United States District Court, N.D. Alabama, Southern Division
AVID PROCTOR, UNITED STATES DISTRICT JUDGE
matter is before the court on Defendants' Motion to
Dismiss. (Doc. # 14). For the reasons explained below, the
Motion (Docs. # 14) is due to be granted.
November 3, 2017, Plaintiff Lisa Hope Antoine
(“Plaintiff”) filed this Complaint against the
Honorable Eugene Raymond Verin (“Judge Verin”),
the Honorable Terri Willingham Thomas (“Judge
Thomas”), the Honorable William Cooper Thompson
(“Judge Thompson”), the Honorable Craig Sorrell
Pittman (“Judge Pittman”), the Honorable Terry
Allen Moore (“Judge Moore”), the Honorable
William Scott Donaldson (“Judge Donaldson”), the
Honorable James Allen Main (“Judge Main”), the
Honorable Michael Franklin Bolin (“Judge Bolin”),
the Honorable Billy Glenn Murdock (“Judge
Murdock”), the Honorable Alisa Kelli Wise (“Judge
Wise”), and the Honorable Tommy Elias Bryan
(“Judge Bryan, ” and collectively
“Defendants”). (Doc. # 1). In the Complaint,
Plaintiff alleges that she filed a complaint for trespass,
injury to real property, and nuisance in the Circuit Court of
Jefferson County on December 11, 2009. (Id. at p.
5). On March 15, 2011, Plaintiff alleges that Judge Verin
denied Plaintiff's claims for relief, ordered her to pay
the adjoining property owner compensatory damages of $35,
000, enjoined Plaintiff from obstructing the flow of water
draining from adjoining properties, and ordered Plaintiff to
construct and maintain a drain. (Id. at p. 5-6).
November 12, 2015, Judge Verin denied Plaintiff's motion
to set aside judgment. (Id. at p. 6). Plaintiff
alleges that she appealed and, on July 15, 2016, Judge
Thomas, Judge Thompson, Judge Pittman, Judge Moore, and Judge
Donaldson affirmed Judge Verin's ruling. (Id.).
Plaintiff further alleges that, on October 14, 2016, Judge
Main, Judge Bolin, Judge Murdock, Judge Wise, and Judge Bryan
denied her petition for writ of certiorari. (Id.).
Plaintiff claims that Defendants violated her surface water
rights and equal protection rights under the Fourteenth
Amendment. (Id. at p. 4-6).
“asks the court to order [Judge] Verin to set aside his
judgment of March 15, 2011” and “to order [Judge]
Verin to order the current adjoining property owner to pay
Plaintiff $178, 900 in actual damages for property value
depreciation resulting from the flooding of her property and
punitive damages of $357, 800 for intentionally violating her
surface water rights on her property.” (Id. at
p. 5-6). Plaintiff also asks the court (1) to order
“attorney Oscar William Adams III to return $16, 736 in
attorney's fees and costs to Plaintiff;” (2) to
order “Oxmoor Preservation/One, LLC to return $90,
926.88 in compensatory damages, attorney's fees, interest
and costs to Plaintiff; and (3) for reimbursement of all
litigation costs. (Id.). Attorney Oscar William
Adams III and Oxmoor Preservation/One, LLC are not parties to
November 29, 2017, Defendants filed the instant Motion to
Dismiss. (Doc. # 14). Plaintiff filed her Opposition to
Defendants' Motion to Dismiss on December 11, 2017. (Doc.
Standards of Review
Because Defendants' Motion to Dismiss (Doc. # 14) is
based on Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), the court outlines the standards of review for both
Rule 12(b)(1) and Rule 12(b)(6) motions.
Rule 12(b)(1) Motions
to subject matter jurisdiction under Rule 12(b)(1) can exist
in two different forms: facial attacks and factual attacks.
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009). When presented with a facial attack on a
plaintiff's complaint, a court determines whether the
complaint has sufficiently alleged subject-matter
jurisdiction. Sinaltrainal, 578 F.3d at 1260. The
court proceeds as if it were evaluating a Rule 12(b)(6)
motion, views the complaint in the light most favorable to
the plaintiff, and accepts any well-pled facts alleged in the
complaint as true. Id.
attacks, on the other hand, question “the existence of
subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered.” Id.
(citing Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990)). When a court is confronted with a factual
attack, the standard of review diverges.
[T]he trial court may proceed as it never could under
12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual
12(b)(1) motion is the trial court's jurisdiction - its
very power to hear the case - there is substantial authority
that the trial court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the
case. In short, no presumptive truthfulness attaches to
[P]laintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.
Lawrence, 919 F.2d at 1529 (citing Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir.), cert.
denied, 454 U.S. 897 (1981)). “When a district
court has pending before it both a 12(b)(1) motion and a
12(b)(6) motion, the generally preferable approach, if the
12(b)(1) motion essentially challenges the existence of a
federal cause of action, is for the court to find
jurisdiction and then decide ...