Pellegrini v. United States

103 Fed. Cl. 47, 2012 U.S. Claims LEXIS 24, 2012 WL 171912
United States Court of Federal Claims·Decided January 20, 2012·No. No. 11-224L·Published·Cited by 15 cases

Opinion

MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

This case is before the Court on defendant’s Motion to Dismiss, in Part, for Lack of Jurisdiction, pursuant to Rules 12(b)(1) and 12(h)(3) of the Rules of the United States Court of Federal Claims (“RCFC”) and 28 U.S.C. § 1500 (“Section 1500”). Defendant’s motion seeks dismissal of the claims of three of the plaintiffs and dismissal of a cause of action requesting equitable relief. Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 11. Defendant’s motion has been fully briefed and oral argument on the motion was held. For the reasons that follow, defendant’s motion is GRANTED.

I. BACKGROUND

Plaintiffs filed suit in the United States Court of Federal Claims on April 11, 2011. They allege that they are owed just compensation under the Takings Clause of the Fifth Amendment of the Constitution of the United States and that the Court has jurisdiction over their claims under the Tucker Act, 28 U.S.C. § 1491(a)(1). Compl. ¶¶4-5. The named plaintiffs in this case are three owners — Donald and Brenda Pellegrini and Anne Ebel — and two lessors — Mladen and Beverly Ziza — of riverfront property situated on Ra-moth Drive along the St. Johns River in Jacksonville, Florida. Compl. ¶¶ 1-3. The action is putatively brought on behalf of the class of similarly situated riverfront property owners and lessors along Ramoth Drive, which is estimated to be 150 people living in forty-five homes along the drive. Id. ¶¶ 4, 6. Each riverfront lot along Ramoth Drive allegedly has an easement appurtenant burdening the government’s navigational servitude such that plaintiffs are permitted to build, maintain, and use docks, seawalls, and boathouses that extend into the river. Id. ¶¶ 1-4.

The takings claims asserted in this case result from dredging of the St. Johns River conducted by the Army Corps of Engineers (“the Corps”). Compl. ¶ 7. The dredging activity was allegedly part of the “St. Johns River Maintenance Dredge Project” and occurred in “[cjuts 40-41, in the vicinity of buoy 34, immediately adjacent to the property owned by plaintiffs.” Id. Plaintiffs allege that as sediment in the center of the river was removed by the Corps, “lateral and sub-jacent” support of the riverbank was lost, causing a sudden subsidence of the riverbank, which in turn caused the “collapse of [49] plaintiffs’ seawalls, and adjacent structures.”1 Id. The facts alleged in the complaint do not include specific dates when the seawalls and adjacent structures collapsed, nor specific or even approximate dates of the dredging. See id. ¶¶ 7-8. An estimated date range is possible, however, with respect to the accrual of the Zizas’ claim. The document signed by Barbara Crause — owner of the Zizas’ leased property — attached to the complaint states that damage to her seawall and dock occurred in April and May of 2010. Attach, to Compl. at 1.

The property interests allegedly taken consist of: 1) the formerly “privately-owned uplands lying outside [defendant's navigational servitude” that, after collapsing into the river, were converted to public lands lying “particularly or completely below mean high water;” 2) the pre-existing seawalls and adjacent structures (docks and boathouse); and 3) the right to use the public lands extending out into the river for docks and boathouses. Compl. ¶¶ 4, 7, 8. Plaintiffs seek a declaratory judgment that defendant’s dredging resulted in a taking of their private property “without due process of law” and seek monetary damages as just compensation owed to them under the Fifth Amendment. Id. at 4-5.2 Concerned about losing additional property, plaintiffs also seek a permanent injunction that would prevent the Corps from conducting any further dredging in the vicinity of Ramoth Drive and a permanent injunction that requires the government to build a bulkhead — in accordance with designs previously commissioned by plaintiffs— along the riverbank on Ramoth Drive to prevent additional collapse. Id. at 6-7.

On July 22, 2010 — prior to filing their takings claims in the Court of Federal Claims— Ms. Ebel and the Pellegrinis filed an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, in the United States District Court for the Middle District of Florida styled Ebel v. United States, No. 3:10-cv-635-RBD-JRK (M.D.Fla.2010). Def.’s Mot. at 2-3. In the Ebel complaint, plaintiffs allege that the Corps’s dredging of the St. Johns River at “[cjuts 40-41, in the vicinity of buoy 34, immediately adjacent to the property owned by plaintiffs” negligently caused damage to plaintiffs’ docks, seawalls, and backyards. Def.’s Mot. Ex. 1 at 2 (Ebel Compl. ¶4). Similar to the complaint filed in the present case, the four corners of the Ebel complaint do not include specific dates when the seawalls and adjacent structures collapsed, nor specific or even approximate dates of the dredging. See id. at 1-3 (Ebel Compl.). The Ebel complaint, however, references attached administrative claim forms filed with the Corps by Ms. Ebel and the Pellegrinis that cover damage to their docks and boatlifts that occurred on March 8, 2008. Id. at 8-11 (Ebel Compl. Ex. C). The Ebel complaint also references an attached declaration of George Smith — Ms. Ebel’s marine contractor — who states that Ms. Ebel’s seawall collapsed due to substantial, unnatural subsidence caused by dredging in May 2010. Id. at 6-7 (Ebel Compl. Ex. B). Thus, the Ebel complaint encompasses dredging before March 8, 2008 that allegedly caused damage to Ms. Ebel’s and the Pellegrinis’ property on March 8, 2008 and also encompasses dredging in May 2010 that allegedly caused damage to Ms. Ebel’s property sometime between May 2010 and July 20, 2010.

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Pellegrini v. United States, 103 Fed. Cl. 47, 2012 U.S. Claims LEXIS 24, 2012 WL 171912 (uscfc 2012).

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