Haynes et al v. United States Army Corps of Engineers et al

Filing 14

ORDER AND REASONS: ORDERED that the government's 10 motion to dismiss the original complaint is GRANTED for lack of subject matter jurisdiction. FURTHER ORDERED that plaintiffs' 12 motion for leave to file an amended complaint is DENIED. FURTHER ORDERED that the government's 13 motion to dismiss plaintiffs' proposed amended complaint is DISMISSED AS MOOT. Signed by Judge Lance M Africk on 8/4/2015.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROCHELLE SANDERS HAYNES ET AL.

CIVIL ACTION

VERSUS

No. 15-167

UNITED STATES ARMY CORPS OF
ENGINEERS ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion 1 filed by the government to dismiss the above-captioned
matter pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, which
plaintiffs oppose. 2 Plaintiffs also filed a motion for leave to file an amended complaint 3 along
with the proposed amended complaint. 4 The government then filed a motion to dismiss
plaintiffs’ proposed amended complaint. 5 For the following reasons, the government’s motion to
dismiss the original complaint is GRANTED, plaintiffs’ motion for leave to file an amended
complaint is DENIED, 6 and the government’s motion to dismiss the proposed amended
complaint is DISMISSED AS MOOT.

1

R. Doc. No. 10.
R. Doc. No. 11.
3
R. Doc. No. 12.
4
R. Doc. No. 12-2.
5
R. Doc. No. 13.
6
The Court acknowledges the diligent efforts of Ashley Giambelluca, a J.D. candidate at Tulane
University Law School, who contributed to the preparation of this Order and Reasons.
2

1

BACKGROUND
In August 2005, plaintiffs resided in the Lower Ninth Ward of New Orleans,7 which was
flooded by water from

the Mississippi River Gulf Outlet (“MRGO”) following Hurricane

Katrina.8 Plaintiffs’ relative was found deceased after the storm.9 Plaintiffs, proceeding pro se,
claim that the U.S. Army Corps of Engineers (“the Corps”) was grossly negligent when it failed
to protect the citizens of the United States in connection with Hurricane Katrina and its August
29, 2005 landfall in New Orleans.10 Plaintiffs broadly contend that “[t]he U.S. Army Corps of
Engineers has failed the American citizens tragically.”11
Plaintiffs filed their original complaint on January 23, 2015, claiming subject matter
jurisdiction pursuant to 28 U.S.C. § 1331; the Federal Torts Claim Act (“FTCA”), 28 U.S.C. §§
2671 et seq.; and the Public Vessels Act (“PVA”), 46 U.S.C. § 31101 et seq. 12 Plaintiffs allege,
“All families who suffered during [the] Hurricane Katrina disaster caused by the United States
Army Corps of Engineers should be compensated for their los[s]es including loss of life in the
amount of $1.5 million dollars.” 13
On June 25, 2015, the government filed a motion to dismiss plaintiffs’ complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) or, alternatively, Rule 12(b)(6). 14 In

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R. Doc. No. 1, at 1.
R. Doc. No. 12-2, at 4 (“Plaintiffs are seeking damages for the effects of the waters in the
MRGO with respect to the decimation of the wetlands over a long period of time which in turn
created the hazard which resulted in flooding . . . .”); R. Doc. No. 12-2, at 5 (“The United States
Army Corps of Engineers should be made accountable for their failure to protect the citizens of
the United States.”).
9
R. Doc. No. 12-2, at 3.
10
R. Doc. No. 1, at 1-2.
11
R. Doc. No. 1, at 2.
12
R. Doc. No. 1, at 2.
13
R. Doc. No. 1, at 3.
14
R. Doc. No. 10.
8

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response, plaintiffs filed an opposition 15 and a motion for leave to amend the complaint. 16 The
proposed amended complaint claims subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,
1343(3). 17
STANDARD OF LAW
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an
action where the court finds that it does not have subject matter jurisdiction. Where “a Rule
12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the
Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v.
United States, 281 F.3d 158-161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606,
608 (5th Cir. 1977) (holding that where there are grounds for dismissal under Rule 12(b)(1) for
lack of jurisdiction and under Rule 12(b)(6) for failure to state a claim on which relief can be
granted, the “court should dismiss only on the jurisdictional ground . . . without reaching the
question of failure to state a claim”). This approach “prevents a court without jurisdiction from
prematurely dismissing a case with prejudice.” Ramming, 281 F.3d at 161. Where dismissal
under Rule 12(b)(1) is appropriate, the plaintiff is not precluded from seeking relief in another
forum with proper jurisdiction because no determination on the merits has been made. See Hitt,
561 F.2d at 608.
“A case is properly dismissed for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc.
v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). “Courts may
dismiss for lack of subject matter jurisdiction on any one of three different bases: (1) the

15

R. Doc. No. 11.
R. Doc. No. 12.
17
R. Doc. No. 12-2, at 1.
16

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complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Clark
v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404,
413 (5th Cir. 1981)). Where, as here, the defendant has questioned the court’s subject matter
jurisdiction, the plaintiff has the burden of “proving by a preponderance of the evidence that the
trial court does” possess the requisite jurisdiction. Patterson v. Weinberger, 644 F.2d 521, 523
(5th Cir. 1981).
DISCUSSION
“The [FTCA] is a limited waiver of the immunity of the United States as a sovereign.”
Lewis v. Napolitano, No. 11-2137, 2012 WL 274415, at *2 (E.D. La. Jan. 31, 2012) (Vance,
C.J.). The Fifth Circuit has consistently recognized that “the United States, and not the
responsible agency or employee, is the proper defendant.” Galvin v. OSHA, 860 F.2d 181, 183
(5th Cir. 1988); see also Toledo v. Bureau of Prisons, 238 F. App’x 10, 11 (5th Cir. 2007).
“When a plaintiff files an FTCA claim against a federal agency or employee, that claim must be
dismissed for lack of jurisdiction.” Lewis, 2012 WL 274415, at * 2 (citing Galvin, 860 F.2d 183).
Because neither the original complaint nor the proposed amended complaint includes the United
States as a defendant, this Court lacks jurisdiction over plaintiff’s tort claims.
Even if plaintiffs were to add the United States as a defendant to this action, the FTCA
provides that the government is immune from claims related to certain “discretionary functions.”
The FTCA’s discretionary function exception excludes “[a]ny claim based upon . . . the exercise
or performance or the failure to exercise or perform a discretionary function or duty on the part
of the federal agency or an employee of the Government, whether or not the discretion involved
was abused.” 28 U.S.C. § 2680(a). “At the pleading stage, plaintiff must invoke the court's

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jurisdiction by alleging a claim that is facially outside of the discretionary function exception.”
St. Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307, 315 (5th Cir. 2009).
In In re Katrina Canal Breaches Litig., 696 F.3d 436 (5th Cir. 2012), cert. denied sub
nom. Lattimore v. United States, 133 S. Ct. 2855 (2013), the Fifth Circuit addressed the issue of
whether the Corps had liability relative to the flooding throughout New Orleans after Hurricane
Katrina 18 The Fifth Circuit concluded that the United States’ operation and maintenance of the
MRGO, 19 whose waters flooded the area where plaintiffs previously resided, was a discretionary
function. See id. at 448-51. The Fifth Circuit found that the discretionary function exception
“completely insulates the government from liability” regarding the canal breaches and flooding
from the MRGO after Hurricane Katrina. See id. at 454. Accordingly, even if plaintiffs were to
amend their complaint to add the United States as a defendant, this Court would still lack subject
matter jurisdiction over their claims pursuant to the discretionary function exception. 20
Plaintiffs’ citation to 28 U.S.C. § 1343(3) in their proposed amended complaint does not
alter this Court’s conclusion. Section 1343 “is a jurisdictional statute and does not create any
substantive rights.” Jewell v. City of Covington, Georgia, 425 F.2d 459, 460 (5th Cir. 1970); see
also Alexander v. Ferrell, No. 08-1595, 2009 WL 89693, at *2 (W.D. La. Jan. 12, 2009) (Hicks,
J.) (stating that the plaintiff’s “reliance on Section 1343 as a jurisdictional basis in this matter is
misplaced because she has not alleged deprivation of a federal right and/or sought relief under a
substantive statute(s) to which Section 1343 relates”). Plaintiffs have not alleged that defendants

18

The Court notes that plaintiffs’ proposed amended complaint relies on the district court
opinion that was reversed by In re Katrina Canal Breaches Litig., 696 F.3d 436.
19
Plaintiffs have not identified any specific actions taken by the Corps that caused their injuries.
20
Plaintiffs’ citation to the PVA does not alter this outcome. See In re Katrina Canal Breaches
Litig., No. 14-30060, 2015 WL 3407410 (5th Cir. May 28, 2015).
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acted “under color of any State law, statute, ordinance, regulation, custom or usage.” 28 U.S.C.
§ 1343(3) (emphasis added). Accordingly, this statute is simply irrelevant to their claims. 21
CONCLUSION
Although the Court “appl[ies] less stringent standards to parties proceeding pro se than to
parties represented by counsel,” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995), plaintiffs
have not established that this Court has subject matter jurisdiction over their claims.
Accordingly, the Court need not address the government’s alternative arguments pursuant to
Rule 12(b)(6). Furthermore, the Court need not grant plaintiffs leave to amend their complaint
because “leave to amend need not be granted when it would be futile to do so.” FDIC v. Conner,
20 F.3d 1376, 1385 (5th Cir. 1994). Because plaintiffs may not amend their complaint, the
government’s motion to dismiss the proposed amended complaint is moot. Accordingly, for the
foregoing reasons,
IT IS ORDERED that the government’s motion to dismiss the original complaint is
GRANTED for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file an amended
complaint is DENIED.

21

Plaintiffs assert that they “relied on information from the government’s website which
provided an example of how to prepare the complaint. . . . [B]ecause of the ambiguous
instructions on the government’s website of the sample complaint form, Plaintiffs are asking that
the Motion To Dismiss be denied.” R. Doc. No. 11, at 1-2. The sample complaint describes the
general form for the document itself, but it offers no instruction or guidance with respect to the
substantive legal issues relating to the Court’s jurisdiction over any possible claim. See R. Doc.
No. 11, at 4. Plaintiffs’ reliance on the government’s sample complaint form does not deprive
this Court of jurisdiction over their claims; the law does.
6

IT IS FURTHER ORDERED that the government’s motion to dismiss plaintiffs’
proposed amended complaint is DISMISSED AS MOOT.

New Orleans, Louisiana, August 4, 2015.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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