Ramming v. U.S., 01-20079.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 281 F.3d 158
• Docket Number: No. 01-20079.,01-20079.
• Parties: Lawrence H. RAMMING, Plaintiff, v. UNITED STATES of America, Defendant. John Thomas Cloud, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Decision Date: 19 December 2001

281 F.3d 158 Lawrence H. RAMMING, Plaintiff,
v.
UNITED STATES of America, Defendant.
John Thomas Cloud, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee. No. 01-20079. United States Court of Appeals, Fifth Circuit. December 19, 2001.

Page 159

Sharon S. McCally (argued), Storey, Moore & McCally, Houston, TX, for Plaintiff-Appellant.

E. Roy Hawkens (argued), Robert S. Greenspan, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and CUMMINGS, District Judge.¹

PER CURIAM:

John Thomas Cloud ("Appellant") appeals the district court's dismissal of Appellant's action against the United States ("Appellee") for malicious prosecution and other prosecutorial misconduct as time-barred. We AFFIRM.

Page 160

I. BACKGROUND

In 1994, a federal jury indicted Appellant and several co-defendants on a 27-count indictment for bank fraud, wire fraud, and other offenses. The case was tried in a non-jury proceeding from November 1995 through January 1996. On January 12, 1996, the United States District Court for the Southern District of Texas, Kenneth M. Hoyt, J., granted Appellant's and co-defendants' motion for acquittal and dismissal on the basis of prosecutorial misconduct citing, inter alia, the following litany of misconduct in support thereof:

• the government failed in its duty to be forthright in the disclosure of Brady materials;

• the government failed to produce ... questionable materials so that the... rights of the defendants could be protected;

• the government intentionally failed or refused to comply with the law;

• the failing of the government, in its duty under the federal Constitution to not violate the Sixth Amendment rights of the defendants to a fair and open trial;

• the government made misrepresentations of facts to the Court.... At the very least, this conduct was reckless. At most, it was intended as a fraud on the Court;

• transcripts of the Grand Jury testimony... was [sic] wrought with statements that both supported the defendants' theory of the case and foiled that of the government;

• the testimony ... supports the defendants' claim of innocence;

• the government's contentions of equal access, neutral evidence, that the defendants were aware of the information possessed by the Grand Jury, that the testimony was merely impeachment, and that they acted in good faith, is incredible. Only a person blinded by ambition or ignorance of the law and ethics would have proceeded down this dangerous path.

United States v. Ramming, 915 F.Supp. 854, 867-68 (S.D.Tex.1996).

On November 26, 1997, Appellant filed a voluntary Chapter 11 bankruptcy petition, and on September 9, 1999, Appellant's plan of reorganization was confirmed by the bankruptcy court. On March 18, 1999, Appellant presented his administrative claim of malicious prosecution against Appellee and also presented a supplemental claim on November 1, 1999. On October 20, 1999, Appellant's administrative claim was denied.

On December 30, 1999, Appellant filed his prosecutorial misconduct action against Appellee in federal court. The District Court for the Southern District of Texas, Vanessa D. Gilmore, J., dismissed Appellant's claim under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Judge Gilmore held that Appellant's claim was time-barred under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401(b).

Judge Gilmore's order of December 30, 1999, also rejected Appellant's argument that Appellant was entitled to a two-year extension of the FTCA limitations period as of the date of his November 26, 1997, bankruptcy filing pursuant to 11 U.S.C. § 108(a) of the Bankruptcy Code. In rejecting Appellant's argument, Judge Gilmore held that Appellant was entitled to the sixty-day extension of the limitations period available under 11 U.S.C. § 108(b), but, in any event, the sixty-day period had also expired prior to the time Appellant filed his malicious prosecution suit.

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II. STANDARD OF REVIEW

This Court evaluates de novo the district court's grant of Appellee's Rules 12(b)(1) and 12(b)(6) motion for dismissal applying the same standard used by the district court. Hebert v. United States, 53 F.3d 720, 722 (5th Cir.1995).

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Fed. R. Civ. P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996).

The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex.1995). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).

When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court's dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id.

In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998).

Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. Fed.R.Civ.P. 12(b)(6). The test for determining the sufficiency of a complaint under Rule 12(b)(6) was set out by the United States Supreme Court as follows: "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also, Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir.1997).

Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir.1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Securities Inc., 94 F.3d 189, 194 (5th Cir.1996). This is consistent with the well-established policy that the plaintiff be given every opportunity to state a claim. Hitt, 561 F.2d at 608. In

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other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d...