Central Valley Eden Environmental Defenders, LLC v. Champion Home Builders, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 CENTRAL VALLEY EDEN No. 2:23-cv-01273-DJC-DB ENVIRONMENTAL DEFENDERS, LLC, [12] 13 Plaintiff, ORDER GRANTING IN PART AND 14 v. DENYING IN PART MOTION TO DISMISS WITHOUT PREJUDICE 15 CHAMPION HOME BUILDERS, INC., a Delaware corporation; SKYLINE [16] CHAMPION CORPORATION, an 17 Indiana corporation; and DOES 1–10, inclusive, [18] Defendants. [20] 21 Plaintiff Central Valley Eden Environmental Defenders, LLC alleges that 22 Champion Home Builders, Inc., Skyline Champion Corporation, and Skyline 23 Corporation, as well as 10 Doe Defendants (together, “Defendants”), have violated the 24 Clean Water Act by failing to properly file certain permits and failing to comply with 25 regulations related to stormwater discharge and other water pollutants. Champion 26 Home Builders, Inc. and Skyline Champion Corporation (together, “Champion”) seek 27 dismissal of the First Amended Complaint, arguing that Plaintiff lacks standing, that 28 Plaintiff fails to state a claim, and that some claims are time-barred and/or moot. For 1 the reasons set forth below, because the Court finds that Plaintiff fails to plead 2 independent factual allegations sufficient to establish associational standing under 3 Article III, the Court will grant Champion’s Motion to Dismiss (ECF No. 15) on standing 4 grounds. Plaintiff has fourteen (14) days to file a Second Amended Complaint. 5 BACKGROUND 6 I. Factual and Statutory Background 7 Champion Home Builders, Inc. manufactures modular homes and buildings at a 8 facility and plant located at 1720 East Beamer Street, Woodland, California. (See First 9 Am. Compl. for Injunctive and Decl. Relief, Civil Penalties, and Remediation (ECF No. 10 11) ¶¶ 22, 79, (“First Amended Complaint” or “FAC”).) Champion Home Builders, 11 Inc.’s facility in Woodland, California is owned and operated by Skyline Champion 12 Corporation, which was originally formed under the name of Skyline Corporation. 13 (See id. ¶¶ 24–27.) Skyline Champion Corporation has allegedly owned and operated 14 Champion Home Builders, Inc. since at least June 1, 2018. (See id. ¶ 27.) 15 Champion’s facility in Woodland, California (“the Woodland Facility”) is subject 16 to certain regulations under the Clean Water Act, 33 U.S.C. §§ 1251–1387 (“CWA”), 17 including regulations under the State of California’s Industrial General Permit. (See id. 18 ¶ 22.) The Clean Water Act makes it unlawful to discharge “any pollutant by any 19 person” except as authorized by and in compliance with other sections of the CWA, 20 including, relevant here, 33 U.S.C. § 1342 . 33 U.S.C. § 1311 (a). Section 402 of the 21 CWA authorizes the Administrator of the Environmental Protection Agency (“EPA”), as 22 part of the National Pollutant Discharge Elimination System (“NPDES”), to “issue a 23 permit for the discharge of any pollutant, or combination of pollutants . . . , upon 24 condition that such discharge will meet either (A) all applicable requirements under 25 [the CWA], or (B) . . . such conditions as the Administrator determines are necessary to 26 carry out the provisions of this chapter.” Id. § 1342(a)(1). Alternatively, the States, with 27 EPA approval and continuing supervision, may issue the permits themselves and take 28 primary responsibility for the permitting scheme. See id. § 1342(b); S. California All. of 1 Publicly Owned Treatment Works v. U.S. Env’t Prot. Agency, 853 F.3d 1076, 1078 (9th 2 Cir. 2017). California has assumed primary responsibility for the NPDES permitting 3 program since 1974. See S. California All. of Publicly Owned Treatment Works, 853 4 F.3d at 1078. 5 Subsection (p) of the Clean Water Act provides a regulatory scheme for 6 municipal and industrial stormwater discharges that are federally regulated as 7 pollutants,1 including, relevant here, any “discharge associated with industrial activity.” [8] 33 U.S.C. § 1342 (p)(2)(B);2 see also Env’t Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832 , 9 841–43 (9th Cir. 2003). Under California’s NPDES program, rather than provide 10 individual permits authorizing a specific entity to discharge a pollutant in a particular 11 place that is issued after an informal agency adjudication process, see Alaska Cmty. 12 Action on Toxics v. Aurora Energy Servs., LLC, 765 F.3d 1169, 1171 (9th Cir. 2014), 13 California has issued a general permit that applies to entire classes of hypothetical 14 dischargers following notice-and-comment rulemaking. See id. (citing 40 C.F.R. 15 § 122.28(b)). This general permit requires an entity seeking coverage to submit a 16 “notice of intent” to discharge a pollutant under the general permit, see id. (citing 40 17 C.F.R. § 122.28 (b)(2)). 18 California’s Industrial General Permit has four basic requirements: [19] 1 As rain falls, the water collects contaminants and impurities from the ground that then make their way into drains and sewers, which eventually lead to federally protected bodies of water, and these sewers [20] are sometimes used to directly discharge contaminants or waste. See Env’t Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832 , 840 (9th Cir. 2003). The Clean Water Act defines “pollutants” as “dredged soil, solid [21] waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological 22 materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water . . . .” 33 U.S.C. § 1362 (6). [23] 2 Specifically, “[s]torm water means storm water runoff, snow melt runoff, and surface runoff and 24 drainage[,]” 40 C.F.R. § 122.26 (b)(13), and “[s]torm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and 25 that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant[,]” id. § 122.26(b)(14). The term “storm water discharge associated with industrial activity” is quite 26 broad; though it “does not include discharges from facilities or activities excluded from the NPDES program[,]” it does include, “storm water discharges from industrial plant yards; . . . manufacturing 27 buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are 28 exposed to storm water.” Id. 1 First, permittees must implement best management practices (“BMPs”) to reduce or prevent pollutants in storm 2 water discharges. Second, the Permit forbids discharges of storm water that cause or contribute to an exceedance of 3 applicable Water Quality Standards in the applicable water quality or basin plan. Third, permittees must develop a 4 Storm Water Pollution Prevention Plan (“SWPPP”) in compliance with Section B of the Permit, which includes filing 5 annual reports with the Regional Water Quality Control Board. [6] 7 San Francisco Baykeeper v. Levin Enters., Inc., 12 F. Supp. 3d 1208, 1212 (N.D. Cal. 8 2013) (“S.F. Baykeeper”) (citation omitted). 9 Plaintiff alleges that Defendants have violated the CWA by failing to comply 10 with California’s Industrial General Permit. More specifically, Plaintiff alleges that 11 Defendants have violated the Industrial General Permit by: (1) submitting a deficient 12 SWPPP and failing to follow the SWPPP (see FAC ¶¶ 84–99, 113–16 (first cause of 13 action)); (2) falsifying annual reports (see id. ¶¶ 100, 121–26 (third cause of action)); 14 (3) providing incomplete monitoring reports (see id. ¶¶ 101, 121–26 (third cause of 15 action)); (4) failing to implement best conventional treatments for conventional 16 pollutants (“BCT”) and best available technology for toxic and non-conventional 17 pollutants (“BAT”) when implementing its BMPs or best management practices at the 18 Woodland Facility (see id. ¶¶ 102–05, 127–30 (fourth cause of action)); (5) discharging 19 contaminated stormwater (see id. ¶¶ 106–07, 131–37 (fifth cause of action)); (6) failing 20 to comply with certain exceedance threshold reports (see id. ¶¶ 108–10, 138–41 (sixth 21 cause of action)); and (7) failing to train employees (see id. ¶¶ 111–12, 142–45 22 (seventh cause of action)). (See also id. ¶¶ 117–20 (alleging in the second cause of 23 action that Defendants failed to develop and implement an adequate monitoring and 24 reporting program).) 25 As a result of these alleged violations, Plaintiff brings seven causes of action 26 and pursues declaratory, injunctive, and civil relief. (See FAC at 29–30.) Plaintiff asks 27 that the Court declare that Defendants have violated and are in violation of the CWA. 28 Plaintiff requests the Court to: (1) order Defendants to comply with the NPDES 1 permitting requirements in the Industrial General Permit and the CWA; (2) enjoin 2 Defendants from discharging pollutants until Defendants have developed and 3 implemented an adequate SWPPP or storm water pollution prevention plan that uses 4 appropriate BMPs or best management practices, including BCTs or best 5 conventional treatments for conventional pollutants and BATs or best available 6 technology for toxic and non-conventional pollutants; and (3) require Defendants to 7 take appropriate actions to restore the quality of the United States waters impaired by 8 activities at the Woodland Facility. Plaintiff finally (1) seeks civil penalties from 9 Defendants of $56,460 per day per violation for each violation of the Clean Water Act, 10 (2) asks for reasonable attorneys’ fees and costs (excluding expert witness fees), and 11 (3) asks for any other relief that may be just and proper. 12 II. Procedural Background 13 Plaintiff filed the initial Complaint on June 30, 2023. (See ECF No. 1.) 14 Following a motion to dismiss filed by Champion (see ECF No. 6), Plaintiff filed the 15 First Amended Complaint. Champion then filed the instant Motion to Dismiss. (See 16 Champion’s Not. of Mot. and Mot. to Dismiss FAC; Mem. of P. and A. in Supp. Thereof 17 (ECF No. 15) (“Champion’s Motion” or “MTD”).) Plaintiff then sought leave to amend 18 the First Amended Complaint (see Pl.’s Not. of Mot. and Mot. for Leave to File Second 19 Am. Compl. Under Fed. R. Civ. P. 15(a)(2) (ECF No. 17) (“Plaintiff’s Motion” or “MLTA”); 20 also Proposed Second Am. Compl. for Injunctive Relief and Declaratory Relief, Civil 21 Penalties and Remediation (ECF No. 19) (“Proposed Second Amended Complaint” or 22 “PSAC”), which Champion opposed, for largely the same grounds raised in 23 Champion’s Motion to Dismiss. (See Champion’s Opp’n to Pl.’s MLTA (ECF No. 20) 24 (“Champion’s Opposition” or “MLTA Opp’n”).) Plaintiff filed a Reply on December 23, 25 2023 explaining why leave to amend would not be futile. (See Pl.’s Reply to 26 Champion’s Opp’n to MLTA (ECF No. 21) (“Plaintiff’s Reply” or “Reply”).) The Court 27 heard arguments for Defendants’ and Plaintiff’s Motions on January 4, 2024, where 28 Attorney Edward E. Yates appeared for Plaintiff, and Attorney Daniel P. Brunton 1 appeared for Defendants. Although Plaintiff did not file an Opposition to the Motion 2 to Dismiss while its Administrative Motion to Alter the Briefing Schedule on 3 Champion’s Motion (ECF No. 16) was pending, at oral argument, Plaintiff indicated it 4 would submit on the basis of its Reply in support of its Motion to Amend (ECF No. 21), 5 which addressed the standing issues that are the subject of this Order (see Reply at 8– 6 9). 7 DISCUSSION 8 I. Champion Brings a Facial Challenge Under Rule 12(b)(1). 9 Champion contest this Court’s ability to hear this case, first by challenging 10 Plaintiff’s associational standing under Article III, and second by claiming that this 11 Court lacks subject matter jurisdiction because Plaintiff has failed to strictly comply 12 with the CWA’s notice requirements for bringing a citizen suit. (See MTD at 7–9 13 (challenging the notice); id. at 13–14 (challenging Plaintiff’s standing to sue).) 14 Normally, a court determining whether Article III standing or subject matter 15 jurisdiction exists under Federal Rule of Civil Procedure 12(b)(1) is limited to the 16 allegations in the complaint and any materials that may be judicially noticed or are 17 incorporated by reference into the complaint, analyzing the question just as it would 18 under a 12(b)(6) motion to dismiss. See, e.g., Safe Air for Everyone v. Meyer, 373 F.3d 19 1035, 1039 (9th Cir. 2004) (“SAFE”)) (describing a so-called “facial attack”). However, a 20 party may also bring a factual attack that disputes the truth of the allegations in the 21 complaint and raise matters and evidence outside of the pleadings. See id. The 22 difference between a facial and a factual attack is crucial because a district court errs 23 when it reviews evidence outside of the pleadings during a facial attack. See, e.g., 24 Salter v. Quality Carriers, Inc., 974 F.3d 959 , 964–65 (9th Cir. 2020) (vacating and 25 remanding the district court’s order remanding the case to state court after construing 26 an attack as a factual rather than a facial attack, thereby applying the wrong standard). 27 For a facial attack, the court, accepting the allegations as true and drawing all 28 reasonable inferences in the opponent’s favor, “determines whether the allegations 1 are sufficient as a legal matter to invoke the court’s jurisdiction.” Salter, 974 F.3d at 2 964 (citation and internal quotation marks omitted). But “[w]hen a factual attack is 3 mounted, the responding party ‘must support her jurisdictional allegations with 4 “competent proof” . . . under the same evidentiary standard that governs in the 5 summary judgment context.’” Id. (citations omitted). 6 Here, the Court concludes that Champion brings a facial challenge as to 7 Plaintiff’s Article III standing. See SAFE, 373 F.3d at 1039 . Champion argues at points 8 that “Plaintiff fails to meet its burden to plead facts establishing standing[,]” (MTD at 9 13,) and that “Plaintiff has failed to plead additional facts sufficient to show it has 10 standing.” (MLTA Opp’n at 17.) Thus, Champion “has not really challenged the truth 11 of [Plaintiff]’s ‘plausible allegations.’” Salter, 974 F.3d at 964. 12 II. Plaintiff Fails to Properly Plead Any Alleged Harms. 13 The Supreme Court has “established that the irreducible minimum of standing 14 contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To 15 establish Article III standing, 16 a plaintiff must show (1) that it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or [17] imminent, not conjectural or hypothetical; (2) the injury is 18 fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the [19] injury will be redressed by a favorable decision. [20] Ass’n of Irritated Residents v. U.S. Env’t Prot. Agency, 10 F.4th 937 , 943 (9th Cir. 2021) [21] (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167 , 180– [22] 81 (2000)). An association has standing to bring suit on behalf of its members when [23] its members would otherwise have standing to sue in their own right, the interests at [24] stake are germane to the organization’s purpose, and neither the claim asserted nor [25] the relief requested requires the participation of individual members in the lawsuit. [26] Friends of the Earth, Inc., 528 U.S. at 171 (citing Hunt v. Washington State Apple [27] Advert. Comm’n, 432 U.S. 333, 343 (1977)). [28] 1 “The party invoking jurisdiction bears the burden of establishing the[ ] [three] 2 elements [of standing].” Lujan, 504 U.S. at 561 (citations omitted). But standing is not 3 dispensed in gross. Lewis v. Casey, 518 U.S. 343 , 358 n.6 (1996). Since they are not 4 mere pleading requirements but rather an indispensable part of the plaintiff’s case, 5 each element must be supported in the same way as any other matter on which the 6 plaintiff bears the burden of proof, i.e., with the manner and degree of evidence 7 required at the successive stages of the litigation. Lujan, 504 U.S. at 561 (citations 8 omitted). In addition, “a plaintiff must demonstrate standing separately for each form 9 of relief sought.” Friends of the Earth, Inc., 528 U.S. at 185 (first citing, as an example, 10 City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (“Lyons”); and then citing Lewis, [11] 518 U.S. at 358 n.6)). Though a plaintiff may establish standing to sue for damages 12 based on past exposure to harm, where, as here, the plaintiff seeks prospective or 13 injunctive relief, the plaintiff must then establish that she suffers from the ”continuing, 14 present, adverse effects.” Lujan, 504 U.S. at 564 (quoting Lyons, 461 U.S. at 102 15 (quoting O’Shea v. Littleton, 414 U.S. 488 , 495–96 (1974))). However, “private 16 plaintiffs, unlike the Federal Government, may not sue to assess penalties for wholly 17 past violations, but . . . [may sue] for violations that are ongoing at the time of the 18 complaint and that could continue into the future if undeterred.” Friends of the Earth, 19 Inc., 528 U.S. at 188 (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 , 106–08 20 (1998)). 21 Plaintiff seeks to assert associational standing. (See FAC ¶¶ 9–27; Reply at 8–9.) 22 Ultimately, Plaintiff fails to establish standing due to its failure to plead sufficient facts 23 to find that Plaintiff has suffered or will continue to suffer any alleged harm to its 24 aesthetic, informational, and recreational interests. See Lujan, 504 U.S. at 561 . 25 Compare with Civil Rights Educ. & Enf’t Ctr. v. Hospitality Prop. Tr., 867 F.3d 1093 , 26 1098–1099 (9th Cir. 2017) (finding pleadings adequate to satisfy a facial attack). That 27 is, Plaintiff fails to “demonstrate a concrete and particularized injury caused by the 28 defendant[s] and redressable by the court [that] ensures that federal courts decide 1 only ‘the rights of individuals,’ and that federal courts exercise ‘their proper function in 2 a limited and separated government[.]’” TransUnion LLC v. Ramirez, 594 U.S. 413 , 423 3 (2021) (first quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803); and then 4 quoting John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L. J. 5 1219, 1224 (1993)). 6 For the first element of individual standing, Plaintiff pleads an injury to the 7 aesthetic, recreational, and scientific use and enjoyment of “the Sacramento River, a 8 tributary of the Sacramento-San Joaquin River Delta Waterways[,]” where Plaintiff’s 9 members “use those waters as their watersheds for kayaking, canoeing, camping, 10 cycling, recreation, sports, fishing, swimming, hiking, bird watching, photography, 11 nature walks, and scientific study.” (FAC ¶ 13.) However, Plaintiff fails to include any 12 independent factual allegations to support this single conclusory statement that one 13 or more of its unidentified members ever again intends to “use those waters as their 14 watersheds for kayaking, canoeing, camping, cycling, recreation, sports, fishing, 15 swimming, hiking, bird watching, photography, nature walks, and scientific study.” (Id. 16 ¶ 13.) Therefore, the Court concludes these threadbare allegations are the sort of 17 “formulaic recitation” of the requirements for standing against which the Supreme 18 Court has cautioned. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 19 (“Twombly”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Nor does a 20 complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 21 enhancement.’” (quoting Twombly, 550 U.S. at 557 )). 22 Plaintiff also pleads a concrete injury to its substantive right to the information 23 that Defendants must disclose and report regarding its monitoring and compliance 24 with the CWA and the Industrial General Permit. (See id. ¶ 16.) See also Inland 25 Empire Waterkeeper v. Corona Clay Co., 17 F.4th 825 , 832–33 (9th Cir. 2021) 26 (recognizing that the failure to follow the procedural elements of an NPDES permits 27 program requiring record retention of discharge sampling and filing reports as “the 28 subject of a CWA citizen suit” was “settled” and that disclosure, monitoring, and 1 reporting requirements “serve the public’s interest in clean water and the 2 environment[,] [which] [t]he CWA elevated [as an cognizable] interest by providing a 3 cause of action to affected citizens.” (citing Lujan, 504 U.S. at 578 ; 33 U.S.C. § 1365 (a), 4 (g))). However, Plaintiff has failed to establish how any of its members has an intended 5 use for this information that was not disclosed, so Plaintiff cannot show how the 6 alleged injuries affect it or its members “in a personal and individual way.” Lujan, 504 7 U.S. at 560 n.1. Without such allegations, Plaintiff asserts nothing more than a 8 generalized grievance, which has never been enough. See, e.g., Carney v. Adams, [9] 592 U.S. 53 , 59 (2020); Lance v. Coffman, 549 U.S. 437 , 439–41 (2007) (per curiam) 10 (detailing the Supreme Court’s “lengthy pedigree” of rejecting standing based on 11 generalized grievances). 12 For instance, unlike the members of the environmental organization in Inland 13 Empire Waterkeeper, 17 F.4th 825 , Plaintiff has not averred or otherwise submitted 14 evidence showing that its members have a need for accurate information or for the 15 information to be disclosed, as by members not being able to swim in the water 16 because of fear that there has been increased pollution, which cannot be confirmed or 17 denied without the disclosed information, or by members not being able to provide 18 reliable information for use in educational or commercial settings without the 19 disclosed information. See 17 F.4th at 833–34. Nor, for that matter, has Plaintiff ever 20 identified when one of its members has used the Sacramento River in the past, or 21 when one of its members intends to use the Sacramento River in the future, or how 22 Plaintiff’s members have had their activities along the Sacramento River impacted by 23 the CWA violations at the Woodland Facility. Compare with Summers v. Earth Island 24 Inst., 555 U.S. 488, 495 (2009). Thus, Plaintiff has failed to provide “specific facts[ ] 25 [showing] not only that [the Sacramento River] w[as] in fact being threatened by 26 [pollution and discharge stemming from the Woodland Facility], but also that one or 27 more of [Plaintiff’s] members would thereby be ‘directly’ affected apart from their [28] 1 ‘special interest in the subject.” Lujan, 504 U.S. at 563 (first quoting Sierra Club v. 2 Morton, 405 U.S. 727, 735, 739 (1972)); and then citing Hunt, 432 U.S. at 343 ). 3 III. Conclusion 4 Plaintiff has failed to plead independent factual material to establish a concrete 5 and particularized injury-in-fact sufficient to confer Article III standing. See Twombly, [6] 550 U.S. at 555 . As a result, the Court GRANTS Champion’s Motion to Dismiss for lack 7 of Article III standing. (See MTD at 13–14.) Further, because the Court concludes that 8 it lacks jurisdiction over the matter for lack of Article III standing, the Court does not 9 decide the remaining issues presented in Champion’s Motion to Dismiss, including 10 whether this Court lacks subject matter jurisdiction over the specific CWA cause of 11 action Plaintiff tries to bring due to the allegedly defective notice. See Steel Co., 523 12 U.S. at 94 (citations omitted); see also Warth v. Seldin, 422 U.S. 490, 498 (1975) 13 (explaining that standing addresses whether a particular litigant may bring their case 14 before a federal court); Allen v. Wright, 468 U.S. 737 , 750–51 (1984) (explaining that 15 standing “is perhaps the most important of the[ ] doctrines[ ]” that limit a federal 16 court’s ability to hear a case and decide an issue), abrogated on other grounds by 17 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). 18 Because the Court DISMISSES the First Amended Complaint for lack of subject 19 matter jurisdiction, the Court does so WITHOUT PREJUDICE because this is not an 20 adjudication on the merits. See, e.g., Hampton v. Pac. Inv. Mgmt. Co. LLC, 869 F.3d 21 844, 846 (9th Cir. 2017). Accord Iten v. Los Angeles, 81 F.4th 979 , 993 (9th Cir. 2023) 22 (Gordon, District J., concurring in part). As a result, Plaintiff must file a Second 23 Amended Complaint within fourteen (14) days of this Order.3 [24] 25 3 While Plaintiff has moved for Leave to File a Second Amended Complaint (ECF No. 17), the Proposed Second Amended Complaint (ECF No. 19) appears to suffer from the same defects related to standing 26 as the operative First Amended Complaint. (Compare PSAC ¶¶ 9–27 with FAC ¶¶ 9–27 (providing the exact same).) Accordingly, the Court will deny leave to file the Proposed Second Amended Complaint 27 (ECF No. 19) but will authorize Plaintiff to file a different Second Amended Complaint that responds to the standing issues identified in this Order. Plaintiff may also amend other portions of its Complaint if it 28 so chooses. 1 ORDER 2 For the reasons set forth above, the Court GRANTS Defendant Champion’s 3 | Motion to Dismiss Plaintiff's First Amended Complaint for lack of standing and DENIES 4 | AS MOOT the remaining requests in Champion’s Motion to Dismiss (ECF No. 15). 5 | Plaintiff has fourteen (14) days from the docketing of this Order to file the Second 6 | Amended Complaint. 7 Further, while Plaintiff may file a Second Amended Complaint in response to 8 | this Order, the Court DENIES Plaintiff's Motion for Leave to File the Second Amended 9 | Complaint (ECF No. 17) seeking leave to file the Proposed Second Amended 10 | Complaint, lodged at ECF No. 19. Plaintiff's Administrative Motion to Alter the 11 | Briefing Schedule on Champion's Motion (ECF No. 16) is also denied as moot. 12 This Order resolves all pending motions. [14] 15 IT IS SO ORDERED. 16 | Dated: _January 9, 2024 “Dane A Ch brett Hon. Daniel alabretta v7 UNITED STATES DISTRICT JUDGE [21] 22 | JC3- CVEED.23ev1273.MTD