Northlight Harbor, LLC v. U.S.

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: Rodriguez
• Citation: Northlight Harbor, LLC v. U.S., 561 F.Supp.2d 517 (D. N.J. 2008)
• Decision Date: 25 June 2008
• Docket Number: Civil Action No. 06-3171.
• Parties: NORTHLIGHT HARBOR, LLC, Plaintiff, v. UNITED STATES of America, Defendant.

561 F.Supp.2d 517

NORTHLIGHT HARBOR, LLC, Plaintiff, v. UNITED STATES of America, Defendant.

Civil Action No. 06-3171.

United States District Court, D. New Jersey.

June 25, 2008.

COPYRIGHT MATERIAL OMITTED

Frederic R. Cohen, Esquire, Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., Pennsauken, NJ, for Plaintiff.

Anthony J. LaBruna, Jr., Esquire, Office of the United States Attorney, Newark, NJ, for Defendant.

OPINION

RODRIGUEZ, Senior District Judge:

This matter comes before the Court on two motions: First, the United States of America ("the Government") moves to dismiss the Complaint for lack of subject matter jurisdiction or, alternatively, for failure to state a claim. Second, in addition to opposing the Government's motion to dismiss, Northlight Harbor, LLC ("Plaintiff) moves to amend the Complaint to cure any jurisdictional defects that may exist. The Court entertained oral argument on these motions on June 23, 2008. For the following reasons, as well as those placed on the record during oral argument, the Court grants the Government's motion to dismiss and denies Plaintiffs motion to amend.

I. BACKGROUND

Plaintiff is a real estate developer. (See Compl. ¶ 2.) During the relevant time period it owned a residential waterfront development along the Barnegat Harbor. (Id. ¶¶ 2, 6.)

Plaintiff is suing the Government "as a result of the conduct of" the United States Army Corps of Engineers ("Army Corps"), (Compl. ¶ 3,) which maintains several inlets and harbors along the Atlantic coastline. (Olson Declaration ¶ 3.) For the purpose of this case, it is noteworthy that the Army Corps conducts maintenance projects, including dredging, in the Barnegat Inlet and Harbor. (See id. ¶¶ 5, 7.)

A bulkhead extended across Plaintiffs waterfront development. (Compl. ¶ 14.) Plaintiff owned a portion of this bulkhead, while various governmental entities owned the remainder. (Id. ¶¶ 14, 15.) As a condition of its development work, Plaintiff was required to reconstruct and reinforce its portion of the bulkhead. (Id. ¶ 17.) It did so between October 2002 and June 2003. (Id. ¶ 18.) However, on November 13, 2003, its reconstructed bulkhead partially collapsed and subsequently deteriorated. (Id. ¶ 19.)

Plaintiff claims the collapse of its bulkhead was caused by a "dramatic change in the pace of the currents, and an increase in the water depth from approximately 8 to 28 feet, in the Barnegat Harbor in the vicinity of [Plaintiffs development], precipitated by a project in the harbor instituted and operated by the [Army Corps]." (Id. ¶ 20.) It elaborates:

Prior to the collapse of the bulkhead, the [Army Corps] commenced a project to dredge the inlet, deposit sand and a series of rocks and a jetty. The effect of the [Army Corps'] work over a period of time brought the channel physically closer to the bulkhead and resulted in its destruction. The increased current eroded the material in front of the bulkhead, and at the bottom of the bay, causing the bulkhead's destruction.

(Id. ¶ 21.)

After exhausting administrative remedies, Plaintiff initiated this action against the Government on July 10, 2006, invoking jurisdiction under the Federal Tort Claims Act ("the Act" or "the FTCA"), 28 U.S.C. § 1346(b)(1). In essence, Plaintiff seeks recovery against the Government for the Army Corps' alleged negligence in conducting its dredging activities. (See Compl. ¶ 22; see also Pl. Br., p. 11.) Plaintiff claims the deficient dredging operation caused it damage insomuch as it had to rebuild its bulkhead, and was delayed in moving forward with its development project. (Compl. ¶¶ 23-25.)

The Government now moves to dismiss this action under Federal Rule 12(b)(1) for lack of subject matter jurisdiction.¹ It contends the discretionary function exception to the FTCA applies in this case and immunizes it from suit. Plaintiff opposes this motion, arguing the discretionary function exception is inapplicable to the allegations raised in its Complaint. To be safe, however, Plaintiff also cross-moves to amend the Complaint to cure any jurisdictional defects that may exist.

II. DISCUSSION

A. The Government's Motion to Dismiss

1. Standard of Review

A motion to dismiss under Rule 12(b)(1) challenges the Court's "authority or competence to hear and decide the case before it." 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (3d ed.2004). In the absence of subject matter jurisdiction, this Court is without power to hear the case. See Cohen v. Kurtzman, 45 F.Supp.2d 423, 429 (D.N.J.1999). The party asserting jurisdiction bears the burden of demonstrating in the record that jurisdiction is proper. Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir.1993).

In evaluating a Rule 12(b)(1) motion, the Court must determine whether the motion presents a facial or factual attack on subject matter jurisdiction. Turicentro, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 & n. 4 (3d Cir.2002). When a Rule 12(b)(1) motion facially attacks the complaint, the Court must take all allegations in the complaint as true. Id. at 300 n. 4. However, when the motion attacks the Court's jurisdiction in fact, no presumptive truthfulness attaches to plaintiff' allegations and "the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings." Id.

2. Analysis of the Government's Motion

The Government's motion contends the Army Corps' dredging activities are immunized from suit by the discretionary function exception to the FTCA. As discussed below, the Government is correct.

The FTCA provides that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. To this end, the Act gives district courts jurisdiction over

civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Id. § 1394(b)(1). Thus, the FTCA waives the federal government's sovereign immunity with respect to tort claims for money damages.

This waiver is not without limits, though; it is subject to certain exceptions, one of which is the discretionary function exception. This exception dictates that the waiver of immunity "shall not apply to ... [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 a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). When it applies, the exception deprives a district court of subject matter jurisdiction over claims arising out of the discretionary action. See, e.g., Merando v. United States, 517 F.3d 160, 162 (3d Cir.2008) (affirming a district court's dismissal for lack of subject matter jurisdiction where the discretionary function exception immunized the United States from suit).

The Supreme Court of the United States has recognized that the discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). In formulating the exception, "Congress wished to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 814, 104 S.Ct. 2755; see Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, 284 (3d Cir.1995) ("The discretionary function exception is designed to protect policy making by the politically accountable branches of government from interference in the form of `second-guessing' by the judiciary-second-guessing the result of which burdens the public fisc and the prospect of which skews the decisionmaking process of executive and legislative policymakers.").

Courts employ a two-part test to determine whether the discretionary function exception applies in a particular case.² "First, a court must determine whether the act giving rise to the alleged injury and thus the suit involves an `element of judgment or choice.'" Merando, 517 F.3d at 164 (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). "Second, even if the challenged conduct involves an element of judgment, the court must determine `whether that judgment is of the kind that the discretionary function exception was designed to shield.'" Id. at 165 (quoting Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267). Application of this test is "fact-specific" to each case. See Mitchell v. United States, 225 F.3d 361, 365 (3d Cir. 2000).

i. Does the challenged conduct involve judgment or choice?

As noted, the first step in the analysis is to determine whether the challenged action involves an element of judgment or choice. Merando, 517 F.3d at 164. The Supreme Court has stated that this requirement "is not satisfied if a `federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because `the employee has no rightful option but to adhere to the directive.'" Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)).

The Army Corps' authority to conduct dredging activities is derived from several statutory provisions....