DEBRA M. BROWN, District Judge.
In this citizen suit under the Clean Air Act ("CAA"), this Court must determine whether 42 U.S.C. § 7604(a)(3) authorizes the Court to exercise subject matter jurisdiction over a challenge to a permit issued for the construction of a silicon manufacturing plant in Tishomingo County, Mississippi, that will be a major source of air pollutants. Plaintiffs 16 Front Street LLC and C. Richard Cotton have moved for a preliminary injunction against the permit holder, Defendant Mississippi Silicon, LLC ("MS Silicon"), seeking to halt the plant's ongoing construction. As grounds for injunctive relief, Plaintiffs allege that because the permit was issued contrary to procedural public participation requirements of the CAA and its implementing regulations, MS Silicon is effectively constructing the plant "without a permit" such that jurisdiction under § 7604(a)(3) is conferred. Because the Court concludes, however, that § 7604(a)(3)'s "without a permit" language is not implicated by Plaintiffs' causes of action against MS Silicon, the Court lacks subject matter jurisdiction over Plaintiffs' claims against MS Silicon. As such, Plaintiffs' claims against MS Silicon must be dismissed, with Plaintiffs' motion for a preliminary injunction against MS Silicon denied as moot.
Before the merits of Plaintiffs' motion for a preliminary injunction can be reached, the Court must confirm that it has subject matter jurisdiction over Plaintiffs' underlying claims against MS Silicon. Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006) ("[C]ourts . . . have an independent obligation to determine whether subject-matter jurisdiction exists. . . ."). It is well established that when considering the issue of subject matter jurisdiction, a district court has "broad discretion to consider [any] relevant and competent evidence." 5B Wright & Miller, Federal Practice & Procedure § 1350 & n.47 (3d ed.) (collecting cases). Here, as is often the case, where the jurisdictional inquiry "is directed solely at the sufficiency of the complaint's jurisdictional allegations, then it is unlikely that affidavits or other materials outside the pleadings will be necessary." Id. Thus, the Court turns to Plaintiffs' allegations in reviewing the present jurisdictional issue.
As explained in more detail below, Plaintiffs have filed an original and an amended complaint in this action. Doc. #1; Doc. #69. "[A]n amended complaint supersedes [an] original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading." King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Plaintiffs' amended complaint does not specifically refer to or adopt the earlier pleading. See Doc. #1; Doc. #69. Accordingly, Plaintiffs' amended complaint supersedes their original complaint. King, 31 F.3d at 346.
While a complaint may not be amended to "create subject matter jurisdiction when none exists," a court can look to an amended complaint to determine whether it has subject matter jurisdiction over the original claims, so long as any changes in the allegations are of the "technical" or "formal" variety. See In re Katrina Canal Breaches Litig., 342 Fed. App'x 928, 931 (5th Cir. 2009). Here, except for two paragraphs that would fairly be described as argument, the factual allegations in the amended complaint against MS Silicon are substantively identical to the factual allegations in the original complaint.
Plaintiffs are 16 Front Street LLC and C. Richard Cotton. Doc. #69 at ¶¶ 1-2. 16 Front Street is a Delaware limited liability company that owns real property in Burnsville, Tishomingo County, Mississippi.
Defendants are MS Silicon and Gary C. Rikard.
MS Silicon is in the midst of constructing a silicon manufacturing plant ("Plant") in Burnsville, Tishomingo County. Doc. #69 at ¶ 14. The Plant will be a major source of air pollutants. Id. at ¶¶ 15, 55-56. Plaintiffs allege that, because of their connections to Tishomingo County, they will be adversely affected by emissions from the Plant. Id. at ¶¶ 1-2, 15, 71.
In August 2013, MS Silicon applied for a preconstruction permit with MDEQ to construct the Plant. Id. at ¶ 26. In support of its application, MS Silicon submitted an air quality impact modeling report to MDEQ in early October 2013. Id. at ¶ 32. On or about October 21, 2013, MDEQ made a preliminary determination to issue a permit to MS Silicon. Id. at ¶ 33.
MDEQ published notice of its preliminary determination to issue a permit to MS Silicon in the Northeast Mississippi Daily Journal on October 24, 2013. Id. at ¶ 34. That notice specified that, no later than November 22, 2013, the public could submit comments on the application and MDEQ's preliminary determination to issue a permit. Id. at ¶¶ 34-35. Additionally, in October 2013, MDEQ sent to the Burnsville Public Library copies of the notice, MDEQ's PSD air quality analysis project summary, MDEQ's preconstruction review and preliminary determination to issue the permit, and a draft of the permit. Id. at ¶¶ 38-39. Plaintiffs allege that although the letter sent by MDEQ to the Burnsville Public Library was dated October 23, 2013,
On or about November 22, 2013, MS Silicon submitted a supplemental air quality impact modeling report to MDEQ. Id. at ¶ 44. According to Plaintiffs, neither MS Silicon's permit application nor the supporting air quality modeling reports that MS Silicon submitted to MDEQ were made available to the public. Id. at ¶¶ 41, 44, 51.
On November 27, 2013, MDEQ granted MS Silicon's application and issued a permit authorizing MS Silicon to construct a new silicon manufacturing facility—the Plant.
On September 29, 2014, Plaintiffs filed their original complaint against MS Silicon, alleging this Court's subject matter jurisdiction under 42 U.S.C. § 7604(a)(3). Doc. #1 at ¶ 6. Plaintiffs alleged that MS Silicon is constructing a new major emitting facility without a permit, in violation of the CAA, 42 U.S.C. § 7475(a)(1), and Mississippi regulation APC-S-5. Id. at ¶¶ 65-68. Plaintiffs claimed that deficiencies in MDEQ's permitting process violated procedural requirements regarding public participation imposed by the CAA and its implementing regulations, such that MS Silicon did not obtain a valid permit. Id. at ¶¶ 25-44. Plaintiffs also claimed that MS Silicon's ongoing construction of the Plant deviated from the materials it submitted to MDEQ in its permit application, and included the construction of unpermitted units. Id. at ¶¶ 45-60, 66-67. As a remedy, Plaintiffs sought both damages and injunctive relief, specifically: (1) an order permanently enjoining MS Silicon from continuing to construct the Plant until it obtains a permit that complies with all of the statutory requirements of the CAA and remedies the procedural defects alleged; (2) an assessment of civil penalties against MS Silicon under 42 U.S.C. §§ 7413(d) & 7604; and (3) an award of costs and fees, including reasonable attorney and expert witness fees, under 42 U.S.C. § 7604. Id. at 13.
On October 1, 2014, Plaintiffs filed a motion for a temporary restraining order and preliminary injunction. Doc. #3. In their supporting brief, Plaintiffs request that the Court immediately enjoin MS Silicon from continuing to construct the Plant, contending that, based on the allegations in the complaint and exhibits submitted with the motion, they have "established a clear statutory violation mandating injunctive relief. . . ." Doc. #19 at 1-2, 10.
On October 6, 2014, MS Silicon filed its opposition to the motion, arguing that Plaintiffs' motion for injunctive relief should be denied on numerous grounds, including lack of jurisdiction,
Plaintiffs submitted a reply brief in support of their motion on October 14, 2014, arguing that CleanCOALition is distinguishable and that its holding is not binding in this case. Doc. #29 at 8-11. On October 20, 2014, MS Silicon filed a motion for leave to file a surreply brief opposing Plaintiffs' motion for a temporary restraining order. Doc. #33. The motion for leave was later granted by text order on November 10, 2014.
On November 11, 2014, U.S. District Judge Sharion Aycock, then assigned to this case, denied Plaintiffs' motion for a temporary restraining order but granted Plaintiffs' request for a hearing as to the necessity of a preliminary injunction. Doc. #35. In her order ("Aycock Order"), Judge Aycock first considered whether the Court had subject matter jurisdiction over Plaintiffs' claims against MS Silicon under the CAA's "citizen suit" provision. Id. at 7. Leaning towards Plaintiffs' position regarding the applicability of CleanCOALition, she found that the instant case did not easily fit "within the confines of" the Fifth Circuit's opinion "in that while a PSD permit was issued, that permit does not facially comply with the mandates of the CAA" and Mississippi's implementing regulations. Id. at 9.
Judge Aycock ultimately did not decide whether the Court had subject matter jurisdiction over Plaintiffs' claims against MS Silicon. Id. at 9-10. Instead, she denied Plaintiffs' motion for a temporary restraining order on the ground that "[b]ecause of the uncertainty of subject matter jurisdiction in this case, the Court cannot say that Plaintiffs have met their burden of persuading the Court that there is a substantial likelihood of success on the merits." Id. at 9. Judge Aycock held that Plaintiffs' motion for a preliminary injunction would be heard, and ordered the parties to provide additional briefing on whether the Court has subject matter jurisdiction over Plaintiffs' claims against MS Silicon.
Following Judge Aycock's Order, Nucor, a company that operates a plant in Decatur, Alabama, moved to intervene in this action in support of Plaintiffs. Doc. #45. In its brief supporting its motion for intervention, Nucor articulates environmental, economic, and procedural harms that it would suffer as a result of emissions from MS Silicon's new facility. Doc. #45-1 at 10-11. Additionally, Nucor argues that MS Silicon and MDEQ intentionally short-circuited the public participation process in order to prevent Nucor from commenting on the draft permit. Id. at 7-9.
On November 21, 2014, Plaintiffs and MS Silicon submitted their initial briefs on the jurisdictional issue. Doc. #42; Doc. #43. That same day, Nucor moved for leave to file a brief recommending that the Court exercise subject matter jurisdiction. Doc. #47. Nucor attached its proposed brief to the motion. Doc. #47-2.
On November 24, 2014, during the jurisdictional briefing period, the case was reassigned to the undersigned district judge. Doc. #49.
On January 23, 2015, Plaintiffs filed an amended complaint as of right pursuant to Rule 15(a)(1)(B), which joined Rikard, in his official capacity as Executive Director of MDEQ and its Permit Board, as an additional defendant in the case. Doc. #69. Plaintiffs' amended complaint, which contains essentially the same allegations against MS Silicon as the original complaint, adds a claim that MDEQ, in the process of granting MS Silicon's permit application, violated the CAA, 42 U.S.C. §§ 7475(a), 7604(a)(1), (f)(3) & (f)(4), and Mississippi regulation APC-S-5. Id. at ¶¶ 79-86.
On February 12, 2015, MS Silicon moved to file a supplemental brief addressing the impact of the amended complaint on the preliminary injunction motion.
On March 13, 2015, Rikard moved to dismiss Plaintiffs' claims against him for lack of subject matter jurisdiction and for failing to state a claim, and joined MS Silicon's opposition to Plaintiffs' motion for a preliminary injunction. Doc. #89; Doc. #90. Although Rikard joined MS Silicon's opposition, Plaintiffs did not revise their motion for a preliminary injunction after amending their complaint, and thus continue to seek preliminary injunctive relief only against MS Silicon. Plaintiffs filed their opposition to Rikard's motion to dismiss on April 6, 2015. Doc. #104.
On May 8, 2015, this Court held a lengthy hearing on the question of whether it has subject matter jurisdiction over Plaintiffs' claims against MS Silicon and on whether Plaintiffs' motion for a preliminary injunction against MS Silicon should be granted. Doc. #110.
Before turning to jurisdiction, the Court notes that the following motions remain pending: (1) Plaintiffs' motion for a preliminary injunction, Doc. #3; (2) MS Silicon's motion to strike portions of proposed intervenor Nucor's supplemental brief on jurisdiction, Doc. #97; (3) MS Silicon's motion to strike portions of Plaintiffs' supplemental brief on jurisdiction, Doc. #98; (4) MS Silicon's motion for leave to file an updated declaration regarding the status of construction of the Plant, Doc. #109; and (5) Nucor's motion to submit an initial brief recommending that the Court exercise subject matter jurisdiction, Doc. #47. Regarding the last motion, the Court denied Nucor's motion to participate in the hearing on Plaintiffs' motion for a preliminary injunction, Doc. #106, because Nucor had been "granted ample opportunity to brief the legal issues. . . ." Doc. #108. Accordingly, Nucor's motion to submit its initial brief on subject matter jurisdiction, Doc. #47, to which Nucor attached its proposed brief, Doc. #47-2, is hereby granted nunc pro tunc. Because the Court finds it lacks jurisdiction over Plaintiffs' claims against MS Silicon, however, as discussed below, the remaining motions will be denied as moot.
With respect to their claims against MS Silicon, Plaintiffs allege that the Court has subject matter jurisdiction under 42 U.S.C. § 7604(a)(3). Doc. #69 at ¶ 12. Section 7604(a)(3) is the codification of § 304(a)(3) of the CAA,
The requirements for bringing a citizen suit under § 7604(a) are jurisdictional. See CleanCOALition, 536 F.3d at 478 (holding failure to prove that case fell within bounds of § 7604(a)(1) or (a)(3) meant "that subject matter jurisdiction is lacking in this case").
Section 7604(a)(3) provides that a person may bring a civil action:
42 U.S.C. § 7604(a)(3). The relevant provision here is Part C, which requires that any person who proposes to construct or constructs a "major emitting facility" of air pollution in certain geographic areas
"States have the primary role in administering and enforcing the various components of the PSD program." 57 Fed. Reg. 28,093, 28,095 (June 24, 1992); see also Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 491 (2004). Each state must submit to the EPA a State Implementation Plan ("SIP") for review and approval. 42 U.S.C. § 7410(a)(1). A state agency must be designated to review applications for PSD permits, and each SIP must use the "specific definitions" established in EPA regulations unless the state's definitions are more stringent. 40 C.F.R. § 51.165(a)(1).
Of relevance here, federal regulations implementing the CAA appear to require: (1) a 30day public comment period; (2) an "opportunity for a public hearing for interested persons" regarding the permit application; and (3) that the applicant "make available . . . in each region in which the proposed source would be constructed a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination." 40 C.F.R. §§ 51.161(b)(2), 51.166(q)(2)(v), 51.166(q)(2)(ii).
In Mississippi, the agency designated to develop the rules and regulations that implement the CAA, including the PSD program, is the Air and Water Pollution Control Commission, which is part of MDEQ. Mississippi's SIP, regulation APC-S-5, has been approved by the EPA. Doc. #69 at ¶ 17. Mississippi has established procedures for both administrative and state court review of CAA permits. See Miss. Code Ann. §§ 49-17-29(4) & (5); 11-2-2 Miss. Code R. § 2.4.
Plaintiffs allege that MS Silicon and MDEQ violated the three procedural requirements of the CAA's PSD program mentioned above with regard to the permitting of the Plant by: (1) establishing a comment period that was only 29 days long, rather than the required 30-day period; (2) failing to make available to the public a copy of all the materials MS Silicon submitted in support of its permit application; and (3) declining to hold a public hearing on MS Silicon's application. Doc. #69 at ¶¶ 37, 41-43, 45-47. Plaintiffs argue that because MS Silicon and MDEQ did not follow these requirements, the permit issued by MDEQ to MS Silicon is not a permit "issued in accordance with PSD and SIP." Doc. #19 at 3. According to Plaintiffs, because MS Silicon lacks a procedurally valid PSD permit authorizing construction of the Plant, it is constructing the Plant "without `a permit required under part C of subchapter I' of the CAA," and this Court therefore has jurisdiction to enjoin MS Silicon from continuing construction of the facility under § 304(a)(3). Doc. #42 at 9.
MS Silicon does not dispute that the Plant will be a "new major emitting facility" within the meaning of the statute or that it is required to obtain a PSD permit to construct the Plant. Rather, MS Silicon argues that it has obtained a PSD permit, that it is not constructing the Plant "without a permit," and that this Court therefore lacks jurisdiction under § 7604(a)(3). Doc. #25 at 6. Further, MS Silicon argues that Plaintiffs cannot use the citizen suit provision to collaterally attack a facially valid PSD permit issued by the appropriate state agency.
Whether the Court has jurisdiction over the claims against MS Silicon turns on whether the scope of "without a permit" includes a PSD permit that is alleged to be defective for failing to comply with the PSD program's procedural requirements. This is a question of statutory interpretation.
"[T]he starting point in every case involving construction of a statute is the language itself." Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) ("Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.") (internal quotation marks omitted). "If the intent of Congress is clear, that is the end of the matter; for the court . . . must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Thus, "[t]he plain meaning of a statute's language governs its construction unless so doing would clearly violate congressional intent or lead to absurd results." Hope Med. Grp. for Women v. Edwards, 65 F.3d 418, 425 (5th Cir. 1995). The United States Supreme Court has recognized that "[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
In the present case, the clear and plain text of § 7604(a)(3) does not support Plaintiffs' jurisdictional argument.
Common dictionary definitions reveal that the plain meaning of "permit" is a document giving the bearer permission to perform an act. See "Permit," Black's Law Dictionary (10th ed. 2014) (defining "permit" as "[a] certificate evidencing permission; an official written statement that someone has the right to do something"); see also "Permit," Oxford English Dictionary Online, http://www.oed.com/view/Entry/141221?rskey=AU9gdI&result=1&isAdvanced=false (last visited July 27, 2015) (defining "permit" as "[a] document giving permission to do something; a licence, warrant, or pass. Formerly esp.: a licence to import or export dutiable goods."). When framed in this fashion, the plain meaning of § 7604(a)(3) is that the citizen suit provision does not apply where the constructing party has received a document giving it permission to undertake the construction, and the document is of the type required under Part C (when relating to significant deterioration of air quality) or Part D (when relating to non-attainment).
Part C,
In addition to the clear language of § 7604(a)(3), the broader statutory context further demonstrates that the plain meaning of "without a permit required under Part C" does not include a permit alleged to be invalid due to non-compliance with permit requirements beyond those specifically enumerated by the part. See Reich v. Arcadian Corp., 110 F.3d 1192, 1195-96 (5th Cir. 1997) ("When we evaluate the terms of a statute, the Supreme Court has cautioned us to abide by a `fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.'") (quoting Deal v. United States, 508 U.S. 129, 132 (1993)). The CAA's statutory scheme, particularly Part C, indicates that, had Congress intended to do so, it could very well have written the citizen suit provision in a way that made clear that jurisdiction existed over such challenges.
Subsection (a)(2) of § 7475 states:
(emphases added). Based on the text of this section, it is clear that Congress knew how to specifically include references to procedural and regulatory requirements but chose not to do so in § 7604(a)(3) or § 7475(a)(1) (the provision setting forth the permit requirement). This omission supports the conclusion that § 7604(a)(3)'s use of "permit required under Part C" was not intended to include the procedural compliance argued by Plaintiffs. Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (ellipsis in original) ("Where Congress includes particular language in one section of a statute but omits it in another . . ., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."); see generally Bos Dairy, L.C. v. U.S. Dep't of Agric., 209 F.3d 785, 788 (5th Cir. 2000) (applying omission canon in determining plain meaning); In re Mirant Corp., 303 B.R. 319, 327 (N.D. Tex. 2003) (same). More importantly, the provision solidifies the distinction between the permit requirement of Part C — which is only subject to certain statutory requirements — and Part C's requirements governing "proposed permits" — which are subject to regulations and hearing requirements.
Thus, the text of § 7604(a)(3), viewed in isolation and in the broader context of the statutory scheme, simply does not support Plaintiffs' contention that the Court has jurisdiction where a defendant possesses a PSD permit that sets forth valid emissions limitations. Likewise, Plaintiffs have not identified, and this Court has been unable to find, anything in the text of the CAA
The conclusion that the plain meaning of "without a permit" in § 7604(a)(3) does not authorize jurisdiction in this case is consistent with the existing Fifth Circuit precedent in CleanCOALition, as argued by MS Silicon.
In CleanCOALition, environmental groups challenged the proposed construction of a coal plant in Texas under the CAA's citizen suit provision, alleging that the permit application of the coal company, TXU Power, did not comply with the CAA's preconstruction emissions requirements because the permit application submitted was incomplete. 536 F.3d at 469, 477. The plaintiffs sought to enjoin construction on the plant after the state issued a preliminary notice of its intent to grant TXU Power's application but before a final permit had issued or construction had begun. Id. at 469-71. The plaintiffs argued that the court had jurisdiction under § 7604(a)(3) because "without a permit" means "without a permit that complies with the [CAA]," including a complete permit application. Id. at 479 & n.13. The Fifth Circuit rejected this argument, holding that "§ 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."
MS Silicon argues that CleanCOALition controls the outcome of this case, and that Plaintiffs' suit is nothing more than a collateral attack on a facially valid permit. Doc. #25 at 6-7. Plaintiffs contend that CleanCOALition is not controlling because the opinion "did not answer . . . whether § 7604(a)(3) authorizes citizen suits against defendants who commence construction . . . with a permit that is not a PSD permit [or] whether [the statute] authorizes citizen suits after a final permit is issued without strict compliance with the public participation requirements mandated by PSD." Doc. #29 at 9; Doc. #42 at 9. In other words, Plaintiffs submit that CleanCOALition represents a challenge to the substantive, rather than procedural, standards of a potential PSD permit, a permit that was later issued. In contrast, Plaintiffs argue here that the procedural defects in the permitting process mean that the process never yielded a valid permit and that MS Silicon is thus constructing the Plant "without a permit." Doc. #42 at 9. In short, Plaintiffs urge this Court to distinguish between a challenge to a permit that is alleged to be invalid because the permit's substantive requirements on their face do not satisfy the CAA, and a challenge to a permit that is alleged to be invalid because the issuing authority did not follow the procedural requirements of the CAA.
Plaintiffs' attempt to distinguish CleanCOALition is not persuasive. There is no basis in § 7604(a)(3)'s use of the language "without a permit" to allow challenges on procedural grounds and yet not allow challenges to permits on substantive grounds. Indeed, at oral argument, Plaintiffs' counsel conceded that § 7604(a)(3) does not distinguish between a procedural and substantive challenge. Regardless, even if the facts of CleanCOALition are distinguishable from this matter, the Fifth Circuit's statement that § 7604(a)(3) does not apply where a defendant holds a permit is consistent with this Court's interpretation of the statute. See O'Dell v. N. River Ins. Co., 614 F.Supp. 1556, 1559 (W.D. La. 1985) ("[D]icta by one [Fifth Circuit] panel stands as persuasive authority only, although it is entitled to great weight absent a contrary holding in the circuit.") (emphasis omitted); see also Turner v. Raynes, 611 F.2d 92, 94 (5th Cir. 1980) (Supreme Court dicta entitled to "great weight because of [its] source").
Apparently finding no comfort in the text of the statute, Plaintiffs cite an array of nonbinding authority in their brief that is easily distinguishable. Doc. #19 at 4; Doc. #29 at 3-4, 7, 11, 15; Doc. #42 at 4-10; Doc. #92 at 8. Such authorities, which include administrative decisions, either: (1) rely on wholly different statutory schemes;
Plaintiffs ask this Court to interpret § 7604(a)(3)'s "without a permit" language to include looking past the permit itself to uncover alleged procedural violations in the permitting process that are said to render the permit invalid.
Although the Court lacks jurisdiction over Plaintiffs' claims against MS Silicon, it remains to be determined whether the Court lacks jurisdiction over the entire case such that it must also dismiss Plaintiffs' claims against Rikard, who was not a party to Plaintiffs' original complaint.
When Plaintiffs filed their initial complaint, they included only the claims against MS Silicon, which this Court has found should be dismissed for lack of jurisdiction. Doc. #1 at ¶ 6. Rikard, and the claims against him, were subsequently added through Plaintiffs' amended complaint. Doc. #69. Although amended claims are often dismissed where there is no jurisdiction over the original claims,
Fed. R. Civ. P. 15(c)(1).
It is presently unclear whether the claims against Rikard relate back to the original complaint. The claims against Rikard appear to arise out of the same "conduct, transaction, or occurrence" as the claims against MS Silicon. See Watkins, 922 F.2d at 265 ("The common thread running through these opinions is that the relation-back doctrine is controlled not by the caption given a particular cause of action, but by the underlying facts upon which the cause of action is based."). Indeed, Plaintiffs' amended complaint adds no new factual allegations regarding the permitting violations alleged in the initial complaint but merely adds Rikard, an officer of MDEQ, as a party; adds a separate claim against Rikard; and amends the prayer for relief. Compare Doc. #1 with Doc. #69.
However, "[u]nder federal law, adding a new defendant generally does not relate back to the filing of the original complaint unless" Rule 15(c)(1)(C) also applies. Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 807 (5th Cir. 2006).
Whether Plaintiffs' claims against Rikard relate back to the original complaint is a jurisdictional issue that the Court is obligated to consider. Because the issue has not been briefed or argued by the parties, it would not be appropriate for the Court to address the issue now. The Court will therefore order Plaintiffs and Rikard to submit a supplemental brief addressing whether Plaintiffs' claims against Rikard relate back to the original complaint.
For the reasons discussed above, the Court does not have subject matter jurisdiction over Plaintiffs' claims against MS Silicon; thus, the claims against MS Silicon are
Additionally, Plaintiffs and Rikard are
