Opinion
Master File No. 1:00-1898, MDL 1358 (SAS), M21-88.
June 22, 2005
Michael D. Axline, Esq., Miller, Axline Sawyer, Sacramento, CA, Victor M. Sher, Esq., Todd E. Robbins, Esq., Sher Leff LLP, San Francisco, CA, Counsel for Orange County Water District.
Victor M. Sher, Esq., Todd E. Robbins, Esq., Sher Leff LLP, San Francisco, CA, Scott Summy, Esq., Celeste A. Evangelisti, Esq., Baron Budd, P.C., Dallas, TX, Counsel for Sacramento County Water Agency, Sacramento Groundwater Authority, Citrus Heights Water District, Del Paso Manor Water District, Fair Oaks Water District, Florin Resource Conservation District, Rio Linda Elverta Community Water District, Sacramento Suburban Water District, San Juan Water District, and City of Sacramento.
Michael A. Walsh, Esq., Courtney L. Jones, Esq., Jadd F. Masso, Esq., Strasburger Price, LLP, Dallas, TX, Counsel for Defendant 7-Eleven, Inc.
Robert Gordon, Esq., Robin Greenwald, Esq., C. Sanders McNew, Esq., Weitz Luxenberg, P.C., New York, NY, Liaison Counsel for Plaintiffs.
Peter John Sacripanti, Esq., James A. Pardo, Esq., Stephen J. Riccardulli, Esq., McDermott, Will Emery LLP, New York, NY, Liaison Counsel for Defendants.
OPINION AND ORDER
I. INTRODUCTION
By these actions, plaintiffs seek relief from the contamination or threatened contamination of groundwater from defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE"). This opinion and order addresses defendants' motions in two cases transferred from California. In The People of the State of California v. Atlantic Richfield Co., plaintiffs consist primarily of water agencies, irrigation districts, and county water districts (collectively "Water Agency Plaintiffs"). Defendants move to strike portions of the complaint that refer to the Water Agency Plaintiffs bringing this action "in a representative capacity, to protect the rights of all the landowners and other users of water" in their respective territories. In Orange County Water District v. Unocal, plaintiff is a statutorily-created county water district. Defendants move to dismiss Orange County Water District's ("OCWD") public nuisance claim because it is not authorized to bring an action to abate a public nuisance. Defendant 7-Eleven has filed a separate motion to dismiss or to strike certain claims in both cases based on its "owner/operator" status. In the alternative, 7-Eleven moves for a more definite statement of the claims against it. For the reasons set forth below, defendants' motion to strike the Water Agency Plaintiffs' "representational standing" allegations is granted. Defendants' motion to dismiss OCWD's nuisance claim is denied. 7-Eleven's motion to dismiss or to strike or for a more definite statement is denied.
Defendants' motion is directed at the following plaintiffs: Sacramento County Water Agency, Sacramento Groundwater Authority, Citrus Heights Water District, Del Paso Manor Water District, Fair Oaks Water District, Florin Resource Conservation District, Rio Linda Elverta Community Water District, Sacramento Suburban Water District, and San Juan Water District.
The People of the State of California Third Amended Complaint ("Water Agency Compl.") ¶¶ 14, 16, 18, 20, 22, 24, 26, 28, 30.
III. LEGAL STANDARD
A. Motion to Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss should be granted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.'" At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor.
Weixel v. Board of Educ. of N.Y., 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (alterations omitted)).
Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Accord In re Initial Public Offering Sec. Litig., 241 F. Supp. 2d 281, 322-24 (S.D.N.Y. 2003).
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quotation marks and citation omitted).
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
B. Motion to Strike
Rule 12(f) permits the Court to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Courts are generally "very reluctant to determine disputed or substantial issues of law on a motion to strike." A motion to strike on the ground that the matter is impertinent and immaterial should be denied "`unless it can be shown that no evidence in support of the allegation would be admissible.'" "Immaterial" matter is that which has no essential or important relationship to the claim for relief, and "impertinent" material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues.
Fed.R.Civ.P. 12(f). See also Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Simon v. Manufacturers Hanover Trust, 849 F. Supp. 880, 882 (S.D.N.Y. 1994).
In re Merrill Lynch Co., Inc. Research Reports, 218 F.R.D. 76, 78 (S.D.N.Y. 2003) (quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)).
See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (citing 5 Wright Miller, Federal Practice and Procedure § 1382, at 706-07 (1990)).
C. Motion for a More Definite Statement
"The essence of a complaint is to inform the defendant as to the general nature of the action and as to the incident out of which a cause of action arose." Rule 12(e) allows a party to move for a more definite statement "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." The Rule "is designed to remedy unintelligible pleadings, not to correct for lack of detail." "A motion pursuant to Rule 12(e) should not be granted `unless the complaint is so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it.'" Motions for a more definite statement are generally disfavored because of their dilatory effect. "The preferred course is to encourage the use of discovery procedures to apprise the parties of the factual basis of the claims made in the pleadings."
Bower v. Weisman, 639 F. Supp. 532, 538 (S.D.N.Y. 1986).
Dunlop-McCullen v. Local 1-S RWDSU-AFL-CIO, No. 94 Civ. 1254, 1994 WL 478495, at *1 (S.D.N.Y. Sept. 1, 1994). Accord Nugent v. Searle Pharms., Inc., No. Civ-86-675E, 1987 WL 15328, at *2 (W.D.N.Y. Aug. 5, 1987) (noting that discovery, rather than Rule 12(e), was designed to remedy lack of detail).
Caraveo v. Nielsen Media Research, Inc., No. 01 Civ. 9609, 2002 WL 530993, at *2 (S.D.N.Y. Apr. 8, 2002) (quoting Boothe v. TRW Credit Data, 523 F. Supp. 631, 635 (S.D.N.Y. 1981)). Accord Bower, 639 F. Supp. at 538.
See Markovic v. New York City Sch. Constr. Auth., No. 99 Civ. 10339, 2000 WL 1290604, at *3 (S.D.N.Y. Sept. 13, 2000); Federal Home Loan Mortgage Corp. v. Portnoy, No. 92 Civ. 0474, 1992 WL 320813, at *4 (S.D.N.Y. Oct. 27, 1992).
Tagare v. NYNEX Network Sys. Co., 921 F. Supp. 1146, 1153 (S.D.N.Y. 1996) (citing Boothe, 523 F. Supp. at 635).
III. DISCUSSION
A. Standing
Defendants argue that the Water Agency Plaintiffs' "representational standing" allegations should be stricken because they are bound by the representations of OCWD's counsel that OCWD is seeking damages only on behalf of itself and not on behalf of its members. This argument can be summarily rejected, as the Water Agency Plaintiffs cannot be bound by the representations of another plaintiff's counsel who was not acting as their agent. Nonetheless, the Court must satisfy itself that the Water Agency Plaintiffs have standing to prosecute this action either in their own right or on behalf of residential, commercial, industrial, and agricultural well owners. Defendants contend that the Water Agency Plaintiffs cannot represent water users because they do not satisfy the test for associational standing.
See Hayes v. National Serv. Indus., 196 F.3d 1252, 1254 (11th Cir. 1999) ("An attorney of record is the client's agent in pursuing a cause of action."); United States v. 7108 W. Grand Ave., 15 F.3d 632, 634 (7th Cir. 1994) ("The clients are principals, the attorney is agent, and under the law of agency the principal is bound by his chosen agent's deeds."); Consolidated Theaters v. Warner Bros. Circuit Mgmt. Corp., 216 F.2d 920, 927 (2d Cir. 1954) ("An attorney's power of representation is confined to matters which have been entrusted to him.").
The water users the Water Agency Plaintiffs seek to represent consist primarily of residential, commercial, industrial, and agricultural well owners. See Certain California Plaintiffs' Opposition to Defendants' Motion to Dismiss and to Strike California Complaints and Amended Complaints Pursuant to Fed.R.Civ.P. 12(b)(6) and 12(f), and for a More Definite Statement Pursuant to Fed.R.Civ.P. 12(e) ("Water Agency Mem.") at 11 n. 14.
1. Applicable Law
"[S]tanding jurisprudence contains two strands: Article III standing, which enforces the Constitution's case or controversy requirement, and prudential standing, which embodies `judicially self-imposed' limits on the exercise of federal jurisdiction.'" For Article III standing, the question is "whether the plaintiff has `alleged such a personal stake in the outcome of the controversy' as to warrant [its] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on [its] behalf." A plaintiff must show that (1) it has suffered injury-in-fact; (2) the injury is fairly traceable to the challenged action; and (3) it is likely that the injury will be redressed by a favorable decision. These requirements apply equally to organizations as to natural persons. Although the Supreme Court has never defined the dimensions of prudential standing, it has explained that "prudential standing encompasses the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked."
Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2308 (2004) (quotation marks and citations omitted).
Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n. 19 (1982); Warth, 422 U.S. at 511; NAACP v. Acusport Corp., 210 F.R.D. 446, 457 (E.D.N.Y. 2002).
Newdow, 124 S.Ct. at 2309 (quotation marks and citation omitted).
Notwithstanding these general prudential limitations, an association may have standing solely as the representative of its members, even in the absence of injury to itself. "[T]he entire doctrine of `representational standing,' of which the notion of `associational standing' is only one strand, rests on the premise that in certain circumstances, particular relationships . . . are sufficient to rebut the background presumption . . . that litigants may not assert the rights of absent third parties." In Hunt v. Washington State Apple Advertising Commission, the Supreme Court held that "an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."
[W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.
See Warth, 422 U.S. at 511.
United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557 (1996).
432 U.S. 333, 343 (1977). Accord Warth, 422 U.S. at 511 ("[S]o long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction.").
Warth, 422 U.S. at 515.
But the fact that an association is only seeking declaratory or injunctive relief does not mean that it automatically satisfies the third Hunt prong.
See Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004).
2. Own Behalf
The Water Agency Plaintiffs were created by statute and are authorized to manage and protect the water resources in their respective districts. For instance, the Sacramento County Water Agency has the power "to do any and every lawful act necessary to be done, that sufficient water may be available for any present or future beneficial use or uses of the lands or inhabitants within the agency. . . ." And irrigation districts, such as Citrus Heights Water District, "may do any act necessary to furnish sufficient water in the district for any beneficial use."
See California Water Code App., Ch. 66, § 4 (Sacramento County Water Agency Act) ("The agency shall have the power . . . to do any and every lawful act necessary to be done, that sufficient water may be available for any present or future beneficial use or uses of the lands or inhabitants within the agency. . . ."); id. § 31020 (County Water District Act) ("A district may do any act necessary to furnish sufficient water in the district for any present or future beneficial use."); id. §§ 22078, 31047 (county water districts and irrigation districts "may control, distribute, store, spread, sink, treat, purify, recapture and salvage any water . . . for the beneficial use or uses of the district or its inhabitants or the owners of rights to water therein."); California Pub. Res. Code § 9151 ("A resource conservation district may be formed . . . [for] the development and distribution of water. . . ."); California Gov. Code § 61600 (community service district may supply its inhabitants with water).
California Water Code App., Ch. 66 § 4.
Id. § 22075 (Irrigation District Law).
Plaintiffs have also been given statutory authority to engage in litigation. County water districts and irrigation districts may "commence, maintain, intervene in, compromise, and assume the costs of any action or proceeding involving or affecting the . . . use of waters . . . within the district . . .," while the Sacramento Groundwater Authority is authorized to "sue and be sued in all actions and proceedings."
See id. §§ 31082, 22655 (county water districts and irrigation districts authorized to sue to "prevent interference with or diminution of the natural flow of any . . . natural subterranean supply of waters which may: (a) Be used or be useful for any purpose of the district; (b) Be of common benefit to the land or its inhabitants; [or] (c) Endanger the inhabitants or land"); California Pub. Res. Code §§ 9407, 9151 (authorizing resource conservation districts "to sue and be sued" and to undertake actions for the "development and distribution of water, and the improvement of land capabilities"); California Gov. Code §§ 61612, 61622 (authorizing community services district "to sue and be sued" and "to perform all acts necessary to carry out fully" its statutory mandate).
California Water Code §§ 31081, 22654.
Sacramento Groundwater Authority Joint Powers Agreement § 16(c)(i), Ex. 1 to Plaintiffs' Request for Judicial Notice. The Court takes judicial notice of this agreement pursuant to Fed.R.Evid. 201(b).
The Water Agency Plaintiffs have standing to sue in their own right because they allege injury-in-fact that a favorable judgment would be likely to redress. Plaintiffs allege that defendants' conduct in manufacturing and distributing MTBE-containing gasoline without warning of its adverse environmental and health effects caused the contamination of the underground water supply in their respective service areas. This alleged behavior caused a concrete and particularized injury to plaintiffs because they are statutorily mandated to assure that the lands within the districts have suitable water supplies. Any conduct that interferes with plaintiffs' ability to do so, or causes plaintiffs to expend resources to investigate and/or remediate contamination, results in cognizable harm. Furthermore, a favorable judgment would be likely to redress plaintiffs' injury by enjoining defendants from causing more water contamination and/or ordering them to pay the costs of remediation.
See Water Agency Compl. ¶ 36.
See supra notes 29-32.
See Transport Workers Union of Am. v. New York City Transit Auth., 342 F. Supp. 2d 160, 167 (S.D.N.Y. 2004) (finding that unions had standing to sue in their own right because the expenditure of resources while representing employees in grievance and arbitration hearings was a concrete harm causally linked to defendant's sick leave policy); Acusport, 210 F.R.D. at 457 (organization may be harmed if defendant's activities reduce the membership dues or other contributions the organization would otherwise collect).
3. Behalf of Others
Although California law authorizes plaintiffs to engage in litigation involving or affecting the use of water, "[s]tanding to sue in any Article III court is . . . a federal question which does not depend on the party's prior standing in state court." It is undisputed that plaintiffs satisfy Hunt's first two requirements: individual water users would otherwise have standing to sue for the contamination of their own wells, and the protection of water is germane to plaintiffs' purposes, as set forth in their governing statutes. Plaintiffs argue that the third prong — that neither the claims asserted nor the relief requested require member participation — is merely prudential and designed only to promote efficiency.
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985).
Although plaintiffs are correct in noting that Hunt's third prong is a prudential rather than constitutional standing requirement, there is insufficient reason to relax the limitation in this case. There have been occasions where competing considerations outweigh any prudential rationale against representational standing — for example, where practical obstacles prevent a party from asserting rights on its own behalf. There does not appear to be such practical obstacles here, as residential, commercial, industrial, and agricultural well owners may pursue their own claims arising from the contamination of their water supply. During a prior iteration of this multi-district litigation, a group of private well owners did just that. Thus, Hunt's third limitation for representational standing is applicable here.
See Brown Group, 517 U.S. at 555 ("the associational standing test's third prong is a prudential one").
See Bano, 361 F.3d at 715 (finding no reason to relax the third Hunt prong "where, in order for the organizations to succeed in the lawsuit, there must be participation by the members themselves").
See Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984) (citing examples of when the Court has relaxed prudential-standing limitations).
The Water Agency Plaintiffs lack standing to sue on behalf of water users because the relief requested would require their individual participation in the lawsuit. Plaintiffs seek "damages, as well as injunctive and declaratory relief, on behalf of themselves and on behalf of all other water users within their respective jurisdictions whose rights to the use of clean groundwater have been injured by MTBE/TBA contamination and/or the threat thereof." Plaintiffs may not pursue damages on behalf of water users because damages would not be common to all users in the districts, nor would they be shared by all users in equal degree. In addition, to the extent plaintiffs pray for an injunction ordering the remediation of private properties, they are barred from pursuing such relief in a representational capacity. As the Second Circuit observed in Bano v. Union Carbide Corp., another water contamination case,
See Certain California Plaintiffs' Opposition to Defendants' Motion to Dismiss and to Strike California Complaints and Amended Complaints at 11.
See Warth, 422 U.S. at 515-16 (holding that association did not have standing to seek damages because each member would have to be a party to the suit); Bano, 361 F.3d at 714 ("We know of no Supreme Court or federal court of appeals ruling that an association has standing to pursue damages claims on behalf of its members."); United Union of Roofers, Waterproofers, and Allied Trades v. Insurance Corp. of Am., 919 F.2d 1398, 1402 (9th Cir. 1990) (union lacked associational standing because individual union members would have to participate at the proof of damages stage). Cf. NYC C.L.A.S.H., Inc. v. City of New York, 315 F. Supp. 2d 461, 469 (S.D.N.Y. 2004) (holding that plaintiff satisfied third Hunt prong because amended complaint sought only prospective relief and no money damages).
[a]s to each property so identified [as contaminated], individual assessments would be required as to the nature, breadth, and severity of the contamination, and consideration would have to be given to, inter alia, each owner's actual and intended use or uses of his or her land, in order to permit a determination as to which specific remediation methods would be appropriate for the clean-up of that property.
361 F.3d at 715-16. See also Arbor Hill Concerned Citizens Neighborhood Ass'n v. City of Albany, 250 F. Supp. 2d 48, 59 (N.D.N.Y. 2003) (in lead paint case, association's prayer for an order requiring defendants to ensure the safety of all residential dwellings was "inconsistent with the notion that the benefit of the litigation inures to the group as a whole, in that it focuse[d] more on individual injuries that may have been suffered by individual members").
However, if the Water Agency Plaintiffs expend their own resources to remediate groundwater, they may of course seek recovery as part of their own damages.
B. Public Nuisance
Defendants argue that OCWD's public nuisance claim must be dismissed because plaintiff is not authorized by statute to abate public nuisances. Under California law, "[a] public nuisance may be abated by any public body or officer authorized thereto by law," or by a private person who has suffered special injury from the nuisance. Thus, the question is whether OCWD's enabling statute confers authority on plaintiff to sue for the abatement of contaminated groundwater.
California Civ. Code § 3494.
See id. § 3493. See also Goodwin v. Anheuser-Busch Cos., Inc., No. BC310305, 2005 WL 280330, at *4 (Cal.Super.Ct. Jan. 28, 2005).
The Orange County Water District Act empowers plaintiff "to sue and be sued" and "to commence, maintain, intervene in, defend, and compromise . . . to assume the costs and expenses of any and all actions and proceedings . . . begun to prevent interference with water . . . or diminution of the quantity or pollution or contamination of the water supply of the district." Thus, the plain language of the statute grants plaintiff the authority to assert a nuisance claim because water contamination is a basis for such a claim.
California Water Code, App. § 40-2.
Id., App. § 40-2(9) (emphasis added).
In construing the meaning of a statute, courts "look first to the words the Legislature used, giving them their usual and ordinary meaning." Smith v. Rae-Venture Law Group, 29 Cal. 4th 345, 358 (2002).
Defendants' reliance on Lamont Storm Water District v. Pavich, and Castaic Lake Water Agency v. Whittaker Corp., is misplaced. In Lamont, the California Court of Appeals held that a storm water district lacked standing to seek a declaration that the diversion of a watercourse was an abatable public nuisance. The court reasoned that "when the Legislature . . . intended to grant the power to abate a nuisance, it [had] done so specifically and in clear terms." Although the district's enabling statute empowered it "to sue and be sued" and "to do any and all other acts and things necessary or required for the protection of the lands . . . from storm waters," the court concluded that the legislation did not authorize the district to file actions to abate public nuisances. Relying on Lamont, the court in Castaic Lake held that an agency's power "to prevent interference with or diminution of the . . . natural subterranean supply of waters" did not authorize it to pursue public nuisance claims. Lamont does not require dismissal of plaintiff's nuisance cause of action because that court was considering a different statute with different language. In contrast to the Lamont Storm Water District's power to do "any and all other acts," OCWD's authority "to prevent interference with water . . . or diminution of . . . pollution or contamination of the water supply" is sufficiently specific and clear to include the abatement of a public nuisance. It appears that the Castaic Lake court misinterpreted Lamont to mean that the authorizing statute must explicitly use the terms "abate" and "nuisance." However, the Lamont court made no such ruling, and in fact, found that the authorizing statute for sanitary districts (as opposed to storm water districts) — which does not explicitly say "abate a nuisance" — was sufficient to authorize public nuisance actions. Defendants' motion to dismiss plaintiff's nuisance claim is denied, as the Orange County Water District Act plainly authorizes such actions.
78 Cal. App. 4th 1081 (2000).
272 F. Supp. 2d 1053 (C.D. Cal. 2003).
Lamont, 78 Cal. App. 4th at 1084.
Id. at 1084-85. Section 8 of the Stormwater District Act provides, in relevant part:
Each storm water district shall have power to sue and be sued. . . . The said board of trustees shall also have power to employ such engineers, surveyors and others as may be necessary to survey, plan, or locate, or supervise the construction or repair of, the improvements necessary to carry out the purposes for which the district was formed; to construct, maintain and keep in repair any and all improvements, requisite or necessary to carry out the purposes of the district; and to do any and all other acts and things necessary to carry out the purposes of the district; and to do any and all other acts and things necessary or required for the protection of the lands in said district from damage from storm waters and from waters of any innavigable stream, watercourse, canyon or wash. . . .
See Castaic Lake, 272 F. Supp. 2d at 1070-71.
California Water Code, App. § 40-2(9). See California Civ. Code § 3479 (nuisance is defined as "[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. . . ."); Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co. of Am., Inc., 221 Cal. App. 3d 1601, 1619 (1990) ("chemical products in soil which were affecting, and threatened to affect to a much greater degree, the quality of water" considered a nuisance).
See id. at 1070 ("[T]he California Court of Appeal held that only public bodies explicitly authorized to abate a public nuisance may do so.") (emphasis in original) (citing examples where "abate" and "nuisance" used in statutes).
C. 7-Eleven Supplemental Motion
Defendant 7-Eleven moves to dismiss or to strike plaintiffs' claims for fraud or "conspiracy or for joint, collective, successor, or vicarious liability," arguing that the allegations in the complaints do not support these claims because it is merely an "owner/operator" defendant. However, neither the Water Agency Plaintiffs nor OCWD assert claims for fraud or conspiracy against 7-Eleven, and theories of liability are not claims. The term "claim," as used in the Federal Rules of Civil Procedure, means a cause of action. Plaintiffs assert causes of action against 7-Eleven for nuisance, declaratory relief, strict liability for design defect, negligence, trespass, and violations of the Health Safety Code, the Water Code, and the Orange County Water District Act. Accordingly, 7-Eleven's motion to dismiss or to strike is denied.
Defendant 7-Eleven, Inc.'s Memorandum of Law in The People of the State of California v. Atlantic Richfield Corp., at 3; Defendant 7-Eleven, Inc.'s Memorandum of Law in Orange County Water District v. Unocal, at 3.
See Original Ballet Russe v. Ballet Theatre, 133 F.2d 187, 189 (2d Cir. 1943).
See Water Agency Compl. ¶¶ 141-164, 208-220, 234-251, 258-269; Orange County Water District Second Amended Complaint ("OCWD Compl.") ¶¶ 64-115. The Sacramento District Attorney, on behalf of the People of the State of California, asserts a claim for civil conspiracy against the refiner/supplier and manufacturer defendants only. See OCWD Compl. ¶¶ 200-207.
Defendant's alternative request for a more definite statement is also denied because the complaints clearly indicate which claims are being asserted against 7-Eleven as an "owner/operator" defendant. Both the Water Agency Plaintiffs and OCWD delineate categories of defendants — to wit, the "manufacturer defendants," "refiner defendants," "supplier defendants," "refiner/supplier defendants," "MTBE/TBA manufacturer and supplier defendants," and "owner/operator defendants." The complaints specify which claims are brought against which defendants based on these categories. For example, the Water Agency Plaintiffs' failure to warn claim is directed only against the "manufacturer and refining/supplier defendants." On the other hand, claims directed at "all defendants" include the owner/operator defendants. Unlike the Indiana complaints, which were addressed in this Court's April 20, 2005 Opinion and Order, these complaints are not internally inconsistent because the perpetrators and victims of the alleged tortious conduct are mutually exclusive — i.e., "downstream handler" and "downstream user" are not defined to include the owner/operator defendants.
See Water Agency Compl. ¶¶ 39-114; OCWD Compl. ¶¶ 10-45.
See Water Agency Compl. ¶¶ 221-233.
V. CONCLUSION
For the reasons set forth above, defendants' motion to strike the Water Agency Plaintiffs' "representational standing" allegations is granted. Defendants' motion to dismiss OCWD's nuisance claim is denied. 7-Eleven's motion to dismiss or to strike or for a more definite statement is denied. The Clerk of the Court is directed to close these motions. A conference is scheduled for 10:00 a.m. on September 9, 2005 in Courtroom 15C.
SO ORDERED.