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 Defendants R.R. Street & Co., Inc. and Multimatic, LLC have filed statements of

non-opposition to KFD’s motion; no other parties have responded to the motion. 

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KFD ENTERPRISES, INC., a California

Corporation dba Norman’s Dry Cleaner,

Plaintiffs,

 vs.

CITY OF EUREKA,

Defendant. /

And Related Counterclaims, Cross-Claims,

and Third-Party Claims.

 /

Case No. C 08-04571 MMC

ORDER DENYING PLAINTIFF’S MOTION

FOR LEAVE TO FILE THIRD AMENDED

COMPLAINT AS ALLEGED AGAINST

DEFENDANT ENVIRONMENTAL

RESOLUTIONS, INC.

INTRODUCTION

Before the Court is plaintiff KFD Enterprises, Inc.’s (“KFD”) Motion for Leave to File

Third Amended Complaint, filed February 12, 2010, by which KFD seeks to add a claim

under the Resource Conservation and Recovery Act (“RCRA”). Defendant Environmental

Resolutions, Inc. (“ERI”) has filed opposition, to which KFD has replied.1

 Having read and

considered the papers filed in support of and in opposition to the motion, the Court deems

the matter appropriate for decision thereon, hereby VACATES the hearing scheduled for

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April 9, 2010, and rules as follows.

BACKGROUND

The following allegations are taken from KFD’s proposed Third Amended Complaint

(“TAC”) and will be taken as true for purposes of the instant motion. 

“[S]ince on or about 1980" KFD “has owned and operated a dry cleaning business”

located at 2907 E Street, Eureka, CA (“the Property”). (See KFD’s SAC ¶ 19.) Prior to

KFD’s ownership, “from on or about 1964 to on or about 1979 defendant [Union Oil

Company of California (“Union Oil”)] owned the Property and operated a motor fuel and

vehicle repair service station at the Property.” (See id. at ¶ 20.) While operating the

service station, Union Oil “used and stored” hazardous substances, “including

tetrachloroethylene (‘PCE’) and both petroleum and non-petroleum based contaminants,”

on the Property, which “led to releases of hazardous substances,” causing “contamination

in, at, or around the soil and groundwater underlying the Property and the surrounding soils

and groundwater.” (See id. ¶ 20.) ERI, “acting as an agent, servant and/or employee of

Union Oil, [Unocal Corporation (“Unocal”), and Chevron Corporation]” (see id. at ¶ 28), was

“an environmental remediation company engaged in contaminant investigation,

containment, and/or clean-up at the Property” (see id. at ¶ 27). ERI “arranged for the

disposal of hazardous substances into the soil, groundwater and environment at and

surrounding the Property” (see id. ¶ 38) and “as a result of ERI’s activities, hazardous

substances were released at the Property, thereby causing contamination in, at, or around

the soil and groundwater underlying the Property and the surrounding soils and

groundwater.” (See id. ¶ 27.)

KFD’s original complaint was filed October 1, 2008 and named only the City of

Eureka as a defendant. ERI was first named as a third party defendant to Unocal’s Third

Party Complaint, filed June 12, 2009. On July 20, 2009 KFD named ERI as a defendant in

its First Amended Complaint. On September 4, 2009 KFD sent a letter giving ERI notice of

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 RCRA requires a party bringing a citizen lawsuit for contribution to provide notice

to potential defendants 90 days prior to the filing of such lawsuit. See 42 U.S.C. §

6972(b)(2)(A). 

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its intent to file a RCRA claim.2

 (See Acero Decl. Ex. A.) On September 30, 2009 KFD

filed its Second Amended Complaint which did not include a RCRA claim. By the instant

motion, KFD seeks leave to file its TAC which, for the first time, alleges a RCRA claim

against eight defendants, including ERI. (See MLA Ex. A ¶¶ 114-120.) 

LEGAL STANDARDS

A. Leave to Amend

Where, as here, the complaint already has been amended on more than one

occasion, “a party may amend its pleading only with the opposing party's written consent or

the court's leave.” See Fed. R. Civ. P. 15(a)(2). “The court,” however, “should freely give

leave when justice so requires.” See id. In determining whether such leave should be

granted, the court considers the presence of “‘undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,

[and] futility of amendment.’” See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

1052 (9th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Among such

factors, “it is the consideration of prejudice to the opposing party that carries the greatest

weight.” See Eminence Capital, 316 F.3d at 1052. 

DISCUSSION

A. Futility of Amendment

ERI argues, inter alia, KFD’s proposed amendment is futile because KFD’s “prelawsuit notice is thin and conclusory” and “fails to identify all the information required by

RCRA regulations and case law.” (See ERI’s Opp’n at 2:13-15.)

 RCRA requires parties to provide notice to potential defendants prior to bringing a

citizen suit for contribution. See 42 U.S.C. § 6972(b)(2)(A). Absent compliance with the

required notice provision, the district court lacks subject matter jurisdiction to hear a RCRA

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 The majority of cases construing the sufficiency of pre-lawsuit notices have been

decided under the Clean Water Act and Clean Air Act. Under the Clean Water Act,

“[n]otice . . . 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.” See 40 C.F.R. § 135.3. Similarly, under

the Clean Air Act, “[n]otices . . . shall include sufficient information to permit the recipient to

identify the specific standard, limitation, or order which has allegedly been violated, the

activity alleged to be in 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 and address of the person giving the notice. See 40 C.F.R. § 54.3(b). 

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claim. See Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 

The statutory notice requirements are “mandatory conditions precedent to commencing suit

under the RCRA citizen suit provision.” See Hallstrom v. Tillamook County, 493 U.S. 20,

31 (1989). 

The manner by which such notice must be given is governed by EPA regulations,

which provide:

Notice regarding an alleged violation of . . . this Act shall include sufficient

information to permit the recipient to identify the specific permit, standard,

regulation, condition, requirement, or order which has allegedly been

violated, the activity alleged to constitute a violation, the person or persons

responsible for the alleged violation, the date or dates of the violation, and

the full name, address, and telephone number of the person giving notice.”

See 40 C.F.R. § 254.3(a).

Few cases have considered the sufficiency of pre-lawsuit notices under RCRA, and

the parties have cited to none. As ERI has pointed out, however, the Court may look to

cases addressing the adequacy of pre-lawsuit notices under other environmental statutes,

such as the Clean Water Act and the Clean Air Act, as the language of those notice

requirements is substantially similar to that found in the regulations adopted under RCRA.3

 

See, e.g., Hackensack Riverkeeper v. Delaware Ostego Corp., 450 F.Supp.2d 467, 481

(D.N.J. 2006) (citing cases decided under “notice regulations” adopted in connection with

Endangered Species Act and Clean Water Act; finding reasoning of cited cases applicable

to determination of RCRA notice requirement because such regulations “were similar to 40

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C.F.R. § 254.3(a)”). 

Here, KFD’s pre-lawsuit notice to ERI contains only conclusory assertions that ERI

“was hired to perform environmental activities at the Property relating to the presence of

hazardous substances” and “[t]hrough the acts and omissions of [ERI], hazardous

substances, including tetracholoroethylene [sic] and petroleum-based and nonpetroleumbased contaminants were released into the soil and groundwater on and around the

Property.” (See Acero Decl. Ex. A at 2.) Such notice falls substantially short of providing

the “sufficient information” required by 40 C.F.R. § 254.3(a), as no facts are provided as to

the nature of ERI’s activities that are alleged to have violated RCRA, and no date, or even

range of dates, on which ERI is alleged to have engaged in such activities is specified. 

Compare, e.g., Waterkeepers N. Cal. v. AG Indus. Mfg., 375 F.3d 913, 917 (9th Cir. 2004)

(finding plaintiff’s ten-page notice letter sufficient under Clean Water Act where letter

“specifically identifie[d] pollutants associated with [defendant’s] operations; describe[d] in

detail the sources and practices that lead to the discharge of contaminated storm water

from [defendant’s] site; [ ] explain[ed] that non-storm water, contaminated by washing or

hosing down dirty machinery or equipment, is flushed from [defendant’s] site into the storm

sewer system”; and accused defendant “of violating the Act by discharging contaminated

storm water ‘during at least every rain event over 0.1 inches’”); with, e.g., National Parks &

Conservation Association v. TVA, 502 F.3d 1316, 1330-31 (11th Cir. 2007) (finding

plaintiff’s notice letter, sent in 2000, deficient under Clean Air Act where letter “alleg[ed] that

[defendant] has ‘failed every day’ to comply with EPA regulations since the modification of

Unit 5 in 1983," but “[did] not identify specific activities that violate[d] the Act” and did not

“date the[ ] violations” other than “to a nearly 20-year span of time”). 

//

//

//

//

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 In light of this ruling, the Court does not address herein ERI’s additional arguments

in opposition to the motion. 

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CONCLUSION

Accordingly, for the reasons stated above, KFD’s motion to file its proposed Third

Amended Complaint, to the extent it is alleged against ERI, is hereby DENIED for lack of

subject matter jurisdiction.4

IT IS SO ORDERED.

Dated: April 22, 2010 

MAXINE M. CHESNEY

United States District Judge

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