United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court on four separate motions: (1) the
Rule 12(b)(6) motion to dismiss filed by Defendant City of
Birmingham (“Birmingham”) (Doc. # 67); (2) the
Rule 12(b)(6) motion to dismiss filed by Defendant United
States Steel Corporation (“U.S. Steel”) (Doc. #
64); (3) U.S. Steel's motion for summary judgment as to
certain plaintiffs (Doc. # 62); and (4) U.S. Steel's
motion to strike (Doc. # 79). The motions are fully
briefed. (Docs. # 61, 63, 64, 65, 67, 70, 71, 73,
74, 75, 76, 77, 78, 79, 81, 82, 83).
careful review, and for the reasons explained below, the
court concludes that Birmingham's motion to dismiss is
due to be granted and that U.S. Steel's motion to dismiss
is due to be granted in part. The court further concludes
that U.S. Steel is entitled to summary judgment as to eight
plaintiffs on all claims asserted by those plaintiffs.
Accordingly, Birmingham is entitled to be dismissed from this
case with prejudice, U.S. Steel is entitled to judgment
against eight of the plaintiffs, and the remaining plaintiffs
may proceed with their surviving claims against U.S. Steel.
Finally, U.S. Steel's motion to strike is due to be
denied as moot.
are eighteen residents of the Ensley Sherman Heights
Neighborhood who support Ensley Revitalization Committee,
LLC, which is also a plaintiff in this lawsuit. (Doc. # 57 at
¶ 1). Defendant U.S. Steel owns an approximately
600-acre site formerly used for steel manufacturing in the
Ensley neighborhood, known colloquially as “Ensley
Works.” (Id. at ¶¶ 3, 14). U.S.
Steel ceased steel production at Ensley Works in the 1980s,
and the property has since fallen into severe disrepair.
(Id. at ¶¶ 3, 6-7, 17, 41-42).
claim the Ensley Works property contains obnoxious weeds and
overgrown vegetation, dilapidated and unsafe buildings, and a
variety of animals and pests, including snakes, rodents,
bobcats, and other wild animals. (Id. at
¶¶ 3, 6, 43). Those Plaintiffs whose properties
abut Ensley Works complain that weeds, vegetation, and
overgrown trees from Ensley Works have encroached upon their
property, and all Plaintiffs allege that animal pests have
migrated from Ensley Works onto their property. (Id.
at ¶¶ 43-44, 75). Plaintiffs also maintain that the
Ensley Works property has become an eyesore, a dumping ground
for trash, refuse, animal carcasses, and dead bodies, and a
hangout for “obnoxious vagrants” and
“vagabonds” who loiter on the property day and
night and disturb Plaintiffs' quiet enjoyment of their
own property. (Id. at ¶¶ 7, 20). The
Ensley Works property largely lacks any barricades or fencing
to prevent unauthorized entry onto it. (Id. at
complaints to U.S. Steel and Birmingham since at least 1986,
Plaintiffs allege that U.S. Steel has failed to do anything
to maintain the property. (Id. at ¶¶ 3, 8,
71). Birmingham spent some $34, 000 in taxpayer funds to
control weeds, rodents, and other pests at Ensley Works on
two occasions, but the city has neither sought recovery for
those costs nor placed a lien on the property, according to
Plaintiffs. (Id. at ¶ 44).
addition to U.S. Steel, Plaintiffs have also named the City
of Birmingham as a defendant in this lawsuit. Plaintiffs
claim Birmingham has failed to enforce various state statutes
authorizing municipalities to abate public nuisances against
U.S. Steel, even though Birmingham has local authority and
jurisdiction to enforce those statutes. (Id. at
¶¶ 3-4). Plaintiffs attribute Birmingham's lack
of enforcement efforts to the fact Birmingham and U.S. Steel
“are doing business with each other in more affluent
areas of Birmingham and surrounding communities.”
(Id. at ¶ 5). By failing to take enforcement
action against U.S. Steel to remedy the condition of Ensley
Works, Plaintiffs claim Birmingham is perpetuating a private
nuisance. (Id.). Plaintiffs assert that Birmingham
has a duty to declare the Ensley Works property a nuisance,
place notices of condemnation upon the four dilapidated
structures remaining on the property, and either compel U.S.
Steel to remediate the property or undertake remediation
itself. (Id. at ¶ 8).
result of U.S. Steel's and Birmingham's alleged
wrongdoing, Plaintiffs claim they have suffered diminished
property values, damage to their quality of life and to their
health and safety, and the inability to quietly enjoy their
property. (Id. at ¶ 48). Plaintiffs also allege
they have incurred expenses related to the abatement of the
nuisance conditions on Ensley Works and that the conditions
on the property have worked hurt, inconvenience, and damage
to them. (Id.). For example, Plaintiffs claim they
have spent their own money to abate encroaching weeds, cut
overgrown trees, and exterminate large rodents that have
entered their property from the adjacent Ensley Works
property. (Id. at ¶ 75).
assert claims for private nuisance, attractive nuisance,
nuisance per se, negligence, negligence per se, trespass, and
wantonness -- all under Alabama law -- against both U.S.
Steel and Birmingham. (Id. at ¶ 47). Plaintiffs
seek an injunction either (1) requiring U.S. Steel to (a)
abate weeds and vegetation within a 30-yard buffer zone
surrounding the Ensley Works property; (b) spray for snakes
around the perimeter of the property; and (c) demolish the
four dilapidated structures on the property and haul off the
resulting debris or (2) ordering Birmingham to enforce
applicable state statutes against U.S. Steel and compel the
company to remediate the property. (Id. at 4-5).
They also seek compensatory and punitive damages against U.S.
Steel and Birmingham. (Id. at ¶ 78).
Standards of Review
the motions to dismiss (Docs. # 64, 67) and motion for
summary judgment as to certain plaintiffs (Doc. # 62) are
governed by different legal standards, the court sets out the
relevant standards of review separately.
Rule 12(b)(6) Motion to Dismiss Standard
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The complaint must include enough facts
“to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Pleadings that contain nothing more than
“a formulaic recitation of the elements of a cause of
action” do not satisfy Rule 8, and neither do pleadings
that are based merely upon “labels and
conclusions” or “naked assertion[s]”
without supporting factual allegations. Id. at 555,
557. In deciding a Rule 12(b)(6) motion to dismiss, courts
view the allegations in the complaint in the light most
favorable to the nonmoving party. Watts v. Fla.
International Univ., 495 F.3d 1289, 1295 (11th Cir.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 Fed. App'x 136, 138
(11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific, and to survive the motion, the
allegations must permit the court, based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679. If the court determines that
well-pleaded facts, accepted as true, do not state a claim
that is plausible, the claim must be dismissed.
Twombly, 550 U.S. at 570.
Rule 56 Summary Judgment Standard
Federal Rule of Civil Procedure 56, summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party seeking
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine dispute of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56 requires the nonmoving party to go
beyond the pleadings and -- by pointing to affidavits,
depositions, answers to interrogatories, or admissions on
file -- designate specific facts showing that there is a
genuine dispute for trial. Id. at 324.
substantive law will identify which facts are material and
which are irrelevant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). All reasonable doubts
about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Allen v. Bd. of Pub. Educ.
for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007);
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993). A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted. See Id.
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
“Essentially, the inquiry is ‘whether the
evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.'” Sawyer
v. Sw. Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan.
2003) (quoting Anderson, 477 U.S. at 251-52).
people would want to live near Ensley Works if conditions on
the property are anything like those described in the Amended
Complaint. With allegations of overgrown weeds and
vegetation, a host of vermin, deteriorating buildings, and
accumulating garbage and refuse (not to mention human and
animal remains), the Amended Complaint describes a property
any neighborhood would quite reasonably want cleaned up and
better maintained. But notwithstanding their allegations,
many of Plaintiffs' claims in this lawsuit lack legal
merit. Though Plaintiffs assert a litany of legal theories
against both U.S. Steel and Birmingham, the only ones with
any chance of success are their nuisance and wantonness
claims against U.S. Steel. Birmingham cannot be held liable
on any of Plaintiffs' claims, and U.S. is entitled to
summary judgment as to eight plaintiffs whose claims are
barred by an exculpatory covenant bargained for by U.S. Steel
and agreed to by those plaintiffs' predecessor in title.
Thus, as more fully explained below, Birmingham is entitled
to be dismissed from this case with prejudice, U.S. Steel is
entitled to judgment against eight of the Plaintiffs, and the
remaining Plaintiffs may proceed with their surviving
nuisance and wantonness claims against U.S. Steel. Finally,
U.S. Steel's motion to strike is due to be denied as
Birmingham's Motion to Dismiss Is Due to Be
assert claims for private nuisance, attractive nuisance,
nuisance per se, negligence, negligence per se, trespass, and
wantonness against Birmingham. They seek damages and an
injunction requiring Birmingham to enforce applicable state
statutes against U.S. Steel. But because each cause of action
Plaintiffs assert against the City fails to state a viable
claim, they are entitled to neither damages nor injunctive
relief on those claims. Thus, Birmingham's motion to
dismiss is due to be granted in its entirety.
Plaintiffs Fail to State a Negligence Claim Against
assert both negligence and negligence per se claims against
Birmingham. (Doc. # 57 at ¶¶ 49-51, 73-78). Neither
one has any merit.
state a claim for negligence, a plaintiff must allege
“(1) that the defendant owed the plaintiff a duty; (2)
that the defendant breached that duty; (3) that the plaintiff
suffered a loss or injury; and (4) that the defendant's
breach was the actual and proximate cause of the
plaintiff's loss or injury.” DiBiasi v. Joe
Wheeler Elec. Membership Corp., 988 So.2d 454, 460 (Ala.
2008). Plaintiffs' negligence claim fails because they
cannot establish the first element of a negligence
action-that Birmingham owed them a duty to enforce certain
state statutes against U.S. Steel. To be sure, Plaintiffs
state in their Amended Complaint that Birmingham “has a
duty” “to enforce the [relevant] statutes”
against U.S. Steel, but they provide no legal support for
that claim. (Doc. # 57 at ¶ 4). Plaintiffs' lack of
legal authority on this point is unsurprising, as the
court's own research reveals that none exists. Simply
put, municipalities have no duty under Alabama negligence law
to enforce all applicable statutes against anyone who
makes sense. Given municipalities' limited resources,
they must inevitably choose to prosecute some violations of
the law and not others. In the criminal context, the decision
whether to prosecute “generally rests entirely in [the
prosecutor's] discretion, ” Wayte v. United
States, 470 U.S. 598, 607 (1985), and that is just as
true in a case like this that involves only civil
enforcement. It would be an odd result indeed if
Alabama tort law imposed a duty (which may well be an
impossible duty) on municipalities to prosecute all
violations of the State's civil code. Because Plaintiffs
cannot establish the first element of their negligence claim,
the claim is due to be dismissed.
unclear from the Amended Complaint whether Plaintiffs even
intend to assert a negligence per se claim. The term appears
only once in the Amended Complaint, in the caption for Count
Eight (“Trespass, Negligence Per Se & Private
Nuisance”), and Plaintiffs do provide any further
factual or legal support for the claim. (Doc. # 57 at 21).
But to the extent Plaintiffs intend to assert a negligence
per se claim, it too fails. A critical element of any
negligence per se claim in Alabama is that “the
defendant must have violated [a] statute.” Parker
Bldg. Servs. v. Lightsey ex rel. Lightsey, 925 So.2d
927, 931 (Ala. 2005). Here, Plaintiffs fail to allege that
Birmingham has violated any statute by declining to enforce
certain Alabama civil code provisions against U.S.
Steel. Because Plaintiffs have failed to
“show the existence of a statute creating a mandatory
duty to perform, ” their negligence per se claim is due
to be dismissed. Norris v. City of Montgomery, 821
So.2d 149, 153 (Ala. 2001).
Plaintiffs' Trespass and Wantonness Claims Against
Birmingham Fail as a Matter of Law
trespass and wantonness claims against Birmingham fail as a
matter of law because Alabama municipalities cannot be held
liable for intentional or wantonness torts. Alabama's
legislature has largely immunized municipalities from tort
liability, subject to certain enumerated exceptions which
arise in specified circumstances. The applicable statute
provides in relevant part: “No city or town shall be
liable for damages for injury done to or wrong suffered by
any person or corporation, unless such injury or wrong was
done or suffered through the neglect, carelessness, or
unskillfulness of [the municipality's agent or
employee].” Ala. Code § 11-47-190 (emphasis
added). Section 11-47-190 thus provides broad tort immunity
to municipalities, subject to an enumerated exception for
negligent conduct by the municipality's agents and
employees. It therefore bars claims for intentional and
wantonness torts against municipalities. See Cremeens v.
City of Montgomery, 779 So.2d 1190, 1201 (Ala. 2000)
(“A municipality cannot be held liable for the
intentional torts of its employees.”); Morrow v.
Caldwell, 153 So.3d 764, 769 (Ala. 2014) (“There
is no exception in [§ 11-47-190] allowing an action
against a municipality for the wanton or willful conduct of
its agents or employees.”). Plaintiffs apparently
concede that their trespass and wantonness claims against
Birmingham fail for this reason. (Doc. # 71 at 13). The
claims are therefore due to be dismissed.
Plaintiffs Fail to State Any Nuisance Claims ...