B.B.I. Design, Inc. v. Gilmer Cnty.

661 F.Supp.3d 1296

B.B.I. DESIGN, INC., Plaintiff, v. GILMER COUNTY, GEORGIA, et al., Defendants.

Civil Action No. 2:22-CV-224-RWS

United States District Court, N.D. Georgia, Gainesville Division

Signed February 13, 2023

Douglas Harold Flint, Jackson Richard Nock, John F. Connolly, Flint, Connolly & Walker, LLP, Canton, GA, for Plaintiff.

Ronald R. Womack, Steven M. Rodham, Womack, Rodham & Ray, P.C., Lafayette, GA, for Defendants.

ORDER

RICHARD W. STORY, United States District Judge

This case comes before the Court on Defendants Gilmer County, Georgia, et al.'s Motion to Dismiss [Dkt. 3] and Plaintiff B.B.I. Design, Inc.'s Motion to Remand [Dkt. 8]. After reviewing the parties' briefings, the Court enters the following Order.

BACKGROUND

I. Factual Background

On December 14, 2020, Plaintiff purchased Lot 13 in the Watersong subdivision of Gilmer County, with the intention to build a home on the property. The property is adjacent to East Mountaintown Creek, which has been designated a trout stream pursuant to the Georgia Water Quality Control Act.

On January 19, 2021, Chastain & Associates, P.C. prepared a site plan of the property, which identified a line of wrested vegetation along the creek. That line serves as the starting point for the fifty-foot buffer area in which land disturbing activities are prohibited under the Gilmer County Soil Erosion, Sedimentation, and Pollution Control Ordinance (the "Ordinance"). Following the site plan and the line of wrested vegetation, Chastain & Associates, P.C. decided where to build the home on the property to ensure compliance with the Georgia Water Quality Control Act and other relevant laws and regulations.

On April 7, 2021, Plaintiff obtained a building permit for the home and thereafter began construction on it. On August 26, 2021, it entered into a contract for sale of the property, intending to close on April 15, 2022.

Sometime later, Gilmer County asked Chastain & Associates, P.C. to survey the property. On January 22, 2022, Chastain & Associates, P.C. did so, concluding that ninety-eight (98) square feet of the home being built and one support post for the home's porch were located in the buffer area in violation of a local ordinance. Accordingly, on February 9, 2022, Gilmer County issued a Stop Work Order to Plaintiff, prohibiting it from performing any work on the property except remedial work and instructing it to contact Gilmer County Planning & Zoning for compliance information. Then, on February 18, 2022, Plaintiff received a Notice of Violation from Gilmer County alleging that it had violated the Ordinance (and its corresponding state law Georgia Erosion and Sedimentation Act) in four different respects, namely by building a structure in and disturbing the buffer. The Notice gave a compliance deadline of March 18, 2022, which Plaintiff worked to meet.

On March 30, 2022, Gilmer County officials inspected the property. On April 11, 2022, Plaintiff received a letter from Gilmer County's attorney, informing it that it had not fully remedied the alleged violations. The letter also notified Plaintiff that it was subject to a fine of $787,500 and that Gilmer County did not have the authority to grant a variance as to the structure being built in the buffer.

The parties worked to resolve the issue informally. On June 27, 2022, Plaintiff received an email stating that: (1) it was still subject to a $300,000 fine and (2) it was allowed to keep the structure on the property in the buffer zone but could not conduct any future land-disturbing activities in the buffer zone. Plaintiff contends that, despite the Stop Work Order remaining in effect and the Notice of Violation remaining unresolved, it has not been given any ability to challenge Gilmer County's accusations in court.

II. Procedural History

On October 6, 2022, Plaintiff filed suit against Gilmer County and various government officials in the Superior Court of Gilmer County, asserting claims under 42 U.S.C. § 1983 and seeking declaratory relief and an injunction under a recent amendment to the Georgia Constitution, Ga. Const. Art. I, § 2, ¶ V [Dkt. 1-1]. In particular, it asserted claims for: declaratory judgment under state law against Defendant Gilmer County (Count One); injunctive relief under state law against Defendant Gilmer County (Count Two); deprivation of civil rights under 42 U.S.C. § 1983 against all Defendants (Count Three); and attorney's fees and litigation expenses (Count Four). On November 9, 2022, Defendants removed the case to this Court [Dkt. 1]. The same day, Defendants filed their Answer [Dkt. 2] and Motion to Dismiss [Dkt. 3]. Plaintiff opposed Defendants' Motion to Dismiss [Dkt. 5], and Defendants filed a reply in support [Dkt. 7].

Then, on December 9, 2022, Plaintiff filed the instant Motion to Remand, arguing that this Court lacks subject matter jurisdiction over its state law claims [Dkt. 8]. Plaintiff also asks the Court to order Defendants to pay all costs and attorneys' fees incurred as a result of the removal. Defendants opposed the Motion on December 15, 2022 [Dkt. 9]. Plaintiff did not file a reply brief.

DISCUSSION

The Court will first discuss Plaintiff's Motion to Remand because, if granted in full, there is no need to discuss Defendants' Motion to Dismiss. If necessary, the Court will then turn to Defendants' Motion to Dismiss.

I. Motion to Remand

A. Legal Standard

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "Subject matter jurisdiction in a federal court may be based upon federal question jurisdiction or diversity jurisdiction." Walker v. Sun Trust Bank of Thomasville, Ga., 363 F. App'x. 11, 15 (11th Cir. 2010) (citations omitted). However, "[i]f at any time before final judgment it appears that the district court lack subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

Notwithstanding these principles, courts must construe removal statutes narrowly. Bussey v. Crossroad Props. A, Inc., 2021 WL 9699731, at *2 (N.D. Ga. Aug. 23, 2021) (citation omitted). "There is a presumption against the exercise of federal jurisdiction, and uncertainties as to removal are resolved in favor of remand." Id. (citations and quotations omitted); see also, e.g., Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) ("Defendant's right to remove and plaintiff's right to choose his forum are not on equal footing . . . removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand."); Beasley Forest Prods., Inc. v. N. Clearing, Inc., 515 F. Supp. 3d 1367, 1376 (S.D. Ga. 2021) ("To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff.") (citation and quotations omitted).

B. Analysis

Plaintiff asks the Court to remand this case, because it contends that the Court lacks subject matter jurisdiction over its request for declaratory relief and an injunction pursuant to the 2020 amendment to the Georgia Constitution. [Dkt. 8-1 - Mot. to Remand, at 8-9]. In particular, Ga. Const. Art. I, § 2, ¶ V (b)(1) states:

Sovereign immunity is hereby waived for actions in the superior court seeking declaratory relief from acts of the state or any agency, authority, branch, board, bureau, commission, department, office, or public corporation of this state or officer or employee thereof or any county, consolidated government, or municipality of this state or officer or employee thereof outside the scope of lawful authority or in violation of the laws or the Constitution of this state or the Constitution of the United States. Sovereign immunity is further waived so that a court awarding declaratory relief pursuant to this Paragraph may, only after awarding declaratory relief, enjoin such acts to enforce its judgment. Such waiver of sovereign immunity under this Paragraph shall apply to past, current, and prospective acts which occur on or after January 1, 2021.

Plaintiff focuses on the first sentence of that amendment, which waives sovereign immunity for actions in the superior court and contends that such language effectively divests this Court of subject matter jurisdiction since Defendants will be able to raise the sovereign immunity defense here. [Id.]. Defendants disagree, contending that by removing the case against them to federal court, they have waived the superior court limitation of the constitutional amendment. [Dkt. 9 - Opp. Br., at 3]. Alternatively, if the Court finds that it does not have jurisdiction over Plaintiff's state law claims, Defendants argue that "the proper remedy is to sever the state law claims and remand them to superior court and leave the federal law claim pending in this Court." [Id.].

First, the Court notes that very few cases have interpreted and applied Ga. Const. Art. I, § 2, ¶ V (b)(1). This makes sense, given that it was only enacted a few years ago and only applies to actions that occurred on or after January 1, 2021.

The only case the Court has found that substantively discusses and engages with the amendment is Crisp v. Georgia, 2022 WL 3589673 (11th Cir. Aug. 23, 2022), which Plaintiff also cites. In Crisp, the district court dismissed the plaintiff's claims against state and county officials on the basis of sovereign immunity and Eleventh Amendment immunity. Id. at *2. The plaintiff appealed, arguing in relevant part that the recent constitutional amendment waived sovereign immunity. Id. at *3. The Eleventh Circuit rejected his argument, noting that none of the...