Blackburn v. Dare Cnty.

486 F.Supp.3d 988

Joseph E. BLACKBURN, Jr., and wife, Linda C. Blackburn, and all similarly situated individuals, Plaintiffs,

v.DARE COUNTY, the Towns of Duck, Southern Shores, Kitty Hawk, Kill Devil Hills, Nags Head, and Manteo, Defendants.

NO. 2:20-CV-27-FL

United States District Court, E.D. North Carolina, Northern Division.

Signed September 15, 2020

Lloyd Clifton Smith, Jr., Lloyd Clifton Smith, III, Pritchett & Burch PLLC, P. O. Drawer 100, 101 Lawyers Lane, Windsor, NC 27983, 252-794-3161 ext 245, Fax: 252-794-2392, Email: lsmith@windsorlaw.com, Stuart W. Yeoman, Corey A. Finn, Finn & Yeoman, 401 West Main Street, Suite 1702, Louisville, KY 40202, 502-694-0565, Fax: 502-498-5267, Email: wade@fyattorneys.com, for Plaintiffs.

Brian F. Castro, Christopher J. Geis, Womble Bond Dickinson (US) LLP, One West Fourth Street, Winston-Salem, NC 27101, 336-747-6635, Fax: 336-726-6935, Email: brian.castro@wbd-us.com, for Defendant Dare County.

Clay Allen Collier, Norwood P. Blanchard , III, Crossley McIntosh Collier Hanley & Edes, PLLC, 5002 Randall Parkway, Wilmington, NC 28403, 910-762-9711, Fax: 251-0446, Email: clayc@cmclawfirm.com, for Defendants Town of Nags Head, Town of Duck, Town of Kill Devil Hills, Town of Manteo, Town of Kitty Hawk, Town of Southern Shores.

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter comes before the court on defendant Dare County's ("County") motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (DE 23). This matter also comes before the court on defendant Towns of Nags Head, Duck, Kill Devil Hills, Manteo, Kitty Hawk, and Southern Shore's (collectively, "Towns") motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.¹ (DE 25). The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendants’ motions are granted.

STATEMENT OF THE CASE

Pursuant to 42 U.S.C. § 1983, plaintiffs commenced the instant action on May 15, 2020, asserting defendants unlawfully took their private property without just compensation by banning them from entering the county during a state of emergency, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs assert their claims individually and on behalf of similarly situated persons. On June 24, 2020, defendant County filed the instant motion to dismiss, asserting no compensable taking occurred. Defendant Towns filed their motion to dismiss approximately one week later, asserting plaintiffs lack standing to sue them for a taking under the Fifth and Fourteenth Amendments.

STATEMENT OF FACTS

The facts alleged in the complaint may be summarized as follows. Plaintiffs are residents of Richmond, Virginia. (Compl. ¶ 3). Defendants are various bodies politic, created and existing under the laws of the State of North Carolina. (Id. ¶ 5). On July 22, 2013, plaintiffs acquired in fee simple a tract or parcel of land in the City of Frisco, Atlantic Township, Dare County, North Carolina, with a vacation home situated thereon, by deed recorded in Book 1936, Page 71 in the Office of the Register of Deeds of Dare County.² (Id. ¶¶ 4, 16). On March 16, 2020, defendant County declared a state of emergency due to the unprecedented public health crisis posed by COVID-19, which plaintiffs allege it has a right to do. (Id. ¶ 9; Emergency Decl. (DE 1-1) at 1–2). The next day, defendant County issued a declaration prohibiting mass gatherings and prohibiting nonresident visitors from entering the county. (Compl. ¶ 10; Nonresident Visitor Travel Restriction (DE 1-2) at 1–2).

Effective March 20, 2020, defendant County imposed an additional restriction prohibiting nonresident property owners, such as plaintiffs, from entering the county. (Compl. ¶ 11; Nonresident Property Owner Travel Restriction (DE 1-3) at 1–2). Workers with an entry permit, county residents, and citizens of immediately adjoining counties were not prohibited from entering the county.³ (Id. ¶¶ 12–13). The travel restriction prohibiting entry of nonresident property owners was partially lifted on Monday, May 4, 2020, again partially lifted on May 6, 2020, and then completely lifted on May 8, 2020. (Id. ¶ 14).

COURT'S DISCUSSION

A. Defendant Towns’ Motion to Dismiss (DE 25)

1. Standard of Review

A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant raises a "facial challenge[ ] to standing that do[es] not dispute the jurisdictional facts alleged in the complaint," the court accepts "the facts of the complaint as true as [the court] would in context of a Rule 12(b)(6) challenge." Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018). When a defendant challenges the factual predicate of subject matter jurisdiction, a court "is to regard the pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving party in such case "must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Id.

2. Analysis

The United States Constitution extends the subject matter jurisdiction of the federal judiciary to "cases" or "controversies." U.S. Const. art. III, § 2, cl. 1. "Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "To establish Article III standing, the plaintiff seeking compensatory relief must have ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ " Town of Chester, N.Y. v. Laroe Estates, Inc., ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) (quoting Spokeo, 136 S. Ct. at 1547 ); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "Absent such a showing, exercise of [ ] power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation." Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

"[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (internal quotations and citations omitted). "That a suit may be a class action ... adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’ " Lewis v. Casey, 518 U.S. 343, 357, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal citations omitted).

The challenged regulation, which prohibited travel to the county by nonresident property owners, was promulgated by defendant County. (Compl. ¶ 11; Nonresident Property Owner Travel Restriction (DE 1-3) at 1–2); see N.C. Gen. Stat. § 166A-19.31(a) (allowing the chair of the county board of commissioners to promulgate prohibitions and restrictions on behalf of the county). Although the court reasonably can infer from the allegations that defendant Towns joined in and consented to the nonresident property owner travel restriction, (see Emergency Decl. (DE 1-1) at 1 (evidencing defendant Towns’ consent to the emergency declaration and restrictions therein); Nonresident Property Owner Travel Restriction (DE 1-3) at 1 (imposing additional restrictions pursuant to the emergency declaration)), plaintiffs allege that they are "non-resident property owners of a tract or parcel of land in the City of Frisco, Atlantic Township, Dare County, North Carolina." (Compl. ¶ 16). As plaintiffs’ loss of use of their property pursuant to defendant County's regulation is not "fairly traceable" to defendant Towns’ consent to apply the county's emergency declaration and accompanying restrictions to their respective jurisdictions, see N.C. Gen. Stat. § 166A-19.22(b), plaintiffs lack standing to sue defendant Towns. See Spokeo, 136 S. Ct. at 1547.

Plaintiffs argue they have standing to assert their class claims against defendant Towns because other, unspecified putative class members’ claims against defendant Towns would form a "juridical link" with defendant County. (Pl. Resp. (DE 32) at 6). The "juridical link" doctrine, which applies to Rule 23 of the Federal Rules of Civil Procedure, "assume[s] the presence of standing." La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 464 (9th Cir. 1973). The doctrine does not cure plaintiffs’ lack of standing under Article III of the Constitution. See, e.g., Wong v. Wells Fargo Bank N.A., 789 F.3d 889, 896 (8th Cir. 2015) ; Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62–66 (2d Cir. 2012) ; Thompson v. Bd. of Educ. of Romeo Cmty. Sch., 709 F.2d 1200, 1204–06 (6th Cir. 1983). Accordingly, defendant Towns’ motion to dismiss is granted for lack of subject matter jurisdiction.

B. Defendant County's Motion to Dismiss (DE 23)

1. Standard of Review

"To survive a motion to dismiss" under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S....