Duffy v. Kent County Levy Court Inc

• Decision Date: 24 February 2011
• Docket Number: CIV No. 09-817-SLR
• Parties: MICHAEL DUFFY, Plaintiff, v. KENT COUNTY LEVY COURT, INC., et al., Defendants,
• Court: U.S. District Court — District of Delaware

MICHAEL DUFFY, Plaintiff,

v.KENT COUNTY LEVY COURT, INC., et al., Defendants,

CIV No. 09-817-SLR

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

Dated: February 24, 2011

Michael Duffy, Pro Se Plaintiff. Clayton, Delaware.

Chad J. Toms, Esquire, Whiteford, Taylor & Preston, L.L.C., Wilmington, Delaware. Counsel for Defendants Kent County Levy Court, Inc. and M. Mange.

Robert F. Phillips, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant Joseph R. "Beau" Biden, III.

MEMORANDUM OPINION

Dated: February 23, 2011

Wilmington, Delaware

ROBINSON, District Judge

I. INTRODUCTION

Plaintiff Michael Duffy ("plaintiff'), who proceeds pro se, filed this complaint alleging defendants Kent County Levy Court, Inc. ("Levy Court"), Michael J. Petit de Mange ("Mange"), and Delaware Attorney General Joseph R. "Beau" Biden ("Biden") failed to monitor and manage flood control causing damage to plaintiffs land and property. (D.I, 2, 9) Presently before the court are defendants' motions to dismiss and plaintiffs motion to change venue. (21, 32, 38) For the reasons set forth below, the court will deny as moot the motion to change venue and will grant the motions to dismiss.

II. BACKGROUND

Plaintiff filed his complaint on October 30, 2009, and amended the complaint on December 18, 2009. (D.I. 2, 9) Pursuant to an order issued on April 12, 2010 (D.I. 19), plaintiff named as defendants the Levy Court, Mange, and Biden. (D.I. 20) Neither the complaint nor the amended complaint refer to the statutes under which plaintiff proceeds, but refer to the "Kent County Code, § 116." In the civil cover sheet, plaintiff marked boxes next to "other personal injury, other personal injury property damage, land condemnation, all other real property." In the section that asks for the U.S. Civil Statute, plaintiff wrote "negligence, malice." (D.I. 2)

A May 2008 flood displaced plaintiff from his family cottage. In the complaint, plaintiff alleges that defendants failed to monitor and manage for flood control and this caused damages from the flooding and erosion to plaintiffs land and property. According to plaintiff, the erosion worsened considerably following the May 2008 flood, and plaintiff is "affected by decisions regarding excavations and depositions to wetlands under federal governance and adjacent to the St. Jones River." Plaintiff alleges defendants have been negligent through the years; specifically, five years ago, Delaware Department of Natural Resources and Environmental Control ("DNREC") permitted excavation of a levee through land adjacent to his property, but failed to complete the phased connections to the wetlands. The area around the levee remains unnaturally flooded and eroded. Relief or recovery is limited because the storm assessment was "botched" in ways to aid investors to obtain land from owners who fell victim to the damages caused by the neglect. Plaintiff further alleges that defendants ignore questions and pleas about flood prevention and storm recovery and deliberately mislead or ignore plaintiffs questions. (D.I. 2)

Plaintiff seeks damages "from both the neglect and the big gale. Basically because of negligence and cronism [sic] after the gale." He also seeks: (1) a hydrological impact assessment under the supervision of the Army Corps of Engineers; (2) a corrected storm assessment of damages from the big gale; (3) monetary damages for loss and expenses that occurred as a result of mandates for plaintiffs property; (4) relief for costs for re-elevation of plaintiffs lot; (5) federal review of site and permits issued to non-parties by defendants for alterations that may have led to pollution and flooding; (6) a comprehensive means to repair damages and lessen flood impact; and (7) punitive damages.

The Levy Court and Mange move for dismissal by reason of res judicata, pursuant to Fed. R. Civ. P. 12(b)(6), for lack of subject matter jurisdiction, and immunityunder the Delaware County and Municipal Tort Claim Act, 10 Del. C. § 4010. (D.I. 32) Biden moves for dismissal by reason of Eleventh Amendment immunity, lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), and immunity under the Delaware Tort Claims Act, 10 Del. C. §. 4001. Plaintiff opposes the motions.

III. MOTIONS TO DISMISS

A. Standards of Review

1. Fed. R. Civ. P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter, or if the plaintiff lacks standing to bring his claim. A motion brought under Rule 12(b)(1) may present either a facial or factual challenge to the court's subject matter jurisdiction. When a party files a motion to dismiss attacking subject matter jurisdiction, the court must first determine if the motion is a factual attack or a facial attack. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). In reviewing a facial challenge under Rule 12(b)(1), the standards relevant to Rule 12(b)(6) apply. In this regard, the court must accept all factual allegations in the complaint as true, and the court may only consider the complaint and documents referenced in or attached to the complaint. Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a factual challenge to the court's subject matter jurisdiction, the court is not confined to the allegations of the complaint, and the presumption of truthfulness does not attach to the allegations in the complaint. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

Instead, the court may consider evidence outside the pleadings, including affidavits, depositions and testimony, to resolve any factual issues bearing on jurisdiction. Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997). Once the court's subject matter jurisdiction over a complaint is challenged, plaintiff bears the burden of proving that jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.3d 1405, 1409 (3d Cir. 1991).

2. Fed. R. Civ. P. 12(b)(6)

Rule 12(b)(6) permits a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Ehckson v. Partus, 551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Ehckson v. Pardus, 551 U.S. at 94 (citations omitted).

A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, -U.S.-, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). When determining whether dismissal is appropriate, the court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements of a claim are separated. Id. The court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Id. at 210-11. Second, the court must determine whether the factsalleged in the complaint are sufficient to show that plaintiff has a "plausible claim for relief." Id. at 211; see also Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 570. In other words, the complaint must do more than allege plaintiffs entitlement to relief; rather it must "show" such an entitlement with its facts. Id. A claim is facially plausible when its factual content allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements." Id. "[WJhere the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. (quoting Fed. R. Civ. P. 8(a)(2)).

"In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. A document forms the basis of a claim if the document is 'integral to or explicitly relied upon in the complaint.' The purpose of this rule is to avoid the situation where a plaintiff with a legally deficient claim that is based on a particular document can avoid dismissal of that claim by failing to attach the relied upon document. Further, considering such a document is not unfair to a plaintiff because, by relying on the document, the plaintiff ison notice that the document will be considered." Lum v. Bank of Am., 361 F.3d 217 n.3 (3d Cir. 2004) (internal citations omitted); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

B. Res Judicata/Claim Preclusion

The Levy Court and Mange move for dismissal by reason of res judicata or claim preclusion. They argue that the present case is identical in nearly every respect to a prior action filed by plaintiff before the Superior Court of the State of Delaware, in and for Kent County, Duffy v. Minner, Civ. No. 09C-02-038 WLW ("Superior Court case"). Ruth Ann Minner ("Minner"), the former governor of the State of Delaware, and the Levy Court...