Tennessee Valley Authority v. Long
MEMORANDUM OPINION AND ORDER GRANTING 8 MOTION to Dismiss Counterclaim. Signed by Judge Virginia Emerson Hopkins on 7/9/2012. (JLC)
2012 Jul-09 PM 04:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DAVID ERIC LONG,
) Case No.: 4:12-CV-704-VEH
MEMORANDUM OPINION AND ORDER
Before the court is Counter Defendant Tennessee Valley Authority (“TVA”)’s
Motion To Dismiss Counterclaim for Lack of Subject Matter Jurisdiction and For
Failure to State a Claim Upon Which Relief Can Be Granted (“Motion To Dismiss”),
filed on May 22, 2012. (Doc. 8). The time allotted for a response pursuant to the
court’s Uniform Initial Order (Doc. 2, Appendix III) has expired and the Counter
Claimant, David Eric Long (“Mr. Long”), has not responded. Therefore, the Motion
To Dismiss is now under submission and ripe for the court’s decision. For good
cause shown, the Motion To Dismiss is due to be granted.
Plaintiff TVA filed this lawsuit against Mr. Long on February 29, 2012, raising
federal claims under the Tennessee Valley Authority Act of 1933, as amended, 16
U.S.C. §§ 831-831ee (2006 & Supp. III 2009) (the “TVA Act”). (Doc. 1). TVA
alleges that Mr. Long began constructing a new boathouse along the Tennessee River
without TVA’s prior approval or permission, in violation of the TVA Act. (Doc. 1
¶¶ 15–26). TVA further alleges that it has been in communications with Mr. Long
about his need for a permit, but that Mr. Long repeatedly refuses to apply for the
permit. (Id. ¶¶ 27–34). In addition to the new boathouse, TVA alleges that Mr. Long
similarly is unlawfully operating a walkway, “riprap,” and outfall draining without
the necessary permits required by the TVA Act. (Id. ¶¶ 35–42). As a result, TVA
seeks injunctive and declaratory relief against Mr. Long’s allegedly unauthorized
obstructions, and asks the court for an order requiring Mr. Long to remove the new
boathouse, walkway, riprap, and outfall draining. (Id. ¶¶ 1, 47).
Defendant filed his Answer and Counterclaim on March 23, 2012. (Doc. 5).
Mr. Long’s counterclaim appears to assert a Fifth Amendment takings claim and seek
declaratory relief by asking the court to declare the “correct property boundary” of
Mr. Long’s property. Because TVA moves the court for dismissal of Mr. Long’s
counterclaim based, in part, on its failure to state a claim, the court sets out the
entirety of Mr. Long’s counterclaim as follows:
WHEREFORE, the defendant, having fully answered, now assumes the
role of counter-plaintiff and for Counter-Claim would state as follows:
The plaintiff/counter-defendant has asserted claims herein that
place the designation of the true property line as it existed and
marked by metal marker prior to its conveyance in 1956 to the
counter-plaintiff’s predecessors in title in dispute.
The property line would be that as it existed when it was marked
and property conveyed.
The counter-defendant has claimed rights up to the 600 foot
contour line as it now exists which would constitute a taking of
land without compensation and inverse condemnation.
This issue is ripe for declaratory judgment purposes.
WHEREFORE, counter-plaintiff requests this Honorable Court to
declare that the correct property boundary is the 600 foot contour line
as it existed when it was marked and the land above it sold to counterplaintiff’s predecessors in title.
(Doc. 5 at 5).
Motion To Dismiss Standard1
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
A counterclaim is treated under the same motion to dismiss standards as a complaint.
Whitney Info. Network, Inc. v. Gagnon, 353 F. Supp. 2d 1208, 1210 (M.D. Fla. 2005); Fabricant
v. Sears Roebuck, 202 F.R.D. 306, 308 (S.D. Fla. 2001).
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal, 129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). The court therefore “accept[s] as true
the facts set forth in the complaint and draw[s] all reasonable inferences in the
plaintiff’s favor.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). “Under
Twombly’s construction of Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge [any]
claims’ . . . ‘across the line from conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
Thus, “[a] district court considering a motion to dismiss shall begin by
identifying conclusory allegations that are not entitled to an assumption of truth --legal conclusions must be supported by factual allegations. The district court should
assume, on a case-by-case basis, that well pleaded factual allegations are true, and
then determine whether they plausibly give rise to an entitlement to relief.” Randall,
610 F.3d at 709 -710.
The Counterclaim Does Not Sufficiently State A Claim
Applying these principles, Mr. Long’s counterclaim does not contain sufficient
facts to the extent it seeks to state a takings claim under the Fifth Amendment of the
U.S. Constitution.2 The Takings Clause of the Fifth Amendment provides: “nor shall
private property be taken for public use, without just compensation.” U.S. Const.
. . . [T]o state a Takings claim under either federal or Alabama law, a
plaintiff must first demonstrate that he possesses a “property interest”
that is constitutionally protected. See Ruckelshaus v. Monsanto Co., 467
U.S. 986, 1000-01, 104 S. Ct. 2862, 2871, 81 L. Ed.2d 815 (1984); Penn
Cent. Transp. Co. v. New York, 438 U.S. 104, 125, 98 S. Ct. 2646, 2659,
57 L. Ed.2d 631 (1978); Jackson v. Birmingham Foundry & Mach. Co.,
154 Ala. 464, 45 So. 660, 662-63 (Ala. 1908). Only if the plaintiff
actually possesses such an interest will a reviewing court then determine
whether the deprivation or reduction of that interest constitutes a
“taking.” Schneider v. California Dep't of Corr., 151 F.3d 1194, 1198
(9th Cir. 1998).
Givens v. Alabama Dept of Corr., 381 F.3d 1064, 1066 (11th Cir. 2004). As TVA
notes, the counterclaim does not specify the property that TVA has allegedly taken.
Similarly, the counterclaim does not present sufficient facts to show an “actual
controversy” sufficient to invoke this court’s jurisdiction to issue a declaratory
judgment under 28 U.S.C. § 2201. On the whole, the purported counterclaim fails to
meet the federal pleading standards because it contains threadbare facts and is not
sufficient to give rise to a plausible claim for relief. Iqbal, 556 U.S. at 1949 (“To
Although the counterclaim does not expressly cite to the Fifth Amendment – or to any
other law or statute – the allegations in Paragraph 63 suggest a constitutional takings claim.
(Doc. 5 ¶ 63 (“The counter-defendant has claimed rights up to the 600 foot contour line as it now
exists[,] which would constitute a taking of land without compensation and inverse
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” (quoting
Twombly, 550 U.S. at 570. Mr. Long should not attempt to replead his counterclaim
unless he can clearly establish this court’s jurisdiction over his counterclaim(s);
clearly identify the law(s), statute(s), or constitutional provision(s) under which he
seeks to bring any such claim(s); and provide sufficiently detailed facts to support
each element of each cause of action he asserts.
For the reasons stated above, TVA’s Motion To Dismiss is hereby GRANTED.
Accordingly, Mr. Long’s counterclaim is hereby DISMISSED.
DONE and ORDERED this the 9th day of July, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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