Moher v. United States

Decision Date08 June 2012
Docket NumberCase No. 2:10–cv–57.
PartiesTimothy S. MOHER, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Western District of Michigan


Charles Wilfred Palmer, Wyandotte, MI, for Plaintiff.

Carolyn Ann Almassian, U.S. Attorney, Grand Rapids, MI, for Defendant.


R. ALLAN EDGAR, District Judge.

Plaintiff Timothy Moher (Moher) owns 440 acres of land on Sugar Island in Chippewa County, Michigan which he uses to harvest and sell timber. Sugar Island is located on the St. Mary's River which marks the international boundary between the United States of America and Canada. Moher's land on Sugar Island is two miles from Canada.

This case arises out of the entry of two United States Customs and Border Protection (CBP) patrol officers employed by the United States Department of Homeland Security onto Moher's land on Sugar Island to patrol for illegal immigration activity pursuant to 8 U.S.C. § 1357(a)(3). The officers did not have a search warrant and did not have Moher's consent to search. Plaintiff Moher brings tort claims of trespass, assault, and battery against defendant United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671–2680, seeking to recovercompensatory damages and injunctive relief.

In addition to his tort claims under the FTCA, Moher demands a declaratory judgment under 28 U.S.C. § 2201. Moher seeks a declaratory judgment that the border patrol officers violated 8 U.S.C. § 1357(e) by making a warrantless entry on his land without his consent. Moher wants the Court to declare that, in the absence of a search warrant or exigent circumstances, the defendant's employees are required by § 1357(e) to obtain Moher's consent to enter upon his land to patrol for illegal immigration activity. In the alternative, if the Court determines that the federal officers did not violate 8 U.S.C. § 1357(e) and are not required by § 1357(e) to obtain Moher's consent before entering upon his land on Sugar Island without a search warrant to patrol for illegal immigration activity, then Moher seeks a declaratory judgment that 8 U.S.C. § 1357(a)(3), as-applied to him, violates his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches.

There are two motions before the Court. Defendant United States moves to dismiss the first amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). [Court Doc. No. 6]. Plaintiff Moher opposes the motion. [Court Doc. No. 11].

In the wake of the motion to dismiss, Moher moves for leave to file a second amended complaint under Fed.R.Civ.P. 15(a)(2). [Doc. No. 9]. Defendant opposes this motion arguing that the proposed second amended complaint is futile. [Court Doc. No. 12]. Defendant argues that all of Moher's claims should be dismissed under Rule 12(b)(1) and (6).

Magistrate Judge Timothy P. Greeley has submitted his report and recommendation. [Court Doc. No. 15]. It is recommended that the plaintiff's motion for leave to file a second amended complaint be granted. The Magistrate Judge further recommends that the defendant's motion to dismiss the amended complaint under Rule 12(b)(1) and (6) be granted in part as to any claim related to the entry by the border patrol officers onto Moher's land on Sugar Island, but denied as to Moher's claims that one officer used excessive force against Moher. In other words, it is recommended that Moher be allowed to proceed only on his assault and battery claims under the FTCA.

The parties raise objections to the report and recommendation. [Court Doc. Nos. 16, 17]. The Court has considered the objections and reviewed the entire record de novo. The Court agrees with the result recommended by the Magistrate Judge. The Court takes this opportunity to amplify and supplement the Magistrate Judge's report and recommendation with additional legal analysis which is necessary to rule on the pending motions and the objections to the report and recommendation.

I. Plaintiff's Motion for Leave to File Second Amended Complaint

Fed.R.Civ.P. 15(a)(2) provides that the Court should freely give leave to amend a pleading when justice so requires. A motion to amend a complaint under Rule 15(a)(2) may be denied if the proposed amendment is futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Benzon v. Morgan Stanley Distributors, Inc., 420 F.3d 598, 613 (6th Cir.2005); Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir.2002). A proposed amendment to a complaint is futile if it would not survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir.2005); Matthews v. Jones, 35 F.3d 1046, 1050 (6th Cir.1994); Thiokol Corp. v. Department of Treasury, State of Michigan, Revenue Division, 987 F.2d 376, 383 (6th Cir.1993); Neighborhood Development Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23 (6th Cir.1980).

The Court concludes that Moher's proposed second amended complaint is not futile because Moher states viable assault and battery claims under the FTCA and Michigan law. The assault and battery claims brought under the FTCA survive the defendant's motion to dismiss under Rule 12(b)(1) and (6). The motion for leave to file a second amended complaint [Court Doc. No. 9] is GRANTED pursuant to Rule 15(a)(2). The Court considers the defendant's motion to dismiss [Court Doc. No. 6] as applying to the second amended complaint.

II. Standard of ReviewA. Fed.R.Civ.P. 12(b)(1)

The first and most fundamental question presented in every civil action brought in federal court is whether there is subject matter jurisdiction. Metro Hydroelectric Co., LLC v. Metro Parks, 541 F.3d 605, 610 (6th Cir.2008); Caudill v. North American Media Corp., 200 F.3d 914, 916 (6th Cir.2000); Douglas v. E.G. Baldwin & Associates, 150 F.3d 604, 606–07 (6th Cir.1998). The Court has an independent obligation to strictly police the boundaries of its subject matter jurisdiction to ensure that jurisdiction exists. Valinski v. Detroit Edison, 197 Fed.Appx. 403, 405 (6th Cir.2006); Olden v. Lafarge Corp., 383 F.3d 495, 498 (6th Cir.2004); Douglas, 150 F.3d at 607.Fed.R.Civ.P. 12(h)(3) provides: “If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.”

Federal courts are courts of limited jurisdiction and may exercise only those powers authorized by the United States Constitution and federal statutes enacted by Congress. It is presumed that a cause of action lies outside this limited jurisdiction. Plaintiff Moher bears the burden of overcoming the presumption and demonstrating that this Court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Metro Hydroelectric, 541 F.3d at 610;Fisher v. Peters, 249 F.3d 433, 444 (6th Cir.2001); Douglas, 150 F.3d at 606. Moher has the burden of establishing subject matter jurisdiction in order to survive the defendant's Rule 12(b)(1) motion to dismiss. Giesse v. Secretary of Dept. of Health and Human Services, 522 F.3d 697, 702 (6th Cir.2008); Madison–Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.1996).

There are two types of Rule 12(b)(1) motions: facial attacks and factual attacks. O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir.2009); Gentek Building Products, Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007); RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1134 (6th Cir.1996); Ohio National Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). When a Rule 12(b)(1) motion attacks the plaintiff's claim of subject matter jurisdiction on its face, the facts are not in dispute and the allegations of fact in the complaint are generally considered as true. The plaintiff's burden to establish subject matter jurisdiction is not onerous. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996). When there is a facial attack, the plaintiff can survive a Rule 12(b)(1) motion to dismiss by showing that the complaint alleges a claim cognizable under federal law and the claim is “substantial.” A claim is substantial unless prior court decisions inescapably render it frivolous. Metro Hydroelectric, 541 F.3d at 610–11;Michigan Southern R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir.2002); Musson, 89 F.3d at 1248;Transcontinental Leasing, Inc. v. Michigan National Bank of Detroit, 738 F.2d 163, 165 (6th Cir.1984). A plaintiff can survive a facial attack by showing any arguable basis in the law for his claims. Metro Hydroelectric, 541 F.3d at 610–12;Board of Trustees v. City of Painesville, 200 F.3d 396, 398 (6th Cir.1999); Musson, 89 F.3d at 1248;Moore v. Ferrellgas, Inc., 533 F.Supp.2d 740, 744 (W.D.Mich.2008).

When a Rule 12(b)(1) motion attacks the factual basis of the plaintiff's claim of subject matter jurisdiction, the allegations in the complaint are not presumed to be true. The Court may weigh the evidence and decide factual disputes when necessary to resolve factual challenges to subject matter jurisdiction. The Court has wide discretion to allow affidavits, documents outside the pleadings, and a limited evidentiary hearing to resolve disputed jurisdictional facts. Gentek, 491 F.3d at 330;Abbott v. Michigan, 474 F.3d 324, 328 (6th Cir.2007); Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir.2007); DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004); Madison–Hughes, 80 F.3d at 1130;RMI Titanium, 78 F.3d at 1134;United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994); Ohio National Life, 922 F.2d at 325.

Defendant United States attacks the factual basis of Moher's claim of subject matter jurisdiction. Defendant submits a sworn declaration under penalty of perjury from Assistant...

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