Birdsong v. The City of Birmingham

Filing 10

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 9/26/14. (SAC )

FILED
2014 Sep-26 AM 09:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANNIE BIRDSONG,

}
}
}
}
}
}
}
}
}

Plaintiff,
v.
CITY OF BIRMINGHAM,
Defendant.

CIVIL ACTION NO.
2:14-CV-1391-WMA

MEMORANDUM OPINION
This action comes before the court on a motion to dismiss
filed by defendant City of Birmingham (“the City”). Plaintiff Annie
Birdsong (“Birdsong”) instituted this action pro se and in forma
pauperis, claiming that the City is in violation of the Endangered
Species Act of 1973. For the reasons stated below, the City’s
motion will be granted.
BACKGROUND
Birdsong filed suit on July 18, 2014. In her complaint and
subsequent amendments, she claims that the City is responsible for
a mosquito extermination program covering 181,083 blocks in and
around

Birmingham.

Birdsong

contends

that

the

chemical

used,

Permethrin, runs off into bodies of water and harms aquatic species
found in Jefferson County, some of which are listed pursuant to the
Endangered Species Act as endangered or threatened. She also claims
that the chemical harms pollinators such as butterflies and bees.
While there are no known endangered or threatened pollinator
species in Jefferson County, Birdsong contends that the pesticide

drifts and could harm pollinators found elsewhere.
Because of this alleged harm, Birdsong insists that the City
is in violation of 16 U.S.C. § 1538(a)(1)(B), which prohibits,
inter

alia,

any

person

from

harming

any

endangered

species.

Birdsong seeks an injunction placing a moratorium on all mosquito
spraying by the City.
DISCUSSION
The City, invoking Fed. R. Civ. P. 8(a), has moved to dismiss
the action. Under Rule 8(a), a complaint, in order to be viable,
must contain a short and plain statement demonstrating the court’s
jurisdiction,

a

short

and

plain

statement

of

the

claim

demonstrating that the plaintiff is entitled to relief, and a
demand for relief.
The City argues that Birdsong’s complaint as amended is
essentially a term paper and does not state a cognizable claim or
cause of action or show any entitlement to relief. Only because pro
se complaints are held “to less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520
(1972), and “document[s] filed pro se [are] ‘to be liberally
construed,’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)), this court finds that
the requirements of Fed. R. Civ. P. 8(a) are minimally satisfied.
While Birdsong’s complaint certainly does not qualify as “short and
plain,” construed liberally it does allege that the City is in
violation

of

16

U.S.C.

§

1538(a)(1)(B)

by

harming

several

endangered species, and she requests that the City be enjoined from
spraying the pesticide. The pleadings are inartful. They are more
an ecological treatise than a lawyerlike complaint, but they do
allege facts that may entitle her to relief, and she requests
specific

relief.

Jurisdiction,

except

for

the

fatal

defect

described infra, is based on the existence of a federal question.
The court will not dismiss the action under Rule 8(a).
The City also moves to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), primarily because the complaint and its amendments fail
to state a plausible claim under the Supreme Court’s Twombly and
Iqbal jurisprudence. The City makes a good argument, but this court
need not reach the Twombly and Iqbal issues because dismissal is
clearly called for on a ground that has not been argued.
The Endangered Species Act contains a broad citizen suit
provision, allowing “any person [to] commence a civil suit” for any
violation of the Act. 16 U.S.C. § 1540(g)(1) (2012). Despite this
broad allowance, the Act prohibits actions by private citizens
unless the plaintiff provides prior written notice of the alleged
violation to the Secretary of the Interior and to the alleged
violator. 16 U.S.C. § 1540(g)(2)(A)(i). The plaintiff must allow
sixty days to elapse after notice before filing suit. Id. Courts in
this circuit have found failure to provide the required notice to
be

a

jurisdictional

bar.

See

Alabama

v.

U.S.

Army

Corps

of

Engineers, 441 F. Supp. 2d 1123, 1129 (N.D. Ala. 2006) (“The sixtyday notice requirement is jurisdictional.”); Defenders of Wildlife

v. Bureau of Energy Mgmt., Regulation, and Enforcement, 791 F.
Supp.

2d

1158,

1181

(S.D.

Ala.

2011)

(finding

the

notice

requirement to be jurisdictional).
This court agrees with its fellow district judges that this
requirement is jurisdictional. Thus, because Birdsong has not
alleged that she served either the Secretary of the Interior or the
City with written notice at least sixty days before she commenced
this action, the action is due to be dismissed for lack of
jurisdiction, even without the City raising the issue. See Univ. of
South Ala. v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) (“[A] federal court is obligated to inquire into subject
matter jurisdiction sua sponte whenever it may be lacking.”).1
CONCLUSION
Because Birdsong has failed to follow the requirements to
bring a citizen suit under the Endangered Species Act, the City’s
motion to dismiss is due to be granted, and the action will be
dismissed without prejudice. A separate order will be entered.
DONE this 26th day of September, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

1

Even if the failure is non-jurisdictional, dismissal is still
appropriate because a district court may dismiss sua sponte an action filed in
forma pauperis if the action “fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(ii) (2012).