ORDER DENYING MOTION TO DISMISS

Re: Dkt. No. 63

YVONNE GONZALEZ ROGERS, District Judge.

On June 3, 2019, the Court conducted a case management conference in the above-captioned case, during which the Court heard oral argument on defendants' pending motion to dismiss plaintiff's first supplemental amended complaint ("FSAC"), which is now fully briefed.1 (See Dkt. Nos. 63, 66.)2 Accordingly, for the reasons stated on the record in the Court's tentative ruling, and confirmed herein, having carefully considered the briefing and arguments submitted in this matter, defendants' motion to dismiss plaintiff's FSAC is DENIED with respect to defendants' standing argument and notice argument as well as their argument that plaintiff fails to state a claim against individual defendant Jakov Laptalo and DENIED AS MOOT with respect to defendants' argument that plaintiff fails to state a claim against individual defendant Carl Italiano. As the Court has addressed defendant's sufficiency of allegations agreement for the first time, the Court affords plaintiff leave to amend.

With respect to defendants' argument regarding Article III standing,3 the Court has already found that the interests that this suit seeks to protect are germane to the organization's purposes and neither plaintiff Eden Environmental's ("Eden's") claim of violation of the Clean Water Act ("CWA") nor the declaratory, injunctive, and civil penalty relief sought requires individualized proof and are thus properly resolved in a group context. (Dkt. No. 48 ("MTD FAC Order") at 7 (citing Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977)).) Therefore the only remaining issue with respect to standing is whether one of Eden's members would otherwise have standing to sue in his or her own right. See Pac. Lumber Co., 230 F.3d at 1147.

Eden's first amended complaint ("FAC") (Dkt. No. 30), read in conjunction with the declaration of Eden member Theophilus Austin Mills III (Dkt. No. 16) filed in support of Eden's opposition to defendants' motion to dismiss the FAC as permitted by McCarthy v. United States, alleged that one of Eden's current members has suffered and continues to suffer a concrete injury traceable to defendants' alleged activity at the Laptalo Enterprises facility in at issue (the "Facility") and therefore has standing in his own right under Article III. (See MTD FAC Order at 7 (citing McCarthy, 850 F.2d 558, 560 (9th Cir. 1988)).) Notwithstanding the foregoing, the FAC failed to allege that member Mills was a member of Eden at the time the organization filed its initial complaint on September 10, 2018 and therefore failed to establish that the organization had "standing at the outset of the litigation." (Id. (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 181 (2000)).)

Plaintiff's FSAC identifies "specific associational member with standing by name as EDEN member Theophilus Austin Mills III., and alleges that Mr. Mills is a member of EDEN at the time of the filing of" the FSAC and "was a member of EDEN at the time that the initial Complaint was filed." (Dkt. No. 62 ("FSAC") ¶ 9.) Additionally, the declaration of Mills filled in support of plaintiff's opposition to the instant motion to dismiss asserts that Mills joined Eden on or about June 3, 2019 and has remained a member ever since. (Dkt. No. 66-1 ("Mills Decl.") ¶ 1.) Therefore, the Court finds that plaintiff has sufficiently alleged Article III standing under the citizen suit provision of the CWA. See Pac. Lumber Co., 230 F.3d at 1147 (citing Washington State Apple, 432 U.S. at 343).

Defendants raise, and therefore the Court addresses, for the first time, defendants' argument that plaintiff's FSAC should be dismissed as to the individual defendants based on the assertions that (1) Eden's notice of intent to sue ("NOI") fails to provide notice as to the individual defendants and (2) Eden's FSAC fails to state a cause of action against Jakov Laptalo and Carl Italiano.4 Defendants fail to provide any authority for their proposition that a notice of intent to sue fails to meet the standard set out in 40 C.F.R. §135.3(a) where one of the defendants to whom the letter is addressed is not alleged therein as a person responsible for the alleged violation. Moreover, the NOI, which is attached as Exhibit A to the FSAC, clearly includes Michael Laptalo and Jakov Laptalo as recipients of the letter and states in its introduction "To Officers, Directors, Operators, Property Owners and/or Facility Mangers of" Laptalo Enterprises. (Dkt. No. 62-1 ("NOI") at 1.) Therefore, the Court finds that the NOI sufficiently puts the individual defendants on notice that their liability stems from their status as legally responsible persons or duly authorized representatives thereof.5

Related to the sufficiency of Eden's allegations against individual defendant Jakov Laptalo, the Ninth Circuit has found that the "responsible corporate office" doctrine applies to the CWA and that "[u]nder the CWA a person is a `responsible corporate officer' if the person has authority to exercise control over the corporation's activity that is causing the discharges." United States v. Iverson, 162 F.3d 1015, 1025 (9th Cir. 1998). In defining the scope of the "responsible corporate officer doctrine, the Supreme Court has held that "the Government establishes a prima facie case when it introduces evidence sufficient to warrant a finding by the trier of the facts that the defendant had, by reasons of his position in the corporation, responsibility and authority either to prevent in the first instance or to promptly correct, the violation complained of, and that he failed to do so." United States v. Park, 421 U.S. 658, 668 (1975) (emphasis supplied).

Here, Eden has alleged that defendant Jakov Laptalo is the CEO, or chief executive officer, of Laptalo Enterprises. Defendants do not, and cannot genuinely argue, that he does not have, by virtue of his position as CEO, responsibility and authority either to prevent in the first instance or to promptly correct, the violation of which plaintiff now complains and alleges had not been corrected. Accordingly, the Court finds that defendant Jakov Laptalo's conduct falls within the scope of the responsible corporate officer doctrine and therefore that plaintiff has sufficiently stated a claim against him.

Thus, defendants' motion to dismiss plaintiff's FSAC is DENIED AS MOOT with respect to individual defendant Carl Italiano, who is now dismissed (Dkt. No. 72) and DENIED on all grounds asserted as to remaining defendants.

This Order terminates Docket Number 63.

IT IS SO ORDERED.