United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.
action, plaintiff Coosa Riverkeeper, Inc.
(“Riverkeeper”) alleges defendant Oxford Water
Works and Seward Board (“Oxford”) is in violation
of the Clean Water Act (“CWA”) on account of
illegal discharges from the Oxford Tull C. Allen Wastewater
Treatment Plant (“the Oxford Plant”) into the
Choccolocco Creek. (Doc. 1 (“Complaint”)).
See 33 U.S.C. §§ 1251-1376. Oxford has
moved to dismiss the complaint for lack of jurisdiction and
for failure to state a claim. See Fed. R. Civ. P.
12(b)(1) and (12)(b)(6). (Docs. 6 & 7). Riverkeeper has
moved to strike one of Oxford's arguments in its reply
brief. (Doc. 22). Riverkeeper has also moved to file an
amended complaint (doc. 26) and Oxford has moved for a
protective order (doc. 18). Upon consideration, the court
finds the motion to dismiss is due to be granted in part and
denied in part, the motion to strike is due to be denied, the
motion amend the complaint is due to be granted, and the
motion for a protective order is moot.
enacted the Clean Water Act (“CWA”) “to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters.” 33 U.S.C. §
1251. The CWA “establishe[s] a National Pollution
Discharge Elimination System [“NPDES”] . . . that
is designed to prevent harmful discharges into the
Nation's waters.” Nat'l Ass'n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 650
(2007). “Generally speaking, the NPDES requires
dischargers to obtain permits that place limits on the type
and quantity of pollutants that can be released into the
Nation's waters.” S. Fla. Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004).
The NPDES permit “defines, and facilitates compliance
with, and enforcement of, a preponderance of a
discharger's obligations under the [Act].” EPA
v. California ex rel. State Water Res. Control Bd., 426
U.S. 200, 205 (1976). “The Environmental Protection
Agency (‘EPA') initially administers the NPDES
permitting system for each State, but a State may apply for a
transfer of permitting authority to state officials. If
authority is transferred, then state officials . . . have the
primary responsibility for reviewing and approving NPDES
discharge permits, albeit with continuing EPA
oversight.” Nat'l Ass'n of Home
Builders, 551 U.S. at 650 (citations omitted). The State
of Alabama is authorized to administer the NPDES permit
system in Alabama and does so through the Alabama Department
of Environmental Management (“ADEM”).
citizen may bring a civil suit to enforce the provisions of
the CWA. 33 U.S.C. § 1365, et seq. The Act
provides for a 60-day notice period prior to the institution
of a citizen suit to give the violator an opportunity to
bring itself into compliance with the CWA. See Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.
167, 174-75 (2000) (“... [C]itizens lack statutory
standing under § 505(a) to sue for violations that have
ceased by the time the complaint is filed.”). The CWA
“also bars a citizen from suing if the [Environmental
Protection Agency] or State has already commenced, and is
‘diligently prosecuting, ' an enforcement
action.” Id. (quoting 33 U.S.C. §
alleges in this action that the Oxford Plant has continuously
violated the CWA since 1992. It further asserts that the
plant has been subject to multiple violation notices,
enforcement actions, and administrative orders. (Complaint at
¶ 1). Despite this history, Riverkeeper alleges, the
Oxford Plant continues to violate its NPDES permit.
(Id. at ¶ 2). Riverkeeper states that it
“repeatedly warned ... ADEM of the high levels of
E. coli and chlorine coming from the plant's
discharge pipe into the Choccolocco Creek.” (Doc. 13 at
4 (footnote omitted)).
sent a 60-day notice to the Oxford Plant, Oxford officials,
and State authorities on August 3, 2016, informing them of
Riverkeeper's intention to file a citizen's suit to
address the multitude of violations at the plant, including
unpermitted E. coli, chlorine, and formaldehyde
discharges. (Complaint at ¶ 3 and Ex. 1 (Doc. 1 at
24-49)). The State of Alabama brought a civil enforcement
action in state court against Oxford on September 30, 2016.
(Id. at Ex. 2 & Attachment A (Doc. 1 at 50-70)).
filed the present suit on October 24, 2016, alleging in three
counts that Oxford has violated the CWA. Specifically,
Riverkeeper alleges (1) Oxford discharged E. coli
and chlorine in violation of its permit discharge
limitations; (2) Oxford failed to properly report its daily
violations of its permit; and (3) the Oxford plant is
discharging formaldehyde without a permit. (Complaint at
15-20). The claims all concern Oxford's NPDES Permit No.
AL0058408 that was issued to the Oxford Waterworks and Sewer
Board in 1989. It was reissued by ADEM on August 28, 2013,
and expires on August 31, 2018. (Complaint at ¶ 34).
Riverkeeper's claims concern wastewater releases from
Outfall 0011, a discharge pipe to Choccolocco Creek, which is
authorized under Oxford's NPDES permit. (Id. at
¶ 32). Riverkeeper seeks (1) a declaration by this court
that Oxford violated the CWA; (2) injunctive relief,
compliance verification, outside sampling, modification of
the NPDES permit to require sampling, and limits on
formaldehyde; (3) an order ensuring enforcement of
pretreatment standards for formaldehyde; (4) civil penalties;
and (5) attorney's fees. (Id. at 20-21).
filed a motion to intervene in the state court action on
October 3, 2016. (Doc. 7-1 at 2). That motion has been
granted. (See Court Exh. 1 at doc.
35). The “Complaint in
Intervention” includes the following claims: (1)
self-reported discharge violations (Count I); (2) monitoring
violations (Count II); (3) unpermitted discharges (Count
III); (4) reporting violations (Count IV); (5) improper
sampling procedures (Count V); and (6) maintenance and
operation of the plant violations (Count VI). (Id.
has moved to dismiss this case premised on three grounds.
First, because the State of Alabama is “diligently
prosecuting” a state court action for violations of its
NDPES permit, Oxford argues this lawsuit is barred under 33
U.S.C. § 1365(b)(1)(B). (Doc. 7 at 2). Second,
Oxford argues this court lacks jurisdiction over the case
because Riverkeeper's formaldehyde claim concerns past
discharges and Riverkeeper cannot show that such discharges
are likely to recur in the future. (Id.) Third,
Oxford argues that Riverkeeper's formaldehyde claims are
barred as a matter of law by the “long-standing
‘permit shield'” defense. (Id.) The
court conducted a hearing on the motion to dismiss, and the
parties have submitted post-hearing briefs. (Docs. 31 &
MOTION TO DISMISS STANDARD
standard of review on a motion to dismiss is typically
straight-forward. This case is an exception. Because certain
of Oxford's challenges in the motion concern to
subject-matter jurisdiction and are presented under Rule
12(b)(1) of the Federal Rules of Civil Procedure, the
standard of review may vary.
When presented with a facial attack on the complaint, the
court determines whether the complaint has sufficiently
alleged subject-matter jurisdiction. Sinaltrainal [v.
Coca-Cola Co.], 578 F.3d [1252, ] 1260 [(11th Cir. 2009)].
The court proceeds as if it were evaluating a Rule 12(b)(6)
motion; that is, it views the complaint in the light most
favorable to the plaintiff and accepts all well-pled facts
alleged in the complaint as true. Id.
On the other hand, a factual attack questions “the
existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are
considered.” Id. (citing Lawrence v.
Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). When a
court is confronted with a factual attack, the standard of
review is considerably different:
[T]he trial court may proceed as it never could under
12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual
12(b)(1) motion is the trial court's
jurisdiction-it's very power to hear the case-there is
substantial authority that the trial court is free to weigh
the evidence and satisfy itself as to the existence of its
power to hear the case. In short, no presumptive truthfulness
attaches to plaintiff's allegations, and the existence of
disputed material facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional
Lawrence, 919 F.2d at 1529 (citing Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir.), cert.
denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212
Black Warrior Riverkeeper, Inc. v. Shannon, LLC,
2:13-CV-00763-RDP, 2014 WL 1246473, *3 (N.D. Ala. Mar. 24,
2014) (J. Proctor).
initially moves to dismiss Riverkeeper's claims for lack
of subject-matter jurisdiction premised on the allegation
that ADEM is currently “diligently prosecuting”
an enforcement action concerning Riverkeeper's claims.
The first question is whether the “diligent
prosecution” bar in the CWA (33 U.S.C. §
1365(b)(1)(B)) is a jurisdictional mandate. If it is
jurisdictional, the review standards of Federal Rule of Civil
Procedure 12(b)(1) are applicable. If it is not
jurisdictional, this aspect of the motion is to be reviewed
pursuant to Federal Rule of Civil Procedure 12(b)(6). La.
Envtl. Action Network v. City of Baton Rouge, 677 F.3d
737, 745 (5th Cir. 2012).
extent that Oxford challenges the court's subject-matter
jurisdiction over the formaldehyde claims because they are
“wholly past” and because of the applicability of
the “permit shield defense” (id. at
18-21), the foregoing standards apply.
Diligent Prosecution under § 1365(b)(1)(B)
the diligent prosecution bar is jurisdictional has not been
decided by the Eleventh Circuit Court of Appeals. The Fifth
Circuit Court of Appeals has extensively considered the
matter and concluded that the bar is not jurisdictional.
La. Envtl. Action Network, 677 F.3d at 749. After
wading through significant Supreme Court precedent, the Fifth
Circuit determined the bar is not jurisdictional because
“Congress has not clearly mandated that the CWA's
‘diligent prosecution' provision is
jurisdictional.” Id. at 747. The court stated:
The language of § 1365(b)(1)(B) does not “clearly
state[ ]” that the “diligent prosecution”
bar is jurisdictional. Arbaugh [v. Y&H
Corp.], 546 U.S. [500, ] 515, 126 S.Ct. 1235');">126 S.Ct. 1235 [(2006)].
This provision “does not speak in jurisdictional terms
or refer in any way to the jurisdiction of the district
courts.” Zipes v. Trans World Airlines, Inc.,
455 U.S. 385');">455 U.S. 385, 394, 102 S.Ct. 1127');">102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).
Although it is true that § 1365(b)(1)(B) is phrased in
mandatory language, the Supreme Court has “rejected the
notion that ‘all mandatory prescriptions, however
emphatic, are ... properly typed jurisdictional.'”
Henderson [v. Shinseki], [562 U.S. 428');">562 U.S. 428,
439, ] 131 S.Ct. at 1205 [(2011)] (alteration in original)
(citation omitted). Thus, the language of §
1365(b)(1)(B) does not provide a clear indication that
Congress intended the provision to be jurisdictional.
The placement of the “diligent prosecution”
provision within the CWA also does not indicate that Congress
“wanted [the] provision to be treated as having
jurisdictional attributes.” Id. at 1205.
Congress placed § 1365(b)(1)(B) in the
“Notice” section of the CWA citizen suit
provision. See Id. (“[T]he title of a statute
or section can aid in resolving an ambiguity in the
legislation's text.”) (alteration in original)
(citation and internal quotation marks omitted). The
“Notice” section also includes the requirement
that a citizen provide notice of the alleged violation to the
alleged violator, the State, and the EPA sixty-days prior to
filing a citizen suit. See 33 U.S.C. §
1365(b)(1)(A). The sixty-day notice provision is a typical
“claim-processing rule.” See Henderson,
131 S.Ct. at 1203; Zipes [v. Trans World
Airlines, Inc.], 455 U.S. [385, ] 398, 102 S.Ct. 1127');">102 S.Ct. 1127
[(1982)] (holding that Title VII's requirement that
claimants timely file a discrimination charge with the EEOC
before filing an action in federal court is
nonjurisdictional). The placement of the “diligent
prosecution” bar in the “Notice” section,
alongside a typical claim-processing rule, suggests that
Congress intended the “diligent prosecution” bar
to be a claim-processing rule. See Henderson, 131
S.Ct. at 1205 (finding that the placement of a provision in a
subchapter entitled “Procedure” indicated that
“Congress regarded the 120-day limit as a
Furthermore, the “diligent prosecution” provision
is “located in a provision ‘separate' from
those granting federal courts subject-matter jurisdiction
over ... [the] claims.” Reed Elsevier, Inc.
[v. Muchnick], [559 U.S. 154');">559 U.S. 154, ] 130 S.Ct. at 1245-46
[(2010)] (citation omitted). The district courts have subject
matter jurisdiction over CWA citizen suits pursuant to the
general federal question jurisdiction statute, 28 U.S.C.
§ 1331, [ ] and the CWA's jurisdictional provision,
33 U.S.C. § 1365(a).[ ] Neither of these provisions
specifies any threshold requirement for subject matter
jurisdiction, let alone ties its jurisdictional grant to the
issue of diligent prosecution. See Arbaugh, 546 U.S.
at 515, 126 S.Ct. 1235');">126 S.Ct. 1235 (“But neither § 1331, nor
Title VII's jurisdictional provision, 42 U.S.C. §
2000e-5(f)(3) ... specifies any threshold ingredient akin to
28 U.S.C. § 1332's monetary floor.”); see
also Reed Elsevier, Inc., 130 S.Ct. at 1246
(“[N]either § 1331, ... nor § 1338(a), which
is specific to copyright claims, conditions its
jurisdictional grant on whether copyright holders have
registered their works before suing for
infringement.”). Instead, the “diligent
prosecution” bar is located in a separate provision of
the CWA that does not pertain or refer to jurisdiction.
See Arbaugh, 546 U.S. at 515-16, 126 S.Ct. 1235');">126 S.Ct. 1235
(holding that Title VII's employee-numerosity requirement
is nonjurisdictional because it is located in a provision
separate from those granting courts subject matter
jurisdiction and the provision does not speak in
jurisdictional terms); see also Reed Elsevier, Inc.,
130 S.Ct. at 1245-46 (holding that the Copyright Act's
registration requirement is not jurisdictional primarily
because it is located in a provision separate from those
granting the courts subject matter jurisdiction and the
provision does not “clearly state[ ]” that the
requirement is jurisdictional). Thus, §
1365(b)(1)(B)'s location in a provision separate from the
jurisdiction-granting provisions indicates that Congress did
not intend the provision to be jurisdictional.
The “historical treatment” factor also does not
indicate that the provision ranks as jurisdictional. Reed
Elsevier, Inc., 130 S.Ct. at 1246. No Supreme Court
cases have determined that the “diligent
prosecution” provision of the CWA, or any similar
provision in other environmental statutes, is jurisdictional.
“There is thus no ‘long line of [Supreme] Court [
] decisions left undisturbed by Congress' on which to
rely.” Gonzalez, 132 S.Ct. at 648 n. 3
(citation omitted); see Henderson, 131 S.Ct. at 1203
(“When a long line of [Supreme] Court[ ] decisions left
undisturbed by Congress has treated a similar requirement as
jurisdictional, we will presume that Congress intended to
follow that course.”) (citations and internal quotation
Based on the foregoing analysis, we conclude that Congress
has not provided a clear statement that the “diligent
prosecution” bar is jurisdictional. Absent such a clear
statement from Congress, we hold that the “diligent
prosecution” bar is a nonjurisdictional limitation on
citizen suits. See Arbaugh, 546 U.S. at 516, 126
S.Ct. 1235 (“[W]hen Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should treat
the restriction as nonjurisdictional in character.”).
Id. at 748-49 (footnotes omitted). The Fifth Circuit
also found support for its decision in
the Seventh Circuit's recent decision in Adkins v.
VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011).
There, the court held that the “diligent
prosecution” provision of the Resource Conservation and
Recovery Act (“RCRA”)-which is virtually
identical to the “diligent prosecution” provision
of the CWA[ ]-is not jurisdictional. Id. at 492.
Applying the guiding principles of the recent Supreme Court
cases, the Seventh Circuit concluded that, because
“RCRA's limits on citizen suits appear in separate
provisions that do not ‘speak in jurisdictional terms,
' ” the RCRA “diligent prosecution” bar
is a nonjurisdictional claim-processing rule. Id.
Id. at 749 (footnote omitted).
court finds the reasoning of the Fifth Circuit in La.
Envtl. Action Network to be persuasive. See
also Black Warrior Riverkeeper, Inc. v. Southeastern Cheese
Corp., 2017 WL 359194 (S.D. Ala. Jan. 24, 2017) (J.
DuBose) (following the reasoning of La. Envtl. Action
Network and similar cases). Accordingly, this court
concludes that because the language of § 1365(b)(1)(B)
does not provide clear indication that Congress intended the
provision to be jurisdictional, it will evaluate Oxford's
“diligent prosecution” defense under Rule
motion to dismiss premised on a failure to state a claim
under Rule 12(b)(6), the court assumes the factual
allegations in the complaint are true and gives the plaintiff
the benefit of all reasonable factual inferences.
Hazewood v. Foundation Financial Group, LLC, 551
F.3d 1223, 1224 (11th Cir. 2008) (per curiam). Rule 12(b)(6)
is read in light of Federal Rule of Civil Procedure 8(a)(2),
which requires that a complaint provide only “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” in order to “give the
defendant fair notice of what the… claim is and the
grounds upon which it rests.” See Conley v.
Gibson, 355 U.S. 41, 47 (1957). However, “a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusion.... Factual allegations must be enough to raise a
right to relief above the speculative level....”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, a “complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face, '”
that is, its “factual content… allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
ANALYSIS OF THE MERITS
argues that Riverkeeper's claims are barred by the State
of Alabama's diligent prosecution of it (Oxford) in state
court. See 33 U.S.C. § 1365(b)(1)(B). As noted
above, section 1365(b) provides, in relevant part, that
“(b) no [citizen suit under § 1365(a)(1)] may be
commenced …. (B) if [a state or federal authority] has
commenced and is diligently prosecuting a civil or criminal
action in a court … to require compliance with the
standard, limitation, or order.” Id.
(emphasis added). While not jurisdictional, the diligent
prosecution bar is a “mandatory, not optional,
condition precedent for suit.” Hallstrom v.
Tillamook Cnty., 493 U.S. 20, 26 (1989).
The plaintiff in a citizens suit bears the burden of proving
the state agency's prosecution was not diligent.
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv.
(TOC), 890 F.Supp. 470, 486-87 (D.S.C. 1995). The burden
is heavy, because the enforcement agency's diligence is
presumed. Id. at 487. “[T]he state
[enforcement] agency must be given great deference to proceed
in a manner it considers in the best interests of all parties
involved.” Arkansas Wildlife v. ICI Americas,
Inc., 842 F.Supp. 1140, 1147 (E.D. Ark. 1993),
aff'd, 29 F.3d 376 (8th Cir. 1994), cert.
denied, 513 U.S. 1147, 115 S.Ct. 1094, 130 L.Ed.2d 1062
(1995). The CWA's thrust is to “provide
society with a remedy against polluters in the
interest of protecting the environment.”
Connecticut Coastal [Fisherman's Ass'n
v. Remington Arms Co., Inc.], 777 F.Supp. [173,
] 184 [(D. Conn. 1991)] (emphasis in original).
Williams Pipe Line Co. v. Bayer Corp., 964 F.Supp.
1300, 1324 (S.D. Iowa 1997); see also Karr v.
Hefner, 475 F.3d 1192, 1198 (10th Cir. 2007) (stating
that “[c]itizen-plaintiffs must meet a high standard to
demonstrate that it has failed to prosecute a violation
two-prong test exists to determine whether a state agency is
“diligently prosecuting” an action. Ohio
Valley Envrtl. Coal., Inc. v. Maple Coal Co., 808
F.Supp.2d 868, 883 (S.D. W.Va. 2011); Conn. Fund for
Env't v. Contract Plating Co., 631 F.Supp.
1291, 1293 (D. Conn. 1986). First, the court must determine
whether the agency aims to ensure compliance with the same
standard, order, or limitation as the citizen suit. Citizens
suits are barred only if they aim to ensure compliance with
the same standard, limitation, or order of the CWA for which
the State has brought a civil enforcement action. Conn.
Fund for Env't, 631 F.Supp. at 1293; Cal.
Sportfishing Protection Alliance v. Chico Scrap Metal,
Inc., 728 F.3d 868, 874 (9th Cir. 2013); see also
Frillage v. Village of Anna, 924 F.Supp. 821 (S.D. Ohio
1996) (noting that the State must aim to require compliance
with the same standards regarding each claim of the
plaintiff); but see Karr, 475 F.3d 1192 (holding
that the EPA had addressed each of the three types of alleged
CWA violations and in some respects accomplished more than
the plaintiffs sought). It is insufficient that a State seeks
to require compliance with a similar State or Federal
statute; the issue is whether the state action “is
capable of requiring compliance with the [CWA] and is in good
faith calculated to do so.” See Cal.
Sportfishing, 728 F.3d at 875. Additionally, the
diligent prosecution bar does not apply “if the agency
suit and citizen suit seek to enforce different standards and
limitations of the same NPDES permit.” Yadkin
Riverkeeper, Inc. v. Duke Energy Carolinas,
LLC, 141 F.Supp.3d 428, 440 (M.D. N.C. 2015). The
court also stated:
The comparison need not reveal identical claims for the
actions to cover the same standards and limitations. Citizen
suits seeking to enforce the same standards and limitations
as an agency suit have been barred even when they alleged
violations occurring at more locations and at different times
than those alleged in the agency suit.
Id. In making that decision, “the court may
rely primarily on a comparison of the pleadings filed in the
two actions.” Id. (quoting Conn.
Fund, 631 F.Supp. At 1293).
if the answer to the first prong is in the affirmative, the
court must determine whether the prior pending action was
being “diligently prosecuted” by the state at the
time that the citizens' suit was filed. Conn.
Fund, 631 F.Supp. at 1293; Yadkin, 141
F.Supp.3d at 441.
“A CWA enforcement prosecution will ordinarily be
considered ‘diligent' if the judicial action
‘is capable of requiring compliance with the Act and is
in good faith calculated to do so.' ” Piney
Run, 523 F.3d at 459 (quoting Friends of
Milwaukee's Rivers v. Milwaukee Metro. Sewerage
Dist., 382 F.3d 743, 760 (7th Cir. 2004)).
“[D]iligence is presumed.” Id. To
overcome this presumption, the citizen-plaintiff can
demonstrate “a pattern of conduct in [the state's]
prosecution of the defendant that could be considered
dilatory, collusive or otherwise in bad faith.”
Connecticut Fund, 631 F.Supp. at 1293. It is
insufficient to merely show “that the agency's
prosecution strategy is less aggressive than [the
citizen-plaintiff] would like, ” Piney Run,
523 F.3d at 459, as the diligent prosecution bar “does
not require government prosecution to be far-reaching or
zealous, ” id. (quoting Karr, 475
F.3d at 1197). The standard for citizen-plaintiffs to
overcome the presumption of diligence is high. Id.
(quoting Karr, 475 F.3d at 1198). The deference
courts owe to the agency prosecution, however, is not
unlimited. Ohio Valley Envtl. Coal., Inc. v. Maple Coal
Co., 808 F.Supp.2d 868, 884 (S.D.W.Va. 2011). “[A]
diligent prosecution analysis requires more than mere
acceptance at face value of the potentially self-serving
statements of a state agency and the violator.”
Id. (alteration in original) (quoting Friends of
Milwaukee's Rivers, 382 F.3d at 760). It requires
that the agency “try, diligently, ” to achieve
compliance. Id. (quoting Friends of
Milwaukee's Rivers, 382 F.3d at 759).
Id., 141 F.Supp.3d at 441.
Seeking to ...