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Klebe v. Tri Municipal Sewer Commission

December 15, 2008

JORGE KLEBE AND IMME KLEBE, PLAINTIFFS,
v.
TRI MUNICIPAL SEWER COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiffs Jorge and Imme Klebe ("Plaintiffs") brought this action pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and state law, alleging that Tri-Municipal Sewer Commission ("Defendant"), in the course of operating a sewage treatment facility in Poughkeepsie, New York, "cause[d] the unpermitted discharge of waste into the Hudson River" and "emitted noxious odors," thereby violating the CWA and New York nuisance law. (Compl. ¶¶ 6, 11.) Defendant moves for summary judgment. For the reasons stated herein, Defendant's motion is granted.

I. Background

Defendant operates a sewage treatment plant in Poughkeepsie, New York. (Def.'s Statement Pursuant to Local Rule 56.1 ("Rule 56.1 Statement") ¶ 1.) Defendant's operations are governed by a State Pollutant Discharge Elimination System ("SPDES") permit issued by the New York State Department of Environmental Conservation. (Id.) Defendant's SPDES permit specifies "effluent limit[s]" and "monitoring requirements" for 11 "parameter[s]" - flow, carbonaceous biological oxygen demand (CBOD5), suspended solids, settleable solids, pH, ammonia, TKN (nitrogen), temperature, total copper, fecal coliform, and total residual chlorine - as well as a "[c]compliance [a]ction" for a twelfth parameter, mercury. (Aff. of Steven C. Russo Supp. Def.'s Summ. J. Mot. ("Russo Aff.") Ex. D (SPDES Discharge Permit effective Sept. 1, 2004, at 3, 5); Rule 56.1 Statement ¶ 1.)

In a letter to Defendant and to federal and state authorities, dated February 1, 2007, and signed February 2, 2007, Plaintiffs alleged that "the Tri Municipal Plant and Compost Facility, situate[d] at 171 Sheafe Rd., Wappinger[s] Falls, New York . . . has repeatedly violated the limitations imposed by its SPDES permit, causing discharge of unpermitted waste products into the Hudson River and thereby degrading said river." (Russo Aff. Ex. A (Notice of Violation and Intent to Sue ("NOI Letter") ¶ 2).) The letter identified Plaintiffs as "JORGE and IMSSY [sic] KLEBE OF SHEAFE ROAD, TOWN OF WAPPINGER, STATE OF NEW YORK." (Id. first unnumbered para.) The letter alleged "that said unpermitted and illegal discharges are, and have been, continuing in nature since at least 2001" (id. ¶ 3), and asserted that Plaintiffs intended "to initiate suit pursuant to the Clean Water Act and other relevant statutes to cause this practice to desist and to abate the adverse environmental impacts of such illegal conduct" (id. ¶ 5).

On August 8, 2007, Plaintiffs filed suit in this Court, alleging that Plaintiffs' NOI letter had "notified both defendant and relevant state and federal regulatory agencies of their intent to file this suit" (Compl. ¶ 4), and that "[n]one of the recipients of said notice letter responded in any manner or took any action either to remediate violations of the [CWA] or to prevent said violations from continuing" (id. ¶ 5). Plaintiffs asserted that Defendant's operation of its sewage treatment plant had violated the CWA "[s]ince its start-up in 1989 and continuing." (Id. ¶ 6.) Plaintiffs also alleged that the plant "has emitted noxious odors of particular impact to adjacent property owners, like plaintiffs" (id. ¶ 11), and that one or both Plaintiffs had put Defendant on notice of those odors (id. ¶ 14). Specifically, Plaintiffs contended that Defendant violated the CWA "[b]y discharging waste products in excess of its SPDES violation [sic]" (id. ¶ 17), and that such discharge and emission of noxious odors created a nuisance (id. ¶ 18). Plaintiffs sought remedies including compensatory damages, remediation of damage to the Hudson River, and injunctive relief. (Id. final unnumbered paragraph.) Defendant answered by asserting, inter alia, that "[t]his Court lacks subject matter jurisdiction over plaintiffs' claims" (Answer ¶ 20), and that "Plaintiffs' notice letter is an insufficient and improper basis upon which to bring a citizen suit under the Clean Water Act" (id. ¶ 21).

Defendant subsequently moved for summary judgment, arguing that Plaintiff's NOI letter was facially "insufficient to comply with the CWA notice requirements" (Def.'s Mem. of Law in Supp. of Mot. for Summ. J. ("Def.'s Mem.") 2), that the Court therefore lacks subject matter jurisdiction over Plaintiffs' CWA claim (id. 1), and that the Court should decline supplemental jurisdiction over Plaintiffs' state law nuisance claim (id. 2). Plaintiffs opposed Defendant's motion, arguing that Plaintiffs' NOI letter "clearly allows [Defendant] . . . to identify the specific standard or limitation alleged to have been violated" and "is therefore adequate." (Pls.' Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pls.' Mem.") 5.) The Court held oral argument on December 8, 2008.

II. Discussion

A. Standard of Review

Summary judgment may be granted when it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted); see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment.").

B. Plaintiffs' Proposed Conversion to Motion to Dismiss

The Court must first consider Plaintiffs' threshold argument that Defendant's summary judgment motion is not properly before the Court. Plaintiffs argue that the Court should convert Defendant's motion for summary judgment to a motion to dismiss for lack of subject matter jurisdiction, noting that "[a] motion for summary judgment proceeds typically after all discovery has been conducted." (Pls.' Mem. 3.) Accordingly, Plaintiffs have declined to answer Defendant's Rule 56.1 Statement, responding only that Plaintiffs "contend that the notice letter sufficiently provided the defendant notice of the standards it violated [all those shown to have been exceeded in its monitoring reports since 2001] and how it committed said violations [by and through operation of the sewer treatment facility at the stated address within this judicial district]" (id. 3 n.1) (bracketed text in original), and thus dispute Defendant's Rule 56.1 Statement ¶ 5 ("The NOI letter does not include information for Tri-Municipal to know what specific standard or limitation it allegedly violated, what activity constituted said violation, or the date the violation allegedly occurred. The NOI letter does not include the full address and phone number of Jorge and Imssy [sic] Klebe." (internal citation omitted)). Defendant notes in response that a movant may seek summary judgment based on the pleadings alone, and that in any event summary judgment is the only proper motion where, as here, it is necessary for the Court to look outside the pleadings to decide whether the movant is entitled to judgment as a matter of law. (Def.'s Reply Mem. of Law in Supp. of Mot. for Summ. J. 8.)

The Court finds that Defendant's motion for summary judgment is properly before the Court at this time. Rule 56 provides that a defendant "may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim." Fed. R. Civ. P. 56(b). "Where appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment," Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968); see also Jackson v. Onondaga County, 549 F. Supp. 2d 204, 211 (N.D.N.Y. 2008), but Plaintiffs cite no authority for their novel view that the Court may convert Defendant's Rule 56 summary judgment motion to a Rule 12(b)(1) motion and then deny that motion. This Court joins Judge Swain in being unable to locate any support for such a proposition. See Martinson v. Menifee, No. 02-CV-9977, 2007 WL 2106516, at *6 (S.D.N.Y. July 18, 2007) ("[T]he Court has not found any statutory or common law authority for converting a motion for summary judgment into a motion to dismiss."). To the extent that Plaintiffs' observation that summary judgment motions typically follow the completion of discovery may be construed as an argument that Plaintiff is unable, in the absence of discovery, to "present facts essential to justify its opposition" to Defendant's motion, then Plaintiffs were free to make that argument under Fed. R. Civ. P. 56(f).*fn1 But Plaintiffs have failed to comply with the requirements of Rule 56(f) in presenting that argument to the Court. "To oppose a motion on the basis of Rule 56(f), a party must file an affidavit detailing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to create a genuine issue of material fact; (3) what efforts the affiant has made to obtain those facts; and (4) why these efforts were unsuccessful." Aetna Cas. & Sur. Co. v. ...


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