                                                                 [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                         FILED
                                                               U.S. COURT OF APPEALS
                              No. 10-14634                       ELEVENTH CIRCUIT
                          Non-Argument Calendar                   SEPTEMBER 7, 2011
                        ________________________                      JOHN LEY
                                                                       CLERK
                    D.C. Docket No. 1:09-cv-03520-TWT

ALVIN L. KENDALL,

                                 llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                     versus

THAXTON ROAD LLC,
HATHAWAY DEVELOPMENT COMPANY, INC., et al.,

                              llllllllllllllllllllllllllllllllllllllllDefendants-Appellees.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                             (September 7, 2011)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

     Alvin Kendall, proceeding pro se, appeals the dismissal without prejudice
of his complaint brought pursuant to the Clean Water Act (“CWA”), 33 U.S.C.

§§ 1251-1376 and Georgia state law. Kendall’s complaint named as defendants:

(1) Thaxton Road, LLC, the owner or operator of a development site, Bedford

Estates, that was the alleged source of pollutants flowing onto property located at

3810 Thaxton Road; (2) Hathaway Development Company, Inc., another owner or

operator of the development site; (3) Atlantic Southern Bank, a provider of

financing for the development; (4) Flag Bank, now known as RBC Centura Bank,

another provider of financing; (5) Bobby Smith, the Development Services

Manager for the Fulton County Department of Environmental and Community

Development, in his individual and official capacity; (6) Dick Wilcox, the Director

of the Fulton County Department of Environment and Community Development,

in his individual and official capacity; and (7) Elite Engineering, P.C., the

engineering firm that designed the plans for the development site.

      Kendall raises several arguments on appeal. First, Kendall argues that the

district court erred in dismissing his state law claims because its finding that he

lacked standing was erroneous. Second, Kendall argues that the district court

erred in dismissing his CWA claims because he also possessed standing to pursue

those claims. Third, Kendall argues that the district court erred in denying his

motion to amend his complaint. Fourth, Kendall argues that the district court

                                          2
erred in denying as moot his motion for disqualification of the attorneys for

Thaxton Road, Hathaway Development Company, Atlantic Southern Bank, and

RBC Centura Bank. Fifth, Kendall argues that the district court erred in denying

as moot his motion for the cost of service against Atlantic Southern Bank and Elite

Engineering. Finally, Kendall argues that the district court erred by dismissing his

default judgment against Elite Engineering.

                                I. State Law Claims

      Kandall first challenges the district court’s determination that he lacked

standing to pursue his state law claims. “We review de novo the district court’s

grant of a motion to dismiss under [Rule] 12(b)(6) for failure to state a claim,

accepting the allegations in the complaint as true and construing them in the light

most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir.

2003) (per curiam). “Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will therefore be liberally construed.”

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).

      To properly state a claim, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

1974 (2007), the Supreme Court held that, in an antitrust case, a complaint must

                                          3
contain sufficient factual matter, accepted as true, to “state a claim to relief that is

plausible on its face.” In Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1953

(2009), the Supreme Court held that the rule in Twombly applied beyond antitrust

cases to all civil actions. In Iqbal, the Supreme Court held that Rule 8(a) does not

require “detailed factual allegations,” but does demand “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id., 129 S. Ct. at 1949

(citations omitted). Although a court will take factual allegations in a complaint

as true, it does not have to accept legal conclusions, couched as factual

accusations, as true. Id., 129 S. Ct. at 1949-50. Courts considering motions to

dismiss should apply these principles by first eliminating any allegations in a

complaint that are merely legal conclusions, and then determining whether the

remaining factual allegations “plausibly give rise to an entitlement to relief.” Am.

Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010).

      We affirm the dismissal of Counts 3 through 10 as to Atlantic Southern

Bank and RBC Centura Bank, as the only allegation in Kendall’s complaint as to

these defendants is that they loaned money for the Bedford Estates Development.

Kendall provides this Court with no law to support state law claims against a party

that is merely a lender. Thus, Kendall has failed to state a claim for relief against

the banks under Georgia law that is plausible on its face.

                                            4
      With regard to Defendants Thaxton Road, Hathaway Development

Company, and Elite Engineering, the district court erroneously dismissed without

prejudice the majority of Kendall’s state law claims. In the complaint, Kendall

asserted that he was the occupier of the property located at 3810 Thaxton Road.

The veracity of this claim is undisputed. Dismissal, based on Kendall’s mistaken

legal conclusion that he was also the owner of the property was an erroneous

application of Twombly and Iqbal. The appropriate response to Kendall’s

incorrect assertion of ownership was to strike that legal conclusion from the

complaint and determine if the remaining factual allegations stated a claim for

which relief could be granted. See Am. Dental Ass’n, 605 F.3d at 1290. The

undisputed fact that Kendall occupied the allegedly damaged property was enough

for most of Kendall’s claims to survive. Specifically, the substantive law

governing Counts 3 through 10, with the exception of the riparian claim, Count 7,

allows for standing by occupiers of real property. See, e.g., Parker v. Scrap Metal

Processors, Inc., 386 F.3d 993, 1017 (11th Cir. 2004) (“[O]wnership or occupancy

is a necessary element of a claim for nuisance under Georgia law.”) (emphasis

added); Barber v. Steele, 211 S.E.2d 133, 134 (Ga. Ct. App. 1974) (“A trespasser

is one who . . . wrongfully enters upon property owned or occupied by another.”)




                                         5
(emphasis added).1 But see Ga. Code Ann. § 44-8-1 (2010) (“Running water

belongs to the owner of the land on which it runs; but the landowner has no right

to divert the water from its usual channel nor may he so use or adulterate it as to

interfere with the enjoyment of it by the next owner.”) (emphasis added).

Accordingly, with regard to Defendants Thaxton Road, Hathaway Development

Company, and Elite Engineering, we vacate and remand as to Counts 3 through 6

and Counts 8 through 10 of Kendall’s complaint.

                                       II. CWA Claims

       Kendall next appeals the district court’s dismissal of Counts 1 and 2 of the

complaint, claims under the CWA. Congress enacted the CWA in 1972 in order to

“restore and maintain the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251; S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95, 102, 124 S. Ct. 1537, 1541 (2004). The CWA

prohibits the discharge of pollutants into United States waters, except as

authorized by the statute. 33 U.S.C. § 1311(a). The statute expressly allows

citizens to serve the public as private attorneys general when they have suffered

injuries in violation of the Act. See Middlesex Cnty. Sewerage Auth. v. Nat’l Sea



       1
                Notably, Defendants fail to respond to Kendall’s claim that he possesses standing
to sue as the occupier of the property.

                                                6
Clammers Ass’n, 453 U.S. 1, 16-17, 101 S. Ct. 2615, 2624 (1981).

      A party need not be an owner of property to have standing to bring a citizen

suit under the CWA. In the instant case, Kendall alleges that he was injured in his

capacity as an occupant of the property. All that is required for standing under the

CWA is that the plaintiff suffered injury in violation of the Act. Thus, Kendall’s

complaint included sufficient facts to establish standing to bring a citizen suit

under the CWA, even without the support of his claim to ownership of the

property. As stated above, under Twombly and Iqbal, the appropriate response to

the incorrect assertion of ownership was to strike that legal conclusion from the

complaint, rather than dismissing the entire complaint. Accepting the remaining

allegations in the complaint as true and construing them in the light most favorable

to Kendall, Kendall’s complaint satisfied Iqbal and Twombly on the issue of

standing.

      The CWA requires citizen plaintiffs to notify alleged violators of their intent

to sue at least sixty days before filing a complaint. 33 U.S.C. § 1365(b)(1)(A).

We review the sufficiency of such pre-suit notice de novo. Nat’l Parks and

Conservation Ass’n v. Tenn. Valley Auth., 502 F.3d 1316, 1328 (11th Cir. 2007).

This pre-suit notice must contain:

      sufficient information to permit the recipient to identify the specific

                                          7
      standard, limitation, or order alleged to have been violated, the activity
      alleged to constitute a violation, the person or persons responsible for
      the alleged violation, the location of the alleged violation, the date or
      dates of such violation, and the full name, address, and telephone
      number of the person giving notice.


40 C.F.R. § 135.3 (emphasis added). “The notice requirements are strictly

construed to give the alleged violator the opportunity to correct the problem before

a lawsuit is filed.” Nat’l Parks, 502 F.3d at 1329. “If a plaintiff fails to comply

with [the] notice requirement where it is applicable, the district court is required to

dismiss the action.” Nat’l Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096,

1097-98 (11th Cir. 1991).

      The district court’s finding that the notice to sue letter was defective on its

face was erroneous. A notice of intent to sue letter need not include every party

that might conceivably wish to join a suit; it only needs to identify the parties

bringing suit. See 40 C.F.R. § 135.3. Here, the notice of intent to sue letter

specifically identified Kendall and his wife, Angela Y. Dawson. Defendants

Thaxton Road, Hathaway Development Company, and Elite Engineering had

notice that Kendall and Dawson intended to bring suit, and the letter included the

plaintiff’s names, addresses, and telephone numbers. Kendall’s erroneous claim of

ownership of the property did not prevent Defendants from having clear notice of



                                           8
who was alleging the violations of the CWA. Likewise, it did not prevent

Defendants from taking steps to alleviate the alleged injury. Accordingly, both the

spirit of the statute and its technical requirements were met. We vacate and

remand the district court’s dismissal of Counts 1 and 2 of Kendall’s complaint as

to Thaxton Road, Hathaway Development Company, and Elite Engineering.

      We affirm the district court’s dismissal of Counts 1 and 2 as to Smith and

Wilcox, as the notice letter was defective as to them. “[W]e may affirm a decision

by the district court on any adequate ground, even if it is other than the one on

which the district court actually relied.” Whitaker v. Am. Airlines, Inc., 285 F.3d

940, 947 (11th Cir. 2002) (quotation omitted). The notice letter was not sent to

Smith or Wilcox personally and nowhere mentioned Smith or Wilcox as possible

defendants in a lawsuit brought pursuant to the CWA. Consequently, they were

not given sufficient notice to correct the alleged problem or identify the possibility

of a lawsuit against them. Accordingly, we affirm the dismissal of Counts 1 and 2

as to Smith and Wilcox.

      We also affirm the district court’s dismissal of Counts 1 and 2 as to Atlantic

Southern Bank and RBC Centura Bank, because, even if notice was proper, the

only allegation in Kendall’s complaint as to these defendants is that they loaned

money for the Bedford Estates development. Kendall has provided this Court with

                                          9
no law in support of the proposition that a CWA claim may be pursued against a

party that has merely provided financing to an alleged polluter. Thus, Kendall has

failed to state a claim for relief that is plausible on its face under the CWA against

the banks.

                          III. Motion to Amend Complaint

      Kendall argues that the district court erred in denying his motion to amend

the complaint. We review the denial of a motion to amend a complaint for abuse

of discretion. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005) (per

curiam). The decision of a district court to enforce its pre-trial scheduling order is

also reviewed for an abuse of discretion. Sosa v. Airprint Sys., Inc., 133 F.3d

1417, 1418 (11th Cir. 1998) (per curiam).

      A party may amend its pleading as a matter of course within 21 days after

serving it. Fed. R. Civ. P. 15(a)(1)(A). “In all other cases, a party may amend its

pleading only with the opposing party’s written consent or the court’s leave. The

court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

Generally, “[w]here a more carefully drafted complaint might state a claim, a

plaintiff must be given at least one chance to amend the complaint before the

district court dismisses the action with prejudice.” Bryant v. Dupree, 252 F.3d

1161, 1163 (11th Cir. 2001) (alteration in original, citation omitted, emphasis

                                          10
added) (per curiam).

      District courts are required to enter a scheduling order that limits the time to

join other parties and to amend the pleadings. Fed. R. Civ. P. 16(b). When a

party’s motion to amend is filed after the scheduling order’s deadline for such

motions, the party must show good cause for why leave to amend should be

granted. See Sosa, 133 F.3d at 1419. A district court may deny a motion to amend

on “numerous grounds, such as undue delay, undue prejudice to the defendants,

and futility of the amendment.” Maynard v. Bd. of Regents of the Div. of Univs.

of the Fla. Dep’t of Educ., 342 F.3d 1281, 1287 (11th Cir. 2003) (citation and

quotations omitted).

      The district court properly found that Kendall’s motion to amend was

untimely. Kendall filed his motion over two months after the deadline set in the

district court’s scheduling order. Moreover, the facts with which Kendall wished

to amend his complaint were known to Kendall at the time he filed his initial

complaint. See Sosa, 133 F.3d at 1419 (providing that a relevant factor in finding

that a court did not abuse its discretion in denying leave to amend was that “the

information supporting the proposed amendment to the complaint was available to

[the plaintiff] even before she filed suit”). Because Kendall failed to establish

good cause for why leave to amend should be granted, and because the district

                                         11
court dismissed the complaint without prejudice, the district court did not abuse its

discretion by denying leave to amend. See Smith v. School Bd. of Orange Cnty,

487 F.3d 1361, 1366-67 (11th Cir. 2007) (per curiam) (holding that “where a party

files an untimely motion to amend, [we] must first determine whether the party

complied with Rule 16(b)’s good cause requirement,” before considering whether

“justice so requires” allowing an amendment). Accordingly, we affirm the district

court’s denial of Kendall’s motion for leave to amend.

                  IV. Motion to Disqualify and Motion for Costs

      Because the district court’s dismissal of Kendall’s complaint was erroneous,

denial of Kendall’s motion to disqualify attorneys and his motion for cost of

service against Elite Engineering and Atlantic Southern Bank as moot was

premature. The district court should consider these motions on the merits on

remand.
                         VI. Motion for Default Judgment

      Under the Federal Rules of Civil Procedure, “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend,”

the clerk shall enter a default against that party. Fed. R. Civ. P. 55(a). We review

a district court’s decision made in the course of managing its docket for an abuse

of discretion. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863-64 (11th


                                         12
Cir. 2004). The Federal Rules of Civil Procedure allow a court to set aside a

default “for good cause.” Fed. R. Civ. P. 55(c). A district court has “the power to

control and direct the cases on its docket,” including “the inherent power to

dismiss a case.” Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B May1981).

      Dismissal of the default judgment on the basis that the complaint failed to

state a claim against Elite Engineering was erroneous and an abuse of discretion.

As stated above, the complaint did plead sufficient facts to establish standing at

the motion to dismiss stage. We leave it to the district court to consider on remand

whether, in light of this ruling, good cause exists to dismiss the default judgment

against Elite. See Fed. R. Civ. P. 55(c).

      Upon review of the record and consideration of the parties’ briefs, we

vacate and remand in part, and affirm in part.

      VACATED and REMANDED in part, AFFIRMED in part.2




      2
             Appellant’s request for oral argument is denied as moot.

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