Stew Farm, Ltd. v. Natural Resource Conservation Service et al
ORDER granting 42 Motion to Dismiss for Failure to State a Claim; granting 43 Motion to Dismiss; granting 16 Motion to Dismiss for Lack of Jurisdiction; finding as moot 17 Motion for Judgment on the Pleadings; granting 30 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge George C Smith on 8-26-13. (ga)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
STEW FARM, LTD.,
Case No.: 2:12-CV-0299
Magistrate Judge Deavers
THE NATURAL RESOURCE
CONSERVATION SERVICE, et al.,
OPINION AND ORDER
Plaintiff Stew Farm, Ltd. brings this action for money damages and declaratory judgment
against the Natural Resources Conservation Service, the Pickaway County Soil and Water
Conservation District, and private Defendants Watershed Management, LLC, Carl Hamman, and
Douglas Kohli. This matter is before the Court on Defendant Natural Resources Conservation
Service’s Motion to Dismiss (Doc. 16), Defendants Watershed Management, LLC and Carl
Hamman’s Motion for Judgment on the Pleadings (Doc. 17) and Motion to Dismiss the First
Amended Complaint (Doc. 43), Defendant Pickaway County Soil and Water Conservation District’s
Motion to Dismiss for Lack of Jurisdiction (Doc. 30), and Defendant Douglas Kohli’s Motion to
Dismiss for Failure to State a Claim (Doc. 42). All of the motions are fully briefed and ripe for
review. For the reasons that follow, all of the Defendants’ Motions are GRANTED.
Plaintiff Stew Farm is an Ohio limited liability company whose principal place of
business is located in Pickaway County, Ohio. Plaintiff is the owner of an approximately 300
acre farm located off Caldwell Road in Pickaway County (“the Farm”). (Am. Compl. ¶¶ 1, 21).
Defendant The Natural Resources Conservation Service (Natural Resources), formerly known as
the Soil Conservation Service, is an agency within the United States Department of Agriculture
that works with landowners, state and local governments, and other federal agencies to provide
conservation planning and assistance on private lands to benefit the soil, water, air, plants, and
animals. See 7 U.S.C. § 6962 (authorizing Secretary of Agriculture to establish and maintain
Natural Resources Conservation Service); 7 C.F.R. Parts 600 (Organization) and 601 (functions
assigned); see also “About NRCS – A Legacy of Conservation” available at
Defendant the Pickaway County Soil and Water District (“Pickaway County”), is an
instrumentality of the State of Ohio and Pickaway County that shares office space with Natural
Resources, and its employees are supervised by employees of Natural Resources. (Am. Compl.
¶ 3). Defendant Doug Kohli is an employee of Pickaway County and has served as a district
technician in the offices of Pickaway County and Natural Resources. Mr. Kohli was responsible
for supervising the projects at issue in this case. (Am. Compl. ¶ 4). Defendant Watershed
Management, LLC (“Watershed”) is an Ohio limited liability company that conducts business in
Ohio, including Pickaway County. (Am. Compl. ¶ 5). Defendant Carl Hamman is an owner or
manager of Watershed and made certain representations regarding the issue in this case. (Am.
Compl. ¶ 6). Plaintiff Stew Farms seeks money damages and declaratory relief from the
aforementioned Defendants based on the installation of grassed waterways for a previous owner,
John Neff, by Defendant Watershed.
In 2008, Stew Farm purchased its farm from John Neff. Mr. Neff began experiencing
drainage and erosion problems on the Farm after a township road project in 2005 altered the flow
of the water in the area. Mr. Neff discussed the issue with the Pickaway County Engineer and
the Township Trustees, and Mr. Kohli. Kohli suggested the construction of two grass waterways
on the Fram to prevent further erosion of the Farm. Kohli had explained that Neff could receive
federal funding for up to 90 percent of the cost of construction as well as rental fees for
maintaining the land in a conservation use. Neff and Watershed Management entered into an
oral contract whereby Watershed Management agreed to charge Neff the same amount as Neff
would be reimbursed from the federal government for installing the waterways, plus any
additional fees for extra materials or required work. Kohli designed the waterways and
Watershed Management finished the work. Kohli examined the waterways and certified they
were constructed as designed and working properly. Kohli forwarded his plans and certification
to Defendant Natural Resources, which agreed with Kohli’s assessments and certified that the
waterways were satisfactorily completed so that Neff could receive federal reimbursement. See
Watershed Mgmt. LLC v. Neff, 2012 WL 832829, ** 1–2 (Ohio Ct. App. Mar. 8, 2012).
Neff also certified that the waterways had been constructed as designed and requested
federal reimbursement. Federal reimbursement was approved and the funds were paid to Neff.
But Neff did not pay his bill to Watershed, believing there was a lip, or ridge, along the edge of
the grassed waterways that prevented his fields from draining. In April 2009, Watershed filed a
breach of contract action against Neff in the Court of Common Pleas in Pickaway County since
Neff had not paid for the work. Id. at *2; Watershed Mgmt. LLC. v. Neff, 2009-CI-0188 (Ex. A,
LLC Trial Ct. Docket Sheet). In May 2009, Neff counterclaimed for breach of contract and
breach of warranty. Id. Neff failed to present any evidence of damages due to the waterways he
claimed were defective, so the court granted summary judgment to Watershed on Neff’s
counterclaims. The court of appeals affirmed the trial court’s judgment for Watershed
Management on Neff’s counterclaims. Watershed Mgmt., 2012 WL 832829 at **9–10.
At the same time Neff filed his counterclaims in May 2009, Plaintiff Stew Farm moved to
intervene in the action. Ex. A (May 20, 2009 Trial Court Docket Entry). The trial court denied
Stew Farm’s motion. The trial court found that the dispute between Neff and Watershed was
about the contract to construct the waterways and that Stew Farm was unrelated to that
transaction and had not demonstrated any entitlement to intervene. Watershed Mgmt., 2012 WL
832829, at *3. Plaintiff Stew Farm then initiated this action in April 2012, one month after the
Ohio Court of Appeals issued its decision affirming in part, reversing in part, and remanding to
the Court of Common Pleas, Pickaway County in Watershed Mgmt. LLC v. Neff,
2012 WL 832829, ** 1–2 (Ohio Ct. App. Mar. 8, 2012). Despite knowing about the state court
dispute no later than May 2009 when it tried to intervene, Stew Farm alleges that it first learned
in August, 2010 that “the Waterways were not properly designed by Defendants NRCS,
PCSWD, Mr. Kohli and/or its TSP.” (Am. Compl. ¶ 50). Plaintiff further alleges that
Defendants failed to properly inspect and improperly certified the work on the waterways and
violated applicable federal law. (Am. Compl. ¶¶ 50-57).
Stew Farm alleges that Defendant Watershed was a Natural Resources “Technical
Service Provider” (“TSP”). According to Stew Farm, the TSP is directly responsible to the
landowner for the failures of the services they provide, and Natural Resources and Pickaway
County are responsible for supervising and certifying that the project was constructed and
installed in accordance with “applicable federal law.”
STANDARDS OF REVIEW
Rule 12(b)(1) provides that an action may be dismissed for lack of subject matter
jurisdiction. Under the Federal Rules of Civil Procedure, “[p]laintiffs have the burden of proving
jurisdiction in order to survive a Rule 12(b)(1) motion . . . .” Weaver v. Univ. of Cincinnati, 758 F.
Supp. 446, 448 (S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg’ Transit Auth., 895 F.2d
266, 269 (6th Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008,
1012 (S.D. Ohio 2002) (citing McNutt v. General Motors Acceptance Corp. of Indiana, Inc., 298
U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) (“The
plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of
federal subject matter jurisdiction”).
Motions under Rule 12(b)(1) generally come in two varieties, either facial or factual attacks
on the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack on the
subject matter jurisdiction alleged by a complaint merely questions the sufficiency of the pleading.
Id. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, a
similar safeguard employed under Rule 12(b)(6) motions to dismiss. Id. On the other hand, when
a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual
allegations. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); see also
Nat’l Ass’n of Minority Contractors v. Martinez, 248 F. Supp. 2d 679, 681 (S.D. Ohio 2002). As a
result, this Court may weigh the evidence and resolve any factual disputes when adjudicating such
a jurisdictional challenge. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (citing Moir,
895 F.2d at 269).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to state
a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed solely to
the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134,
155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at issue on a motion
to dismiss for failure to state a claim. Consequently, a complaint will be dismissed pursuant to Rule
12(b)(6) only if there is no law to support the claims made, or if the facts alleged are insufficient to
state a claim, or if on the face of the complaint there is an insurmountable bar to relief. See Rauch
v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). Rule 12(b)(6) must be read in
conjunction with Rule 8(a) of the Federal Rules of Civil Procedure, which requires the complaint
to contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]”
A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the
light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations.
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the factual
allegations in the complaint are taken as true, a court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain sufficient
factual matter to “state a claim to relief that is plausible on its face.” Twombly, at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, at 1950. While
a complaint need not contain “detailed factual allegations,” its “factual allegations must be enough
to raise a right to relief above the speculative level on the assumption that all the allegations in the
complaint are true.” Twombly, at 555. “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
‘show[n]’ – ‘that the pleader is entitled to relief.’ ” Iqbal, at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
In the final analysis, the task of determining plausibility is “context-specific [and] requires the
reviewing court to draw on its judicial experience and common sense.” Id.
All of the Defendants have moved to dismiss Plaintiff’s claims against them raising different
grounds for dismissal. The Court will address each of the motions in turn.
Defendant Natural Resources’ Motion to Dismiss
Defendant Natural Resources moved under Rule 12(b)(1) of the Federal Rules of Civil
Procedure to dismiss for lack of subject matter jurisdiction, or alternatively under Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.
Specifically, Defendant argues that Stew Farm fails to allege a waiver of sovereign immunity for
its claims for money damages and declaratory relief and therefore this Court lacks subject matter
jurisdiction over those claims.
“Jurisdiction over any suit against the [United States] Government requires a clear statement
from the United States waiving sovereign immunity . . . together with a claim falling within the
terms of the waiver.” CareToLive v. von Eschenbach, 525 F. Supp. 2d 938, 950 (S.D. Ohio 2007),
aff'd sub nom., CareToLive v. Eschenbach, 290 F. App'x 887 (6th Cir. 2008) (citing United States
v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S. Ct. 1126, 155 L. Ed. 2d 40 (2003)). The
United States may not be sued without its consent, and consent is a prerequisite to jurisdiction. Id.
(citing United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983)); Reed
v. Reno, 146 F.3d 392, 398 (6th Cir. 1998) (“The United States can be sued only when it has
expressly given its consent to be sued.”) (internal quotation marks and citation omitted)). A waiver
of sovereign immunity “cannot be implied but must be unequivocally expressed.” Id. (citing
Mitchell, 463 U.S. at 239; Reed, 146 F.3d at 398). Absent an express waiver of sovereign immunity,
the district court lacks jurisdiction over a claim against the United States. Id. (citing Mitchell, 463
U.S. at 212). The plaintiff has the burden to identify a waiver of sovereign immunity in order to
proceed with a claim against the United States. Id. (citing Reetz v. United States, 224 F.3d 794, 795
(6th Cir. 2000)). Id. If the plaintiff cannot identify a waiver, his claim must be dismissed for lack
of jurisdiction. Id. (citing Reetz, 224 F.3d at 795).
Plaintiff’s Claims for Money Damages
Plaintiff acknowledges that Defendant Natural Resources’ arguments regarding sovereign
immunity as to money damages are valid with the exception of the “Little Tucker Act”, 28 U.S.C.
§ 1346(a)(2). The Little Tucker Act, 28 U.S.C. § 1346(a)(2), provides federal district courts with
jurisdiction that is concurrent with the Federal Court of Claims for most non-tort actions brought
against the United States for claims of relief less than ten thousand dollars. That statute specifically
The district courts shall have original jurisdiction, concurrent with the United States
Court of Federal Claims, of:
(2) Any other civil action or claim against the United States, not exceeding $10,000
in amount, founded either upon the Constitution, or any Act of Congress, or any
regulation of an executive department, or upon any express or implied contract with
the United States, or for liquidated or unliquidated damages in cases not sounding
in tort, except that the district courts shall not have jurisdiction of any civil action or
claim against the United States founded upon any express or implied contract with
the United States or for liquidated or unliquidated damages in cases not sounding in
tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41. . . .
28 U.S.C. § 1346(a)(2).
The Little Tucker Act does not “create substantive rights” but is “simply [a] jurisdictional
provision that operates to waive sovereign immunity for claims premised on other sources of law.”
United States v. Navajo Nation, 556 U.S. 287, 290 (2009). The jurisdiction, conferred by the Little
Tucker Act, to hear and determine express or implied contracts with the United States, extends only
to contracts either express or implied in fact, and not to claims on contracts implied in law. Hercules
Inc. v. United States, 516 U.S. 417, 423, 116 S. Ct. 981, 134 L. Ed. 2d 47 (1996). “Under the Tucker
Act, the United States consents to be sued only by those with whom it has privity of contract.”
Eubanks v. United States, 25 Cl. Ct. 131, 137 (1992) (citing Erickson Air Crane Co. v. United States,
731 F.2d 810, 813 (Fed. Cir. 1984)); United States v. Johnson Controls, Inc., 713 F.2d 1541,
1550-51 (Fed. Cir. 1983)). “[T]he plaintiff [must] provide ‘evidence of the existence of some type
of contract between it and the United States,’ [or] it cannot . . . recover directly from the United
States.” Id. at 1550 (quoting Putnam Mills Corp. v. United States, 202 Ct. Cl. 1, 8, 479 F.2d 1334,
1337 (1973)). It is axiomatic that “if the United States is not a named party to a contract,
jurisdiction cannot be asserted against it as a party unless the person entering into the contract was
acting within the scope of his authority to bind the United States. Id. at 138 (citing Porter v. United
States, 496 F.2d 583, 204 Ct. Cl. 355, 360 (1974)), cert. denied, 420 U.S. 1004, 95 S. Ct. 1446, 43
L. Ed. 2d 761 (1975); D.R. Smalley & Sons, Inc. v. United States, 372 F.2d 505, 178 Ct. Cl. 593,
598, cert. denied, 389 U.S. 835, 88 S. Ct. 45, 19 L. Ed. 2d 97 (1967)). “[I]t is well settled . . . that
a local authority does not become an agent of the federal government due to a federal agency’s
control and supervision of grant funds.” Id. (quoting DeRoche v. United States, 2 Cl. Ct. 809, 812
Plaintiff Stew Farm asserts that applicability of the “Little Tucker Act” is “self evident.”
(Pl.’s Response at 11). Defendant Natural Resources, however, argues that Plaintiff fails to meet
the foundational requirements necessary for its damages claims to come within the jurisdictional
reach of the Little Tucker Act: identifying a “money mandating” source of substantive law; alleging
that its damages are at or under the district court jurisdictional threshold of $10,000; and privity of
contract. The Court agrees.
Plaintiff Stew Farm has not identified a separate source of substantive law which mandates
the federal government to compensate a landowner for alleged damages stemming from the grassed
waterway design and construction. Instead, Plaintiff generally alleges that Defendant Natural
Resources has violated “Federal Laws” which are identified as: the Food and Security Act of 1985;
the Farm Security and Rural Investment Act of 2002; the Food Conservation and Energy Act of
2008; the Watershed Protection and Flood Prevention Act of 1954; the Flood Control Act of 1944;
7 CFR 652; 5 CFR 2635; 28 U.S.C. Section 1346 (a)(2) (the “Little Tucker Act”); 5 U.S.C. Section
702; The Conservation Reserve Program as governed by the Farm Bills; The Natural Resource and
Conservation Service Standard 412; Part 652 of Title 7 of the United States Code; and Subpart B
of Section OH505.10(b). However, Plaintiff fails to specifically identify the law that mandates
payment to Plaintiff for the alleged damages.
Next, despite failing to state damages under $10,000 in the original complaint, in its
Amendment Complaint, Plaintiff did add that it was seeking “an award of compensatory damages
and consequential damages in an amount to be determined at trial, but not in excess of $10,000 and
as otherwise specifically provided for in the Little Tucker Act.” (Am. Compl. ¶ 92). Therefore,
Plaintiff has met this foundational requirement.
Finally, Plaintiff cannot establish that Defendant Natural Resources was a party to the
contract between Neff and Watershed, nor does it allege a breach of any contract in which Stew
Farm has privity with the United States. The federal government’s role in the project involved
supervision and funding, however, that does not create privity of contract. See Fabrizi Trucking &
Paving Co., Inc. v. Portage, 2012 U.S. Dist. LEXIS 182971, *9 (N.D. Ohio Dec. 28, 2012) (granting
USDA’s motion to dismiss where it was not a party to the contract; “the complaint’s allegations that
the USDA funded the project in this case and participated in its management are insufficient to infer
an agency relationship between the County and the USDA, such that the County could bind the
United States”). Accordingly, the Little Tucker Act does not provide a basis on which Plaintiff can
proceed in seeking monetary damages against Defendant Natural Resources.
Plaintiff’s Claims for Declaratory Relief
Plaintiff Stew Farm requests the following declaratory/mandamus relief as to Defendant
Natural Resources and Defendant Pickaway County:
a. That the employees and agents of NRCS and PCSWD, including but not limited
to those within Pickaway County, Ohio and their TSPs be required to fully comply
with their obligations under federal law, including but not limited to the Federal
Laws, in respect of the design and supervision of waterways and other soil and water
conservation projects under their jurisdiction;
b. That the employees of NRCS and PCSWD, including but not limited to those
within Pickaway County, Ohio and their TSPs be ordered to properly supervise the
work performed by any TSP, including but not limited to Watershed and Mr.
Hamman in accordance with applicable federal law including the Federal Laws;
c. That NRCS, PCSWD and any other governmental body that has supervised work
done by Watershed or Mr. Hamman and/or allowed them to do design work on
projects as a TSP or otherwise be ordered to conduct an audit and inspection of any
work performed by them to determine if those projects were engineered and
completed in accordance with applicable federal law, including the Federal Laws;
d. That Watershed and Mr. Hamman be required to account for and return all
governmental monies received directly or indirectly by them for work they designed
or completed, that was not properly designed or constructed in accordance with
applicable federal law including the Federal Laws;
e. That the Defendants and their employees be ordered to cease and desist in the
violation of and fully comply with the Federal Laws; and
f. That all of the Defendants should be required to correct the deficiencies in the
Waterways such that they are in full compliance with the Federal Laws, including
not limited to the Applicable Construction Requirements and the Initial
(Am. Compl. pp. 17-18).
Plaintiff Stew Farm alleges that the requested non-monetary relief falls under the
Administrative Procedure Act’s (“APA”) waiver of sovereign immunity in 5 U.S.C. § 702. The
Sixth Circuit has held that the § 702 waiver of sovereign immunity is a general waiver of immunity
for non-monetary claims. United States v. City of Detroit, 329 F.3d 515, 520-21 (2003) (en banc)
(holding that § 702 applied to case seeking to compel agency to accept dredged waste to prevent
frustration of consent judgment designed to address water pollution). However, the waiver of
sovereign immunity in the APA is not an independent grant of subject matter jurisdiction, therefore,
the plaintiff must still establish an independent grant of subject matter jurisdiction, in addition to the
waiver of sovereign immunity. See Lunney v. United States, 319 F.3d 550, 557-58 (2d Cir. 2003)
(citing Your Home Visiting Nurse Serv’s, Inc. v. Shalala, 525 U.S. 449, 457-58 (1998)).
Defendant Natural Resources argues that its conduct is “committed to agency discretion by
law” making Plaintiff’s reliance on the § 702 waiver is inapplicable. (Def.’s Reply at 5). Plaintiff
relies on Melissa Industrial Development Corp. v. North Collin Water Supply Corp., 256 F. Supp.
2d 557 (E.D. Texas 2003) in support of its argument that its claims for declaratory relief are
reviewable under the § 702 waiver. However, Defendant counters that Plaintiff does not discuss any
statutory language or regulatory language providing “clear guidelines” that Natural Rescources
violated. The Court agrees with Defendant. In Melissa Industrial, the USDA allegedly approved
a loan application in violation of specific statutory guidelines for approval. In that case, there were
clear statutory guidelines that the USDA allegedly violated. There are no such allegations in this
case. Accordingly, Plaintiff has failed to establish a waiver of sovereign immunity to obtain
declaratory judgment against Defendant Natural Resources.
Based on the aforementioned, Plaintiff Stew Farm has failed to meet its burden of
establishing a waiver of sovereign immunity under which its claims against Defendant Natural
Resources can be brought. Accordingly, Plaintiff’s claims against Defendant Natural Resources are
hereby dismissed for lack of subject matter jurisdiction.
Defendants Watershed and Hamman’s Motion for Judgment on the Pleadings and
Motion to Dismiss
The Watershed Defendants argue that Plaintiff failed to cite any federal law that provides
it with a private cause of action against Watershed.
The Watershed Defendants argue that Stew Farm has failed to point out the specific federal
law that supports its claims against them. Plaintiff Stew Farm has invoked this Court’s subject
matter jurisdiction to hear claims arising under federal law under 28 U.S.C. § 1331. The Sixth
Circuit has observed that the “arising under” gateway into federal court under 28 U.S.C. § 1331 “has
two distinct portals: 1) litigants whose causes of action are created by federal law, and 2) state-law
claims that implicate significant federal issues.” Hampton v. R.J. Corman R.R. Switching Co. LLC,
683 F.3d 708, 711 (6th Cir. 2012). Plaintiff asserts that this Court has subject matter jurisdiction
because the Complaint alleges violations of federal laws by the Defendants. However, none of the
federal statutes that Plaintiff has cited in its Amended Complaint provide for a federal cause of
action for the Plaintiff. Moreover, under Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804,
106 S. Ct. 3229, 92 L. Ed. 2dd 650 (1986), a complaint that alleges the violation of federal law as
an element of a state law tort action does not “arise under” federal law under 28 U.S.C. § 1331. This
is the case here—Plaintiff’s Complaint alleges a state tort claim premised on the violation of federal
laws. Such claims do not “implicate significant federal issues” under Hampton and Merrell Dow.
Plaintiff asserts that the farm bills contain provisions that establish procedures for the design,
construction, and inspection of the waterways, but fails to specifically cite the relevant statute.
Further, none of the Federal laws support a cause of action by Stew Farm against the Watershed
Defendants. “[M]ere reference to federal statute does not establish federal jurisdiction unless a
substantial, disputed question of federal law is a necessary element of a state cause of action. . . .a
claim such as this one “based on state contract law, does not raise substantial or disputed questions
of federal law.” Michigan Southern R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass’n,
Inc., 287 F.3d 568, 574 (6th Cir. 2002). None of the claims asserted by Plaintiff implicate significant
federal issues and therefore are not properly before this Court.
Accordingly, the Watershed Defendants’ Motion to Dismiss is hereby granted. Their Motion
for Judgment on the Pleadings is denied as moot as it was filed prior to Plaintiff filing its
Defendant Pickaway County’s Motion for Judgment on the Pleadings
Defendant Pickaway County seeks judgment on the pleadings asserting that there is no
federal jurisdiction for Plaintiff’s claims. The Court agrees. As set forth above, Plaintiff’s Amended
Complaint alleges state tort claims premised on the violation of federal laws. Defendant Pickaway
County states and the Court agrees that “[t]his is a state tort law claim, period.” (Def.’s Reply at 1).
Accordingly, Plaintiff’s claims against Defendant Pickaway County do not implicate significant
federal issues and therefore must be dismissed.
Additionally, Defendant Pickaway County argues that Plaintiff’s claims are barred by the
two year statute of limitations set forth in Ohio Revised Code § 2744.04(A), which provides:
(A) An action against a political subdivision to recover damages for injury, death,
or loss to person or property allegedly caused by any act or omission in connection
with a governmental or proprietary function, whether brought as an original action,
cross-claim, counterclaim, third-party claim, or claim for subrogation, shall be
brought within two years after the cause of action accrues, or within any applicable
shorter period of time for bringing the action provided by the Revised Code. The
period of limitation contained in this division shall be tolled pursuant to section
2305.16 of the Revised Code. This division applies to actions brought against
political subdivisions by all persons, governmental entities, and the state.
There is no dispute that Plaintiff’s claims are governed by the two-year statute of limitations.
See Lisboa v. Reid, 2011 Ohio 5842 (8th App. Dist. 2011) (Claims made against government
subdivisions and their employees are governed by the two-year statute of limitations set forth in
O.R.C. § 2744.04(A)); see also Read v. City of Fairview Park, 146 Ohio App. 3d 15, 20 (Two-year
statute of limitations in O.R.C. § 2744.04(A) applies to tort claims against political subdivisions and
The question is when did Plaintiff become of aware of the actions of Defendants that are
alleged in this case. Plaintiff does not dispute that by May 20, 2009, it was aware of Neff’s claims
that the waterways were defective. Plaintiff attempted to intervene in the state lawsuit on that date.
However, Plaintiff did not initiate this case until April 5, 2012. Plaintiff argues that the two-year
statute of limitations did not begin to run until August 2010 when Plaintiff’s current counsel (who
was acting as counsel for Mr. Neff in the state court proceedings), deposed a Pickaway County
employee. Plaintiff argues there is a difference “between the time the Plaintiff became aware that
there were problems with the Waterways and when it first learned that Defendants’ Pickaway
County (and the NRCS) failed to follow the Federal Laws.” (Pl.’s Response at 11). Plaintiff
references the “discovery rule” that the “cause of action accrues when the plaintiff discovers, or in
the exercise of reasonable care should have discovered that he or she was injured by the wrongful
conduct of the defendant.” O’Stricker v. Jim Walter Corp., 4 Ohio St.3d 84 (1983).
Defendant Pickaway County, however, argues that the question is not when the Plaintiff
specifically discovered that the alleged defects in the waterways were caused by the conduct of
Pickaway County, but when Plaintiff discovered the existence of the defects themselves. Pickaway
County relies on Fifth Third Bank v. Cope, 162 Ohio App. 3d 838 (12th Dist. 2005), in support of
its argument. In Cope, a property owner who purchased a home that was built on a closed landfill
sued the seller, developer and the City and City Manager in which the home was located. Plaintiff
alleged that the City and City Manager negligently inspected the construction of the home. The City
and City Manager argued that the two-year statute of limitations applied, and Plaintiff countered that
the statute of limitations did not begin to run until he learned in discovery of the City’s negligence
related to inspection of the construction of the house. The trial court granted summary judgment
and it was affirmed on appeal. The court found that under the discovery rule, the statute of
limitations was triggered when the plaintiff discovered the defects in the home, not when it
determined the City’s role in those damages. Id. at 853.
Like in Cope, Plaintiff had notice of the alleged defects in the waterways no later than May
20, 2009, when it filed its Motion to Intervene in the state court proceedings. The Court takes
judicial notice of those pleadings. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999);
Midland Nat’l Life Ins. Co. v. Manges, 2010 U.S. Dist. LEXIS 134815, at *10 (S.D. Ohio 2010)
(“[I]n deciding a motion for judgment on the pleadings, the Court may take judicial notice of the
records of another court.”). Therefore, Plaintiff’s own pleadings in the state court proceedings
establish that it had sufficient knowledge of the existence of the alleged defects in the waterways
on May 20, 2009, to trigger the statute of limitations for its tort claims against Pickaway County.
The statute of limitations expired on May 20, 2011. Plaintiff did not file this action until April 5,
2012, therefore its claims against Defendant Pickaway County are time barred and hereby dismissed.
Defendant Douglas Kohli’s Motion to Dismiss
Defendant Douglas Kohli also moves to dismiss Plaintiff’s claims against him on the basis
of the statute of limitations. Plaintiff has not responded to this Motion. Like Pickaway County
above, the two-year statute of limitations also applies to Plaintiff’s claims against Defendant Kohli.
According to the Amended Complaint, Plaintiff alleges it became aware of Kohli’s alleged wrongful
conduct sometime in August 2010. Therefore, the two-year statute of limitations expired on August
31, 2012. Plaintiff, however, did not seek leave to amend to add Kohli as a Defendant in this case
until April 22, 2013. (Doc. 32).
Further, Plaintiff’s claims do not relate back to the filing of the original complaint under Rule
15(C) of the Federal Rules of Civil Procedure. The Sixth Circuit has held that the relation-back rule
in inapplicable to amendments that name additional parties, rather than merely correcting a
misnomer or effecting a substitution of parties. See In re Kent Holland Die Casting & Plating, Inc.,
928 F.2d 1448, 1449 (6th Cir. 1991) (“[A]n amendment which adds a new party creates a new cause
of action and there is no relation back to the original filing for purposes of limitations.”). The
“relation-back doctrine requires that the newly added party receive sufficient notice of the action
and that the delay in the addition of the new party be the result of a ‘mistake concerning the party’s
identity.’” Moore v. Tennessee, 267 Fed. Appx. 450, 455 (6th Cir. 2008). There is no allegation or
any evidence that Plaintiff was “mistaken” about Kohli’s identity such that the proposed claims
against him should relate back to the date of the filing of the original complaint.
Finally, even if this Court permitted those claims to relate-back, Plaintiff’s claims against
Kohli would still be time-barred for the same reasons Plaintiff’s claims against Defendant Pickaway
County are time-barred.
Accordingly, Plaintiff’s claims against Defendant Kohli are hereby dismissed as time-barred.
Based on the aforementioned, the Court GRANTS Defendant Natural Resources
Conservation Service’s Motion to Dismiss (Doc. 16); GRANTS Defendants Watershed
Management, LLC and Carl Hamman’s Motion to Dismiss the First Amended Complaint (Doc. 43);
GRANTS Defendant Pickaway County Soil and Water Conservation District’s Motion to Dismiss
for Lack of Jurisdiction (Doc. 30); and GRANTS Defendant Douglas Kohli’s Motion to Dismiss
for Failure to State a Claim (Doc. 42). Defendants Watershed Management, LLC and Carl
Hamman’s Motion for Judgment on the Pleadings (Doc. 17) is dismissed as MOOT.
The Clerk shall remove Documents 16, 17, 30, 42, and 43 from the Court’s pending motions
list. The Clerk shall dismiss this case.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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