or order
which has allegedly been violated, the activity
alleged to be in violation, the person or persons
responsible for the alleged violation, the location
of the alleged violation, the date or dates of such
violation, and the full name and address of the
person giving the notice.
40 C.F.R. § 54.3(b).
The CWA requires that
Notice regarding an alleged violation of an effluent
standard or limitation or of an order with respect
thereto, shall include sufficient information to
permit the recipient to identify the specific
standard, limitation, or order alleged to have been
violated, the activity alleged to constitute a
violation, the person or persons responsible for the
alleged violation, the location of the alleged
violation, the date or dates of such violation, and
the full name, address, and telephone number of the
person giving notice.
40 C.F.R. § 135.3(a).