United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER
Corbett O'Meara United States District Judge
the court are several motions to dismiss Plaintiffs'
first amended class action complaint. For the reasons
explained below, Defendants' motions to dismiss are
action arises out of the contamination of drinking water in
Flint, Michigan. Plaintiffs allege several causes of action
against multiple defendants, including City of Flint and
State of Michigan officials and engineering firms that
provided services to the City. Plaintiffs' first amended
complaint alleges the following causes of action: Count I,
violation of the Safe Drinking Water Act; Count II, violation
of the Safe Drinking Water Act; Count III, violation of 42
U.S.C. § 1983, substantive due process, state created
danger; Count IV, violation of § 1983, substantive due
process, bodily integrity; Count V, negligence; Count VI,
intentional infliction of emotional distress; Count VII,
negligent infliction of emotional distress; Count VIII,
inverse condemnation under Michigan Constitution; Count IX,
nuisance; Count X, trespass; Count XI, unjust enrichment;
Count XII, strict liability; Count XIII, gross negligence;
Count XIV, “proprietary function” in avoidance of
governmental immunity; and Count XV, professional negligence.
Defendants seek dismissal of the amended complaint.
Preclusion of § 1983 Claims
court has determined in two other Flint water contamination
cases, Plaintiffs' constitutional claims brought pursuant
to 42 U.S.C. § 1983 are precluded by the Safe Drinking
Water Act. See Boler v. Earley, No. 16-10323, Docket
No. 56 (E.D. Mich., O'Meara, J.); Mays v.
Snyder, No. 15-14002, Docket No. 196 (E.D. Mich.,
O'Meara, J.). Plaintiffs' § 1983 claims are
indistinguishable from the claims this court found to be
precluded by the SDWA in Boler and Mays.
Accordingly, the court will dismiss Plaintiffs' §
Safe Drinking Water Act Claims
contend that Plaintiffs' SDWA claims should be dismissed
because they have not complied with the statute's
jurisdictional requirements. The SDWA provides:
No civil action may be commenced--
(1) under subsection (a)(1) of this section respecting
violation of a requirement prescribed by or under this
(A) prior to sixty days after the plaintiff has given notice
of such violation (i) to the Administrator, (ii) to any
alleged violator of such requirement and (iii) to the State
in which the violation occurs. . . .
42 U.S.C. § 300j-8(b)(1)(A). This sixty-day notice
provision was modeled after § 304 of the Clean Air
Amendments of 1970. See Hallstrom v. Tillamook Cty.,
493 U.S. 20, 23 & n.1 (1989). A number of other federal
statues contain notice provisions also patterned after §
304, including the Resource Conservation and Recovery Act of
1976 (“RCRA”). Id. at 22-23. In
interpreting RCRA's notice provision, which is virtually
identical to the SDWA's notice provision, the Supreme
Court concluded that the “language of this provision
could not be clearer. . . . Under a literal reading of the
statute compliance with the 60-day notice provision is
mandatory, not optional, condition precedent for suit.”
Id. at 26. The Court directed that when a plaintiff
fails to comply with notice provision, “the district
court must dismiss the action as barred by the terms of the
statute.” Id. at 33.
here have not complied with the SDWA's notice
requirement. They argue, however, that the plaintiffs in a
separate action, Concerned Pastors for Social Action v.
Khouri, No. 16-10277, provided notice regarding the same
violations and that duplicate notice should not be required.
Plaintiffs provide no authority for the proposition that
notice provided by separate plaintiffs in a separate suit
serves to excuse the statutory requirement. In the cases
cited by Plaintiffs, at least one plaintiff named in the
action provided notice. See, e.g.,
Environmental Defense Fund v. Tidwell, 837 F.Supp.
1344, 1352-53 (E.D. ...