United States District Court, N.D. Alabama, Northeastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant's Motion to
Dismiss. (Doc. 6). Plaintiffs Ryan Anaya and Chad Ward
brought this action against the City of Fort Payne under 42
U.S.C. §§ 1983 and 1988 and the Fifth and
Fourteenth Amendments to the United States Constitution, as
well as certain state law claims, alleging Fort Payne's
2017 logging ordinance (“Ordinance 2017-02”)
violates the Constitution. (Doc. 1). Defendant's motion
to dismiss, pursuant to Rule 12(b)(1), argues that this court
lacks subject matter jurisdiction because Plaintiffs have not
suffered an injury in fact and thus lack standing. For the
following reasons, the court will GRANT the Defendant's
motion and DISMISS WITHOUT PREJUDICE Plaintiffs' action
challenging the logging ordinance identified in their
February 18, 2016 Plaintiffs Anaya and Ward bought and closed
on a 43-acre tract of land in Fort Payne, Alabama, intending
to clear cut and harvest the timber for re-sale. (Doc. 1, at
¶¶ 5-6). At the time of purchase, Plaintiffs
apparently believed the City had zoned the property for
“agricultural/timber” use. (Id. at
¶ 6). Shortly after the purchase, Plaintiffs filed for
the proper permit to clear cut the trees but were denied the
permit, allegedly with the explanation that an upcoming
moratorium and city ordinance would prohibit Plaintiffs'
plans. (Id. at ¶ 7). On November 28, 2016, the
City of Fort Payne approved Ordinance 2017-02, which,
effective March 21, 2017, allegedly prohibited Plaintiffs
from using their recently-acquired property for the purposes
they intended upon purchase. (Id. at ¶ 11).
Plaintiffs then filed suit in this court on February 16,
2018, alleging Ordinance 2017-02 violated their
City of Fort Payne filed a motion to dismiss for lack of
subject matter jurisdiction on May 21, 2018. The motion to
dismiss, and more specifically the accompanying affidavit of
Fort Payne Zoning and Inspections Coordinator and Zoning
Administrator Jimmy Gilbreath, argued that Plaintiffs'
complaint incorrectly claims the City had zoned the tract at
issue as “agricultural/timber.” (Doc. 6-1, at
¶ 4). Instead, Defendant Fort Payne argues the tract has
had the “R-1 Residential” classification since
before Plaintiffs purchased it. (Id.).
Defendant's motion to dismiss included a Fort Payne
Zoning Ordinance from 2008 describing the permitted and
conditional uses of R-1 Residential properties, neither of
which appear to include timber extraction. (Doc. 6-1, at Ex.
B 8). Finally, Defendant Fort Payne included in its motion to
dismiss an Official Zoning Map that appears to label the
region within which Plaintiffs' property sits as
“R-1 Residential” land. (Doc. 6-1, at Ex. C).
Defendant argues this evidence together shows Plaintiffs have
not suffered an injury in fact from the zoning ordinance
Plaintiffs identified in their complaint and so lack
standing, meaning this court does not have subject matter
court ordered a briefing schedule, and Plaintiffs'
response was due June 13; upon Plaintiffs' request, the
court extended the due date to June 20. But, instead of
filing a response to Defendant's motion to dismiss, on
June 20 Plaintiffs moved for leave to amend their complaint.
(Doc. 13). On July 18, this court denied Plaintiffs'
motion for leave to file an amended complaint without
prejudice, because the Plaintiffs failed to include a
proposed amended complaint alongside their motion. (Doc. 16).
Since the July 18 order, Plaintiffs have neither properly
moved to amend the complaint again, this time with a proposed
complaint attached, nor have they responded to
Defendant's motion to dismiss, as they were required to
do by June 20.
Standard of Review
III of the United States Constitution limits federal court
jurisdiction to “Cases” and
“Controversies.” U.S. Const. art. III, § 2.
To determine which “cases and controversies” are
properly justiciable, federal courts require that plaintiffs
have standing to bring the claim; standing requires (1)
injury in fact; (2) a causal connection between the injury
and the defendant's alleged conduct; and (3)
redressability. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992). If a plaintiff fails to meet the
burden of establishing any of these three elements, the
plaintiff lacks standing and the court does not have subject
matter jurisdiction over the case. Bloedorn v.
Grube, 631 F.3d 1218, 1228 (11th. Cir. 2011).
Rule of Civil Procedure 12(b)(1) allows a defendant to move
to dismiss a complaint “for lack of subject matter
jurisdiction by either a facial or factual attack.”
Stalley ex rel. United States v. Orlando Reg'l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.
2008). When a defendant makes a factual attack, it can
introduce evidence outside the pleadings, “such as
testimony and affidavits, ” to challenge subject matter
jurisdiction.” Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990). A trial court is “free to
weigh the evidence and satisfy itself as to the existence of
its power to hear the case” without attaching
“presumptive truthfulness . . . to plaintiff's
allegations.” Williamson v. Tucker, 645 F.2d
404, 412-13 (5th Cir. 1981), cert. denied, 454 U.S.
891 (1981). As long as a plaintiff has “ample
opportunity to present evidence bearing on the existence of
jurisdiction, ” a trial court can make the
determination as to whether he met his burden. See
Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273
(11th Cir. 2000) (quoting Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991)).
alleged in their complaint that Ordinance 2017-02 amounted to
an unconstitutional taking, depriving them of the right to
possess and enjoy private property and causing damages.
Specifically, Plaintiffs allege the City denied their right
to use the property as they intended when they bought it - to
harvest timber. Defendant's motion to dismiss and the
attached affidavit factually challenge Plaintiffs'
assertion of subject matter jurisdiction by arguing that
Ordinance 2017-02 did not cause Plaintiffs any injury in
fact. (Doc. 6, at ¶ 3). According to Defendant's
motion and Mr. Gilbreath's affidavit, Fort Payne's
2008 zoning ordinance, which predates Plaintiffs'
purchasing the property, precluded Plaintiffs' desire to
clear cut the tract. (Doc. 6-1, ¶ 4). If Mr.
Gilbreath's affidavit is correct, this court must dismiss
Plaintiffs' complaint for lack of subject matter
jurisdiction, because Plaintiffs have only identified
Ordinance 2017-02 as their cause of injury, an allegation
irreconcilable with Mr. Gilbreath's affidavit.
Defendant filed its motion to dismiss and Mr. Gilbreath's
affidavit, this court provided Plaintiffs ample time to
respond to Defendant's motion to dismiss with
countervailing evidence. Plaintiffs instead moved for an
extension of time to amend their complaint. Such an amendment
could have alternatively established subject matter
jurisdiction, but Plaintiffs failed to attach the proposed
amended complaint to their motion. This court therefore
denied the motion without prejudice, implicitly inviting
Plaintiffs to re-file their motion, this time with the
proposed amendment attached. Now, two months later and nearly
four months after Defendant's motion to dismiss,
Plaintiffs have failed to rebut Mr. Gilbreath's affidavit
or amend their complaint to properly establish standing. This
court therefore FINDS that Plaintiffs showed no causal
connection between Defendant's alleged conduct and
Plaintiffs' alleged injury. Pursuant to this finding,
this court GRANTS Defendant's motion and DIMISSES WITHOUT
PREJUDICE Plaintiffs' complaint.
reasons discussed above, the court therefore GRANTS
Defendant's Motion to Dismiss. The court will enter a