United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW UNITED STATES DISTRICT JUDGE
cause comes before the Court on two motions: (1)
Defendant's Amended Motion to Dismiss (Doc. No. 22),
which Plaintiffs oppose (Doc. No. 36); and (2)
Defendant's Request for Judicial Notice (Doc. No. 21),
which Plaintiffs oppose (Doc. No 37). As explained below,
both motions are denied.
January 4, 2017, Plaintiffs, Suncoast Waterkeeper
(“SCWK”), Our Children's Earth Foundation
(“OCEF”), and Ecological Rights Foundation
(“ERF”), filed this action against Defendant, the
City of Gulfport, Florida, under the citizen-suit enforcement
provision of the Federal Water Pollution Control Act
(“Clean Water Act” or “CWA”). (Doc
1-2 at 1). Plaintiffs allege Defendant has violated the CWA
by (1) discharging pollutants into waters of the United
States without National Pollution Discharge Elimination
System (“NPDES”) Permit authorization and (2)
violating the terms of its NPDES Permit, No. FLS000005-003,
through these discharges. (Doc. 1-2 at 2).
OCEF, and ERF are non-profit public benefit corporations with
members in the Tampa Bay area. (Doc. 1-2 at 2-3). The
Complaint states that all three organizations work to protect
and/or improve the quality of local waterways “for
water contact recreation, aesthetic enjoyment, fishing,
wildlife observation, educational study, and spiritual
contemplation” and that the organizations' members
“use and enjoy the ocean and bay waters and other
waters adjoining and in Gulfport for body contact water
sports and other forms of recreation, wildlife observation,
aesthetic enjoyment, educational study, and spiritual
contemplation.” (Doc. 1-2 at 2-4).
brought this action on behalf of their members, alleging
that, through a series of sanitary sewer overflows
(“SSOs”) and in violation of the CWA, Defendant
“has repeatedly spilled raw and partially treated
sewage” from its wastewater collection system into
Tampa Bay, the Gulf of Mexico, and other waters near
Gulfport. (Doc. 1-2 at 4-6). Plaintiffs further allege that,
because wastewater collected within Gulfport is ultimately
transported to St. Petersburg's publicly owned treatment
works (“POTW”) facilities, Defendant has also
caused or contributed to SSOs from St. Petersburg's POTW
by contributing to the overload on the system during wet
weather events in the Tampa Bay area. (Doc. 1-2 at 5, 9).
Table 1, attached to the end of the Complaint, documents 19
SSOs Defendant allegedly caused or contributed to. (Doc. 1-2
at 24- 25). Based on similar allegations against the City of
St. Petersburg, Plaintiffs have filed a similar suit against
St. Petersburg. Suncoast Waterkeeper v. City of St.
Petersburg, No. 8:16-cv-03319-JDW-AEP.
Complaint in the instant case includes a fairly extensive
discussion of Gulfport's wastewater collection systems
(Doc. 1-2 at 5-7) and the ways in which Gulfport's
alleged SSOs may harm the ecologically sensitive waters of
the Tampa Bay area, including risks to fisheries, wildlife
habitat, and human health, by loading the waters with
pathogens, nutrients, and toxic chemicals. (Doc. 1-2 at
7-10). Plaintiffs explain the effects of the alleged SSOs on
their members as follows:
Gulfport's illegal discharges of raw and/or partially
treated sewage to ocean and bay waters and other waters
adjoining and in Gulfport degrade water quality and harm
aquatic life in these waters, and thus impairs [sic]
Plaintiffs' members' use and enjoyment of the ocean
and bay waters and other waters adjoining and in Gulfport.
(Doc 1-2 at 4). As illustrative examples, the Complaint names
nine SCWK members and one ERF member who claim to be affected
by Gulfport's SSOs and describes how each has had his or
her enjoyment of the area's waters impaired. (Doc. 1-2 at
10-13). For example, the Complaint provides the following
description of one member of SCWK and his alleged injuries:
John Rice, current SCWK member who has been a member since
before this action was filed, lives in Temple Terrace,
Florida. He regularly fishes from a kayak in Simmons Park and
Cockroach Bay. On Monday, September 26, 2016, following the
massive sewage discharges from St. Petersburg's sewage
wastewater collection and transmission system, he observed a
smell “like a urinal” and a “film of brown
foam” in the shallow waters of Cockroach Bay. Due to
the high water level of the bay and river during the St.
Petersburg SSOs in November, Mr. Rice believes that the foul
smell in Cockroach Bay is likely due to sewage from St.
Petersburg's SSOs (which were also contributed to by
excessive sewage flows from Gulfport into St.
Petersburg's sewage wastewater collection and
transmission system) accumulating six inches to a foot above
the regular water level in the Cockroach Bay mangroves, which
usually do not experience much tidal fluctuation. Mr. Rice
and his wife fish or engage in other recreational activities
in and around Cockroach Bay from 20 to 25 times per year, and
the SSOs from St. Petersburg (including those caused or
contributed to by Gulfport) have caused them to lessen the
frequency and enjoyment of their fishing and recreation.
(Doc. 1-2 at 10-11). Describing the injuries alleged by ERF
member Rachel Rosner, the Complaint provides, in part:
Both Ms. Rosner and her son enjoy wading and swimming at
[Tampa Bay-area] beaches, observing shorebirds and marine
life, including sea turtles and manatees; enjoying the view
of ocean waters, and the smell of clean saltwater air. She
observed the severe red tide conditions created in the ocean
waters adjacent to Sarasota in September and October 2016 in
person when she visited beaches in Sarasota. She observed
first hand dead fish washed up on the beach and floating in
the nearshore waters. . . . These red tide conditions
substantially impaired her enjoyment of Sarasota beaches. The
dead fish were disturbing to look at and she was upset to
view the loss of marine life caused by the red tide
conditions. Additionally, the dead fish created a strong
stench that made it unpleasant to be by the oceanside. She
avoided going to St. Pete Beach or Treasure Island knowing
that there were red tide conditions there as well. She has a
well-founded fear that these red tide conditions were
exacerbated by the series of very large SSOs from St.
Petersburg in June, August, and September 2016 (which were
caused both by problems in St. Petersburg's sewage
collection system and in Gulfport's sewage collection
system as well which sends it sewage to St. Petersburg and
has old, leaky sewage pipes. These problems with
Gulfport's sewage collection system cause Gulfport's
flows of sewage to St. Petersburg to spike in a big way
during rain storms. This overwhelms St. Petersburg's
system leading to SSOs). She is aware that sewage has
nutrients that are well-known to be capable of promoting
algae blooms that are the cause of red tides. She is further
aware that prevailing ocean currents flow from the St.
Petersburg area south towards Sarasota and thus risk
transporting nutrients from SSOs toward Sarasota. Indeed, she
is aware that news accounts have quoted reputable scientists,
such as Kelly Redmond of Florida's Fish and Wildlife
Research Institute (which monitors toxic algae blooms) as
indicating that SSOs have risked making these red tides
worse. She is apprehensive that future SSOs from St.
Petersburg and Gulfport will continue to add nutrients to
local waters and increase the risk of red tides in the future
unless comprehensive steps are taken to improve the sewage
collection systems of St. Petersburg and Gulfport.
(Doc. 1-2 at 12-13). No individual members of OCEF are named
in the Complaint. (Doc. 1-2).
March 3, 2017, Defendant moved to dismiss this case under
Rule 12(b)(1) of the Federal Rules of Civil Procedure for
lack of standing and filed a Request for Judicial Notice of
several declarations offered by Plaintiffs in the St.
Petersburg case. (Doc. 21; Doc. 22). Accordingly, the
Court will address both motions.
Request for Judicial Notice
asks this Court to take judicial notice of certain facts and
documents, specifically eight sworn declarations filed by
Plaintiffs in the St. Petersburg Action. The request
lists the eight declarations and includes copies of each as
attachments. (Doc. 21 at 2, Exhibits A-H). Plaintiffs respond
that the St. Petersburg declarations are not proper
to consider in the instant case because they do not
indisputably establish any facts relevant to Plaintiffs'
allegations against Gulfport, and they are not central to
Plaintiffs' claims in this case. As explained below, the
Court agrees with Plaintiffs.
Federal Rule of Evidence 201(b), “[a] judicially
noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” United States v.
Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citing
F.R.E. 201(b)). Based on this standard, when evaluating
documents from other, related court proceedings, “a
court may take judicial notice of a document filed in another
court not for the truth of the matters asserted in the other
litigation, but rather to establish the fact of such
litigation and related filings.” Id. (quoting
Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc.,
969 F.2d 1384, 1388 (2d Cir. 1992) (internal quotation marks
omitted)). In Jones, the Eleventh Circuit determined
that it was inappropriate for the district court to take
judicial notice of facts in another court's order because
the other court's findings were not sufficient to
indisputably establish facts that the parties still disputed.
Id. In making this determination, the court
approvingly cited FDIC v. O'Flahaven, 857
F.Supp. 154, 157 (D.N.H. 1994), in which the “court
could not judicially notice [the] veracity of allegations in
affidavits from [a related] state court case; rather it could
only take notice that the affidavits were filed and the
averments were made.” Id.; see also Bryant
v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir.
1999) (determining that the court could take judicial notice
of public documents filed in a securities fraud case
“for the purpose of determining what statements the
documents contain and not to prove the truth of the
documents' contents, ” but declining to address
whether those statements could be considered if their truth
were at issue).
noted by Defendant, in Cash Inn of Dade, Inc. v.
Metropolitan Dade County, the Eleventh Circuit held
that, in evaluating community members' statements that
appeared in minutes from a county commission meeting,
“[a] district court may take judicial notice of public
records within its files relating to the particular case
before it or other related cases.” 938 F.2d 1239,
1242-43 (11th Cir. 1991). However, the records at issue in
Cash Inn-community members' statements contained
in minutes from a county commission meeting-had already been
introduced into evidence in the same case, and the court was
not necessarily relying on them to establish their truth but
merely whether the county had a permissible governmental
interest, which the documents helped establish by describing
the county's motivation for the regulation.
the Eleventh Circuit's general rule to the instant case,
the Court can only take judicial notice of the fact that
declarations were filed in the St. Petersburg case.
The Court will not take judicial notice of their contents.
the Court did look to the contents of the St.
Petersburg declarations, they still would not
conclusively establish any facts that would merit dismissal
of this case. Defendant has requested judicial notice not of
what the St. Petersburg declarations do say
but of what they do not say. In effect, Defendant is
asking the Court to take judicial notice of its assertion
that, if Plaintiffs had any accusations against the City of
Gulfport, they would have made those accusations as part of
their declarations given against the City of St. Petersburg.
That, however, would require the Court to assume that
Plaintiffs are unable to make any factual allegations against
Defendant Gulfport merely because Plaintiffs did not make
those allegations in declarations that were prepared and
submitted in a separate case against a separate defendant.
Even if this Court took judicial notice of all of the facts
in the St. Petersburg declarations- which would be
improper since they are not generally known or
undisputed-those facts still would not conclusively disprove
Plaintiffs' allegations against Gulfport.
Extrinsic Evidence Central to ...