Baker et al v. Mortage of America Lenders, LLC

Filing 34

ORDER re 30 Motion to Dismiss. Defendant's motion to dismiss, dkt. no. 30, is CONVERTED into a motion for summary judgment. The Parties are ORDERED, within thirty (30) days from today's date, to engage in discovery limited to the issue of Plaintiffs' standing. All other discovery and pretrial deadlines will be STAYED during this time. Defendant shall have sixty (60) days from today's date to file any supplemental evidence and briefing relating to Plaintiff's standing. Plaintiff shall have fourteen (14) days after the supplemental briefs are file to respond. Signed by Judge Lisa G. Wood on 1/8/2021. (ca)

Case 2:20-cv-00003-LGW-BWC Document 34 Filed 01/08/21 Page 1 of 5

In the United States District Court
for the Southern District of Georgia
Brunswick Division
GAYLE BAKER; DONALD J.
BRUNELLE; JUDITH A. BRUNELLE;
JANE FRASER; BURKE MCCALL
HARRISON; VICKI S. HARRISON;
JUDITH C. PHILLIPS; RENEE J.
WILLIAMSON; and ROBERT W.
WILLIAMSON, III,

FILED
John E. Triplett, Acting Clerk
United States District Court

By CAsbell at 2:18 pm, Jan 08, 2021

2:20-CV-3

Plaintiffs,
v.
MORTGAGE OF AMERICA LENDERS,
LLC,
Defendant.
ORDER
This case is before the Court on Defendant Mortgage of America
Lenders, LLC’s motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).

Dkt. No. 30.

Plaintiffs are

attempting to bring a citizen suit under the provisions of the
Clean Water Act (“CWA”), 33 U.S.C. § 1365(a), as a result of damages
they allegedly incurred from Defendant’s residential development
of Captain’s Cove on St. Simons Island, Georgia.

Dkt. No. 28.

The

CWA permits “any citizen [to] commence a civil action on his own
behalf against any person . . . who is alleged to be in violation
of (A) an effluent standard or limitation under [the CWA] or (B)

Case 2:20-cv-00003-LGW-BWC Document 34 Filed 01/08/21 Page 2 of 5

an order issued by the Administrator or a State with respect to
such a standard or limitation.”

§ 1365(a)(1).

Plaintiffs seek

both injunctive and declaratory relief, as well as damages.

Id.

LEGAL AUTHORITY
In their briefs, the Parties focus on the jurisdictional issue
of whether Plaintiffs have standing to bring this suit. “In the
absence of standing, a court is not free to opine in an advisory
capacity about the merits of a plaintiff's claims.”

Bochese v.

Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005).
essence

the

question

of

standing

is

whether

the

litigant

“In
is

entitled to have the court decide the merits of the dispute or of
particular

issues.”

Id.

(citation

and

quotations

omitted).

District courts are “empowered to hear only those cases within the
judicial power of the United States as defined by Article III of
the Constitution.”

Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d

405, 409 (11th Cir.1999).

“Standing is a doctrine that ‘stems

directly from Article III's “case or controversy” requirement,’
and

thus

it

‘implicates

our

subject

matter

jurisdiction.’”

Bochese, 405 F.3d at 974 (quoting Nat'l Parks Conservation Ass'n
v. Norton, 324 F.3d 1229, 1242 (11th Cir.2003)). “[A]s with any
jurisdictional requisite, we are powerless to hear a case when it
is lacking.”

Id.

“[O]nce a federal court determines that it is

without subject matter jurisdiction, the court is powerless to
continue.”

Id. at 974-75.

“[A] court should inquire into whether
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Case 2:20-cv-00003-LGW-BWC Document 34 Filed 01/08/21 Page 3 of 5

it has subject matter jurisdiction at the earliest possible stage
in the proceedings.”

Id. at 975.

Plaintiffs’ amended complaint and attachments thereto allege
Defendant

engaged

in,

and

continues

to

engage

in,

unlawful

activities under the CWA, resulting in environmental harm to the
surrounding areas.

Some of the documents attached to the amended

complaint reference action taken by the Environmental Protection
Agency (“EPA”) against Defendant for, it appears, the very action
about

which

Plaintiffs

complain

in

their

amended

complaint.

Whether the EPA’s involvement has concluded or is continuing is
unclear.
briefs,

After analyzing the amended complaint and the Parties’
the

Court

is

unable

to

ascertain,

without

further

information, whether the EPA’s action against Defendant precludes
Plaintiffs’ civil suit pursuant to subsection 1365(b)(1)(B) of the
CWA.

That section provides that no suit may be brought under

§ 1365(a) “if the Administrator or State has commenced and is
diligently prosecuting a civil or criminal action in a court of
the United States, or a State to require compliance with the
standard, limitation, or order . . . .”

33 U.S.C. § 1365(b)(1)(B).

The Court is also unable to ascertain, without further information,
whether Plaintiffs, personally and individually, indeed suffered
injury as a result of Defendant’s actions.
“It is within the judge's discretion to decide whether to
consider matters outside of the pleadings that are presented to
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Case 2:20-cv-00003-LGW-BWC Document 34 Filed 01/08/21 Page 4 of 5

the court.”

Jones v. Auto. Ins. Co. of Hartford, Conn., 917 F.2d

1528, 1531–32 (11th Cir. 1990).
information

outside

of

the

Plaintiffs’

standing

to

bring

Because the Court needs further
amended
this

complaint

suit,

the

to

determine

Court

uses

its

discretion to convert Defendant’s motion to dismiss into a motion
for summary judgment pursuant to Federal Rule of Civil Procedure
12(d).
When a district court converts a motion to dismiss into a
motion for summary judgment, it must comply with the requirements
of Rule 56 by notifying the parties of the conversion and providing
at

least

10

accordingly.

days

for

the

parties

to

supplement

the

record

Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265,

1267 (11th Cir. 2002).

Here, the Court will go a step further.

The Parties are ORDERED, within thirty (30) days from today’s date,
to

engage

standing.

in

discovery

limited

to

the

issue

of

Plaintiffs’

All other discovery and pretrial deadlines will be

STAYED during this time.

Defendant shall have sixty (60) days

from today’s date to file any supplemental evidence and briefing
relating to Plaintiffs’ standing.

Plaintiffs shall have fourteen

(14) days after the supplemental briefs are filed to respond.
Plaintiffs are advised that they cannot carry their burden on
summary judgment by relying on their amended complaint or by making
conclusory allegations.

Rather, they must respond with affidavits

4

Case 2:20-cv-00003-LGW-BWC Document 34 Filed 01/08/21 Page 5 of 5

or other evidence as provided by Federal Rule of Civil Procedure
56.
CONCLUSION
Defendant’s motion to dismiss, dkt. no. 30, is CONVERTED into
a motion for summary judgment.
SO ORDERED, this 8th day of January, 2021.

________________________________
HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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