United States of America v. Roberts
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/12/2016. (JLC)
2016 Dec-12 PM 02:59
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
) Case No.: 1:15-CV-1269-VEH
Plaintiff United States filed this ejectment action against Defendant Michael
Roberts (“Mr. Roberts”) on July 28, 2015, pursuant to 28 U.S.C. § 1345.1 (Doc. 1).
The suit seeks an order ejecting Mr. Roberts from a tract of land owned by Plaintiff
that is part of the Talladega National Forest (Doc. 1 at 2 ¶ 3), including the removal
of all personal property and structures. (Doc. 1 at 5 ¶ 21). Mr. Roberts, who is
representing himself, responded to the complaint on December 2, 2015, and generally
denied Plaintiff’s allegations. (Doc. 16).
Pending before the court are Plaintiff’s Motion for Summary Judgment (Doc.
28 U.S.C. § 1345 provides, in relevant part, that “the district courts shall have original
jurisdiction of all civil actions, suits or proceedings commenced by the United States . . . .” Id.
23) (the “Motion”) as well as its supporting brief (Doc. 24) and attached evidentiary
materials, all of which were filed on July 6, 2016. The Motion seeks summary
judgment on Plaintiff’s ejectment claim and equitable relief in the form of an order
requiring Mr. Roberts to vacate the property. (Doc. 23 at 1).
On July 7, 2016, the court entered a special notice and scheduling order on the
Motion in light of Mr. Roberts’s pro se status. (Doc. 25). That order established a
deadline of August 15, 2016, for Mr. Roberts to respond to Plaintiff’s Motion and
cautioned him about the potential negative consequences of doing nothing. (Doc. 25
at 2). Nonetheless, Mr. Roberts has not contested any part of Plaintiff’s Motion. For
the reasons discussed below, Plaintiff’s Motion is due to be granted.
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. FED. R . CIV. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993) (instructing that “district court should resolve all reasonable doubts
about the facts in favor of the non-movant, and draw all justifiable inferences in his
[or its] favor” (internal quotation marks omitted) (quoting United States v. Four
Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 2006) (en banc))). A
dispute is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When, such as here, the moving party is the plaintiff, satisfying this initial Rule 56
burden means “affirmatively . . . support[ing] its motion with credible evidence ….
[and] show[ing] that, on all the essential elements of its case on which it bears the
burden of proof at trial, no reasonable jury could find for the non-moving party.”
Fitzpatrick, 2 F.3d at 1115 (citations and internal quotation marks omitted) (emphasis
in original) (quoting Four Parcels, 941 F.2d at 1438). Only “[o]nce the moving party
has properly supported its motion for summary judgment, [does] the burden shift
to the nonmoving party to ‘come forward with specific facts showing that there is a
genuine issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Serv., 456 F.3d
1270, 1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)).
Mr. Roberts’s Failure To Oppose Plaintiff’s Motion
Rule 56(e) of the Federal Rules of Civil Procedure provides:
Failing to Properly Support or Address a Fact. If a party fails
to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court
(1) give an opportunity to properly support or address the
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials--including the facts considered undisputed--show
that the movant is entitled to it; or
(4) issue any other appropriate order.
FED. R. CIV. P. 56(e). Regardless of these available options in the event of a nonmovant’s failure to oppose, “[t]he movant … continues to shoulder the initial burden
of production in demonstrating the absence of any genuine issue of material fact, and
the court must satisfy itself that the burden has been satisfactorily discharged.” Reese
v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (emphasis added).
As this court has previously stated when the non-movant offers no opposition
to a summary judgment motion:
Thus, although a court may not a grant a motion for summary judgment
simply because the motion goes unopposed, it may do so if the moving
party has shown that there are no disputed issues of material fact and
that it is entitled to judgment as a matter of law. See, e.g., Vermont
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir.
2004) (“Although the failure to respond may allow the district court to
accept the movant’s factual assertions as true . . . , the moving party
must still establish that the undisputed facts entitle him to a judgment as
a matter of law.”); see also Custer v. Pan American Life Ins. Co., 12
F.3d 410, 416 (4th Cir. 1993) (“Thus, the court, in considering a motion
for summary judgment, must review the motion, even if unopposed, and
determine from what it has before it whether the moving party is entitled
to summary judgment as a matter of law.”); see also FED. R. CIV. P.
Griffin v. U.S. Postal Serv., No. 1:06-CV-0124-VEH (Doc. 29 at 3) (N.D. Ala. Nov.
7, 2008); see also United States v. One Piece of Real Property, 363 F.3d 1099 (11th
Cir. 2004) (“[T]he district court cannot base the entry of summary judgment on the
mere fact that the motion was unopposed, but, rather, must consider the merits of the
motion.” (emphasis added) (citing Dunlap v. Transamerica Occidental Life Ins. Co.,
858 F.2d 629, 632 (11th Cir. 1988) (per curiam))); One Piece, 363 F.3d at 1099 (“The
district court need not sua sponte review all of the evidentiary materials on file at the
time the motion is granted, but must ensure that the motion itself is supported by
evidentiary materials.”) (emphasis added); Alsina-Ortiz v. Laboy, 400 F.3d 77, 81 (1st
Cir. 2005) (noting that, faced with a record without any opposing facts from nonmovant, district court has discretion to “accept the moving party’s allegedly
uncontested facts as true, but whether or not this justifies summary judgment for the
moving party depends upon the legal and factual configuration that results”)
(emphasis added) (Laboy cited with approval by Eleventh Circuit in Reese, 527 F.3d
Real property Tract T-15 is owned by the United States and is part of the
Talladega National Forest. AF No. 1.3 In 1937, the United States purchased Tract
T-15, along with other tracts, from the Kyle Lumber Company and acquired title in
fee simple to these tracts. AF No. 2.1. The Indenture conveying Tract T-15 to the
United States was recorded by the Cleburne County Judge of Probate on September
6, 1937. AF No. 2.2. The United States purchased this property under the authority
of the Weeks Act of 1911, which provides the U.S. Secretary of Agriculture is
authorized to acquire forested land “necessary for the regulation of the flow of
Keeping in mind that, when deciding a motion for summary judgment, the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
Under appendix II of the court’s uniform initial order (Doc. 2) entered on August 4, 2015,
“[a]ll statements of fact must be supported by specific reference to evidentiary submissions.” (Id. at
16). The designation “AF” stands for admitted fact and indicates a fact offered by Plaintiff that it has
adequately supported through citations to underlying evidence as appendix II mandates. For Mr.
Roberts, more specifically, this means that even though he failed to oppose Plaintiff’s Motion in any
manner, the court has independently reviewed the proof (i.e., the declaration of Adrien Rodriguez,
and the five documentary attachments) offered by Plaintiff to establish that proposed fact before
accepting it as a fact admitted by Mr. Roberts. The court’s numbering of admitted facts (e.g., AF No.
1) corresponds to the numbering of Plaintiff’s factual background as set forth in Doc. 24. A number
following a decimal point corresponds to the particular sentence within the numbered statement of
facts. For example, (AF No. 2.2) would indicate the second sentence of paragraph 2 of Plaintiff’s
statement of undisputed facts is the subject of the court’s citation to the record.
navigable streams or the production of timber.” AF No. 3.
In 1985, the U.S. Forest Service resurveyed the eastern boundary of Tract T-15
and determined that a portion of the eastern boundary line had been improperly
marked by the United States to the west of where the actual property line ran based
on the original real property description. AF No. 4.1. This meant that approximately
.44 acre occupied by the then owners of the neighboring property, Herbert and Edna
Roberts, actually belonged to the United States. AF No. 4.2. Due to the fact that
Herbert and Edna Roberts had occupied this .44 acre continuously from 1973 based
on the improperly marked line and the encroachment was innocent, the United States,
in 1990, authorized the sale of the .44 acre to Mr. and Mrs. Roberts under the Small
Tracts Act.4 AF No. 5.
On August 27, 1990, the United States executed a Quitclaim Deed conveying
the .44 acre, which was designated Tract T-365, to Herbert and Edna Roberts. AF No.
6. In or around fall of 2011, the U.S. Forest Service discovered that Mr. Roberts, the
current owner of Tract T-365, had built structures and placed personal property that
substantially crossed over the current property line onto Tract T-15. AF No. 7.
As Plaintiff points out in its brief (Doc. 24 at 3 n.1), “[t]he Small Tracts Act of 1938
authorized the Secretary of the Interior to sell or to lease small, isolated five acre tracts of public
lands to be used for ‘home, cabin, camp, health, convalescent, recreational, or business site’
purposes.” (internal quotation marks omitted) (quoting New W. Materials LLC v. Interior Bd. of
Land Appeals, 216 F. App’x 385, 387 (4th Cir. 2007) (in turn quoting 52 Stat. 609 (1938))).
After discussions with Mr. Roberts regarding the proper boundary line, in
January 2012, a U.S. Forest Service Forest Land Surveyor went to survey the
boundary of Tract T-15 and Tract T-365 using the original survey markers. AF No.
8. Upon surveying the area, the surveyor found that a survey marker that marked the
boundary between Tract T-15 and Tract T-365 had been physically moved to a
different location, making Tract T-365 appear larger. AF No. 9.1. The survey marker
that had been moved had a detachable magnetic base that remained buried in the
ground at its original location. AF No. 9.2.
After surveying the property, the surveyor prepared a survey that took into the
account boundaries established by the August 27, 1990 Quitclaim Deed. AF No. 10.1.
The survey shows that a portion of Tract T-15, which is federal land, has been cleared
of timber and used for private parking and junk storage. AF No. 10.2. A private pond
has also been constructed on a portion of Tract T-15. AF No. 10.3. Prior to filing this
lawsuit, the United States notified Mr. Roberts multiple times of his trespass on and
occupation of United States land, but Mr. Roberts refused to remove his property
from the land. AF No. 10.
Plaintiff premises its action for ejectment on Alabama Code § 6-6-280. (Doc.
24 at 5). This statute requires proof that “the plaintiff was possessed of the premises
or has the legal title thereto, properly designating or describing them, and that the
defendant entered thereupon and unlawfully withholds and detains the same.” Ala.
Code § 6-6-280(b); see Ware v. Deutsche Bank Nat. Trust Co., 75 So. 3d 1163, 1172
(Ala. 2011) (same); see also Steele v. Fed. Nat. Mortg. Ass’n, 69 So. 3d 89, 92 (Ala.
2010) (“Actions in ejectment or actions in the nature of an action in ejectment are
governed by § 6-6-280, and we are bound to interpret the language of that statute to
mean exactly what it says.” (citing Blue Cross & Blue Shield of Alabama, Inc. v.
Nielsen, 714 So.2d 293, 296 (Ala. 1998))).
Moreover, “[a] plaintiff who establishes that he has both legal title to the
property when his complaint is filed and a right to immediate possession has
established the elements for statutory ejectment.” Fed. Home Loan Mortg. Corp. v.
Wilson, No. 2:13-CV-1744-SLB, 2015 WL 5693600, at *5 (N.D. Ala. Sept. 29, 2015)
(internal quotation marks omitted) (quoting Taylor v. Bryars, 602 So. 2d 378, 380
(Ala. 1992) (in turn quoting Thompson v. First State Bank of Alabama, 503 So. 2d
858, 860 (Ala. Civ. App. 1987)), Taylor overruled on other grounds by Steele v. Fed.
Nat. Mortg. Ass’n, 69 So. 3d 89 (Ala. 2010)).
Here, Plaintiff has affirmatively shown, by way of undisputed legal title
contained in the record, its rightful ownership of Tract T-15 at the time it initiated this
action. Plaintiff also has demonstrated that Mr. Roberts has, without Plaintiffs’
permission, encroached upon a portion of Tract T-15 that abuts Tract T-365 (i.e., the
.44 acre of former federal land acquired by Herbert and Edna Roberts through a
Quitclaim Deed executed in 1990), including clearing the federally-owned land of
timber and using that space for parking and storage. Mr. Roberts additionally has
constructed a private pond on the federal property.
Mr. Roberts has not opposed the Motion in any manner, much less offered a
shred of evidence suggesting that he holds an interest which would entitle him to
occupy any area of Tract T-15, as measured by the underground survey markers that
separate it from Tract T-365. Nonetheless and despite Plaintiff’s repeated demands
for full possession of Tract T-15, Mr. Roberts has refused to vacate the federal
property upon which he is infringing. Under such circumstances, Plaintiff’s Motion
is due to be granted. Cf. Wilson, 2015 WL 5693600, at *5, *11 (finding foreclosure
deed and defendant’s continued presence on property “sufficient to establish a prima
facie case for Freddie Mac’s ejectment claim,” rejecting defendant’s numerous
challenges to the underlying foreclosure and, ultimately granting summary judgment
in favor of Freddie Mac on its ejectment claim); Fed. Home Loan Corp. v. Brooks,
No. 2:14-CV-262-RDP, 2015 WL 4094237, at *4 (N.D. Ala. July 7, 2015) (“Simply
put, the undisputed facts establish all the elements of Freddie Mac’s ejectment
The uncontested record straightforwardly substantiates the essential elements
of Plaintiff’s ejectment claim. Because Plaintiff has met its affirmative burden as the
movant and as Mr. Roberts has offered nothing in opposition, the court will issue a
separate order granting Plaintiff’s Motion and ejecting Mr. Roberts from Tract T-15,
including the removal of any personal property or structures from the federally-owned
land, no later than 5:00 p.m. on January 31, 2017.
DONE and ORDERED this 12th day of December, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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