Straw v. North Carolina
| Decision Date | 03 March 2020 |
| Docket Number | CASE NO. 7:18-cv-00074-M |
| Parties | ANDREW U.D. STRAW, Plaintiff, v. STATE OF NORTH CAROLINA, Defendant. |
| Court | U.S. District Court — Eastern District of North Carolina |
On November 4, 2019, Defendant State of North Carolina ("North Carolina") filed a motion to dismiss, with prejudice, Plaintiff Andrew U.D. Straw's ("Straw") amended complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure [DE 55]. For the reasons explained below, North Carolina's motion to dismiss is GRANTED.
Straw alleges that he was injured by contaminated water that he was exposed to in utero and as a military dependent at Camp Lejeune Marine Corps base in North Carolina. In a separate suit, eventually consolidated in multidistrict litigation ("MDL"), Straw and others sued the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., for myriad injuries allegedly stemming from this contaminated water. See generally In re Camp Lejeune N. Carolina Water Contamination Litig., 263 F. Supp. 3d 1318 (N.D. Ga. 2016). After years of litigation and an interlocutory appeal to the Eleventh Circuit to interpret North Carolina's statute of repose,1 the government's motion to dismiss all plaintiffs' claims was ultimately granted on three distinct grounds: (1) the applicability of North Carolina's statute of repose, (2) the applicability of the Feres doctrine to the FTCA, for servicemember plaintiffs, and (3) the applicability of the discretionary function doctrine to the FTCA. Id. at 1362-63. The dismissal was upheld on appeal. In re Camp Lejeune, N. Carolina Water Contamination Litig., 774 Fed. App'x 564, 568 (11th Cir. 2019), petition for cert. filed & docketed, Bryant v. United States, No. 19-982 (Feb. 5, 2020). The Eleventh Circuit relied on its prior interpretation of North Carolina's statute of repose and did not reach the arguments of either the Feres doctrine or discretionary function. Id. at 566.
Admittedly aware that an attempt to relitigate the Eleventh Circuit's holding raises issues of res judicata and collateral estoppel, Straw explicitly disclaims making a collateral attack on the MDL case, and raises what he states are independent claims facially attacking the North Carolina statute of repose in an effort to obtain compensatory damages. Straw argues that the Northern District of Georgia's application of the North Carolina statute of repose in the MDL renders theState of North Carolina independently and monetarily liable for his injuries, creating a new cause of action here. Straw now brings this action alleging that the North Carolina statute of repose, N.C. Gen. Stat. § 1-52(16), violates Articles I and II of the United States Constitution by interfering with the right of the United States to govern military bases, creating a claim against North Carolina for relief as a violation of the Due Process clause of the Fourteenth Amendment. DE 17 ¶ 16. He also alleges that the North Carolina statute of repose violates the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq., due to his assertion that people with disabilities are more likely to be impacted by the statute. DE 17 ¶ 15.
Sixteen motions are currently pending before this Court: Straw's motion for summary judgment [DE 31]; North Carolina's motion to defer summary judgement briefing/hearing [DE 35]; Straw's motion to supplement his motion for summary judgment with an affidavit on damages [DE 41]; Straw's motion for the acceptance of memorandum of law in record [DE 42]; Straw's motion to supplement his motion for summary judgment with an affidavit on damages [DE 432]; Straw's motion to notice, enter statements into record [DE 45]; Straw's motion for the acceptance of intervenor statements under Fed. R. Civ. P. 24 [DE 46]; Straw's motion for declaratory judgment [DE 47]; Straw's motion to extend time for Rule 26(f) conference [DE 49]; North Carolina's motion to dismiss plaintiff's amended complaint [DE 55]; Straw's motion to allow a sur-reply to respond to defendant's motion to dismiss [DE 63]; Straw's motion for Fed. R. Civ. P. 37 relief [DE 68]; Straw's motion to notice family damaged and motion to represent family [DE 72]; Straw's motion for Rule 37(a)(4) relief [DE 73]; Straw's motion to notice JMPL, 5.1 &19(a)(2) [DE 75]; and Straw's motion to take notice of US Supreme Court filing and allow petition for certiorari into the record, including statements explaining it [DE 78].
Upon consideration of the pleadings, the parties' arguments, and for the reasons discussed below, North Carolina's motion to dismiss is GRANTED. This Court dismisses each of the Straw's claims for failure to state a claim on which relief can be granted. The Court will next address the legal standard for taking judicial notice and why Straw's various motions for notice necessarily fail. The granting of North Carolina's motion to dismiss, among other things, renders the other motions pending before this Court moot.
In considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted," a court must determine whether the complaint is legally and factually sufficient. Fed. R. Civ. P. 12(b)(6); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
In doing so, the court must accept all well-pled allegations in a complaint as true and must construe all factual allegations in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A court may also consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
However, a court need not accept a complaint's legal conclusions, elements of a cause of action, and conclusory statements. Iqbal, 556 U.S. at 678; see also Giarratano, 521 F.3d at 302. Nor must a court accept as true "unwarranted inferences, unreasonable conclusions, or arguments."E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000); see also Iqbal, 556 U.S. at 678.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678. Though Straw is a licensed attorney,3 the court will construe the allegations in his pro se complaint liberally. See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Straw alleges that North Carolina's statute of repose interferes with and infringes upon the federal government's exclusive power to control the military and its personnel, specifically the legislative and executive branches of government under Articles I and II of the United States Constitution. DE 17 ¶ 16. Straw also seeks compensatory damages from North Carolina on the theory that North Carolina's statute of repose deprived him of the right to receive compensation for the injuries he suffered under the Federal Tort Claims Act ("FTCA") and that this was a direct violation of his right to due process of law under the Fourteenth Amendment. DE 17 ¶¶ 8, 14.
Generally, "the United States is immune from suit unless it waives that immunity." In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 341 (4th Cir. 2014). One such instance where the United States has waived its immunity is in the context of torts committed by federal employees while acting within the scope of their employment. Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.;see also In re KBR, 744 F.3d at 341. Importantly, the United States may be liable "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." 28 U.S.C. § 1346(b)(1) (emphasis added); § 2674. However certain exceptions apply, including the discretionary function exception. § 2680.
The allegations pled by Straw, even construed in the light most favorable to him, Mylan, 7 F.3d at 1134, are insufficient to state a claim for relief and his framing of the issue misses the mark. North Carolina has not "reached into Camp LeJeune and dictated through its law that poisoned families will not be compensated for their suffering." DE ¶ 16. Rather, due to what turned out for plaintiffs to be an unfortunate transfer of the MDL to the Northern District of Georgia, it was the Eleventh Circuit's interpretation of North Carolina's statute of repose and its subsequent amendment that so held. Bryant, 768 F.3d at 1385. Under the FTCA, Congress explicitly chose to make the United States liable "in the same manner and to the same extent as a private individual under like circumstances," § 2674, and for the United States to be governed by the law of the state where the alleged harm occurred, §§ 1346(b)(1), 2674, in this case North Carolina. North Carolina's statute of repose sets limits on the operation of its tort laws applicable to all plaintiffs in the state for the benefit of all defendants in the state. The decision to track state law was Congress' and by that decision North Carolina did not violate Articles I and II of the Constitution.
The Fourth Circuit has expressly held that statutes of repose are subject to rational basis review under the ...
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