Federal Clean Water Act: Other Side's Motion to Dismiss Denied
Many real estate disputes involve stormwater, pollution, flooding and erosion. Under the federal Clean Water Act, many defendants find themselves in a United States District Court--- defending federal AND state causes of action.
Frequently, defendants file Motions to Dismiss: that postpones the necessity of filing an answer and responding to discovery. Judges don't mind "kicking these cases to the curb" because a plaintiff can always refile (called a "dismissal without prejudice"). That means start over; more expense; more delay.
In one of our recent cases, the defendant filed a Motion to Dismiss that said (1) our pre-suit Notice Letter was not adequate and (2) our state law claims for damage did not qualify for recovery. The Court denied each contention. Now we go into a more active pleading and discovery phase, following a settlement conference (hopefully there will be more than one).
You need an experienced attorney to navigate the complex requirements of the court and in this case the pleading demands of U.S. Supreme Court cases such as Twombly and Iqbal. In addition, the required pre-suit notice letter must be very detailed, very specific, properly served and served 60 days before you want to file suit. In this recent case, the defendants challenged everything under the sun. In another Clean Water Act case, I have appealed a US District Court's dismissal of a Clean Water Act to the 11th Circuit Court of Appeals and had it dismissed. However, the preference is to do it right and convince the judge that you did in fact do it right.
Practice area(s): Real Estate
Court: US District Court