1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 SAN FRANCISCO BAYKEEPER, 9 Lead Case No. 5:20-cv-00824-EJD Plaintiff, 10 v. Consolidated with No. 5:20-cv-00826 EJD
11 CITY OF SUNNYVALE, ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED 12 Defendant. COMPLAINTS
13 RE: DKT. NO. 85
14 SAN FRANCISCO BAYKEEPER, 15 Plaintiff, 16 v.
17 CITY OF MOUNTAIN VIEW,
18 Defendant.
20 Plaintiff San Francisco Baykeeper (“Plaintiff”) initiated suits against Defendants City of 21 Sunnyvale (“Sunnyvale”) and City of Mountain View (“Mountain View”) under the citizen suit 22 enforcement provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. 23 (“Clean Water Act” or “CWA”), to address allegedly unlawful discharges of bacteria pollution by 24 these Cities.1 Plaintiff has brought a motion for leave to file second amended complaints. Dkt. 25 No. 85. Defendants filed an opposition (Dkt. No. 95) and Plaintiff filed a reply (Dkt. No. 96). 26
27 1 Sunnyvale and Mountain View are hereinafter collectively referred to as the “Cities” or “Defendants.” 1 The Court finds this motion appropriate for decision without oral argument pursuant to Civil Local 2 Rule 7-1(b). For the reasons stated below, the motion is granted. 3 I. BACKGROUND 4 On February 4, 2020, Plaintiff initiated suit against Sunnyvale and Sunnyvale 5 Environmental Services Department, alleging (1) discharges of dry-weather non-stormwater and 6 raw sewage via exfiltration, in violation of Discharge Prohibition A.1. of the MS4 Permit and the 7 CWA; and (2) discharges of stormwater with pollutants in violation of Receiving Water 8 Limitation B.1. and B.2. of the MS4 Permit and the CWA. San Francisco Baykeeper v. City of 9 Mountain View, No. 20-cv-826-EJD, Comp., Dkt. No. 1. That same day, Plaintiff initiated a 10 similar suit against Mountain View, the Mountain View Fire Department, and the Mountain View 11 Public Works Department. San Francisco Baykeeper v. City of Mountain View, No. 20-cv-826- 12 EJD, Comp., Dkt. No. 1. On April 28, 2020, Plaintiff filed First Amended Complaints removing 13 previously-named municipal departments as defendants. In July of 2020, the Court consolidated 14 the two actions pursuant to the stipulation of the parties and issued a Case Management Order 15 setting September 14, 2020, as the deadline for amending the pleadings. Discovery commenced in 16 November 2020 and closed on May 28, 2021. 17 Plaintiff filed a motion for partial summary judgment on August 26, 2021, and filed the 18 instant motion for leave to file Second Amended Complaints on September 2, 2021. Expert 19 discovery closed on September 3, 2021. A trial date has not been set. 20 II. STANDARD 21 Because Plaintiff filed its motion for leave to amend after the deadline set in the 22 Scheduling Order, Plaintiff must meet the “good cause” standard of Federal Rule of Civil 23 Procedure 16. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017). If 24 good cause is shown, the moving party must next demonstrate that amendment is appropriate 25 under Rule 15(a) of the Federal Rules of Civil Procedure. Johnson v. Mammoth Recreations, Inc., 26 975 F.2d 604, 608 (9th Cir. 1992). To determine whether leave to amend should be granted under 27 Rule 15(a), courts consider: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and 1 (4) futility of the amendment. Id. at 607. 2 III. DISCUSSION 3 Defendants do not oppose Plaintiff’s motion to the extent the proposed Second Amended 4 Complaints eliminate the alleged violations of Receiving Water Limitation B.1. This portion of 5 Plaintiff’s motion is therefore granted as unopposed. The only issue remaining is whether Plaintiff 6 should also be granted leave to add new allegations regarding sources of non-stormwater to 7 support the claimed Discharge Prohibition A.1. violations. Plaintiff contends that during fact 8 discovery, it identified sources of non-stormwater not specifically alleged in the prior complaints, 9 and after deposing Defendants’ experts on August 9, 10, 16, and 30, 2021, it determined it was 10 necessary to amend the pleadings. The newly identified sources of non-stormwater are fecal 11 indicator bacteria (“FIB”) from exfiltration from the Collection System, leaking private sewer 12 laterals, private sewer lateral overflows, leaking or failed septic systems, recreational vehicles 13 wastewater dumping, illicit wastewater connections, homeless encampments, outdoor defecation, 14 pet waste, trash receptacle leachate, and wildlife waste. Defendants argue that the proposed 15 amendments will impermissibly alter the scope of litigation, necessitate further discovery, and 16 delay trial. 17 A. Good Cause 18 Rule 16(b)’s good cause standard primarily considers the diligence of the party seeking the 19 amendment.” Id. at 609. “Although the existence or degree of prejudice to the party opposing the 20 modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the 21 moving party’s reasons for seeking modification.” Id. (citing Gestetner Corp. v. Case Equip. Co., 22 108 F.R.D. 138, 141 (D. Me. 1985)). “If that party was not diligent, the inquiry should end.” Id. 23 Plaintiff’s proposed amendments are supported by good cause. Plaintiff stated reason for 24 the proposed amendments is to identify sources of non-stormwater that were not specifically 25 identified in its complaint. Plaintiff first learned about the additional sources of non-stormwater 26 during discovery and promptly sought leave to amend. For example, Defendants produced 27 information regarding sources of non-stormwater up to the end of expert discovery. See Rebuttal 1 Expert Report of Mansour Nasser dated August 2, 2021, Dkt. No. 93-1. On August 10, 2021, Mr. 2 Nasser confirmed during his deposition that there were septic systems in Sunnyvale. Sasaki Decl., 3 ¶ 4, Ex. 1, Dkt. No. 97-1 at 5 ( “On the matter of septic tanks, I’m of the opinion that there are 4 septic tanks within Sunnyvale, the exact number of which is not confirmed.”). Plaintiff filed the 5 instant motion within weeks of discovering facts regarding septic systems in Sunnyvale. 6 Defendants contend that Plaintiff knew or should have known about the sources of non- 7 stormwater earlier because they were discussed in the Cities’ C.1. Report filed in June of 2020. 8 See Pl.’s Req. for Judicial Notice, Ex. 17, Dkt. 84-1 at 438, 440, and 456. However, that Report 9 states that there are no known septic tanks within Sunnyvale (id. at 428)—an assertion later 10 contradicted by Mr. Nasser. Therefore, the Court rejects Defendants’ contention that Plaintiff 11 knew or should have known about sources of non-stormwater any earlier. 12 Defendants next contend that Plaintiff’s proposed amendments should not be allowed 13 because they modify and expand the allegations and scope of the litigation, citing E.E.O.C. v. 14 Bakery, No. 13-cv-4507-BLF, 2016 WL 1301173, at *3 (N.D. Cal. Apr. 4, 2016). However, 15 Bakery is distinguishable. In Bakery, the court denied plaintiff’s motion to add alleged retaliatory 16 actions taken after the filing of the complaint, reasoning that the injection of “new retaliation 17 claims” at such a late date would disrupt the entire case schedule, and delay trial by a year or two. 18 Id. (emphasis in original). Unlike in Bakery, Plaintiff’s proposed allegations do not relate to 19 events that took place after the filing of the complaints.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 SAN FRANCISCO BAYKEEPER, 9 Lead Case No. 5:20-cv-00824-EJD Plaintiff, 10 v. Consolidated with No. 5:20-cv-00826 EJD
11 CITY OF SUNNYVALE, ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED 12 Defendant. COMPLAINTS
13 RE: DKT. NO. 85
14 SAN FRANCISCO BAYKEEPER, 15 Plaintiff, 16 v.
17 CITY OF MOUNTAIN VIEW,
18 Defendant.
20 Plaintiff San Francisco Baykeeper (“Plaintiff”) initiated suits against Defendants City of 21 Sunnyvale (“Sunnyvale”) and City of Mountain View (“Mountain View”) under the citizen suit 22 enforcement provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. 23 (“Clean Water Act” or “CWA”), to address allegedly unlawful discharges of bacteria pollution by 24 these Cities.1 Plaintiff has brought a motion for leave to file second amended complaints. Dkt. 25 No. 85. Defendants filed an opposition (Dkt. No. 95) and Plaintiff filed a reply (Dkt. No. 96). 26
27 1 Sunnyvale and Mountain View are hereinafter collectively referred to as the “Cities” or “Defendants.” 1 The Court finds this motion appropriate for decision without oral argument pursuant to Civil Local 2 Rule 7-1(b). For the reasons stated below, the motion is granted. 3 I. BACKGROUND 4 On February 4, 2020, Plaintiff initiated suit against Sunnyvale and Sunnyvale 5 Environmental Services Department, alleging (1) discharges of dry-weather non-stormwater and 6 raw sewage via exfiltration, in violation of Discharge Prohibition A.1. of the MS4 Permit and the 7 CWA; and (2) discharges of stormwater with pollutants in violation of Receiving Water 8 Limitation B.1. and B.2. of the MS4 Permit and the CWA. San Francisco Baykeeper v. City of 9 Mountain View, No. 20-cv-826-EJD, Comp., Dkt. No. 1. That same day, Plaintiff initiated a 10 similar suit against Mountain View, the Mountain View Fire Department, and the Mountain View 11 Public Works Department. San Francisco Baykeeper v. City of Mountain View, No. 20-cv-826- 12 EJD, Comp., Dkt. No. 1. On April 28, 2020, Plaintiff filed First Amended Complaints removing 13 previously-named municipal departments as defendants. In July of 2020, the Court consolidated 14 the two actions pursuant to the stipulation of the parties and issued a Case Management Order 15 setting September 14, 2020, as the deadline for amending the pleadings. Discovery commenced in 16 November 2020 and closed on May 28, 2021. 17 Plaintiff filed a motion for partial summary judgment on August 26, 2021, and filed the 18 instant motion for leave to file Second Amended Complaints on September 2, 2021. Expert 19 discovery closed on September 3, 2021. A trial date has not been set. 20 II. STANDARD 21 Because Plaintiff filed its motion for leave to amend after the deadline set in the 22 Scheduling Order, Plaintiff must meet the “good cause” standard of Federal Rule of Civil 23 Procedure 16. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017). If 24 good cause is shown, the moving party must next demonstrate that amendment is appropriate 25 under Rule 15(a) of the Federal Rules of Civil Procedure. Johnson v. Mammoth Recreations, Inc., 26 975 F.2d 604, 608 (9th Cir. 1992). To determine whether leave to amend should be granted under 27 Rule 15(a), courts consider: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and 1 (4) futility of the amendment. Id. at 607. 2 III. DISCUSSION 3 Defendants do not oppose Plaintiff’s motion to the extent the proposed Second Amended 4 Complaints eliminate the alleged violations of Receiving Water Limitation B.1. This portion of 5 Plaintiff’s motion is therefore granted as unopposed. The only issue remaining is whether Plaintiff 6 should also be granted leave to add new allegations regarding sources of non-stormwater to 7 support the claimed Discharge Prohibition A.1. violations. Plaintiff contends that during fact 8 discovery, it identified sources of non-stormwater not specifically alleged in the prior complaints, 9 and after deposing Defendants’ experts on August 9, 10, 16, and 30, 2021, it determined it was 10 necessary to amend the pleadings. The newly identified sources of non-stormwater are fecal 11 indicator bacteria (“FIB”) from exfiltration from the Collection System, leaking private sewer 12 laterals, private sewer lateral overflows, leaking or failed septic systems, recreational vehicles 13 wastewater dumping, illicit wastewater connections, homeless encampments, outdoor defecation, 14 pet waste, trash receptacle leachate, and wildlife waste. Defendants argue that the proposed 15 amendments will impermissibly alter the scope of litigation, necessitate further discovery, and 16 delay trial. 17 A. Good Cause 18 Rule 16(b)’s good cause standard primarily considers the diligence of the party seeking the 19 amendment.” Id. at 609. “Although the existence or degree of prejudice to the party opposing the 20 modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the 21 moving party’s reasons for seeking modification.” Id. (citing Gestetner Corp. v. Case Equip. Co., 22 108 F.R.D. 138, 141 (D. Me. 1985)). “If that party was not diligent, the inquiry should end.” Id. 23 Plaintiff’s proposed amendments are supported by good cause. Plaintiff stated reason for 24 the proposed amendments is to identify sources of non-stormwater that were not specifically 25 identified in its complaint. Plaintiff first learned about the additional sources of non-stormwater 26 during discovery and promptly sought leave to amend. For example, Defendants produced 27 information regarding sources of non-stormwater up to the end of expert discovery. See Rebuttal 1 Expert Report of Mansour Nasser dated August 2, 2021, Dkt. No. 93-1. On August 10, 2021, Mr. 2 Nasser confirmed during his deposition that there were septic systems in Sunnyvale. Sasaki Decl., 3 ¶ 4, Ex. 1, Dkt. No. 97-1 at 5 ( “On the matter of septic tanks, I’m of the opinion that there are 4 septic tanks within Sunnyvale, the exact number of which is not confirmed.”). Plaintiff filed the 5 instant motion within weeks of discovering facts regarding septic systems in Sunnyvale. 6 Defendants contend that Plaintiff knew or should have known about the sources of non- 7 stormwater earlier because they were discussed in the Cities’ C.1. Report filed in June of 2020. 8 See Pl.’s Req. for Judicial Notice, Ex. 17, Dkt. 84-1 at 438, 440, and 456. However, that Report 9 states that there are no known septic tanks within Sunnyvale (id. at 428)—an assertion later 10 contradicted by Mr. Nasser. Therefore, the Court rejects Defendants’ contention that Plaintiff 11 knew or should have known about sources of non-stormwater any earlier. 12 Defendants next contend that Plaintiff’s proposed amendments should not be allowed 13 because they modify and expand the allegations and scope of the litigation, citing E.E.O.C. v. 14 Bakery, No. 13-cv-4507-BLF, 2016 WL 1301173, at *3 (N.D. Cal. Apr. 4, 2016). However, 15 Bakery is distinguishable. In Bakery, the court denied plaintiff’s motion to add alleged retaliatory 16 actions taken after the filing of the complaint, reasoning that the injection of “new retaliation 17 claims” at such a late date would disrupt the entire case schedule, and delay trial by a year or two. 18 Id. (emphasis in original). Unlike in Bakery, Plaintiff’s proposed allegations do not relate to 19 events that took place after the filing of the complaints. Nor do the allegations inject new claims. 20 Instead, the proposed amendments specify sources of non-stormwater. Further, unlike in Bakery, 21 there is no need to adjust the case schedule because all pretrial deadlines have passed and a trial 22 date has not been set. Defendants assert that the proposed amendments will require re-opening 23 discovery, asserting that “(t)he current state of evidence lacks any specific factual instances related 24 to the newly alleged sources, and Baykeeper’s experts provided no opinions related to the 25 expanded sources of bacteria.” Opp’n at 7. Plaintiff, however, states the opposite. Reply at 6, 8. 26 Plaintiff represents that the proposed amendments are based on facts, documents and testimony 27 already produced during fact and expert discovery, and that it has no need to conduct any 1 additional discovery. Reply at 3, 6, 8. Furthermore, both Plaintiff's and Defendants’ experts alike 2 || have been deposed regarding the new sources of non-stormwater. Id. at 6-7. Therefore, 3 || Defendants’ assertion regarding the need to re-open discovery is unpersuasive. 4 In sum, the Rule 16(b) good cause standard is satisfied. 5 B. Rule 15 Factors 6 The Rule 15 factors weigh in favor of granting Plaintiff leave to amend. First, there is no 7 || evidence of bad faith, and Defendants do not contend otherwise. Second, as discussed previously, 8 Plaintiff did not delay seeking leave to amend the complaints. Third, as discussed previously, the 9 || proposed amendments will not cause unfair prejudice because they will not necessitate re-opening 10 || discovery and a trial date has not yet been set. Fourth, Defendants argue that the proposed 11 amendments “may well be futile as well since [Plaintiff's] own expert has opined that other 12 || sources of bacteria besides exfiltration are unlikely.” Opp’n at 4 n.2. Defendants, however, make 13 no attempt to show that the proposed amendments are legally insufficient under Federal Rule of 14 || Civil Procedure 12(b)(6). Alternatively, Defendants argue that the proposed amendments may be 3 15 futile if the Court grants the pending summary judgment motion based on lack of standing or other a 16 || grounds. This is too speculative of a basis to deny leave to amend.
17 || IV. CONCLUSION 18 For the reasons discussed above, Plaintiff’s motion for leave to file a second amended 19 || complaint is GRANTED. Plaintiff shall file the Second Amended Complaint no later than seven 20 || (7) days after the Court issues a ruling on the parties’ pending motions for summary judgment 21 (Dkt. Nos. 81, 91). 22 IT IS SO ORDERED. 23 24 Dated: June 3, 2022 25 eNO EDWARD J. DAVILA 26 United States District Judge 27 28 || CASE NO.: 5:20-CV-00824-EJD ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT