Shook et al v. Barrow County Board of Commissioners
Filing
36
ORDER GRANTING Defendant's 15 Motion for Judgment on the Pleadings. Plaintiff's 16 Motion for Extension of Time, 22 Motion to Amend, and 23 Motion to Remand to State Court are DENIED. Defendant's 28 Motion to Exclude Exhibits and 30 Motion to Strike are DENIED, as moot. The Clerk is directed to close this case. Signed by Judge Richard W. Story on 05/23/12. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
DEONDA SHOOK, et al.,
Plaintiffs,
v.
BARROW COUNTY BOARD OF
COMMISSIONERS, by and
through its CHAIRMAN AND
DISTRICT COMMISSIONERS,
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
2:11-CV-128-RWS
Defendant.
ORDER
This case comes before the Court on Defendant’s Motion for Judgment
on the Pleadings [15], Plaintiffs’ Motion for Extension of Time [16], Plaintiffs’
Motion to Amend the Pleadings [22], Plaintiffs’ Motion to Remand [23],1
Defendant’s Motion to Exclude Exhibits [28], and Defendant’s Motion to Strike
[30]. After a review of the record, the Court enters the following Order.
1
Plaintiffs have filed a motion to remand this action to the Superior Court of
Barrow County where Plaintiffs filed their initial, 2007 zoning-appeal because they
believe that “Plaintiffs’ claims would stand under state law or procedures.” Dkt. No.
[23-1] at 4. However, Plaintiffs voluntarily dismissed that state-court action and have
now sued for the second time in federal court. Since Plaintiffs filed their action in
federal court, remand is simply not available. Remand is only a remedy when an
improper removal has occurred. Thus, Plaintiffs’ Motion to Remand [23] is DENIED.
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I. Factual Background
On August 28, 2007, Plaintiff Kenneth Shook, acting individually and on
behalf of his wife, presented Rezoning Application RZ-2007-028 (a.k.a.
XX105/024) to the Barrow County Planning Development Department and the
Barrow County Board of Commissioners (“BOC”) at the BOC’s regularlyscheduled public meeting. Dkt. No. [1] at ¶ 5. This application sought to change
the Plaintiffs’ property zoning from an “Agricultural” zoning to an “R-1"2
zoning so that the Plaintiffs could develop a 20-lot residential subdivision on
the their 20.07-acre plot. Id. at ¶ 6. However, that application was denied the
same day because the BOC found that “to grant the application would adversely
effect the Defendant’s operation of the Winder/Barrow County Airport.” Id. at ¶
7.
On September 27, 2007, Plaintiffs appealed that decision to the Superior
Court of Barrow County and sought equitable relief; namely, the BOC’s re-
2
Plaintiffs plead that they sought an “R-100" zoning. Dkt. No. [1] at ¶ 6.
However, Defendant states that there is no such thing as “R-100"; rather, the intended
zoning was “R-1.” Dkt. No. [15] at 4 n.3. It appears, then, that Plaintiffs’ “R-100"
assertion was a typographical error and the Court will treat it as such.
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classification of their property. Dkt. No. [24-4] at 1.3 Before that case was
finally adjudicated, the Plaintiffs voluntarily dismissed the case in April 2011.
Dkt. No. [24-18]. On May 25, 2011, Plaintiffs filed this complaint alleging
violations of § 1983 and various state-law claims–for the first time seeking
damages. Dkt. No. [1].
On October 14, 2011, Defendant moved for judgment on the pleadings.
On November 4, 2011, after Plaintiffs’ response was due, Plaintiffs moved for
an extension of time to file their brief. That Opposition Brief was filed without
authorization on November 11, 2011. Also on that date, Plaintiffs filed a
Motion to Amend and a Motion to Remand. On November 28, 2011, Defendant
filed objections to Plaintiffs’ exhibits in support of their opposition brief. The
Court will consider each motion in turn.
II. Motion for Extension of Time
Plaintiffs first ask this Court for an extension of time to file their
response in opposition to the Defendant’s Motion for Judgment on the
3
Plaintiffs’ 2007 complaint and voluntary dismissal were attached to their
motion in opposition. Because the substance of these documents “can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned”–the state court’s docket–the Court will take judicial notice of these
documents. FED. R. EVID. 201(b)(2).
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Pleadings. Dkt. No. [16]. Defendant Barrow BOC filed its motion on October
14, 2011. Pursuant to LR 7.1(B) NDGa and Federal Rule of Civil Procedure
6(d), Plaintiffs’ response was thus due on October 31, 2011. However, Plaintiffs
did not file their response on that date. Instead, four days after their response
was due, Plaintiffs filed this motion for extension of time [16]. In the motion,
counsel for Plaintiffs states that he was attempting to contact Plaintiff Kenneth
Shook to sign an affidavit, and that because Mr. Shook was out of town,
Plaintiffs would not be able to file a response brief until November 10, 2011.
Dkt. No. [16] at 1-2.
Federal Rule of Civil Procedure 6(b)(1) states that “[w]hen an act may or
must be done within a specified time, the court may, for good cause, extend the
time: . . . on motion made after the time has expired if the party failed to act
because of excusable neglect.” The question, then, is whether the Plaintiff failed
to act because of excusable neglect.
The Court finds that the Plaintiffs did not act because of excusable
neglect. The only rationale which Plaintiffs present for their delay is that
counsel could not contact Plaintiff Kenneth Shook to sign an affidavit about an
unstated subject because Mr. Shook was out of town. However, the Defendant’s
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motion was not one for summary judgment, it was one for judgment on the
pleadings. In such a posture, the Court could not even consider the affidavit, so
there was no reason to wait for it. See Horsley v. Feldt, 304 F.3d 1125, 1136 n.6
(11th Cir. 2002) (“Whatever their relevance might be in deciding a motion for
summary judgment, we will not consider matters outside the pleadings when
passing on a Rule 12(c) motion for judgment on the pleadings.”). Moreover,
even after the Plaintiffs asked the Court for an extension through November 10,
2011, the Plaintiffs delayed filing their response until the next day, November
11, 2011, and did not ask the Court for an additional day’s extension. Thus,
even under this motion’s requested deadline, their response is untimely. In sum,
the Court does not find that Plaintiffs acted with excusable neglect. They should
have known that such an affidavit would have been improper under a 12(c)
analysis. Thus, Plaintiffs’ Motion for Extension [16] is DENIED and
Defendant’s Motion to Exclude [28] and Motion to Strike [30] are DENIED, as
MOOT. As a result, Defendant’s Motion for Judgment on the Pleadings [15] is
DEEMED UNOPPOSED. LR 7.1(B), NDGa.
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III. Motion for Judgment on the Pleadings
After the pleadings are closed but within such time as not to delay trial, a
party may file a motion for judgment on the pleadings. FED. R. CIV. P. 12(c);
see Conner v. Tate, 130 F. Supp. 2d 1370, 1373 (N.D. Ga. 2001). Judgment on
the pleadings is appropriate only when no issues of material fact exist, and the
movant is entitled to judgment as a matter of law. Ortega v. Christian, 85 F.3d
1521, 1524 (11th Cir. 1996). A court considers only the substance of the
pleadings and any judicially noticed facts, and the court accepts the facts as set
forth in the pleadings as true and views them in the light most favorable to the
nonmoving party. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370
(11th Cir. 1998).
A. Section 1983 claim
Defendants initially move to dismiss Plaintiffs’ § 1983 claim as untimely,
either as too late–if based on due process–or premature–if based on a taking.
Plaintiffs do not clearly allege the underlying substantive basis for their § 1983
claim, but do state that “[t]he Plaintiffs show that the denial of the Plaintiffs’
Rezoning Application on August 28, 2007, was an illegal and improper action
done under color of State law.” Dkt. No. [1] at ¶ 8. Thus, whether Plaintiffs’
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claim is predicated on the Fourteenth Amendment’s due process clause or the
Fifth Amendment’s just compensation clause via the Fourteenth Amendment,
Plaintiffs base their deprivation on the BOC’s conduct which occurred on
August 28, 2007.4
1. Fourteenth Amendment Due Process Claim
If Plaintiffs’ claim is one of federal due process, that claim is barred by §
1983's statute of limitations. While Section 1983 provides a federal cause of
action, the applicable statute of limitations looks to the law of the State in which
the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387 (2007). The
statute of limitations applicable to Section 1983 actions is that which the State
provides for personal injury torts. Id. (citing Owens v. Okure, 488 U.S. 235,
249-50 (1989)). In Georgia, the applicable limitations period is two years.
O.C.G.A. § 9-3-33.
4
The Court cannot definitively discern whether Plaintiffs’ claim is one of due
process–as the count’s heading is entitled “Deprivation of Property without Due
Process Secured by the Constitution”–or a takings claim–as they allege that the BOC
denied “Plaintiffs the highest and best use of their real property” and that they were
denied “just compensation.” Dkt. No. [1] at 3-4. However, the Court need not make
this determination as both claims would be barred by either the statute of limitations
or a ripeness challenge.
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However, “[t]he accrual date of a [Section] 1983 claim is a question of
federal law that is not resolved by reference to state law,” but rather is:
governed by federal rules conforming in general to
common-law tort principles. Under those principles, it
is the standard rule that accrual occurs when the
plaintiff has a complete and present cause of action,
that is, when the plaintiff can file suit and obtain
relief.
Wallace, 549 U.S. at 388. “A violation of a substantive due process right . . . is
complete when it occurs.” McKinney v. Pate, 20 F.3d 1550, 1556-57 (11th Cir.
1994). Here, because Plaintiffs plead that their substantive due process rights
were violated on August 28, 2007 and they did not file suit under § 1983 until
May 25, 2011, Plaintiffs’ § 1983 due process claim is clearly barred by the
relevant two-year statute of limitations.5 That claim is DISMISSED.
5
While the Court is not considering Plaintiffs’ Opposition brief as it was
untimely, the Court notes that the Plaintiffs did make a tolling argument in that brief.
Essentially, Plaintiffs argue that because their initial suit was filed in 2007and they
voluntarily dismissed that action in April 2011, their claims should be preserved on
renewal. However, because Plaintiffs never asserted a § 1983 violation in the original
action–which was essentially an appeal of the BOC’s initial decision–much less a
claim for damages, the Court finds that Plaintiffs’ tolling arguments do not have merit
as in order to be protected by Georgia’s renewal statute, the claim must have been
made in the original suit. See Burns v. Dees, 557 S.E.2d 32, 39 (Ga. Ct. App. 2001)
(“To suspend the running of the statute of limitation in a renewal action, the cause of
action must be substantially the same as in the original action. A defendant's liability
cannot be enlarged beyond that indicated by the pleadings in the first case.”) (internal
quotations omitted).
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2. Fifth Amendment Takings Claim
To the extent that Plaintiffs are bringing a Fifth Amendment takings
claim, that claim is not ripe. To show a constitutional takings violation, a
property owner must show either that state law provides no process for
obtaining just compensation, or that state law is inadequate due to state court
interpretation. Agripost, Inc. v. Miami-Dade County ex rel. Manager, 195 F.3d
1225, 1231 (11th Cir. 1999). If the plaintiff cannot show either of these latter
requirements, the case is not ripe and the court lacks subject matter jurisdiction
over the claim. Id. In Georgia, state law provides a process for obtaining just
compensation for takings resulting from zoning decisions: claimants may bring
an action for inverse condemnation. James Emory, Inc. v. Twiggs County, 883
F. Supp. 1546, 1556 (M.D. Ga. 1995); Benton v. Savannah Airport Comm’n,
525 S.E.2d 383, 386 (Ga. Ct. App. 1999). Thus, where a plaintiff has not
availed itself of the state-law process, takings and inverse condemnation claims
are not ripe for federal court review. Eide v. Sarasota County, 908 F.2d at 72021; James Emory, Inc., 883 F. Supp. at 1557.
Here, Plaintiffs have never pursued a claim for inverse condemnation in
Georgia state courts, attempting such an action for the first time in this suit.
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Thus, because Plaintiffs have never attempted to seek just compensation from
the Defendants in state court, Plaintiffs Fifth Amendment claim is not ripe
before this Court and are due to be DISMISSED, without prejudice. See
Stalley ex rel. U.S. v. Orlando Regional Healthcare Sys., Inc., 524 F.3d 1229,
1232 (11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction is not
a judgment on the merits and is entered without prejudice.”).
B. State Law Claims
Defendants also move for judgment on Plaintiffs’ state-law claims.
Plaintiffs have brought four distinct state law claims– “a taking,” “inverse
condemnation,” “nuisance,” and “trespass.” However, Georgia law recognizes
all four of those actions as a single claim for inverse condemnation when made
against a county actor. Stanfield v. Glynn Cnty., 631 S.E.2d 374, 377 (Ga.
2006) (“A county may be liable for damages if it creates a condition on private
property, such as a nuisance, that amounts to inverse condemnation or a taking
without compensation. Regardless of how the various claims are denominated,
therefore, the plaintiffs may recover if and only if the trespass or nuisance
amounted to the taking of property without just compensation. Thus, the
trespass and nuisance claims are duplicative of the inverse condemnation
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claim.”) (internal citations and omissions omitted). In order to bring an inverse
condemnation claim against a county, though, written notice of the claim must
be given to the county within twelve months of its occurrence, and the failure to
provide such notice is a bar to pursuing such a claim. See O.C.G.A. § 36-11-1
(“All claims against counties must be presented within 12 months after they
accrue or become payable or the same are barred, provided that minors or other
persons laboring under disabilities shall be allowed 12 months after the removal
of the disability to present their claims.”).
Here, Plaintiffs did not provide ante litem notice of any damages claim
until April 25, 2011, well after the twelve month accrual date of August 27,
2008. See Dkt. No. [15-2] at 3.6 Thus, Plaintiffs’ state law damages
claim–inverse condemnation–is DISMISSED.
6
To the extent that this letter is a matter outside the pleadings, the court notes
that this ripeness challenge is a challenge to the Court’s subject matter jurisdiction.
See Sammons v. Nat’l Comm’n on Certification of Physician Assistants, Inc., 104 F.
Supp. 2d 1379, 1381 (N.D. Ga. 2000) (noting that “ripeness goes to [a federal district
court’s] subject matter jurisdiction”). Thus, this Court may consider matters outside
the pleadings without converting the motion to summary judgment. Stalley, 524 F.3d
at 1233 (“[A] factual attack on a compliant challenges the existence of subject matter
jurisdiction using material extrinsic from the pleadings, such as affidavits or
testimony.”).
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VI. Motion to Amend
Plaintiffs last move to amend their Complaint to substitute “COUNTY
OF BARROW, GEORGIA” for the named Defendant the “BOC by and through
its Chairman and Commissioners”; Plaintiffs do not seek to substantively
amend their Complaint through additional facts or law. However, because the
Court finds that all of Plaintiffs claims are meritless–regardless against whom
they are pled–that motion is DENIED. See Campbell v. Emory Clinic, 166 F.3d
1157, 1162 (11th Cir. 1999) (stating that a district court may choose not to
allow a party to amend when the amendment would be futile.).
V. Conclusion
Defendant’s Motion for Judgment on the Pleadings [15] is GRANTED.
However, Plaintiffs’ Motion for Extension of Time [16], Plaintiffs’ Motion to
Amend the Pleadings [22], and Plaintiffs’ Motion to Remand [23] are
DENIED. As a result, Defendant’s Motion to Exclude Exhibits [28] and
Motion to Strike [30] are DENIED, as MOOT. The Clerk is directed to close
this case.
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SO ORDERED, this 23rd day of May, 2012.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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