Opinion
Case No. 2:03-CV-302 TS
December 1, 2003
ORDER DENYING DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE AND GRANTING LEAVE TO AMEND COMPLAINT
This matter is before the court on Defendants' Motion to Dismiss and on Plaintiffs Motion for Leave to Amend Complaint. On March 28, 2003, Plaintiffs filed their Complaint. On June 23, 2003, Plaintiffs filed their Amended Complaint. The Amended Complaint avers jurisdiction lies under the federal question statute, 28 U.S.C. § 1331 and supplemental jurisdiction. It alleges a cause of action under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(A) and (e). It also alleges causes of action under state law for trespass, injury to real property, nuisance, negligence and misrepresentation. Plaintiffs' causes of action generally allege contamination of their real property from alleged leaks in underground petroleum storage tanks located on adjacent property.
On July 17, 2003, Defendants filed a Motion to Dismiss the Amended Complaint on the grounds that RCRA does not provide a private cause of action for damages and therefore there is no federal claim upon which to base federal question jurisdiction.
Plaintiffs responded that they do not seek damages under RCRA, but seek injunctive relief requiring Defendants to fully clean up the alleged contamination and that the continuing presence of the alleged contamination constitutes a continuing violation of RCRA. In the alternative, Plaintiffs seek leave to amend their Amended Complaint to include a claim for injunctive relief under § 6972(a)(1)(B). On November 21, 2003, Plaintiffs renewed their request to amend the complaint in a separate Motion for Leave to Amend Complaint.
Fed.R.Civ.P. 15(a) provides that leave to amend should be freely given where justice requires. Refusing leave to amend is generally justified only upon a showing of "undue delay, bad faith or dilatory motive, . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, . . . futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962).
In the present case, the court will grant Plaintiffs' alternative request to amend the Complaint contained in Plaintiffs' memorandum in opposition to the Motion to Dismiss. Therefore, the subsequent Motion for Leave to Amend Complaint is moot and a responsive brief need not be filed for that Motion. Defendant's Motion to Dismiss the June 23, 2003, Amended Complaint will be denied, without prejudice. It is therefore
ORDERED that Plaintiffs' August 11, 2003, request for leave to amend the Amended Complaint is GRANTED and Plaintiff shall have 15 days from the entry of this order to file an amendment. It is further
ORDERED that Plaintiffs' November 21, 2003, Motion for Leave to Amend Complaint is MOOT. It is further
ORDERED that Defendants' Motion to Dismiss is DENIED, WITHOUT PREJUDICE.