United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER RESOLVING MOTIONS [19, 20, 23, 34,
40, 69-72] AND DISMISSING CERTAIN DEFENDANTS
HONORABLE STEPHEN J. MURPHY, III JUDGE
Park brought suit against several governmental entities and
the individuals who work for them. One Defendant, Wayne
County, filed an answer, but the rest filed motions to
dismiss. After briefing on the motions concluded, Highland
Park filed a motion for leave to amend the complaint. The
federal Defendants did not oppose the motion to amend, but
every other Defendant did. For the reasons below, the Court
will grant the motion to amend, but dismiss several of the
to Federal Rule of Civil Procedure 15(a)(2), a court should
"freely give leave" for a party to file an amended
complaint "when justice so requires." District
courts can, however, deny a motion for leave to amend on the
basis of "undue delay, bad faith or dilatory motive . .
. [or] futility of amendment." Prater v. Ohio Educ.
Ass'n, 505 F.3d 437, 445 (6th Cir. 2007) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
"Amending would be futile if a proposed amendment would
not survive a motion to dismiss." SFS Check,
LLC v. First Bank of Delaware, 774 F.3d 351,
355 (6th Cir. 2014). Accordingly, the proposed amended
pleading must "raise a right to relief above the
speculative level" and "state a claim to relief
that is plausible on its face." Hensley Mfg. v.
ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007)).
present suit is only the latest link in a long chain of
litigation between Highland Park and other entities concerned
with water and sewage. The dispute has its origins in a
contract between Highland Park and the City of Detroit. The
contract concerned wastewater treatment and was executed in
1983. In 1993 and 1995, Detroit filed federal lawsuits
against Highland Park to recover arrearages. Detroit
prevailed in both cases and secured judgments of $8 million
and $2.5 million, respectively. The parties to the suits
signed a settlement agreement and an amended consent judgment
resumed, however, in 2013. Detroit filed another federal
lawsuit against Highland Park, this time for its alleged
failure to comply with the 1996 agreement and judgment. The
court dismissed the case for lack of subject-matter
jurisdiction, so Detroit brought suit in Wayne County Circuit
Court. The circuit court entered judgment in favor of Detroit
in the amount of $19, 244, 838.53, plus interest and costs.
Highland Park appealed the judgment, but ultimately abandoned
any argument challenging the validity of the judgment itself.
The Michigan Court of Appeals affirmed the circuit court.
more suits commenced in 2015. Highland Park sued Wayne County
over stormwater treatment costs, but the court granted
summary disposition in favor of Wayne County. Highland Park
also sued the Michigan Department of Transportation (MDOT) in
the Court of Claims on the grounds that Highland Park had
been improperly charged for the treatment of run-off from two
Michigan highways. The case is still pending.
Park filed the instant suit in late 2016. Shortly after the
parties began filing their motions to dismiss, the Court
referred the matter to the magistrate judge for settlement
discussions. The parties and the magistrate judge discussed
settlement over the course of two months, but ultimately
failed to reach an agreement.
outset, Highland Park's proposed, amended complaint is
clearer, more specific, and a great deal longer than the
initial complaint. Absent other considerations, the liberal
standard for granting leave to amend would compel the Court
to permit the amendment. But there are other
considerations-namely, the prospect of futility. Several of
the Defendants have insisted that the lack of adequate notice
is a fatal flaw to the complaint, no matter how it is
amended. The Court will therefore address this argument
The Notice Requirement
Clean Water Act (CWA, or, the Act) allows "citizen
suits." That is, the Act permits citizens to commence
lawsuits against the United States and other governmental
instrumentalities and agencies for specified violations of
the Act. 33 U.S.C. § 1365(a). There are two categories
of citizen suits: the first concerns violations of either
"an effluent standard or limitation" or "an
order issued by the Administrator or a State with respect to
such a standard or limitation[.]" Id. The
second category concerns suits "against the
Administrator where there is an alleged failure of the
Administrator to perform any act or duty under [the Act]
which is not discretionary[.]" Id. To commence
either type of citizen suit, a plaintiff must first give 60
days "notice of the violation". If the violation is
in the first category, notice must go to (1) the EPA, (2) the
state where the violation allegedly occurred, and (3) the
person or entity that committed the alleged violation. 33
U.S.C. § 1365(b)(1). If it is in the second category,
only the EPA must be noticed. 33 U.S.C. § 1365(b)(2).
There is only one exception to the 60-day rule: a plaintiff
may bring an action immediately after providing notice if the
alleged violation arose under §§ 1316 and 1317(a).
33 U.S.C. § 1365(b).
empowers the EPA to determine how notice is to be given, and
the EPA has created some ground rules. See 33 U.S.C.
§ 1365(b); 40 C.F.R. § 135.3. For instance, the
contents of the notice are contingent upon which of the two
categories the alleged violation falls into. If the alleged
violation is in the first category-a "violation of an
effluent standard or limitation or of an order with respect
thereto"-the notice 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). If, on the other hand, the alleged
violation falls into the second category-an alleged failure
of the Administrator to perform a non-discretionary act or
duty-the notice shall:
identify the provision of the Act which requires such act or
creates such duty, shall describe with reasonable specificity
the action taken or not taken by the Administrator which is
alleged to constitute a failure to perform such act or duty,
and shall state the full ...