Gadsden Industrial Park LLC v. United States of America et al
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 10/3/2017. (KAM)
2017 Oct-03 PM 03:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
GADSDEN INDUSTRIAL PARK, LLC,
) Case No. 4:15-cv-0956-JEO
UNITED STATES OF AMERICA; CMC, )
INC.; and HARSCO COPORATION,
In this action, Plaintiff Gadsden Industrial Park, LLC (“GIP”) has sued the
United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2671 et seq., and two government contractors, CMC, Inc. (“CMC”) and Harsco
Corporation (“Harsco”) (hereinafter collectively “Defendants”) under Alabama
tort law. (Doc.1 27, Amended Complaint (hereinafter “Complaint” or “Compl.”).
The cause comes to be heard on two pending motions. The first is a joint motion
filed by CMC and Harsco (collectively the “Contractors”) in which they seek a
dismissal or, in the alternative, a stay of the proceedings on the claims against
References to “Doc(s). ___” are to document number(s) of the pleadings, motions, and
other materials in the court file, as compiled and designated on the docket sheet by the clerk of
the court. Unless otherwise noted, pinpoint citations are to the page of the electronically filed
document on the court’s CM/ECF system, which may not correspond to pagination on the
original “hard copy” presented for filing.
them, based on an argument that GIP has engaged in improper claim-splitting.
(Doc. 36 (incorporating Docs. 7 & 8)). In the other pending motion, the United
States seeks a dismissal for lack of jurisdiction, based on the discretionaryfunction exception to the FTCA’s waiver of sovereign immunity. (Doc. 37). The
parties have exhaustively briefed the motions. (Docs. 45-47, 48-1, 50, 51, 54-55,
59, 61). Upon consideration, the court2 concludes that both motions to dismiss are
due to be granted.
The salient allegations of the Complaint are these: Prior to the events
giving rise to this lawsuit, a company known as Gulf States Steel, Inc. of Alabama
(“Gulf States”) owned and operated a 761-acre steel manufacturing facility in
Gadsden, Alabama (the “Site”). (Compl. ¶ 11). In 1999, Gulf States filed for
bankruptcy, and, in connection with that proceeding, various of its assets were
sold off. (Id.) One such asset was a railroad track system installed on the Site,
which was purchased in 2001 by the Williams Family Limited Partnership
(“Williams”). (Id. ¶ 13). In 2002, Plaintiff GIP purchased other Gulf States
The parties have consented to an exercise of plenary jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73. (Doc. 29).
assets, including about 434 acres of the Site real estate. (Id. ¶ 14). GIP also
purchased other assets situated on an approximately 200-acre portion of the Site
that GIP did not buy, an area of land the Complaint refers to as the “Excluded Real
Property.” (Id. ¶¶ 15, 16). In particular, GIP purchased all of the “kish” as well as
420,000 cubic yards of “slag” located on the Excluded Real Property. (Compl. ¶
16). Kish is a by-product of the steelmaking process and contains recyclable metal
particulates, while slag is the unrefined result of the first step of the steelmaking
process. (Id. ¶ 17). Both had been “dumped and/or stockpiled” at various
locations on the Excluded Real Property during the approximately 97-year period
that Gulf States and its predecessors used the Site for metal manufacturing. (Id.)
After GIP’s purchase, it partnered with Williams to operate a railroad car
storage business on the Site, using the tracks that Williams had bought. (Id. ¶ 18).
That partnership later dissolved, and Williams sold the entire track system to GIP
in 2005. (Id. ¶ 19). After refurbishing parts of the system and purchasing
locomotives, GIP commenced running its own railroad car storage business on the
Site in January 2008. (Compl. ¶ 21).
In 2007 or 2008, however, the United States Environmental Protection
Agency (“EPA”) began remedial work on the Excluded Real Property as part of a
“Superfund” site project under the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9657 (Id. ¶ 23).
In undertaking that operation, the EPA barred GIP from entering the Excluded
Real Property, thereby preventing it from using any of the rail spur lines located
thereupon. (Id. ¶ 24). Further, although GIP says that it “had been making
preparations” to retrieve and sell its kish on the Excluded Real Property (id. ¶ 31),
the EPA’s denial of access also prevented GIP from carrying out such plans. (Id.
¶¶ 24, 31, 36).
In about 2007, the EPA hired Defendant CMC to be its “emergency
response contractor and/or site manager at the Site.” (Compl. ¶ 25). In about
2008, the EPA, by and through CMC, hired Defendant Harsco to conduct a pilot
study of the materials located on an eight-acre portion of a “non-hazardous
permitted landfill situated on the Excluded Real Property, for the sole purpose of
determining whether and to what extent those materials contained valuable metalbearing items that could be marketed and resold for profit.” (Id. ¶ 26). After that
study concluded that mining portions of the Excluded Real Property for recyclable
metals would be profitable, the EPA, again acting by and through CMC, hired
Harsco in October 2009 to conduct a full-scale “slag processing” operation,
pursuant to which Harsco agreed to mine the eight-acre portion of the Excluded
Real Property for the purpose of extracting and selling valuable metal-bearing
materials. (Id. ¶¶ 28, 29). In return, Harsco would remit a percentage of the gross
proceeds from such sales to CMC, which, in turn, would credit the EPA for
amounts it otherwise owed on the project to CMC. (Id.) Pursuant to that
agreement, from early 2010 through sometime in 2013, Harsco proceeded to mine,
process, market, and sell to third parties “many, many millions of dollars” worth of
metal-bearing materials from the kish and slag that GIP had purchased out of the
Gulf States bankruptcy. (Id. ¶¶ 30, 32, 33, 34). Harsco did not, however, limit
those efforts to the eight-acre portion of the parcel originally agreed upon, nor to
only the non-hazardous permitted landfill portions of the Excluded Real Property.
(Compl. ¶ 33). Rather, GIP maintains, with the knowledge and approval of the
EPA and CMC, Harsco mined the Excluded Real Property wherever it determined
metallic items of value existed. (Id. ¶ 34). And despite the fact that Defendants
were at all times aware of GIP’s claimed interest in the kish and slag, they
continued to prohibit GIP from itself retrieving and selling them. (Id. ¶¶ 32, 35,
In addition, GIP alleges that “during the course of its work mining for
‘kish,’ [the Contractors,] with the EPA’s knowledge and approval, also
uninstalled, cut, severed, tore up from the ground, and removed roughly 1,400 feet
of track [on the HS-1 and HS-2 spur lines] owned by [GIP] on the [Excluded Real
Property, along with all accompanying ties, plates, spikes, and the like.” (Id. ¶
37). Defendants then discarded those materials “and/or” sold them to third parties.
(Id. ¶ 38). Similarly, GIP claims that the EPA, by and through the Contractors or
other employees or agents, “completely covered” another 1,000 feet of track on the
HN-1 spur line owned by GIP on the Excluded Real Property with “non-saleable
mined material,” thereby rendering those tracks unusable. (Compl. ¶ 39). GIP
ultimately insists that “no condition existed at the Site which would have
authorized, necessitated or required the Defendants under CERCLA to have
removed [GIP]’s property, ... to have covered or discarded [GIP’s] property and/or
to have conveyed it to third parties.” (Id. ¶ 42). Despite numerous demands by
GIP, neither the EPA nor the Contractors have remitted any compensation to GIP
for the destruction or removal of its property at the Site. (Id. ¶ 43; see also Docs.
27-1, 27-2, 27-3).
GIP filed this action on June 5, 2015. (Doc. 1). In its now-governing
amended pleading filed in August 2015, GIP brings claims under the FTCA and
Alabama tort law against Defendants, set forth in four counts. (Doc. 27, Compl.).
Count I alleges that all three Defendants are liable for conversion of GIP’s kish
and slag located on the Excluded Real Property, while Count II similarly alleges
that those Defendants acted negligently by “removing, destroying, discarding
and/or selling” same. Counts III and IV assert that the United States, but not
either of the Contractors, is also liable for conversion and negligence, respectively,
based upon the removal and burial of the aforementioned sections of railroad track
on the Excluded Real Property.
In support of its pending motion to dismiss, the United States has filed an
affidavit sworn by Terrence Byrd, an “On-Scene Coordinator” in the EPA’s
“Superfund Division.” (Doc. 37-2 (“Bryd Aff.”) ¶¶ 1, 3). In his affidavit, Byrd
recites the following: The EPA designated the Gulf States Site as a Superfund
removal site in 2001 when it initiated an investigation there and that associated
removal operations began in 2003 and concluded in 2013. (Byrd Aff. ¶ 5). The
site had “two large waste piles” that “contained certain hazardous substances that
were leaching into the ground, nearby water sources, and the sediments of Black
Creek and Lake Gadsden.” (Id. ¶ 6). In response, the “EPA sought a way to
remove the hazardous substances and decrease the volume of the waste piles to
lessen the environmental impact.” (Id.)
Byrd’s affidavit also contains a number of allegations that confirm or are
otherwise generally consistent with those GIP pleads in its Complaint. According
to Byrd, CMC, as the project manager hired by the EPA, offered several options
for proceeding, including by “recycling the metallic content of the waste piles.”
(Id. ¶ 7). CMC then hired Harsco to conduct a pilot study, based upon which
“Harsco determined that the waste material would yield sufficient metal content to
make processing the material from an engineering and economic standpoint.” (Id.
¶ 9). That study, Byrd says, “also demonstrated to EPA that removal of the
metallics would reduce the volume, toxicity, and mobility of the hazardous
substances in the waste piles and was more cost effective that the other removal
alternatives considered.” (Byrd Aff. ¶ 10). Harsco then entered into a subcontract
with CMC, under which the former would conduct the removal operation, extract
metallic content from the waste piles, sell it, and pay CMC a royalty that would be
credited against amounts the EPA owed to CMC on the project. (Id. ¶ 11).
Finally, Byrd’s affidavit makes a number of claims related to the scope of
the EPA’s alleged supervision and oversight of the Contractors’ removal
operation. For example, he states that the “EPA directed CMC who in turn
directed Harsco when and where to mine within the two waste piles,” while
Harsco was responsible for determining more specifically what recyclable
metallics were present and whether to remove them and for finding a buyer for
extracted materials at market price. (Id. ¶ 13). Byrd also states that, throughout
the removal operation, an EPA representative “was on-site or in contact” (id. ¶ 14)
and “was consulted ... whenever Harsco encountered something in the waste piles
unusual or out of the ordinary, such as its discovery of rail track HN-1 in the North
Waste Pile and rail tracks HS-1 and HS-2 in the South Waste Pile.” (Id. ¶ 15).
Byrd maintains that those “spur lines were cut and removed or buried at the
specific direction of the EPA, through its contractor CMC, because the spur lines
interfered with the progress of the removal operation and the construction of the
cap.” (Byrd Aff. ¶ 16).
GIP, the United States, CMC and Harsco have also been involved in no less
than four prior lawsuits related to the EPA cleanup at the Site. The first two of
those actions were filed by GIP in the United States Court of Federal Claims,
asserting in each that the United States is liable for having taken GIP’s property
without just compensation, in violation of the Fifth Amendment. The first such
action, filed in November 2010, was based on allegations that the United States
and its contractor, then otherwise unidentified, had prevented GIP from accessing
its kish on the Excluded Real Property and had been themselves removing the kish
and selling it to offset expenses of the EPA cleanup at the Site. Gadsden Indust.
Park, LLC v. United States, 1:10-cv-757-EGB (the “2010 Claims Case”),
Complaint (Fed. Cl. Nov. 3, 2010); (Doc. 7-7). In March 2016, the Court of
Federal Claims denied the United States’ motion for summary judgment. (2010
Claims Case Docs. 110, 129). Thereafter, that court held a bifurcated trial, which
concluded in late July 2017. (2010 Claims Case Docs. 169, 171, 173, 175, 178,
180, 182). Post-trial briefing is expected to be complete in by early January 2018.
(2010 Claims Case Doc. 184). As such, no final judgment has been entered.
GIP filed its second action in the Court of Federal Claims in November
2013. Gadsden Indust. Park, LLC v. United States, 1:13-cv-924-EGB (“2013
Claims Case”), Compl. (Fed. Cl. Nov. 22, 2013); (Doc. 7-6). There GIP raised a
Fifth Amendment takings claim based on allegations that “the EPA, by and
through its employees, servants, agents, and/or contractors,” had removed,
destroyed, and/or buried the two aforementioned sections of spur line railroad
track on the Excluded Real Property. (Id.; see also Doc. 7-4, Amended Complaint
in the 2013 Claims Case). In January 2017, the United States filed a motion for
summary judgment, which GIP did not contest. (See 2013 Claims Case Docs. 92,
94, 110). Accordingly, on March 31, 2017, the court granted summary judgment
to the United States on GIP’s claim.3 (2013 Claims Case Docs. 94, 110). On
As further discussed in the text below, in granting summary judgment to the United
States in the 2013 Claims Case, the Court of Federal Claims held that GIP was collaterally
estopped from claiming that it owned the railroad tracks at issue as required to establish its
takings claim, based upon a final judgment that this court entered in August 2016 against GIP in
a separate tort action.
August 21, 2017, the court entered a final judgment in the case.4 (See 2013 Claims
Case Doc. 111).
The third and fourth prior actions related to the EPA cleanup at the Site
were both filed in this court. First, in January 2014, GIP filed a tort action against
the same three Defendants sued in this case, i.e., the United States, CMC, and
Harsco. See Gadsden Indus. Park, LLC v. United States, No. 4:14-CV-0039-KOB
(the “2014 Tort Case”), Doc. 1, Complaint (N.D. Ala. Jan. 8, 2014); (Doc. 8-1 at
3-12). As here, GIP sought in the 2014 Tort Action to recover under the FTCA
and Alabama tort law, asserting claims for conversion and negligence based, as in
the 2013 Claims Case, on allegations that, “in or around the summer of 2012,”
Defendants had removed and buried the sections of railroad track on the Excluded
Real Property. (2014 Tort Case Doc. 1, ¶¶ 19-21). Unlike in the case sub judice,
however, GIP’s complaint in the 2014 Tort Action did not reference efforts by
Defendants to mine and sell the kish and slag.
On June 26, 2015, this court dismissed the United States from the 2014
Although the Court of Federal Claims had granted summary judgment in favor of the
United States on GIP’s takings claim, the court delayed entering a final judgment in the 2013
Claims Case because the United States had asserted a fraud counterclaim against GIP that
remained pending. (See 2013 Claims Case Doc. 110). In June 2017, that court held a trial on the
government’s counterclaim, at the conclusion of which the court stated that would be finding for
GIP. (Id. at 2). On August 21, 2017, the court then formally entered a final judgment denying
relief as to all claims and counterclaims. (2013 Claims Case Doc. 111).
Tort Case on the ground that GIP had failed to exhaust administrative remedies as
required by 28 U.S.C. § 2675(a). (2014 Tort Case Docs. 36, 37; Docs. 7-8, 7-9).
By contrast, the court denied the Contractors’ joint motion to dismiss, as well as a
later one for summary judgment. See Gadsden Indust. Park, LLC v. United States,
111 F. Supp. 3d 1218 (N.D. Ala. 2015). And while GIP did not formally assert a
claim in the 2014 Tort Action based upon the removal of the kish from the slag
piles on the Excluded Real Property, the court’s opinion denying summary
judgment on GIP’s claims for the removal and burial of the spur line tracks
nevertheless discussed at some length the Contractors’ mining of the slag piles.
See id., at 1224-26, 1229-32.
Following the denial of summary judgment in the 2014 Tort Case, GIP
abandoned its negligence claims and elected to proceed at trial against the
Contractors on its conversion theory only. (2014 Tort Case Doc. 139). At the
close of GIP’s case, the court granted the Contractors’ joint motion for judgment
as a matter of law, holding that no liability could lie under Alabama law for
conversion of the railroad tracks because they were a fixture to real property that
GIP did not own. (2014 Tort Case Doc. 152); Gadsden Indust. Park, LLC v.
CMC, Inc., 2016 WL 4158138 (N.D. Ala. Aug. 5, 2016). The court entered a final
judgment accordingly on August 5, 2016. (2014 Tort Case Doc. 153). After the
time to appeal expired, the United States used that judgment to obtain its summary
judgment in the then-still-pending 2013 Claims Case, successfully arguing that
GIP was collaterally estopped from asserting that it owned the railroad tracks, as
required to establish its associated Fifth Amendment takings claim. (See 2013
Claims Case Docs. 92, 94).
Meanwhile, in May 2014, the United States filed the fourth and final prior
related lawsuit, suing GIP in this court under CERCLA. See United States v.
Gadsden Indus. Park, LLC, No. 4:14-cv-0992-KOB (the “CERCLA Case”), Doc.
1 (N.D. Ala. May 27, 2014). There, the United States sought to recoup costs
incurred by the EPA in responding to the release and threatened release of
hazardous substances from the slag piles owned by GIP. (Id.) That claim relied
on CERCLA § 107(a), 42 U.S.C. § 9607(a), under which certain enumerated
potentially responsible parties (“PRPs”) may be liable to reimburse the
government for amounts expended in performing an environmental clean up.5 See
CERCLA § 107 provides in relevant part as follows:
(a) Covered persons; scope; recoverable costs and damages; interest rate; “comparable
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in
subsection (b) of this section-(1) the owner and operator of a vessel or a facility,
Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 608-09 (2009);
Cooper Indust., Inc. v. Aviall Services, Inc., 543 U.S. 157, 161 (2004). For the
basis of its claim, the United States alleged that GIP was a PRP as the “owner” or
“operator” of a “facility” under CERCLA § 107(a)(1), based upon GIP’s
ownership of the slag piles. On April 1, 2015, however, this court granted GIP’s
motion to dismiss, holding that the slag piles themselves were not a “facility” as
(2) any person who at the time of disposal of any hazardous substance owned or
operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or
treatment, or arranged with a transporter for transport for disposal or treatment, of
hazardous substances owned or possessed by such person, by any other party or
entity, at any facility or incineration vessel owned or operated by another party or
entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to
disposal or treatment facilities, incineration vessels or sites selected by such
person, from which there is a release, or a threatened release which causes the
incurrence of response costs, of a hazardous substance, shall be liable for-(A) all costs of removal or remedial action incurred by the United States
Government or a State or an Indian tribe not inconsistent with the national
(B) any other necessary costs of response incurred by any other person
consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural resources,
including the reasonable costs of assessing such injury, destruction, or loss
resulting from such a release; and
(D) the costs of any health assessment or health effects study carried out
under section 9604(i) of this title.
42 U.S.C. § 9607(a).
defined by CERCLA, so GIP’s ownership of them was insufficient to make it a
PRP. (CERCLA Case Docs. 34, 35); United States v. Gadsden Indust. Park, LLC,
2015 WL 1499203 (N.D. Ala. Apr. 1, 2015); (see also CERCLA Case Docs. 22,
31); United States v. Gadsden Indust. Park, LLC, 2015 WL 1499142 (N.D. Ala.
Feb. 11, 2015); id., 2015 WL 1499156, at *1 (N.D. Ala. Mar. 19, 2015). There
was no appeal.
All three Defendants in the instant action have moved to dismiss. First, the
Contractors have filed a joint motion to dismiss citing FED. R. CIV. P. 12(b)(6), or,
in the alternative, to stay the proceedings as to the claims against them pending the
resolution of the 2010 Claims Case and the 2014 Tort Case. (See Docs. 7, 8, &
36). In support, the Contractors argue that GIP’s claims against them are part of
the same cause of action underlying the 2014 Tort Case. (Doc. 7 at 1). As such,
the Contractors assert, GIP is guilty of “improper claim-splitting” and of violating
FED. R. CIV. P. 15(a)(2) and FED. R. CIV. P. 16(b). (Id.) For its part, GIP denies
that it has split its claim or violated either of the FEDERAL RULES cited by the
The United States also moves for a dismissal, for lack of subject-matter
jurisdiction under FED. R. CIV. P. 12(b)(1). (Doc. 37). The United States argues
that GIP’s claims against it are barred under 28 U.S.C. § 2680(a), which imposes a
discretionary-function exception to FTCA liability. (See id.; Doc. 37-1). In
support, the United States has also submitted Byrd’s previously-described
In opposing that motion, GIP first argues that the United States is
collaterally estopped from asserting that it is shielded by the discretionaryfunction exception. (Doc. 46 at 1-2, 6-9). That is so, GIP asserts, based on this
court’s determination in the CERCLA Action that the United States is not entitled
to reimbursement for its response costs from GIP under CERCLA § 107(a). (Id.)
Alternatively, GIP contends that, irrespective of collateral estoppel, the
discretionary-function exception does not apply to the United States’ conduct,
which GIP characterizes as “knowing theft of [GIP’s] property for purely
profiteering motive.” (Id. at 9-13). Finally, GIP maintains that even if the
discretionary function exception might apply, it would be premature to dismiss the
action on that basis without affording GIP an opportunity to conduct discovery to
counter allegations in Byrd’s affidavit. (Id. at 13-19).
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) authorizes a motion to
dismiss a complaint for “lack of subject-matter jurisdiction.” Such jurisdictional
attacks come in two separate forms - a “facial” challenge or a “factual” challenge.
The Eleventh Circuit has summarized:
“Facial attacks” on the complaint “require[ ] the court merely to look
and see if [the] plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are taken as
true for the purposes of the motion.” Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953 (1980)
(citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891
(3d Cir. 1977)). “Factual attacks,” on the other hand, challenge “the
existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and
affidavits, are considered.” Id.
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). When the attack
is factual, “no presumptive truthfulness attaches to plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.” Id. at 1529 (quoting
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)).
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), FED. R. CIV. P., authorizes a
motion to dismiss a complaint on the ground that its allegations fail to state a
claim upon which relief can be granted. On such a motion, the “‘issue is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.’” Little v. City of North Miami, 805 F.2d
962, 965 (11th Cir. 1986) (quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974)).
The court assumes the factual allegations in the complaint are true and gives the
plaintiff the benefit of all reasonable factual inferences. Hazewood v. Foundation
Fin. Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per curiam).
Rule 12(b)(6) is read in light of Rule 8(a)(2), FED. R. CIV. P., which requires
only “a short and plain statement of the claim showing that the pleader is entitled
to relief,” in order to “‘give the defendant fair notice of what the ... claim is and
the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. (citations, brackets, and internal
quotation marks omitted). “Factual allegations must be enough to raise a right to
relief above the speculative level ....” Id. Thus, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face,’” i.e., its “factual content ... allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
The court first considers the Contractors’ motion, which asks for a dismissal
or, in the alternative, a stay of these proceedings pending the resolution of the
2010 Claims Case and the 2014 Tort Case. (Doc. 36). In support, the Contractors
argue that GIP has engaged in “improper claim-splitting.” (Doc. 8 at 1). More
particularly, they maintain that GIP’s claims against them, which are based on the
removal of kish and slag from the Excluded Real Property, are part of the same
cause of action underlying the 2014 Tort Case, in which GIP sought to recover
based upon the removal and burial of the sections of the spur line tracks, also on
the Excluded Real Property. The Contractors concede that, in the 2014 Tort Case,
GIP did not plead a right to recover based on the removal of the kish and slag.
(See id. at 13 (observing that the 2014 Tort Case differs from the present action
insofar as GIP has “added ‘kish’ and ‘slag’ to the property allegedly taken by the
Defendants”). Nevertheless, the Contractors maintain that such claims made here
are barred under the claim-splitting doctrine because GIP’s claims in both cases
are, the Contractors say, “based on the same set of operative facts--that [the United
States], CMC, and Harsco tortiously converted private property and negligently
exceeded their powers and authority while performing [an] EPA[-] directed
cleanup of the Site.” (Id. at 6 (internal quotation marks and citation omitted)).
GIP does not contest that the federal courts recognize a rule against claimsplitting. Rather, GIP argues that it has not, in fact, split its claim against the
Contractors. That is, GIP insists that its conversion and negligence claims against
the Contractors in this action, based on the removal of the kish and slag, are
“entirely distinct and independent from GIP’s prior claims relating to [the]
conversion of GIP’s railroad track.” (Doc. 45 at 8).
In Vanover v. NCO Financial Services, Inc., 857 F.3d 833 (11th Cir. 2017),
the Eleventh Circuit recently addressed, as an issue of first impression, the rule
against claim-splitting, which “requires a plaintiff to assert all of its causes of
action arising from a common set of facts in one lawsuit.” Id. at 841 (quoting Katz
v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011). In other words, “a plaintiff may
not split up his demand and prosecute it by piecemeal, or present only a portion of
the grounds upon which relief is sought, and leave the rest to be presented in a
second suit, if the first fails.” Id. (internal quotation marks and citation omitted).
The claim-splitting doctrine thus ensures fairness to litigants, conserves scarce
judicial resources, and promotes the efficient and comprehensive disposition of
The court further recognized in Vanover that the claim-splitting doctrine
derives from, and is analyzed as an aspect of res judicata known as claim
preclusion. 857 F.3d at 836 n. 1, 841-42. So like res judicata, the claim-splitting
doctrine may be raised by way of a Rule 12(b)(6) motion to dismiss. Id. at 836 n.
1. However, the Eleventh Circuit explained, whereas res judicata might apply
only after the first suit has reached a final judgment, the claim-splitting doctrine
applies where a second suit has been filed but no final judgment has yet been
reached. Id. at 840 n. 3, 841. Nevertheless, Vanover held that the test for
determining whether the rule against claim-splitting applies effectively
incorporates the other requirements of res judicata by asking “whether the first
suit, assuming it were final, would preclude the second suit.” Id. at 841 (quoting
Katz, 655 F.3d at 1218). That is, the Eleventh Circuit recognized, a court is to
examine whether both cases (1) “involve[ ] the same parties [or] their privies” and
(2) “arise from the same transaction or series of transactions.” Id. at 841-42.
“Successive causes of action arise from the same transaction or series of
transactions when the two actions are based on the same nucleus of operative
facts.” Id. at 842 (citing Petro-Hunt, LLC v. United States, 365 F.3d 385, 395-96
(5th Cir. 2004)).
At the outset, the court observes that when the Contractors filed their
motion to dismiss, the 2014 Tort Case was, of course, still pending. So with no
final judgment in that case, res judicata could not have itself applied to GIP’s
claims in this action. Therefore, the Contractors’ motion correctly invoked the
related rule against claim-splitting. Since then, however, Judge Bowdre has
entered a final judgment on the merits of GIP’s claims in the 2014 Tort Case,
ruling in favor of the Contractors. As such, it makes little sense for this court to
ask whether this suit “would be” precluded as res judicata by the 2014 Tort Case,
“assuming it were final,” as the court would do in a claim-spitting inquiry under
Vanover. Rather, since the 2014 Tort Case is, in fact, final, it is more appropriate,
from a procedural perspective, simply to ask whether GIP’s claims in this action
against the Contractors are barred by res judicata itself.6
Nor will such a shift in the analysis prejudice the parties. Federal law
governs the scope of res judicata arising from a prior federal court judgment.
Empire Fire & Marine Ins. Co. v. J. Transport, Inc., 880 F.2d 1291, 1293 n. 2
(11th Cir. 1989). To that end, res judicata, or claim preclusion, requires the
following four elements to be satisfied: “(1) there must be a final judgment on the
merits, (2) the decision must be rendered by a court of competent jurisdiction, (3)
the parties, or those in privity with them, must be identical in both suits; and (4)
That the 2014 Tort Case is now final also moots the Contractors’ motion to the extent
that it alternatively requests a stay pending the resolution of that litigation.
the same cause of action must be involved both cases.” Citibank, N.A. v. Data
Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir. 1990) (quoting I.A. Durbin, Inc.
v. Jefferson Nat’l Bank, 793 F.2d 1541, 1549 (11th Cir. 1986)). The first three
elements are unquestionably met here. That is, the 2014 Tort Case resulted in a
final judgment on the merits, entered by a court of competent jurisdiction, and it
involved the same parties. The only disputed issue is whether this action and the
2014 Tort Case involve the “same cause of action.” And on that score, Vanover
makes clear that such requirement of res judicata is incorporated into the test for
determining whether to apply the rule against claim-splitting, see 857 F.3d at 84142, and the parties have unambiguously framed their claim-splitting arguments in
recognition of that principle. (See Doc. 8 at 11-15; Doc. 45 at 7, 9-15). Therefore,
the court will consider whether GIP’s claims against the Contractors are res
judicata in light of the judgment in the 2014 Tort Case.
Again, GIP did not claim in the 2014 Tort Case that the Contractors were
guilty of negligence or conversion based on their removal and sale of kish and
slag. Rather, GIP there claimed only that the Contractors were guilty of
negligence and conversion based upon their having removed and buried the
sections of spur line track. Nevertheless, res judicata precludes litigation not only
of claims and theories actually raised in a prior suit but also of those that are
sufficiently related that they are deemed part of the same “cause of action.” See
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003). To
determine whether a case asserts the same cause of action as one previously
litigated to a judgment, the Eleventh Circuit has adopted the so-called
“transactional” approach, as generally expressed in § 24 of the Restatement
(Second) of Judgments (1982). See Baloco v. Drummond Co., 767 F.3d 1229,
1247 (11th Cir. 2014); Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1270
(11th Cir. 2002); Ragsdale v. Rubbermaid, Inc.,193 F.3d at 1235,1239 & n. 8,
1240 (11th Cir. 1999); In re Justice Oaks II, Ltd., 898 F.2d 1544, 1551 (11th Cir.
1990); see also United States v. Tohono O’Odham Nation, 563 U.S. 307, 316
(2011); 18 C. Wright, A. Miller, et al., Fed. Prac. & Proc. § 4407 (3d ed.)
(discussing the federal courts’ adoption of the Second Restatements’s transactional
approach). Under that analysis, a prior judgment extinguishes “all rights of the
plaintiff to remedies against the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which the action arose.”
Restatement (Second) of Judgments § 24(1) (1982); see also In re FFS Data, Inc.,
776 F.3d 1299, 1307 (11th Cir. 2015); Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d
1265, 1270 (11th Cir. 2002). The Eleventh Circuit has further explicated the
inquiry as follows:
Just what factual grouping constitutes a “transaction” or what factual
groupings constitute a “series,” are “to be determined pragmatically,
giving weight to such considerations as whether the facts are related
in time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the
parties’ expectations or business understanding or usage.”
[Restatement (Second) of Judgments § 24(2) (1980)].
As the commentary to § 24(2) illustrates, one must apply a pragmatic
The expression “transaction, or series of connected
transactions,” is not capable of a mathematically precise
definition; it invokes a pragmatic standard to be applied
with attention to the facts of the cases. And underlying
the standard is the need to strike a delicate balance
between, on the one hand, the interests of the defendant
and of the courts in bringing litigation to a close and, on
the other, the interest of the plaintiff in the vindication of
a just claim.
In general, the expression connotes a natural grouping or
common nucleus of operative facts. Among the factors
relevant to a determination whether the facts are so
woven together as to constitute a single claim are their
relatedness in time, space, origin, or motivation, and
whether, taken together, they form a convenient unit for
trial purposes. Though no single factor is determinative,
the relevance of trial convenience makes it appropriate to
ask how far the witnesses or proofs in the second action
would tend to overlap the witnesses or proofs relevant to
the first. If there is a substantial overlap, the second
action should ordinarily be held precluded. But the
opposite does not hold true; even when there is not a
substantial overlap, the second action may be precluded
if it stems from the same transaction or series.
Restatement (Second) of Judgments § 24(2) cmt. b (1980).
Ragsdale, 193 F.3d at 1239 n. 8.
The court concludes that GIP’s claims in the 2014 Tort Action and its
claims against the Contractors here all arise from either the same transaction or at
least a series of connected transactions and are thus part of the same “cause of
action” for purposes of res judicata. In both cases, GIP claims the Contractors are
liable under the same two Alabama tort law theories, i.e., conversion and
negligence, for infringing upon GIP’s right to use and enjoy its personal property
located on the Excluded Real Property. To be sure, each case involves a different
kind of property, with the prior case revolving around the removal of and damage
to the spur line tracks while this case is founded upon the removal and sale of kish
and slag. Even so, when GIP filed the 2014 Tort Action, it was undisputedly
aware of the claimed infringement of its rights in both kinds of property.
Moreover, not only has GIP in this action joined claims alleging tortious
interference with its property rights as it relates to the kish and slag and to the
railroad tracks,7 no one has thought that the slightest bit strange. That is so
Of course, GIP seeks in the present action to recover for harm to both kids of property
only from the United States under the FTCA. GIP’s claims here against the Contractors are
limited to their removal and sale of the kish and slag, whereas GIP made (and eventually lost) its
because those claims all have a strong and obvious nexus: all of GIP’s purported
misconduct is alleged to have occurred in the course of work the Contractors
performed under the auspices of the EPA’s ongoing environmental response at the
Site pursuant to CERCLA. That is, GIP has claimed in the two cases that,
following the commencement of the CERCLA recovery action, Defendants
prohibited GIP from entering upon the premises of the Excluded Real Property,
thereby cutting off GIP’s access to all of its personal property located thereupon,
and that Defendants then proceeded to remove, damage, destroy, and sell off that
As the Second Circuit Court of Appeals has explained, “When a defendant
commits repeated acts, each of which can independently support a cause of action,
claim preclusion principles will require plaintiffs seeking relief as to all of the
defendant’s conduct to bring together the causes of action that have already arisen
when the litigation commences, provided that such acts are based on the same
connected series of transactions.” TechnoMarine SA v. Giftports, Inc., 758 F.3d
493, 501 (2d Cir. 2014) (emphasis original); see also Index Fund, Inc. v.
Hagopian, 677 F. Supp. 710, 715 (S.D. N.Y. 1987). Thus, courts have recognized
that claims may be part of the same cause of action where they are based on
bid to recover against the Contractors for the damage to the railroad tracks in the 2014 Tort Case.
alleged harm to different types of property suffered during the course of a
defendant’s activities on a contract project or in a similarly identifiable, discrete
undertaking. See J.Z.G. Resources, Inc. v. Shelby Ins. Co., 84 F.3d 211, 215 (6th
Cir. 1996) (concluding that claims based on damage to roads and claims based on
damage to other property, all allegedly caused by contractor’s negligent
construction work on subdivision project, “ar[o]se out of the same transaction”);
In re City of Detroit, 531 B.R. 171, 174-75 (Bankr. E.D. Mich. 2015) (where prior
action contested municipality’s taking of two parcels of real property, res judicata
barred subsequent claims alleging that municipality had also unlawfully taken two
tractors located on the land); Marshall Contractors, Inc. v. Integrated Gas
Systems, Inc., 105 F.3d 653 (table), 1996 WL 762795, at *2 n. 5 (5th Cir. 1996)
(claim that defendant converted plaintiff’s property intended for use on a
construction project for plaintiff was barred by res judicata based on prior suit in
which plaintiff claimed defendant had breached their contract underlying the
construction project); see also Trustmark Ins. Co., 299 F.3d at 1270 (holding that
res judicata prevented a plaintiff from bringing successive lawsuits for separate
breaches of the same contract that were all alleged to have occurred prior to the
filing of the first suit). Likewise, a series of similar or continuing trespasses
against property rights may also be “‘considered a unit up to the time when action
is brought,’ ” foreclosing claims for individual trespasses occurring during the
period prior to the filing of the first suit. TechnoMarine, 758 F.3d at 501 (quoting
Restatement (Second) of Judgments § 24 cmt. d (1982)).
Indeed, GIP’s Amended Complaint goes so far as to plead significant
common factual ground between the two cases. In particular, GIP has alleged that
the Contractors’ conversion of the railroad tracks occurred “during the course of
[the Contractors’] work in mining for ‘kish’ ” on the EPA Superfund project.
(Amd. Compl. ¶ 37 (emphasis added)). GIP now backpedals from that allegation,
characterizing it as but “one isolated clause” of its Amended Complaint (Doc. 48-1
at 1) that means no more than that the conversion of the railroad tracks “occurred
while the Defendants were on-site.” (Id. at 3). GIP has unambiguously pled,
however, that the Contractors were at the Site specifically because they were hired
to perform the work on the EPA’s CERCLA response. (See Amd. Compl. ¶¶ 2326, 29, 32). Even more specifically, GIP recognizes that the Contractors were
tasked with conducting a large-scale removal of material from the slag piles as part
of that CERCLA response, apparently because, at least according to the
government, the slag piles were leaching hazardous substances into the
environment. The removal of such material, of course, lies at the very heart of
GIP’s claims of conversion related to the kish and slag. And GIP’s Amended
Complaint expressly alleges that it was “during the course” of that same mining
operation on the Excluded Real Property that the Contractors removed the track
from two of the spur rail lines and buried a section of another spur line with “nonsaleable mined material” taken from the slag piles, all “with the EPA’s knowledge
and approval.” (See id. ¶¶ 37-39).
GIP nonetheless insists that res judicata does not apply because its two
types of claims are each based on “distinct and independently actionable harms”
and rely on different “relevant facts and evidence” such that “the success or failure
of one claim is not determinative of the other.” (Doc. 45 at 10). In support, GIP
relies heavily upon the Supreme Court’s 1894 decision in United States v. The
Haytian Republic, 154 U.S. 118. (See Doc. 45 at 8-12). There, the federal
government had instigated civil asset forfeiture proceedings in a federal district
court in the state of Washington against a ship, based upon instances of alleged
smuggling of opium and Chinese nationals on certain enumerated dates. About a
month later, while that suit was still pending, the government initiated a similar
proceeding against the vessel in a federal district court in Oregon for additional
instances of such alleged smuggling. The district court in Oregon, however,
dismissed as subject to abatement all such smuggling charges to the extent they
were alleged to have occurred prior to the filing of the Washington suit. That
ruling was affirmed on appeal by the Ninth Circuit. On certiorari, however, the
Supreme Court reversed, holding that the rule against splitting one’s cause of
action did not require the dismissal of the earlier charges. In so doing, the Court
recognized that, in order for the prior pending suit to bar claims in the later one,
“there must be the same rights asserted and the same relief prayed for; the relief
must be founded upon the same facts, and the title, or essential basis, of the relief
sought must be the same.’” 154 U.S. at 124 (quoting Watson v. Jones, 80 U.S.
679, 715 (1871)). In support, the court observed that, under related principles
applicable to establishing the defense of res judicata, “[o]ne of the tests laid down
for the purpose of determining whether or not the causes of action should have
been joined in one suit is whether the evidence necessary to prove one cause of
action would establish the other.” Id. at 125. Then applying that “same evidence”
test, the Court concluded that the various charges alleging enumerated instances of
smuggling represented distinct causes of action that the government could pursue
separately, reasoning as follows:
It is evident that proof showing that a particular lot of opium
had been smuggled on a particular day, or a particular number of
Chinese had been imported at a particular time, would have no
relevancy or tendency to prove the smuggling of a different lot of
opium at a different time, or the importation of a different number of
Chinese at a different date.
Id. According to GIP, “[t]here could be no more apt language illustrating that
GIP’s claims are in fact two discrete matters.” (Doc. 45 at 12).
GIP’s reliance on The Haytian Republic is misplaced. While that case
applied a “same evidence” requirement for claims to be deemed part of the same
cause of action, that “standard has been superseded ... by evolving precedents.”
Sikorsky Aircraft Corp. v. United States, 122 Fed. Cl. 711, 722 (2015). The Court
of Federal Claims has explained:
As the Supreme Court observed in 1983, 89 years after Haytian
Republic was decided, “[d]efinitions of what constitutes ‘the same
cause of action’ have not remained static over time.” Nevada v.
United States, 463 U.S. 110, 130 (1983) (comparing Restatement of
Judgments § 61 (1942), with Restatement (Second) of Judgments §
In Nevada, the Supreme Court explained the evolution of the
criteria for application of claim preclusion by reference to the change
in the Restatements:
Under the first Restatement of Judgments § 61
(1942), causes of action were to be deemed the same “if
the evidence needed to sustain the second action would
have sustained the first action.” In the Restatement
(Second) of Judgments (1982), a more pragmatic
approach, one “not capable of a mathematically precise
definition,” was adopted. Id. § 24, comment b. Under
this approach causes of actions are the same if they arise
from the same “transaction;” whether they are products
of the same “transaction” is to be determined by “giving
weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether they
form a convenient trial unit, and whether their treatment
as unit conforms to the parties’ expectations or business
understanding or usage.” Id. § 24.
Nevada, 463 U.S. at 130 n.12.
Sikorsky Aircraft Corp., 122 Fed. Cl. at 722; see also Tohono O’Odham Nation,
563 U.S. at 316 (“The now-accepted test in preclusion law for determining
whether two suits involve the same claim or cause of action depends on factual
overlap, barring ‘claims arising from the same transaction.’” (quoting Kremer v.
Chemical Constr. Corp., 456 U.S. 461, 482, n. 22 (1982), and citing Restatement
(Second) of Judgments § 24 (1980)). Further, as stated previously, it is clear that
the modern “transactional” approach governs the “same-cause-of-action” inquiry
in the Eleventh Circuit. See Baloco, 767 F.3d at 1247; Ragsdale,193 F.3d at
1235,1239 & n. 8, 1240. While evidentiary overlap between claims remains a
consideration under that approach, it is not itself determinative, and the
Restatement expressly acknowledges that claims may be deemed part of the same
transaction or a connected series of transactions in the absence of such an overlap.
See Ragsdale, 193 F.3d at 1239 n. 8; Restatement (Second) of Judgments § 24(2)
cmt. b (1980). Given that the The Haytian Republic Court applied the
substantially narrower, outdated “same evidence” test, neither the analysis nor the
result in that case are controlling or even particularly instructive here, contrary to
Based on the foregoing, the court concludes that GIP’s claims against the
Contractors alleging that they converted and negligently damaged GIP’s spur line
tracks and GIP’s claims alleging that the Contractors converted and negligently
damaged kip and slag arise out of the same transaction or a series of connected
transactions. As a result, the final judgment in the 2014 Tort Case, resolving
GIP’s claims as to the railroad tracks, operates to bar GIP’s present claims related
to the kish and slag, under the doctrine of res judicata. The Contractors’ motion
to dismiss will thus be granted.
The court now turns to the United States’ Rule 12(b)(1) motion to dismiss
for lack of subject-matter jurisdiction, based on sovereign immunity. Under that
doctrine, the United States is immune from liability absent its consent. United
States v. Mitchell, 445 U.S. 535, 538 (1980). Further, the “‘limitations and
conditions upon which the Government consents to be sued must be strictly
observed and exceptions thereto are not to be implied.’” Lehman v. Nakshian, 453
U.S. 156, 161 (1981) (quoting Soriano v. United States, 352 U.S. 270, 276
(1957)). So absent a specific waiver, sovereign immunity bars a suit against the
federal government for lack of subject-matter jurisdiction. See FDIC v. Meyer,
510 U.S. 471, 475-76 (1994).
GIP’s claims at issue are brought pursuant to the FTCA, which authorizes
suits against the United States for damages “caused by the negligent or wrongful
act or omission of any employee of the Government ... under circumstances where
... a private person ... would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The
FTCA also contains a limited waiver of sovereign immunity. See Dalrymple v.
United States, 460 F.3d 1318, 1324 (11th Cir. 2006). Nevertheless, the United
States argues that one of the exceptions to the FTCA’s limited waiver applies here.
Specifically, the United States relies on the “discretionary-function” exception,
which provides that the United States may not be held liable based on “the
exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.” 28 U.S.C. §
2680(a). “When the discretionary function exception to the FTCA applies, no
federal subject matter jurisdiction exists.” U.S. Aviation Underwriters, Inc. v.
United States, 562 F.3d 1297, 1299 (11th Cir. 2009).
The discretionary-function exception is intended “to prevent judicial
second-guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” United
States v. Gaubert, 499 U.S. 315, 323 (1991) (quoting Varig Airlines, 467 U.S. at
814). The Supreme Court has enunciated a two-part test for determining whether
the exception applies. If both prongs are met, the United States is shielded from
liability, even if its actions were negligent. See id. First, courts must determine
whether the conduct at issue “involv[es] an element of judgment or choice.” Id. at
322. If so, courts then look at the second factor, which is “whether that judgment
is of the kind that the discretionary function exception was designed to shield.”
Gaubert, 499 U.S. at 322-23 (quoting United States v. Varig Airlines, 467 U.S.
797, 813 (1984)). The United States argues that both prongs of the exception are
met because the conduct of which GIP complains arose, according to the United
States, in the context of decisionmaking by the EPA pursuant to its broad
discretionary authority under CERCLA to remove and remediate hazardous
substances at the Site.
In response, GIP opens by arguing that the United States is collaterally
estopped from invoking the discretionary-function exception based on this court’s
judgment in the CERCLA Case. Under the doctrine of collateral estoppel,
otherwise known as “issue preclusion,” “once a court has decided an issue of fact
or law necessary to its judgment, that decision may preclude relitigation of the
issue in a suit on a different cause of action involving a party to the first case.”
San Remo Hotel, L.P. v. City & Cty. of San Francisco, Cal., 545 U.S. 323, 336 n.
16 (2005) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)); see also
Restatement (Second) of Judgments § 27 (1982). For issue preclusion to apply,
whether under federal law or Alabama state law,8 the issue at stake in the present
action must be identical to one that was both actually litigated and necessary to the
judgment in the prior suit. See Baloco v. Drummond Co., 767 F.3d 1229, 1251
(11th Cir. 2014); Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir.
1992); Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 726 (Ala. 1990).
In support of its preclusion argument, GIP points to this court’s holding in
the CERCLA Case that the United States was not entitled under CERCLA §
107(a) to recover its costs incurred in cleaning up the Site from GIP. That ruling,
according to GIP, amounts to a judicial determination that “the Government was
GIP contends, without citation to authority, that “collateral estoppel is a substantive issue
and hence is governed by Alabama state law.” (Doc. 46 at 8). The court notes, however, that
there is a binding Fifth Circuit decision holding that “under the Federal Tort Claims Act a federal
court should apply federal principles of res judicata and collateral estoppel in considering the
preclusive effect of a prior federal judgment.” Johnson v. United States, 576 F.2d 606, 612 (5th
Cir. 1978); see also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(decisions of the former Fifth Circuit handed down before October 1, 1981 are binding in the
Eleventh Circuit). Even so, the court need not consider further whether state or federal law
governs because any potential differences between them are immaterial here. See McCulley v.
Bank of Am., N.A., 605 F. App’x 875, 878 (11th Cir. 2015).
without any lawful discretion to have stuck GIP with the bill for the remediation.”
(Doc. 46 at 1 (footnote omitted)). “Even if there were some genuine
environmental hazard to be addressed,” GIP says, “the EPA had zero lawful basis
to force GIP to pay for it.” (Id. at 8). GIP argues, therefore, that the United States
is collaterally estopped from now claiming that the EPA had “discretion ... to
liquidate GIP’s assets and keep the money” to fund CERCLA cleanup efforts at
the Site. (Id. at 6). The court disagrees.
Issue preclusion does not apply because the CERCLA Case did not involve
the identical issue presented here. In the former action, the United States sued GIP
under CERCLA § 107(a), demanding that GIP be made to reimburse the United
States for costs the EPA incurred to clean up the Site. This court rejected the
government’s claim based on a determination that GIP did not qualify as an
“owner” or “operator” of a “facility” or otherwise as a PRP upon whom CERCLA
§ 107(a) fastens liability for response costs. GIP is simply wrong to say, however,
that this “Court has already found ... that CERCLA flat-out did not authorize the
[EPA’s] conduct here at all” or that such conduct gave rise to an “outright
violation of CERCLA.” (Doc. 54 at 3). That is, whether GIP might be a PRP
liable to reimburse the United States for its response costs is, quite clearly and on
its face, distinct from the issue here: whether the United States is liable in tort to
pay damages for loss or damage to GIP’s property caused by the EPA’s cleanup
activities ostensibly undertaken pursuant to its authority under CERCLA.
GIP repeatedly asserts that the resolution of the CERCLA Case is
inextricably linked to its FTCA claims by focusing on the Complaint’s allegations
that the Contractors, acting on behalf of the EPA, sold GIP’s property on the
Excluded Real Property and that a portion of the sale proceeds were credited to
offset the EPA’s cleanup costs. GIP insists that such is tantamount to having
“stuck GIP with the bill to fund the clean-up.” (Doc. 46 at 1). GIP thus seems to
posit that a ruling in this case that fails to hold the United States liable under the
FTCA is equivalent to holding GIP liable for response costs under § 107(a). That
is simply a non-sequitur. The question here is whether the activities occurring at
the Site during the clean-up deprived GIP of its right to use and enjoy its property
so as to expose the United States to tort liability. Contrary to GIP’s suggestion,
however, what exactly was ultimately done with GIP’s property after any such a
deprivation occurred is not the issue. “Any use or disposition of the personal
property of another is a conversion where it is unauthorized by, without the license
or consent of, or in violation of the orders or instructions of the owner and is in
denial or defiance of the owner’s rights.” 90 C.J.S. Trover and Conversion § 32
(emphasis added). GIP offers no authority or coherent argument for why the
government’s FTCA tort liability or immunity vis-á-vis the alleged appropriation
of GIP’s property might at all turn upon whether that property was sold to third
parties as opposed to, say, being buried in a landfill or capped with concrete.
In sum, while the court did hold in the CERCLA Case that GIP’s ownership
of the slag piles did not itself authorize the imposition of liability upon GIP for the
EPA’s response costs under § 107(a), the court did not purport to determine,
expressly or impliedly, that any action performed by or on behalf of the EPA at the
Site was, in fact, unauthorized under CERCLA. As such, the issues in the two
cases are not identical and collateral estoppel does not preclude the United States
from invoking the discretionary-function exception.9 Cf. Shapiro v. Alexanderson,
741 F. Supp. 472, 476 (S.D.N.Y. 1990) (prior state court judgment based on
finding that contract by which owners sold land to County was unenforceable and
could not serve as basis for holding the County liable in tort for damage to the site
based on County’s operation of a landfill there was not identical to a finding that
the County cannot be held liable for response costs under CERCLA § 107(a)).
The United States has also argued that it cannot be collaterally estopped from relying
upon the discretionary-function exception due to its jurisdictional nature, on the principle that
federal subject-matter jurisdiction cannot be created by estoppel. See generally Autrey v. United
States, 889 F.3d 973, 989 (11th Cir. 1989) (“It is too late in the day to argue that estoppel may
confer jurisdiction on a court of limited jurisdiction, be those limitations based on constitutional
or statutory grounds.”). However, the court need not further address that argument given the
court’s conclusion that the substantive requirements of issue preclusion are not met here.
With that, the court turns to consider the applicability of the discretionary-function
exception on the merits.
The Eleventh Circuit has outlined the analysis for determining whether the
discretionary-function exception applies as follows:
This exception “marks the boundary between Congress’ willingness
to impose tort liability upon the United States and its desire to protect
certain governmental activities from exposure to suit by private
individuals.” United States v. Varig Airlines, 467 U.S. 797, 808
(1984). This exception must be strictly construed in favor of the
Government, and if it applies, federal courts lack subject-matter
jurisdiction over the claims. See U.S. Aviation Underwriters, Inc. v.
United States, 562 F.3d 1297, 1299 (11th Cir. 2009); JBP
Acquisitions[, LP v. United States ex rel. FDIC, 224 F.3d 1260, 1263
(11th Cir. 2000)].
In evaluating whether the discretionary-function exception
applies, we first “must determine exactly what conduct is at issue.”
Autery v. United States, 992 F.2d 1523, 1527 (11th Cir. 1993).
Courts then apply the two-step test developed by the Supreme Court
in Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531 (1988),
and United States v. Gaubert, 499 U.S. 315 (1991). See U.S. Aviation
Underwriters, 562 F.3d at 1299.
First, we consider whether the challenged conduct “is a matter
of choice for the acting employee.” Berkovitz, 486 U.S. at 536.
“[C]onduct cannot be discretionary unless it involves an element of
judgment or choice.” Id. Challenged conduct is not discretionary
“when a federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow” because “the employee
has no rightful option but to adhere to the directive.” Id. at 536.
If the conduct involves an element of judgment and is
discretionary, the court “must determine whether that judgment is of
the kind that the discretionary function exception was designed to
shield.” Id. at 536. As the Supreme Court has explained, the
exception is designed to prevent “judicial second guessing” of
decisions “grounded in social, economic, and political policy.” Id. at
536-37 (quoting Varig Airlines, 467 U.S. at 814). Accordingly, the
discretionary-function exception “protects only governmental actions
and decisions based on considerations of public policy.” Id. at 537;
see also Gaubert, 499 U.S. at 323.
In Gaubert, the Supreme Court further elaborated on the
discretionary-function exception by linking the two parts of the test
with a presumption: “When established governmental policy, as
expressed or implied by statute, regulation, or agency guidelines,
allows a Government agent to exercise discretion, it must be
presumed that the agent’s acts are grounded in policy when exercising
that discretion.” 499 U.S. at 324.
Swafford v. United States, 839 F.3d 1365, 1370-71 (11th Cir. 2016).
Both sides agree that the United States’ motion, which relies upon evidence
beyond the Complaint, namely, Byrd’s affidavit, makes a factual challenge to
subject-matter jurisdiction. (See Doc. 37-1 at 6; Doc. 46 at 5). The Eleventh
Circuit has recognized that, in the face of such an attack, the burden is on the
plaintiff to prove that jurisdiction exists. OSI, Inc. v. United States, 285 F.3d 947,
951 (11th Cir. 2002). Thus, GIP ultimately bears the burden to show that the
discretionary-function exception does not apply to the government’s alleged
conduct. Id. Further, at the pleading stage, an FTCA plaintiff must allege a
plausible claim that falls outside the discretionary function exception. Douglas v.
United States, 814 F.3d 1268, 1276 (11th Cir. 2016).
The alleged actions of which GIP complains in this case can be broadly
identified as those taken whereby the EPA, either itself or through its contractors
or agents did the following: (1) prohibited GIP from entering the Excluded Real
Property, thereby preventing GIP from using, removing, or otherwise enjoying its
personal property located there, namely, the kish, slag, and spur line tracks ; (2)
mined and removed kish and slag, yielding recycled metal materials that were then
sold to third parties, with the profits being used in part to offset the EPA’s costs of
cleaning up at the Site; (3) removed approximately 1,400 feet of track on the HS-1
and HS-2 spur lines GIP says it owned, with the associated materials being
destroyed, sold to third parties, or otherwise disposed of; and (4) buried about
another 1,000 feet of track on the HN-1 spur line GIP claims to have owned,
rendering it unusable.
The United States maintains that all such alleged actions are protected under
the discretionary-function exception because they would have been undertaken
pursuant to the EPA’s broad discretionary authority under CERCLA to clean up
facilities containing hazardous substances. In support, the government points to
CERCLA § 104(a), which provides in relevant part that,
[w]henever ... any hazardous substance is released or there is a
substantial threat of such a release into the environment, ... the [EPA,
as the president’s designee], is authorized to ... remove or arrange for
the removal of, and provide for remedial action relating to such
hazardous substance ... at any time ... or take any other response
measure ... which the [EPA] deems necessary to protect the public
health or welfare or the environment.
42 U.S.C. § 9604(a). The government further emphasizes that provisions in
CERCLA §§ 121(a) and (b) vest the EPA with broad discretion to “select
appropriate remedial actions,” § 121(a), 42 U.S.C. § 9621(a), that are “protective
of human health and the environment, ... [and] cost effective,” in light of certain
enumerated considerations. § 121(b), 42 U.S.C. § 9621(b). Based upon the broad
nature of the government’s clean-up authority under CERCLA, many courts have
applied the discretionary-function exception to bar FTCA claims brought by
plaintiffs complaining of personal injuries and/or property damage flowing from
the government’s response activities. See, e.g., U.S. Fidelity & Guar. Co. v.
United States, 837 F.2d 116, 122-23 (3d Cir. 1988); Daigle v. Shell Oil Co., 972
F.2d 1527, 1541-43 (10th Cir. 1992); United States v. Amtreco, Inc., 790 F. Supp.
1576, 1581 (M.D. Ga. 1992); United States v. JG-24, Inc., 309 F. Supp. 2d 230,
233-34 (D.P.R. 2004); United States v. Green, 33 F. Supp. 2d 203, 221-23
(W.D.N.Y. 1998); United States v. Skipper, 781 F. Supp. 1106, 1114-15 (E.D.N.C.
1991); see also Employers Ins. of Wausau v. United States, 27 F.3d 245, 248 (7th
Cir. 1994) (discretionary-function immunity barred FTCA suit alleging that the
EPA wrongfully issued administrative orders under CERCLA directing the
plaintiff to perform a cleanup).
Indeed, as the United States highlights, in the 2014 Tort Action, this court,
speaking through Chief Judge Bowdre, concluded that the discretionary-function
exception would apply to FTCA claims against the United States under the
circumstances of this case, at least to the extent such claims were based on the
EPA’s decision to perform a cleanup at the Site through removal and mining
operations in the slag piles. See Gadsden Indust. Park, 111 F. Supp. 3d at 1229.
Specifically, Judge Bowdre did so in response to an assertion by the Contractors
that GIP’s state-law claims for conversion and negligence based on the removal
and burial of the spur line tracks were preempted under the government-contractor
defense of Boyle v. United Technologies Corp., 487 U.S. 500 (1988). See 111 F.
Supp. 3d at 1228-29. To establish that defense, Judge Bowdre recognized that the
Contractors had to show (1) that the government actor, in this case the EPA,
possessed a “unique federal interest” (2) that is in “significant conflict” with state
tort law, and (3) that the contractors’ actions were within the “scope of
displacement” because they were effectively required or otherwise specified by the
EPA. Id. at 1228. After finding that the EPA’s remediation of the Site under
CERCLA involved a qualifying federal interest, Judge Bowdre recognized that
whether that interest was in “significant conflict” with Alabama tort law
effectively turned upon the applicability of the discretionary-function exception to
FTCA liability. Id. at 1228-29. And to that end, after acknowledging the
discretionary-function exception’s two-prong test, she concluded that the
exception would apply, reasoning as follows:
EPA’s decisions regarding how to remediate property are
discretionary because they are based on considerations of public
policy. In Amtreco, the Middle District of Georgia found that
Amtreco’s claims against the United States for conversion and
property damage were barred by the discretionary function exception
to the FTCA because “[c]ourts have consistently held that EPA
decisions on how to conduct a cleanup operation are shielded by the
discretionary function exception.” Amtreco, Inc., 790 F.Supp. at
1581; see U.S. Fidelity & Guaranty Co. v. United States, 837 F.2d
116, 122 (3rd Cir. 1988); see Richland-Lexington Airport Dist. [v.
Atlas Props., Inc., 854 F. Supp. 400, 423 (D.S.C. 1994)]; see United
States v. Skipper, 781 F. Supp. 1106, 1114 (E.D.N.C. 1991); see
United States v. Colbert, 1991 WL 183376, at *3 (S.D.N.Y. Sept. 11,
1991) (“[C]laims arising out of the conduct of government employees
in carrying out an EPA response action ... fall within the discretionary
function exception of [the FTCA].”); see United States v. Nicolet,
Inc., 1987 WL 8199, at *5-6 (E.D. Pa. Mar. 19, 1987) (“That
formulation [to carry out a remediation] did involve policy
determinations and it is, therefore, shielded by the discretionary
No statute, regulation or policy mandated a particular course of
action by EPA. See 42 U.S.C. § 9621 (“The President shall select
appropriate remedial actions determined to be necessary.”). Instead,
EPA chose between different remediation options to reduce elevated
pH levels in water sources surrounding the eastern excluded property.
“When established governmental policy, as expressed or implied by
statute, regulation, or agency guidelines, allows a Government agent
to exercise discretion, it must be presumed that the agent’s acts are
grounded in policy when exercising that discretion.” United States v.
Gaubert, 499 U.S. 315, 324 (1991).
EPA employed CMC (who subsequently employed Harsco) to
reduce the volume in the slag piles and recontour the slag piles to
flow into the lagoons on the eastern excluded property. EPA chose
this course of action in an attempt to balance the effectiveness, speed,
and cost of the remediation. EPA exercised its discretion and made a
decision to employ CMC and Harsco to mine the slag piles based on
considerations of public policy.
Thus, EPA’s unique federal interest in remediation of the
eastern excluded property and state tort liability are in significant
conflict and state tort law must be displaced as to actions directed by
Gadsden Indust. Park, 111 F. Supp. 3d at 1229. Nevertheless, Judge Bowdre went
on to hold that the Contractors were not entitled to summary judgment based on
the government-contractor defense. Id. at 1230-31. That was so, she concluded,
because, viewed in the light most favorable to GIP, the evidence supported that the
Contractors had removed, buried, and sold the spur lines “on their own initiative”
and “not ... at the direction of EPA.” Id. at 1230. As a result, the record failed to
establish as a matter of law that those actions by the Contractors fell within the
scope of state law displaced by the EPA’s federal interest in conducting an
environmental cleanup at the Site. Id.
The United States argues that Judge Bowdre’s analysis of the precedents
and principles regarding the discretionary-function exception in the 2014 Tort
Case is sound and counsels that this court likewise conclude that the exception
applies to deprive the court of jurisdiction over GIP’s FTCA claims. In response,
GIP takes several different tacks. First, GIP emphasizes that no federal entity was
a party to the 2014 Tort Case, so, GIP says, “the matters under consideration by
Judge Bowdre were wholly distinct from the issues instantly sub judice.” (Doc. 54
at 4). It is true that no government defendant or FTCA claim was in the case at
that point. Therefore, Judge Bowdre was not called upon to determine whether the
discretionary-function exception itself actually precluded any claim. Rather, she
analyzed the exception only as a proxy for determining the existence vel non of
one of the elements of the government-contractor defense: whether there was a
significant conflict between the EPA’s federal interest and Alabama state tort law.
That being said, GIP’s bald assertion argument that “the matters” Judge
Bowdre considered in the 2014 Tort Case were “wholly distinct” from those at
issue here is too facile. Judge Bowdre expressly analyzed the requirements of the
discretionary-function exception as they relate to claims by GIP that were based, at
least in part, on the same allegations and circumstances that underlie GIP’s claims
in this action. Indeed, the undersigned finds Judge Bowdre’s analysis to be wholly
persuasive insofar as it suggests that the discretionary-function exception applies
here, at least to the extent that GIP’s FTCA claims are founded upon allegations
that it suffered property loss or damage as a consequence of the EPA’s exercise of
its broad discretionary authority under CERCLA to determine appropriate
procedures, means, and methods to address a release or threatened release of
hazardous substances on the Excluded Real Property. Accordingly, the court will
That leads to GIP’s second argument. In it GIP contends that, even if the
discretionary-function exception applies to claims asserting that the EPA
“negligently selected one remediation plan over another, and in so utilizing its
discretion harmed [the plaintiff’s] property” (Doc. 54 at 3), GIP resists any such
characterization of its claims. Rather, GIP maintains that the discretionaryfunction exception does not apply because the crux of its FTCA theory is “that
CERCLA flat-out did not authorize the [United States’] conduct here at all” (id.),
thereby rendering that conduct non-discretionary. In support, GIP asserts in its
brief that, by acting “to remove, liquidate, and keep the profits of selling GIP’s
property” (Doc. 46 at 11), the United States engaged in “knowing theft ... for
purely profiteering motive” and was pursuing “no valid lawful purpose.” (Id. at
9). Such conversion of “GIP’s assets to [the government’s] own uses,” GIP
maintains, “far exceeds any powers and authority granted to it under CERCLA.”
(Id. at 11).
As a general matter, conduct that lies clearly outside the legal authority
delegated to a federal agency or employee is by its nature non-discretionary and
will not allow the United States to claim immunity under the discretionaryfunction exception. See Hatahley v. United States, 351 U.S. 173 (1956)
(discretionary-function exception did not apply to actions of Federal range agents
who appropriated, sold, or destroyed the plaintiffs’ horses that were grazing on
federal land, where agents failed to comply with prior written notice requirement
imposed by Federal Range Code); Simons v. United States, 413 F.2d 531, 534 (5th
Cir. 1969) (exception did not apply if the government committed a trespass on
land over which it had not authority or discretion); Birnbaum v. United States, 588
F.2d 319, 329 (2d Cir. 1978). Under that principle, the court would acknowledge
that, even where the EPA’s response authority has been triggered under CERCLA
§ 104(a), the discretion conferred to remediate the environmental hazard cannot
stretch so far as to give the government cart blanche to damage, destroy, or
confiscate and sell any private property it might encounter at the site, no matter
how tenuous the relationship between that property, the conduct causing the loss,
and the objective of remediating the land.
To create a more stark example, one might suppose that GIP owned a fully
functional dump truck and had left it on the Excluded Real Property when it was
sealed off by the EPA to begin remediation work. In our hypothetical, GIP’s truck
did not itself contain any hazardous substance being released or threatening to be,
and the truck was parked a substantial distance from the location of the hazardous
substance(s) that did prompt the cleanup. Thus, the truck clearly was in no way
obstructing or impeding the remediation. Under that scenario, if someone at the
site performing cleanup work on behalf of the EPA happened upon GIP’s truck
and negligently drove a motor vehicle into it, that act would not be covered by the
discretionary-function exception. See Gaubert, 499 U.S. at 325 n. 7. Likewise,
the court is willing to assume that, in the absence of a plausible claim of some
material relationship between the truck and the EPA’s objective of remediating the
environmental hazard posed by hazardous substances on the land, the EPA would
not be acting within the scope of its discretionary authority under CERCLA if the
EPA, motivated by its recognition of the value and utility of the truck, simply
appropriated it for the government’s own purpose, as through a seizure and sale or
keeping and using it on the project.
The problem for GIP, however, is that it has not sufficiently pled such a
claim that falls outside the discretionary-function exception. See Douglas, 814
F.3d at 1276. Generally speaking, there is a presumption that the EPA’s actions,
like those of other federal agencies and public officials, are regular, in accordance
with the law, and otherwise valid. See In re Golden Mane Acquisitions, Inc., 243
B.R. 773, 788 n. 8 (Bankr. N.D. Ala. 1999), and the authorities cited therein.
GIP’s Complaint generally admits that the activities of the EPA and the
Contractors at the Site were at least “purportedly” undertaken pursuant the EPA’s
cleanup authority under CERCLA. (Compl. ¶¶ 23, 24). GIP does allege, “upon
information and belief,” that “no condition existed at the Site which would have
authorized, necessitated or required the Defendants under CERCLA to have
removed [GIP]’s property, ... to have covered or discarded [GIP’s] property and/or
to have conveyed it to third parties.” (Id. ¶ 42). GIP also makes a number of
allegations to the effect that Defendants’ actions “unlawfully interfered” with
GIP’s property rights (Id. ¶ 32), “constitute a conversion” (id. ¶¶ 45, 52), were
“negligent,” and beyond the Defendants’ “discretion.” (Id. ¶¶ 48, 56). As
explained below, however, such allegations are insufficient from which to
reasonably infer that the challenged actions were not taken pursuant to, and within
the scope of, the EPA’s discretionary authority under CERCLA.
For starters, such recitals amount to mere labels and legal conclusions that
are not due to be credited at the pleading stage. See Iqbal, 556 U.S. at 678-679.
The EPA’s authority under CERCLA arises “whenever ... any hazardous substance
is released or there is a substantial threat of such release into the environment.”
CERCLA § 104(a)(1)(A), 42 U.S.C. § 9604(a)(1)(A). Conspicuously absent from
GIP’s Complaint, however, is any allegation that there was not, in fact, such a
release or threatened release at the Site. As such, GIP’s pleading fails to impugn
EPA’s authority under CERCLA to have performed remediation work generally.
And if the EPA possessed such authority, the statutory scheme afforded it broad
discretion when it came to choosing how to go about performing the associated
work. See CERCLA §§ 121(a) & (b), 42 U.S.C. §§ 9621(a) & (b). In that vein,
GIP not identified any specific, mandatory provision of CERCLA that was
Moreover, unlike with the “dump truck” hypotheticals discussed above,
GIP’s Complaint does not contain facts and circumstances sufficient to indicate
that GIP’s claimed loss and damage to property did not, in fact, occur in the course
of EPA’s CERCLA remediation or as a legitimate incident thereto. Again, there is
a presumption that the EPA’s official actions were regular and in accordance with
the law. Nor are the actions of which GIP complains of such a character on their
face that one might infer that they were not part of the EPA’s cleanup efforts. GIP
complains that the EPA is liable based on the removal of kish and recycled metals
from the slag piles on the Excluded Real Property. However, GIP has never
specifically disputed, either in the Complaint or in its briefs, the government’s
assertion, supported by Byrd’s affidavit, that it was the slag piles that contained
the hazardous substances leaching into the environment, thereby precipitating the
EPA’s cleanup. Accordingly, one cannot reasonably infer that operations by
which the volume of material in the slag piles was reduced were unrelated to
remediation activities so as to fall outside the EPA’s discretionary authority under
GIP emphasizes, however, that the Contractors not only removed the kish,
they also sold it and allocated a percentage of the proceeds to defray the EPA’s
costs of response. But as explained previously, when it comes to liability for
conversion, the question of what happened to GIP’s property after Defendants
took it away is a red herring; liability would be the same irrespective of whether
the EPA, in its discretion, decided that GIP’s property that was removed or
disturbed in the course of the cleanup should ultimately be sold, buried, or
destroyed. The court concludes that the discretionary-function exception applies
to GIP’s FTCA claims based on the removal and sale of the kish and slag. Cf.
United States v. Articles of Drug, 825 F.2d 1238, 1248-49 (8th Cir. 1987) (FTCA
claim based on Food and Drug Administration’s seizure of pharmaceutical
company’s drug products on the basis that they were “misbranded” in violation of
federal law was subject to the discretionary-function exception); Terrell v. Hawk,
154 F. App’x 280, 282-83 (3d Cir. 2005) (discretionary-function exception applied
to FTCA claim against prison officials, seeking damages for alleged confiscation
of his art supplies, where Bureau of Prisons regulation made decisions regarding
removal and disposal of unidentified art and hobby craft items discretionary in
nature); Cabalce v. VSE Corp., 914 F. Supp. 2d 1145, 1163 (D. Haw. 2012)
(decision of federal officials to store seized fireworks, rather than destroy them
immediately, was covered by the discretionary-function exception).
GIP also claims that the United States is liable for the removal, destruction,
sale, and/or burial of sections of spur line track on the Excluded Real Property.
But again, GIP has not alleged sufficient factual matter from which one might
reasonable infer that such actions were not undertaken as part of the CERCLA
cleanup. To the contrary, as discussed in connection with the Contractors’ motion
to dismiss, GIP affirmatively alleges that the removal of tracks occurred “during
the course of [the Contractors] mining for kish” (Compl. ¶ 37) and that burial of
other tracks occurred when they were “covered with non-saleable mined material.”
(Id. ¶ 39). The court thus concludes that the discretionary-function also applies to
GIP’s FTCA claims related to these claims.10
GIP maintains in its final argument, however, that it would be improper for
the court to dismiss its FTCA claims based on the discretionary-function exception
without first affording an opportunity to conduct jurisdictional discovery. The
court disagrees. First, as explained above, GIP’s allegations are insufficient to
state a claim that falls outside the scope of the discretionary-function exception. A
plaintiff must first plead a viable claim before obtaining jurisdictional discovery.
Culverhouse v. Paulson & Co. Inc., 813 F.3d 991, 994 (11th Cir. 2016). And
second, even assuming arguendo that GIP has stated a cognizable claim, it would
still be incumbent upon GIP to articulate with reasonable specificity what facts it
expects would be revealed and how they would demonstrate the existence of
jurisdiction. See Instabrook Corp. v. InstantPublisher.com, 469 F. Supp. 2d 1120,
1127 (M.D. Fla. 2006) (rejecting plaintiff’s request for jurisdictional discovery
where plaintiff “only generally requested such discovery, without explaining how
such discovery would bolster its contentions”). GIP has not done so. Indeed, that
is despite that GIP appears to have already conducted ample discovery as it relates
The court would note that, even if it were assumed that the discretionary-function did
not apply to GIP’s FTCA claims regarding the spur line tracks, it would appear that those claims,
like GIP’s related Fifth Amendment claims it asserted against the United States in the 2013
Claims Case, have become subject to a collateral estoppel defense arising from this court’s
judgment in the 2014 Tort Case.
to the events and circumstances underlying this action in the 2010 Claims Case,
the 2013 Claims Case, and the 2014 Tort Case.
Based on the foregoing, the Contractors’ joint motion to dismiss (doc. 36)
and the United States’ motion to dismiss (doc. 37) are both due to be GRANTED.
As a result, GIP’s claims against the Contractors are due to be DISMISSED
WITH PREJUDICE, while GIP’s claims against the United States are due to be
DISMISSED WITHOUT PREJUDICE, for lack of jurisdiction. A separate
Final Order will be entered.
DONE, this the 3rd day of October, 2017.
JOHN E. OTT
Chief United States Magistrate Judge
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