VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff John Nunnelee ("Mr. Nunnelee") initiated this property damage action against the United States of America (the "Government") on June 14, 2011. (Doc. 1). At that particular juncture, Mr. Nunnelee was proceeding pro se. Subsequently, due to the complexity of the case, on October 5, 2011, the court appointed counsel to represent Mr. Nunnelee. (Doc. 14).
Mr. Nunnelee filed a first amended complaint on February 20, 2013, asserting four tort-based causes of action
Mr. Nunnelee opposed the Motion on June 24, 2013 (Doc. 35), and the Government followed with its reply on July 9, 2013. (Doc. 36). This case was then reassigned to the undersigned on July 15, 2013. (Doc. 37). Having studied both sides' positions, the Motion is due to be granted in part and denied in part.
An unpublished panel of the Eleventh Circuit has articulated the following standard governing a statute of limitations defense
Keira v. United States Postal Service, 157 Fed.Appx. 135, 136 (11th Cir.2005) (emphasis added).
Regarding timeliness under the FTCA:
Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir.1999) (emphasis added).
Unlike state courts, federal tribunals are bodies of limited jurisdiction, meaning that the grounds for the court's jurisdiction must be present at the time the complaint is filed and must be obvious on the face of the complaint. Fed.R.Civ.P. 8(a); 28 U.S.C. § 1330, et seq. The law is clear that Mr. Nunnelee, the person seeking to invoke federal jurisdiction in this case, has the burden to demonstrate that the court has subject matter jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 56 S.Ct. 780, 782, 80 L.Ed. 1135 (1936) ("It is incumbent upon the plaintiff properly to allege the jurisdictional facts, according to the nature of the case.").
Further, lack of subject matter jurisdiction cannot be waived or expanded by judicial interpretation, and a jurisdictional deficiency can be raised at any time by either the parties or the court. See, e.g., Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556-57, 42 L.Ed.2d 532 (1975) (citation omitted) ("While the parties may be permitted to waive nonjurisdictional defects,
"Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1)." Stalley v. Orlando Reg'l Healthcare Sys., 524 F.3d 1229, 1232 (11th Cir.2008).
The Supreme Court of the United States recently has elaborated upon several principles pertaining to the constitutional doctrine of standing:
Hollingsworth v. Perry, ___ U.S. ___, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013) (emphasis added).
In opposing the Government's Motion with respect to its statute of limitations defense, Mr. Nunnelee maintains that "[b]oth the Supreme Court and the Eleventh Circuit have recognized a `discovery rule' of accrual of a claim under the Federal Tort Claims Act ("FTCA"), and, thus, a delay to the start of the limitations period, where either the injury or its potential cause is not apparent." (Doc. 35 at 5). While Mr. Nunnelee is correct that the Supreme Court in Kubrick and the Eleventh Circuit in Diaz embraces the application of a discovery-related accrual rule, i.e., knowledge of injury and its cause, in the context of a FTCA medical malpractice claim, neither opinion indicates that this same framework should extend to property damage claims under the FTCA.
As Diaz provides, most FTCA cases adhere to the general rule that a claim accrues at the time of injury. Further, while Diaz acknowledges that "[i]n certain situations," exceptions to this general accrual
The additional Eleventh Circuit authorities upon which Mr. Nunnelee relies are all, akin to Diaz, FTCA medical malpractice decisions. See, e.g., Price v. United States, 775 F.2d 1491, 1492-93 (11th Cir. 1985) ("This appeal concerns the issue of when the statute of limitations begins to run in a medical malpractice action under the FTCA."); McCullough v. United States, 607 F.3d 1355, 1356 (11th Cir.2010) ("The district court granted summary judgment for the United States because Mr. McCullough's administrative claim was filed more than two years after Mr. McCullough knew that his paralysis was caused by a spinal abscess.").
Mr. Nunnelee also cites to several non-binding opinions in support of his position. Therefore, the court reviews these decisions to determine whether any of them is helpful in its efforts to address this apparently still open question of Eleventh Circuit law.
First, in Kronisch v. United States, 150 F.3d 112, 116 (2d Cir.1998), the Second Circuit was faced with a plaintiff who was claiming personal injury as "one of the victims of the CIA's program to test the effects of mind-altering drugs, including lysergic acid diethylamide ("LSD"), on unwitting subjects beginning in the early 1950s." In evaluating the timeliness of the plaintiff's FTCA claim, the court set forth the following framework:
Kronisch, 150 F.3d at 121 (footnote omitted) (emphasis added). In Kronisch, the
Second, in LaBauve v. Olin Corp., 231 F.R.D. 632 (S.D.Ala.2005), Judge Steele used a "reasonably should have known" accrual standard when evaluating the timeliness of the plaintiff's property damage claims arising under the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"):
LaBauve, 231 F.R.D. at 658-59 (footnote omitted); see also id. at 654 (explaining statutory-based FRCD).
Third, parenthetically, Mr. Nunnelee cites to Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 205 (2d Cir.2002), which is not a FTCA case, but rather a CERCLA decision upon which LaBauve relies. See Freier, 303 F.3d at 205 ("The discovery-of-cause standard set by the FRCD, defined as `the date the plaintiff knew (or reasonably should have known) that the personal injury' was caused or contributed to by the hazardous materials, focuses on knowledge, actual or imputed, not on suspicion.").
Fourth, Mr. Nunnelee refers to O'Connor v. Boeing North American, Inc., 311 F.3d 1139 (9th Cir.2002). O'Connor, like Freier, is another CERCLA case. O'Connor, 311 F.3d at 1146 ("We hold that CERCLA preempts California's discovery rule and that the California limitations period did not commence until Plaintiffs knew or should have known of their claim.").
The primary authority upon which Mr. Nunnelee relies in support of his accrual position is LaBauve. However, because LaBauve is CERCLA-based and tied to specific statutory language which codifies the applicable accrual standard, this court does not find it to be particularly instructive with respect to which accrual standard to apply under the FTCA. Certainly, Mr. Nunnelee has not referred to any authority which connects principles of accrual under CERCLA to the FTCA. The court reaches a similar conclusion with respect to the persuasiveness of Freier and O'Connor.
Kronisch, on the other hand, arises under the FTCA and outside of the medical malpractice context. Further, Kronisch involves allegations of governmental concealment and difficulties discerning the source of an injury, which issues Mr. Nunnelee contends are also pivotal to his case. Under such circumstances and in the absence of a contention by the Government that the more exacting FTCA accrual standard
Further, guided by the framework for evaluating a statute of limitations defense asserted under the FTCA as suggested by the unpublished Eleventh Circuit panel in Keira,
While the court acknowledges the Government's contention that "the Court should resolve jurisdictional issues of fact on the motion to dismiss, rather than apply a summary judgment standard and reserve ruling until after trial[,]" none of the cases upon which the Government relies involves an FTCA-driven statute of limitations defense. More specifically, only a few of those referenced decisions even arise under the FTCA and not one of them sets forth any standards of review to apply when a statute of limitations defense is asserted. See, e.g., OSI, Inc. v. United States, 285 F.3d 947, 949 (11th Cir.2002) ("The district court dismissed the FTCA claims for lack of jurisdiction, on the grounds that the discretionary function exception applied, and granted summary judgment on the RCRA and CERCLA claims.") (emphasis added).
Therefore, due to the limited development of the record, the more prudent avenue to follow here is to deny the Government's Rule 12-based challenge to the timeliness of Mr. Nunnelee's FTCA claim. Cf. Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir.2011) ("This Court has explained `[w]hen the jurisdictional basis of a claim is intertwined with the merits [of the claim], the district court should apply a Rule 56 summary judgment standard when ruling on a motion to dismiss which asserts a factual attack on subject matter jurisdiction.'" (citing Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir.1990))). Accordingly, for all these reasons, the statute of limitations portion of the Government's Motion is due to be denied.
Secondarily, the Government maintains that this case should be dismissed jurisdictionally because Mr. Nunnelee lacks standing to bring it. More specifically, the Government argues that Mr. Nunnelee "lacks standing because he does not own — and has never owned — the property on which his claims are based and for which he is seeking damages." (Doc. 30 at 35). Mr. Nunnelee responds that, regardless of his ownership status, "[p]ossession is an adequate property interest to give a plaintiff
However, absent from Mr. Nunnelee's opposition are any cases which analyze a plaintiff's standing to sue for property-related tort claims in the absence of an ownership interest or a possessory right, e.g., by way of a tenant holding a lease on the allegedly affected property. Instead, the bulk of Mr. Nunnelee's opposition focuses upon the prima facie elements that are required of each claim.
In Blevins v. Hillwood Office Center Owners' Ass'n, 51 So.3d 317, 318, 319, 320 (Ala.2010), the Supreme Court of Alabama addressed whether a holder of an ineffective quitclaim deed who "had begun operating a law practice in the unit" had standing to sue a homeowner's association for nuisance, breach of fiduciary duty, conspiracy, specific performance, conversion, and declaratory relief. Prior to the appeal's reaching the Supreme Court of Alabama, the original plaintiff added the homeowner who had given him the quitclaim deed as a party plaintiff to the litigation. See Blevins, 51 So.3d at 321 ("In December 2008, Jerry amended his complaint to add Carol as a plaintiff.").
In analyzing the jurisdictional issue, the Supreme Court of Alabama began by explaining that:
Blevins, 51 So.3d at 321 (emphasis added).
The Blevins Court continued:
Blevins, 51 So.3d at 322 (emphasis by underlining added). Ultimately, the Supreme Court of Alabama determined that the "burden of establishing subject-matter jurisdiction" had not been met, vacated the circuit court judgment, and dismissed the appeal. See Blevins, 51 So.3d at 323 ("This action, having begun at the instance of someone without standing, cannot now be maintained by someone with standing." (citing Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008))).
While Blevins does not entirely mirror the jurisdictional question facing this court, it underscores a critical component of standing, which is that the plaintiff has the burden to demonstrate the existence of a legally cognizable interest and cannot count on the court to construct jurisdictional contentions for him. Additionally, Blevins held that merely possessing property, without more, is insufficient to create standing to sue for nuisance and other property-related claims under Alabama law.
Here, the court agrees with Mr. Nunnelee that standing to assert property-related claims under Alabama law is not limited solely to owners of land and that possessors of land can, in some instances, also have standing. However, for that to occur, such persons must, at a minimum, have some separate type of cognizable right to the possession of the property beyond merely continuing to reside there after the death of the owner. Cf. Williams v. Moore, 36 So.3d 533, 542 (Ala. Civ.App.2008) ("Absent such right of possession, there can be no action based on trespass." (internal quotation marks omitted) (quoting Avery v. Geneva County, 567 So.2d 282, 289 (Ala.1990))); Avery, 567 So.2d at 289 ("The effect of this rule is that the decedent did not have standing to bring a trespass action against the defendants at the time the dam was broken.").
In this instance, Mr. Nunnelee skirts the ownership issue (see Doc. 35 at 14 ("Therefore, even if it were true, arguendo, that Mr. Nunnelee has no ownership interest in the property on which he and his family reside.")),
For example, while Mr. Nunnelee cites to several cases in which a tenant has stated a cause of action for nuisance (Doc. 35 at 16), he does not contend that he qualifies as a tenant under Alabama law. Also, while Mr. Nunnelee points to his physical possession of the property since 2004, he does not maintain that he has acquired a property interest through adverse possession or some other means recognized by Alabama law. Id.
Further, while Mr. Nunnelee suggests that no real property interest is required to support standing for his negligence claim (Doc. 35 at 14), none of the cases cited in his brief analyzes the issue of standing when a plaintiff is pursuing a negligence claim for damages to property where he resides. More specifically, AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141 (Ala. 1998), involves no issue of standing. Armstrong Business Services, Inc. v. AmSouth Bank, 817 So.2d 665 (Ala.2001), merely mentions (and does not evaluate) standing in the introductory portion of the decision. See Armstrong, 817 So.2d at 668 ("ABS and Armstrong also conceded that Armstrong lacked standing to assert ABS's claims."). Finally, Teitel v. Wal-Mart Stores, Inc., 287 F.Supp.2d 1268 (M.D.Ala.2003), addresses the standing of the plaintiffs to assert a fraud claim as assignees under a mortgage. See Teitel, 287 F.Supp.2d at 1285 ("Viewing the facts
Therefore, for all these reasons, the court finds that Mr. Nunnelee has not satisfied his standing burden with respect to any of the claims asserted in his first amended complaint and, as a result, will dismiss this case without prejudice for lack of subject matter jurisdiction.
Accordingly, the Government's Motion is due to be granted as to Mr. Nunnelee's lack of standing, but otherwise is due to be denied. The court will enter a separate order of dismissal consistent with this memorandum opinion.
28 U.S.C. § 1346(b).
