In re Cangemi
| Decision Date | 07 March 2016 |
| Docket Number | 12-CV-3989(JS)(SIL) |
| Parties | THOMAS CANGEMI, JODI CANGEMI, MARIANN COLEMAN, FRANCIS J. DEVITO, LYNN R. DEVITO, LEON KIRCIK, ELIZABETH KIRCIK, CAROL C. LANG, TERRY S. BIENSTOCK, DANIEL LIVINGSTON, VICTORIA LIVINGSTON, ROBIN RACANELLI, JAMES E. RITTERHOFF, GALE H. RITTERHOFF, ELSIE V. THOMPSON TRUST, JOHN TOMITZ, and THELMA WEINBERG TRUSTEE OF THE THELMA WEINBERG REVOCABLE LIVING TRUST, Plaintiffs, v. THE UNITED STATES OF AMERICA; THE U.S. ARMY CORPS OF ENGINEERS; COL. JOHN R. BOULE II, individually and in his official capacity; WILLIAM J. WILKINSON, individually and in his Official capacity; and THE TOWN OF EAST HAMPTON, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Plaintiffs:
Jonathan Halsby Sinnreich, Esq.
Timothy F. Hill, Esq.
Sinnreich Kosakoff & Messina LLP
267 Carleton Ave., Suite 301
Central Islip, New York 11722
For Defendants:
The U.S.A., U.S.
Army Corps of
Engineers, and
Boule
Vincent Lipari, Esq.
United States Attorney's Office
Eastern District of New York
610 Federal Plaza, 5th Fl.
Central Islip, New York 11722
Town of East
Hampton:
Anthony F. Cardoso, Esq.
Steven C. Stern, Esq.
Sokoloff Stern LLP
179 Westbury Ave.
Carle Place, New York 11514
Plaintiffs bring this action against the United States of America, the U.S. Army Corps of Engineers ("USACE"), and Col. John R. Boule II, individually and in his official capacity, ("Col. Boule" and, collectively, the "Federal Defendants") as well as the other remaining defendant, the Town of East Hampton, to redress damage to Plaintiffs' real property that they allege has been caused by the Lake Montauk Harbor jetties (the "Jetties"). Currently pending before the Court is the Federal Defendants' motion to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim. (Docket Entry 71.) For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.
The Court assumes familiarity with the facts of this case, which are chronicled in the Court's Memorandum and Orderdated March 29, 2013. Cangemi v. United States, 939 F. Supp. 2d 188 (E.D.N.Y. 2013). The salient details are discussed below.
Plaintiffs own waterfront property in Montauk, New York that is allegedly being damaged by the Jetties. (Am. Compl., Docket Entry 18, ¶¶ 2, 68-70.) As an initial point, private parties constructed the Jetties in the 1920s. (Am. Compl. ¶ 41.) After the Jetties fell into disrepair, the USACE requested that Congress approve and fund a project for the "repair and extension" of the Jetties. (Am. Compl. ¶¶ 41-42.) Congress approved the project in 1945, directing the USACE to perform periodic dredging to maintain a navigational channel for Lake Montauk Harbor. (Am. Compl. ¶¶ 54-55.) The work was completed in 1968. (May 1995 Project Study Plan, Lipari Decl. Ex. F, Docket Entry 73-6, at 102 ().)
Decades later, Congress directed the USACE to perform a planning study on the Jetties through a congressional resolution in 1991 and again in 2002 (the "1999 Resolution" and the "2002 Resolution," respectively). (See 1999 Resolution, Lipari Decl. Ex. I, Docket Entry 73-9; 2002 Resolution, Lipari Decl. Ex. M, Docket Entry 73-13.) The 1999 Resolution required the USACE "todetermin[e] if further improvements for navigation are advisable." (1999 Resolution at 2.) Similarly, the 2002 resolution directed the USACE "to determine the need for measures to address storm damage reduction, shoreline protection, environmental restoration and protection . . . in the vicinity of Lake Montauk Harbor." (2002 Resolution at 2.) As discussed below, the USACE needed to perform a feasibility study to determine whether Congress would fund and authorize a project. (July 1, 2014 USACE Report, Lipari Decl. Ex. J, Docket Entry 73-10, at 3 ().) To date, the feasibility study has not yet been completed. (See Am. Compl. ¶¶ 80-81; see generally Sinnreich Decl., Docket Entry 80, ¶¶ 32-46.)
Essentially, Plaintiffs contend that the Jetties have caused accelerated erosion, which has damaged Plaintiffs' waterfront properties. (See, e.g., Am. Compl. ¶¶ 68-70.) The Jetties, they allege, prevent the natural replenishment of sand onto their property and leave the properties vulnerable to further damage. (Am. Compl. ¶¶ 5, 70.) Plaintiffs allegedly incurred "millions of dollars in damages and loss and injury to [their] property." (Am. Compl. ¶ 78.) Plaintiffs assert that the Federal Defendants and the Town of East Hampton are aware of the "negative impacts of the Jetties upon plaintiffs' property . . . [but] havefailed to take timely and effective actions to resolve and/or mitigate the damage." (Am. Compl. ¶¶ 80-81.)
Plaintiffs filed this lawsuit on April 17, 2014. (Docket Entry 1.) As relevant to the Federal Defendants, the Amended Complaint asserts eleven causes of actions. Five counts arise under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 (collectively, the "FTCA Claims"): negligence (Count I), private nuisance (Count II), public nuisance (Count III), appropriation of resource interference with property (Count VII), and trespass (Count IX). (Am. Compl. ¶¶ 86-112, 131-40.) Counts V, VI, and X allege that the Federal Defendants deprived Plaintiffs of, and unlawfully took, their property in violation of the Constitution (collectively, the "Taking Claims"). (Am. Compl. ¶¶ 118-126, 141-43.) Count XII seeks, under the Administrative Procedure Act ("APA"), judicial review and injunctive relief (the "APA Claim"). (Am. Compl. ¶¶ 147-51.) Finally, Counts XIII and XIV seek injunctive relief and a declaratory judgment, respectively. (Am. Compl. ¶¶ 152-63.)
Defendants now move to dismiss the Amended Complaint. (Docket Entry 71.) In support, Defendants make three principal arguments: (1) the FTCA Claims are barred by the discretionary function exception (the "DFE"), and thus the Court does not have subject matter jurisdiction to adjudicate them (Defs.' Br., Docket Entry 72, at 3-19); (2) under the Tucker Act, the Federal Court ofClaims has exclusive jurisdiction over the Taking Claims (Defs.' Br. at 20-22); and (3) the remaining claims--the APA Claim and Counts XIII and XIV--fail to state a claim (Defs.' Br. at 23-26).
In opposition, Plaintiffs primarily attack the DFE, arguing that the exception does not apply because the USACE violated directives that were mandatory, not discretionary. (Pls.' Br., Docket Entry 79, at 5-28.) Otherwise, to the extent that the Amended Complaint fails to state a claim for the FTCA Claims and all others, Plaintiffs seek permission to file a Second Amended Complaint, which would "identif[y] more specifically the statutes, regulations and policies . . . that give rise to plaintiff's claims." (Pls.' Br. at 33-34.)
To survive a motion to dismiss under 12(b)(1), a plaintiff must establish subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving the motion, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions. See id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). The Court must accept as true the factual allegations contained in the Complaint, but it will not draw argumentative inferences in favor of Plaintiffs becausesubject matter jurisdiction must be shown affirmatively. See Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations omitted).
To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Although the Court must accept all allegations in the Amended Complaint as true, this tenet is "inapplicable to legal conclusions." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). Ultimately, the Court's plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S. Ct. at 1950.
In deciding a motion to dismiss, the Court is generally confined to "the allegations contained within the four corners of [the] complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998). However, the Court may consider "any written instrument attached to [the complaint] as an exhibit,materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (internal quotation marks and citation omitted).
As an initial matter, the United States is the only proper defendant for the FTCA Claims. See 28 U.S.C. §§ 1346(b)(1), 2679(b)(1). Indeed, the FTCA "authorizes suits only against the United States and not against federal agencies and federal officials acting in their official capacities." See, e.g., Barnes v. United States, No. 00-CV-3544, 2004 WL 957985, at *2 (E.D.N.Y. Apr. 12, 2004) (citations omitted). Thus, the FTCA Claims are DISMISSED as against the USACE and Col. Boule.
The Federal Defendants argue that the FTCA Claims must be dismissed against the United States for lack of subject matter jurisdiction under the DFE. (Defs.' Br. at 4-19); see 28 U.S.C. § 2680. The Court disagrees.
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