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finding subcontractor and contractor "undoubtedly in privity" for purposes of res judicata and barring subsequent litigation
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CIVIL ACTION FILE NO. 3:19-cv-184-TCB
2020-05-28
Cathy E. CROSSON, Plaintiff, v. CARROLLTON CITY SCHOOL DISTRICT, Mark Albertus, and RA-LIN and Associates, Defendants.
Cathy E. Crosson, Carrollton, GA, pro se. Charles David Mecklin, Jr., Richard G. Tisinger, Jr., Tisinger Vance, P.C., Carrollton, GA, Jason Digges Darneille, Gower Wooten & Darneille, LLC, Atlanta, GA, for Defendants Carrollton City School District, Mark Albertus. Keith Martin Kodosky, Lewis Brisbois Bisgaard & Smith, LLP, Atlanta, GA, for Defendant RA-LIN and Associates.
Cathy E. Crosson, Carrollton, GA, pro se.
Charles David Mecklin, Jr., Richard G. Tisinger, Jr., Tisinger Vance, P.C., Carrollton, GA, Jason Digges Darneille, Gower Wooten & Darneille, LLC, Atlanta, GA, for Defendants Carrollton City School District, Mark Albertus.
Keith Martin Kodosky, Lewis Brisbois Bisgaard & Smith, LLP, Atlanta, GA, for Defendant RA-LIN and Associates.
ORDER
Timothy C. Batten, Sr., United States District Judge
This case comes before the Court on the motion [19] to dismiss the amended complaint filed by Defendant RA-LIN and Associates. Also before the Court is RA-LIN's motion [13] to dismiss the original complaint, the motion [8] to dismiss the original complaint filed by Defendants Carrollton City School District (CCSD) and Mark Albertus, Plaintiff Cathy Crosson's motion [14] for leave to file opposition to RA-LIN's original motion to dismiss, and her motion [29] for leave to file oversized memorandum.
I. Background
Plaintiff Cathy Crosson is domiciled in Indiana, but resides part-time with her mother in Carrollton, Georgia. This action arises out of activity at Carrollton High School, which she alleges has rendered her home in Carrollton "essentially unlivable" due to excessive noise, lights, and other nuisances created by the school. [16] ¶ 18.
Crosson contends that the alleged nuisances from the high school began in 2006 and have continued in subsequent years to deprive her of the quiet enjoyment of her home. In 2014, she contacted Defendant Albertus, then principal of the high school, to express her concerns. In 2015, construction on a new school building began and the nuisance intensified.
At the motion-to-dismiss stage, Crosson's well-pled allegations are taken as true.
In June 2016, the nuisance reached a "tipping point" when a tree buffer that muffled noise and light pollution from the school's stadium was clear-cut. McIntyre Lumber, a subcontractor hired by Defendant RA-LIN and Associates, removed the tree buffer.
In April 2017, Crosson filed an ante litem notice with CCSD. That same month, she filed suit in the Superior Court of Carroll County against McIntyre Lumber. She alleged that McIntyre's negligent removal of the trees exacerbated the existing nuisances caused by the "excessive noise, light pollution, and visual blight created by Carrollton High School." [31-1] at 27. She also alleged that the tree removal violated the Carrollton City Code, which requires that schools maintain a tree buffer that "provide[s] an effective visual screen." § 2.04.21(B)(2). The superior court granted summary judgment to McIntyre as to Crosson's initial and first amended complaints in October 2018.
Crosson did not reveal the existence of this suit in her original and amended complaints. She also failed to divulge it during the parties’ mandatory Rule 26(f) conference.
The court later dismissed the claims set forth in Crosson's second amended complaint—which alleged that McIntyre profited from the tree removal and was liable for unjust enrichment—for failure to state a claim.
In August 2017, Defendants erected a parking lot in the location formerly occupied by the tree buffer. Afterwards, Crosson filed suit in the Superior Court of Carroll County again, this time against CCSD. She alleged that CCSD was liable for maintaining a nuisance and that the conduct constituted a taking in violation of the Fifth Amendment. That suit was settled in November 2018.
On December 23, 2019, Crosson filed this suit against RA-LIN, CCSD, and Albertus. She alleges that the noise and light pollution from the school, which were exacerbated by the removal of the tree buffer, violate local ordinances and constitute a continuing nuisance. Accordingly, she has brought claims alleging (1) a taking of property rights in violation of the Fifth and Fourteenth Amendments; (2) nuisance per se; (3) statutory and common law nuisance; and (4) violations of O.C.G.A §§ 41-1-1, 41-2-2, and 41-2-3.
On January 13, 2020, CCSD and Albertus moved to dismiss Crosson's complaint; separately, RA-LIN moved to dismiss on January 31. After she filed an amended complaint, RA-LIN moved to dismiss the amended complaint, contending in part that her claims are barred by the Rooker-Feldman doctrine and estoppel. CCSD and Albertus filed a response [20] to the amended complaint contending that (1) the Court lacks subject-matter jurisdiction to hear Crosson's claims, and (2) the amended complaint fails to state a claim upon which relief can be granted. The Court will construe the response as a motion to dismiss the amended complaint and consider each argument raised by the parties below.
RA-LIN later adopts the arguments and legal authority cited in the brief filed by CCSD and Albertus.
In their response, CCSD and Albertus "reassert and incorporate by reference" their original motion to dismiss because they urge that Crosson's amended complaint "asserts differing facts ... but does not substantively change her cause of action or claim for relief." [20] at 1.
II. Legal Standard
A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) may either be "facial" or "factual." Morrison v. Amway Corp. , 323 F.3d 920, 924–45 n.5 (11th Cir. 2003). A facial attack is based on the allegations in the complaint alone, and a presumption of truth attaches to those allegations. Id. ; Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc. , 524 F.3d 1229, 1232–33 (11th Cir. 2008). Factual attacks, on the other hand, challenge subject-matter jurisdiction in fact, and the plaintiff bears the burden of proving that jurisdiction exists. Brown v. Cranford Transp. Serv., Inc. , 244 F. Supp. 2d 1314, 1317 (N.D. Ga. 2002). To resolve a factual attack, the Court may consider extrinsic evidence, including affidavits and testimony, and the presumption of truthfulness traditionally afforded to a plaintiff's allegations does not attach. See U.S. Aviation Underwriters, Inc. v. United States , 562 F.3d 1297, 1299 (11th Cir. 2009) (noting, however, that the court does still take the facts in the light most favorable to the plaintiff). "Ultimately, the plaintiff bears the burden of establishing subject-matter jurisdiction." Ishler v. Internal Revenue , 237 F. App'x 394, 395 (11th Cir. 2007) (internal citation omitted).
Under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Chandler v. Sec'y of Fla. Dep't of Transp. , 695 F.3d 1194, 1199 (11th Cir. 2012) (quoting id. ). The Supreme Court has explained this standard as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ); see also Resnick v. AvMed, Inc. , 693 F.3d 1317, 1324–25 (11th Cir. 2012).
Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are "enough to raise a right to relief above the speculative level ...." Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955 (citations omitted). "[A] formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955 (citation omitted). While all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas , 643 F.3d 1300, 1302 (11th Cir. 2011), the Court need not accept as true the plaintiff's legal conclusions, including those couched as factual allegations, Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires two steps: (1) eliminate any allegations in the pleading 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." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.
III. Discussion
A. RA-LIN's Motion to Dismiss Pursuant to Either Rooker-Feldman or Estoppel
1. The Rooker-Feldman Doctrine
RA-LIN argues that Crosson's amended complaint should be dismissed for lack of jurisdiction pursuant to the Rooker-Feldman doctrine.
"The Rooker-Feldman doctrine places limits on the subject-matter jurisdiction of federal district courts and courts of appeal over certain matters related to previous state court litigation." Goodman ex rel. Goodman v. Sipos , 259 F.3d 1327, 1332 (11th Cir. 2001) (citing Rooker v. Fid. Tr. Co. , 263 U.S. 413, 415–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and D.C. Ct. App. v. Feldman , 460 U.S. 462, 476–82, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ). It "provides that federal courts, other than the United States Supreme Court, have no authority to review the final judgments of state courts." Id. (quoting Siegel v. LePore , 234 F.3d 1163, 1172 (11th Cir. 2000) (en banc)).
The Rooker-Feldman doctrine "extends not only to constitutional claims presented or adjudicated by a state court, but also to claims that are ‘inextricably intertwined’ with a state court judgment." Siegel , 234 F.3d at 1172 (quoting Feldman , 460 U.S. at 482 n.16, 103 S.Ct. 1303, and Dale v. Moore , 121 F.3d 624, 626 (11th Cir. 1997) ). "A federal claim is inextricably intertwined with a state court judgment ‘if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.’ " Siegel , 234 F.3d at 1172 (quoting Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring)).
Although Rooker-Feldman "is broad enough to bar all federal claims which were, or should have been, central to the state court decision," Goodman , 259 F.3d at 1333, the Supreme Court has since limited the doctrine to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the federal district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 281, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).
Thus, "[a] claim that at its heart challenges the state court decision itself—and not the statute or law which underlies that decision—falls within the doctrine." May v. Morgan Cty. , 878 F.3d 1001, 1005 (11th Cir. 2017) (internal quotation marks omitted). If the federal litigant is not seeking reversal of the state court decision itself, on the other hand, then the doctrine does not apply. See Target Media Partners v. Specialty Mktg. Corp. , 881 F.3d 1279, 1285 (11th Cir. 2018) ("Consistent with the directions of the Supreme Court, we now apply Rooker-Feldman to bar only those claims asserted by parties who have lost in state court and then ask the district court, ultimately, to review and reject a state court's judgments.") (citing Nicholson v. Shafe , 558 F.3d 1266, 1274 (11th Cir. 2009) ).
Applying that framework to the facts at bar, Crosson claimed in her suit against McIntyre Lumber that "Defendant's removal of the tree buffer is in clear and continuing violation of the Carrollton City Code, 2.04.21(B)(2)." [31-1] ¶ 6. She also urged that "[o]n a continuing basis, removal of the tree buffer has greatly increased the severe and continuing nuisance afflicting Plaintiff ... particularly in terms of noise, light pollution, and now the visual blight of the high school parking lot." Id. ¶ 8. Finally, she contended that continuing nuisances stemming from the school "have been, and will continue to be, to the considerable detriment of Plaintiff's quiet enjoyment of her home, her peace and quality of life, and the value of her home." Id. ¶ 10.
The superior court granted summary judgment to McIntyre. It found that McIntyre could not be held liable as a subcontractor because it did not act negligently. Separately, the court also found that "a ‘mere violation of an ordinance does not create a private nuisance.’ " [31-1] at 11 (quoting Jillson v. Barton , 139 Ga.App. 767, 229 S.E.2d 476, 478 (1975) ).
Here, Crosson seeks relief pursuant to four claims: (1) the taking of property rights in violation of the Fifth and Fourteenth Amendments; (2) violations of O.C.G.A. §§ 41-1-1, 41-2-2, and 41-2-3 ; (3) the existence of a nuisance per se (arising out of violations of local ordinances); and (4) the existence of statutory and common law nuisances.
Because the superior court specifically held that violation of a local ordinance could not give rise to a private nuisance claim, Crosson's third claim for relief here—that Defendants’ conduct is a nuisance per se—would invite review and rejection of that decision. See Casale v. Tillman , 558 F.3d 1258, 1260 (11th Cir. 2009) (finding that federal claims are barred if success on that claim would "effectively nullify" the state court's judgment); see also Atl. Coast Line Co. v. Bhd. of Locomotive Eng'rs , 398 U.S. 281, 296, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970) ("Lower federal courts possess no power whatever to sit in direct review of state court decisions."). Accordingly, the Court lacks jurisdiction to consider her third claim for relief. It will be dismissed.
Because Rooker-Feldman bars this Court from exercising jurisdiction over Crosson's third claim, it will be dismissed as to all Defendants even though CCSD and Albertus did not join RA-LIN's motion.
Crosson's remaining claims, on the other hand, do not require that this Court directly review the judgment entered in the superior court. They challenge the Defendants’ underlying conduct—the continuing nuisance at the high school—and not the state court's ruling itself. Such claims are not so inextricably intertwined with the state court judgment that they are barred by Rooker-Feldman . See Exxon , 544 U.S. at 293, 125 S.Ct. 1517 ("If a federal plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion."); see also Brown v. R.J. Reynolds Tobacco Co. , 611 F.3d 1324, 1330 (11th Cir. 2010) (distinguishing a claim seeking relief from a state court judgment from a claim seeking relief from the underlying conduct giving rise to the litigation); Garry v. Geils , 82 F.3d 1362, 1367 (7th Cir. 1996) (explaining that "injury due to a state court decision remains the essential inquiry in determining whether Rooker-Feldman applies"); Akuna Matata Inv., Ltd. v. Tex. Nom Ltd. P'ship , No. SA-05-CA-1053-RF, 2006 WL 485149, at *1 (W.D. Tex. Jan. 13, 2006) (finding that Rooker-Feldman did not apply because the plaintiff was not "attack[ing] the state court judgment itself as violating any law. At the most, Plaintiff tries to relitigate claims (claims of injuries not caused by the state court itself, but by extrajudicial wrongdoers) that it already brought in the state court"). Accordingly, Rooker-Feldman does not bar the Court from asserting jurisdiction over Crosson's first, second, or fourth claims for relief.
2. Estoppel
Separate from Rooker-Feldman , "a federal court may be bound to recognize the claim- and issue-preclusive effects of a state-court judgment." Exxon Mobil , 544 U.S. at 293, 125 S.Ct. 1517 ; see also Garry , 82 F.3d at 1365–66 ("If the injury alleged is distinct from that judgment, i.e., the party maintains an injury apart from the loss in state court and not ‘inextricably intertwined’ with the state judgment ... res judicata may apply, but Rooker-Feldman does not."). This is because
res judicata and preclusion are founded upon the Full Faith and Credit Statute ... which requires federal courts to give state court judgments the same effect that the rendering state would, [whereas] Rooker-Feldman is based on the separate principle that only the Supreme Court has appellate jurisdiction over the civil judgments of state courts.
Garry , 82 F.3d at 1365.
Here, Crosson seeks redress for the continuing nuisances stemming from conduct at the high school. Because she sought similar relief in her superior court case against McIntyre Lumber and the superior court rejected her claims, this Court may be bound to give that decision preclusive effect if the requisite elements of res judicata are met.
The Eleventh Circuit has found that,
In order for the doctrine of res judicata to bar a subsequent suit, four elements must be present: (1) there must be a final judgment on the merits, (2) the decision must be rendered by a court of competent jurisdiction, (3) the parties, or those in privity with them, must be identical in both suits[,] and (4) the same cause of action must be involved in both cases.
I.A. Durbin, Inc. v. Jefferson Nat'l Bank , 793 F.2d 1541, 1549 (11th Cir. 1986) (citations omitted).
Here, there is no question that the first two requirements are met by the superior court's order granting summary judgment.
The third element requires that the parties—or those in privity with them—be identical. This is because "a nonparty to a prior decision cannot be bound by it unless he had sufficient identity of interest with a party that his interests are deemed to have been litigated." Herman v. S.C. Nat'l Bank , 140 F.3d 1413, 1424 (11th Cir. 1998) (quoting In re Birmingham Reverse Discrimination Emp't Litig. , 833 F.2d 1492, 1498 (11th Cir. 1987) ).
McIntyre, who was hired by RA-LIN as its subcontractor, is undoubtedly in privity with RA-LIN. See Caswell v. Caswell , 162 Ga.App. 72, 290 S.E.2d 171, 172 (1982) ("If a defendant's responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel") (internal quotations omitted).
As to the fourth element, "[i]t is now said, in general, that if a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, that the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata." Ragsdale v. Rubbermaid, Inc. , 193 F.3d 1235, 1239 (11th Cir. 1999) (quoting Citibank, N.A. v. Data Lease Fin. Corp. , 904 F.2d 1498, 1503 (11th Cir. 1990) ); see also Coen v. CDC Software Corp. , 304 Ga. 105, 816 S.E.2d 670, 675 (2018) (defining a cause of action as "the entire set of facts which give rise to an enforceable claim ... with special attention given to the wrong alleged").
Here, Crosson claims that she has suffered from continuous nuisances due to noise and light pollution exacerbated by the school's construction and removal of the tree buffer, all of which violated local ordinances. See [16] ¶ 55 ("Most nuisance effects continue unabated, with noise and light pollution, visual blight, traffic congestion, and unlawful parking."); ¶ 66 ("The Defendants have violated and continue to violate local ordinances – to wit, the CCO noise ordinances and provisions requiring that schools maintain an adequate tree buffer ... in a manner directly causing nuisance ...").
In her suit against McIntyre Lumber, Crosson brought claims arising out of the same underlying conduct. See [31-1] at 27 ¶ 10 ("On a continuing basis, removal of the tree buffer has greatly increased the severe and continuing nuisance ... particularly in terms of noise, light pollution, and now the visual blight of the high school parking lot ..."); 33 ¶ 12 ("We are now exposed to constant construction noise beginning at 7 a.m. daily, followed by the noise, excessive light, and intense traffic attending use of the stadium on an almost-nightly basis and on weekends – all without any mitigation of the legally required tree buffer.").
Crosson cannot avoid res judicata by "recasting ... the same alleged conduct" in a different light. Crowe v. Elder , 290 Ga. 686, 723 S.E.2d 428, 430–31 (2012) (finding that a party cannot avoid res judicata by filing a breach-of-contract action after losing an earlier suit for fraud where both relied on the same allegations of misconduct); see also Manning v. City of Auburn , 953 F.2d 1355, 1358–59 (11th Cir. 1992) ("Res judicata applies not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the same operative nucleus of fact.") (internal quotations omitted); Dalton Paving & Constr., Inc. v. S. Green Constr. of Ga., Inc. , 284 Ga.App. 506, 643 S.E.2d 754, 756 (2007) (holding that a new cause of action is barred by res judicata "even if some new factual allegations have been made" or "some new relief has been requested").
The fact that Crosson now seeks relief pursuant to 42 U.S.C. § 1983 does not defeat application of the res judicata doctrine. See Endsley v. City of Macon , 321 F. App'x 811, 813 (11th Cir. 2008) (" Section 1983 ... does not override state preclusion law and guarantee petitioner a right to proceed to judgment in state court on [her] state claims and then turn to federal court for adjudication of [her] federal claims.") (quoting Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 85, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) ).
If, on the other hand, the noise and light from the high school constitute a series of continuing nuisances (as Crosson alleges), then res judicata does not apply. This is because a continuing nuisance is comprised of distinct "alleged wrongs" that continuously give rise to new causes of action. See City of Atlanta v. Kleber , 285 Ga. 413, 677 S.E.2d 134, 134 (2009) (quoting Smith v. Dallas Utility Co. , 27 Ga.App. 22, 107 S.E. 381, 382 (1921) ("[E]very continuance of a nuisance not permanent and which can and should be abated is a fresh nuisance for which a new action will lie.")).
Whether the activity at the high school constitutes a series of continuing nuisances is a close call. Georgia courts are not uniform in their distinction between permanent and continuing nuisances. Compare Camp v. Warrington , 227 Ga. 674, 182 S.E.2d 419, 420 (1971) (noting that the construction and operation of an airport constituted a continuing nuisance); with City Council of Augusta v. Lombard , 101 Ga. 724, 28 S.E. 994, 994 (1897) (citing Chi. & E.I.R.R. Co. v. McAuley , 121 Ill. 160, 11 N.E. 67 (1887) (concluding that construction and operation of a railroad, which caused vibrations and noise on neighboring landowner's property, was a permanent nuisance)).
Indeed, Georgia courts have found that "[t]he distinction between a permanent nuisance and a continuing nuisance has been referred to as ‘one of the most baffling areas of the law.’ " Provident Mut. Life Ins. Co. v. City of Atlanta , 864 F. Supp. 1274, 1285 (N.D. Ga. 1994) (quoting Spain v. City of Cape Girardeau , 484 S.W.2d 498, 503 (Mo. Ct. App. 1972) ). Thus, "the distinction a court employs seems to turn most often on how best to accomplish a desired result in a given case." Id.
Courts in other jurisdictions have similarly acknowledged that there is "no such generally accepted rule" and "the question of how to differentiate between permanent and continuing trespasses and nuisance has vexed and perplexed ... courts for over a century." Cook v. Rockwell Int'l Corp. , 358 F. Supp. 2d 1003, 1008 (D. Colo. 2004) ; see also Schneider Nat'l Carriers, Inc. v. Bates , 147 S.W.3d 264, 284–88 (Tex. 2004) ; Charles T. McCormick, Damages for Anticipated Injury to Land , 37 HARV. L. REV . 574, 580 (1924) (finding that the law distinguishing between continuing and permanent property invasions is marred by "irreconcilable contradiction and hopeless confusion").
This Court finds solace in guidance from the Georgia Supreme Court, which has explained that
[w]here, by the maintenance of a structure on his own land or by act and operations thereon, a person causes continuing or recurrent tortious invasions of the land of another, the other is entitled to recover for future violations if, and only if, it appears that (a) the situation will continue indefinitely and (b) it is incident to (i) an enterprise affected with a public interest, the operation of which as presently operated will not be enjoined, or (ii) other enterprises if the injured person so elects.
Cox v. Cambridge Square Towne Houses, Inc. , 239 Ga. 127, 236 S.E.2d 73, 74 (1977).
Since then, lower Georgia courts have clarified that even if a nuisance is theoretically abatable such that it might be considered to be continuing, if it is "created ‘by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation’ of some infrastructure employed in necessary public service, ‘then it will usually not be abatable by injunction.’ " Stroud v. Hall Cty. , 339 Ga.App. 37, 793 S.E.2d 104, 109 (2016) (quoting Oglethorpe Power Corp. v. Forrister , 289 Ga. 331, 711 S.E.2d 641, 641 (2011) ).
The Court finds it significant that this approach comports with § 930 of the Restatement of Torts, which guides the treatment of nuisances created by entities serving the public by providing that
Damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in necessary public service .... [I]f the invasions are caused by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation, then it will usually not be abatable by injunction.
RESTATEMENT ( SECOND ) OF TORTS § 930, cmt. c.
In light of the foregoing, the Court finds it is appropriate under the circumstances to treat the alleged nuisances as permanent. The construction at Carrollton High School is incident to an enterprise intimately connected to a public interest: the public education of school-age children in Carrollton. Abatement of the entire construction project at the high school would require great expense and result in significant disruption, even if desired and feasible. And the Court surmises that nothing short of complete abatement of the construction project would suffice to ease Crosson's concerns, given her denunciation of the high school's previous efforts to mitigate noise and light pollution. See [16] ¶ 51, 52 (claiming that even after the school district replaced the stadium speakers, "the noise from the stadium ... is still loudly audible and disturbing even inside of homes").
These facts are similar to those in Bainbridge Power Co. v. Ivey , 41 Ga.App. 193, 152 S.E. 306, 306 (1930), where abatement would have required great expense and disruption to a public use, would not be feasible or practicable, could not be resorted to by the defendant without great expense and inconvenience, and where it appeared that the defendant had no intention of resorting to the proposed method of abatement. (Citing Cent. Ga. Power Co. v. Stubbs , 141 Ga. 172, 80 S.E. 636, 636 (1913) ). Federal courts have since relied on Bainbridge in finding that a nuisance was permanent where abatement "would not be ‘feasible or practicable,’ would cause ‘great expense and inconvenience’ for the owners and might not be fully successful." Provident , 864 F. Supp. at 1286–87 (quoting Bainbridge , 152 S.E. at 306 ).
Moreover, Crosson alleges in her lengthy complaint that the "nuisance effects of Carrollton High School" have been felt since the 1980s, when "the School District saw fit to whittle that stand of trees to about half its original depth, replacing trees with an enlarged parking lot, leaving approximately a 45-50-foot buffer of mature trees, increasingly inadequate as traffic, light pollution, and noise mounted around the high school." [16] at 6. Because she urges that she has suffered from these alleged nuisances for approximately fifty years, it is appropriate to presume that they would continue indefinitely. See Bainbridge , 152 S.E. at 306 (concluding that "[a] permanent nuisance is not necessarily one which can never, under any circumstances, be abated; but it is one whose character is such that, from its nature and under the circumstances of its existence it presumably will continue indefinitely").
Accordingly, the Court finds it inappropriate to require Defendants to abate the alleged nuisance. Doing so comports with the decisions of federal courts in other jurisdictions. See Cook , 358 F. Supp. 2d at 1011 ("The most common and accepted application of the permanent trespass and nuisance concept to ongoing intrusions has been in cases in which the intrusion is necessary to the operation of a public utility or other socially beneficial structure intended to be permanent."); see also Hoery v. United States , 64 P.3d 214, 220 (Colo. 2003) (en banc) (finding that the "only exception" to the continuing nuisance doctrine is "where the property invasion will and should continue indefinitely because defendants, with lawful authority, constructed a socially beneficial structure intended to be permanent"); Spaulding v. Cameron , 38 Cal.2d 265, 239 P.2d 625, 628 (1952) ("The clearest case of a permanent nuisance or trespass is the one where the offending structure or condition is maintained as a necessary part of the operations of a public utility ... [because] if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions").
Because the nuisances arising out of activity at the school are permanent, Crosson is limited to filing one cause of action for the recovery of past and future damages. She has already done so. Accordingly, she is barred by the doctrine of res judicata from asserting her remaining claims against RA-LIN. Those claims will be dismissed as to RA-LIN.
Defendants CCSD and Albertus did not join in RA-LIN's motion to dismiss pursuant to Rooker-Feldman or res judicata. Accordingly, the Court will not consider the availability of this defense to either of those Defendants.
B. Defendants’ Joint Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Although RA-LIN moved separately to contest jurisdiction based on Rooker-Feldman and res judicata, it joined CCSD and Albertus in challenging subject-matter jurisdiction over Crosson's Fifth Amendment takings claim.
1. Subject-Matter Jurisdiction over Crosson's Fifth Amendment Takings Claim
Separate from RA-LIN's motion to dismiss based on Rooker-Feldman and res judicata, Defendants collectively allege that the Court lacks subject-matter jurisdiction to hear Crosson's Fifth Amendment takings claim. They urge that such a claim is ripe for adjudication in federal court only where the local government "has ‘denie[d] all economically beneficial or productive use of’ [its] property," Agripost, Inc. v. Miami-Dade Cty. , 195 F.3d 1225, 1231 (11th Cir. 1999) (alteration in original), and that she has not alleged such a denial here.
Crosson responds that "complete deprivation of use is not required where the alleged taking is of the non-regulatory, physical-invasion type." [27] at 3 (citing Knick v. Twp. of Scott , ––– U.S. ––––, 139 S. Ct. 2162, 204 L.Ed.2d 558 (2019) ). She urges that because her claims are based on the physical invasion of her property rather than denial of its economic or productive use, she need not allege that the taking amount to a complete deprivation of use.
There are two primary types of conduct that give rise to a Fifth Amendment takings claim. "A physical taking is the ‘paradigmatic taking’ and occurs when a government directly appropriates or physically invades private property." Serpentfoot v. Rome City Comm'n , 322 F. App'x 801, 805 (11th Cir. 2009) (citing Lingle v. Chevron U.S.A., Inc. , 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) ). A regulatory taking, on the other hand, "occurs when the government passes a regulation pursuant to its police power which has the effect of depriving a landowner of all economically beneficial use of her land." Id. (citing Lucas v. S.C. Coastal Council , 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) ).
Stating a claim for a regulatory taking requires that the plaintiff allege that the government's act deprived her of "all economically beneficial or productive use of [her] property." Agripost , 195 F.3d at 1231. To state a claim for a physical taking, on the other hand, the plaintiff need only allege that the taking "compel[led] the property owner to suffer a physical invasion of his property." Oden, LLC v. City of Rome , 707 F. App'x 584, 588 (11th Cir. 2017). A physical invasion is thus actionable regardless of scale. See Cedar Point Nursery v. Shiroma , 923 F.3d 524, 530–31 (9th Cir. 2019) (finding that permanent physical invasions of property are compensable, "however minor").
Until recently, a plaintiff alleging either type of taking was also required to allege that no state remedy was available or that "due to state court interpretation, the process is inadequate." Oden , 707 F. App'x at 588 (quoting Agripost , 195 F.3d at 1231 ). However, the Supreme Court recently established a new rule in Knick , 139 S. Ct. at 2167, holding that a plaintiff bringing a Fifth Amendment takings claim need not seek compensation in state court before asking a federal court to review the taking.
To be sure, Knick does not eliminate the basic requirement that a taking must occur. See Dalewood Holding LLC v. City of Baldwin Park , No. 2:19-cv-1212-SVW, 2019 WL 7905901, at *4 (C.D. Cal. Oct. 17, 2019) (finding that Knick "rearranged the landscape for when a Plaintiff may seek compensation for a taking[;] it did not alter the threshold requirement that a taking must actually occur").
Nevertheless, the Court finds that Crosson has sufficiently alleged the existence of a taking. Because she relies on the physical invasion prong of the Supreme Court's takings jurisprudence rather than the regulatory taking prong, she need not allege complete deprivation of use. And permanent physical occupations of real property—this Court having already determined that the alleged nuisances are of the permanent variety rather than continuing—constitute per se takings. See Pumpelly v. Green Bay & Miss. Canal Co. , 80 U.S. 166, 166, 13 Wall. 166, 20 L.Ed. 557 (1871).
Thus, Crosson has sufficiently alleged that a taking exists. Accordingly, the Court has federal question jurisdiction to hear her Fifth Amendment takings claim against CCSD and Albertus.
Even if the Court did not have federal question jurisdiction over Crosson's Fifth Amendment takings claim, diversity jurisdiction exists because she has sufficiently alleged that she is domiciled in Indiana such that the parties are diverse. See McCormick v. Aderholt , 293 F.3d 1254, 1257–58 (11th Cir. 2002) (finding that "[c]itizenship is equivalent to ‘domicile’ for purposes of diversity jurisdiction" and "[a] person's domicile is the place of his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom"). Moreover, she has also sufficiently alleged that the amount-in-controversy element is met. See St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (noting that "the sum claimed by the plaintiff controls if the claim is apparently made in good faith" and that "[the plaintiff] knows or should know whether [her] claim is within the statutory requirement as to amount"). Defendants have not sufficiently demonstrated that Crosson's claims are made in bad faith.
2. Subject-Matter Jurisdiction over Crosson's State Law Claims
Because the Court's jurisdiction is based on Crosson's federal § 1983 claim, the Court must determine whether it has supplemental jurisdiction over her state-law claims. 28 U.S.C. § 1367(a).
Section 1367 grants federal district courts supplemental jurisdiction over state-law claims "that are so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." This standard confers federal courts with supplemental jurisdiction over "all state claims which arise out of a common nucleus of operative facts with a substantial federal claim." Lucero v. Trosch , 121 F.3d 591, 597 (11th Cir. 1997). More fully explained, the exercise of supplemental jurisdiction is appropriate where the state and federal claims "arise from the same ... events" and "will involve the same witnesses, presentation of the same evidence, and determination of the same, or very similar, facts." Palmer v. Hosp. Auth. of Randolph Cty. , 22 F.3d 1559, 1563–64 (11th Cir. 1994).
The Court has subject-matter jurisdiction over Crosson's state-law claims because it has jurisdiction to hear her § 1983 claim as to CCSD and Albertus, and her state law claims form part of the same controversy. Accordingly, Crosson's first, second, and fourth claims for relief will not be dismissed for lack of subject-matter jurisdiction as to CCSD and Albertus.
C. Defendants’ Joint Motion to Dismiss for Failure to State a Claim for Relief
As a final matter, Defendants allege that Crosson has failed to state a claim for relief because the parties previously entered into a settlement agreement that released CCSD and Albertus from liability.
In response, Crosson urges that (1) CCSD and Albertus cannot rely on matters outside of the pleadings at the motion-to-dismiss stage; and (2) the settlement agreement does not apply to either declaratory and injunctive relief or damages liability beyond the date of the agreement.
"A court is generally limited to reviewing what is within the four corners of the complaint on a motion to dismiss." Hill for Credit Nation Capital, LLC v. Duscio , 292 F. Supp. 3d 1370, 1374 n.2 (N.D. Ga. 2018). However, a judge has some discretion to decide whether to consider matters outside of the pleadings. See Jones v. Auto. Ins. Co. of Hartford , 917 F.2d 1528, 1531–32 (11th Cir. 1990). Here, the Court finds it appropriate under the circumstances to consider the scope of the parties’ settlement agreement.
That agreement provides that
Upon receipt of the sum set forth [in the agreement], Crosson does hereby release and forever discharge School Board, Albertus and Selective Insurance, in their individual or representative capacities, from any and all actions, claims and demands, known or unknown, for liability for monetary damages incurred as of the date of this Release .... Nothing in this release shall prevent Crosson from maintaining a cause of action against the School Board for matters which may occur subsequent to the date of this release.
[8-2] at 11 (emphasis added).
As a general matter, "settlement agreements are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing lawsuits." Schafer Props. v. Tara State Bank , 220 Ga.App. 378, 469 S.E.2d 743, 746 (1996). And "[a] release or settlement agreement is a contract subject to construction by the court. It is governed by state law applicable to contracts in general." UniFund Fin. Corp. v. Donaghue , 288 Ga.App. 81, 653 S.E.2d 513, 515 (2007). Accordingly, when examining a settlement agreement, a court "must first decide if the language is clear and unambiguous, and, if it is, no construction is required, the court simply enforces the contract according to its plain terms." Citrus Tower Boulevard Imaging Ctr., LLC v. Owens , 325 Ga.App. 1, 752 S.E.2d 74, 81 (2013).
Here, the language of the agreement is plain and unambiguous. It does not bar Crosson from seeking injunctive or declaratory relief, and although it bars her from seeking damages from CCSD and Albertus through the date of the release, she is not barred from seeking future damages. It has no language suggesting that it was intended as an unambiguous release of all liability. Cf. Barnett v. Platz , 261 Ga.App. 51, 581 S.E.2d 682, 684 (2003) (finding that there was a general release of all liability where the contract language stated that it applied to "any and all obligations whatsoever"); Schafer , 469 S.E.2d at 746 ("The parties fully release and forever discharge each other from any and all ... liabilities of whatever kind or nature ....").
Accordingly, CCSD and Albertus are not entitled to prevail on their defense of release to the extent that Crosson seeks either declaratory or injunctive relief or money for damages sustained after November 2, 2018. Thus, Crosson has sufficiently stated a claim for relief. Defendants’ response [20] to the amended complaint, which the Court construes as a motion to dismiss the amended complaint, will be denied.
In their original motion to dismiss, CCSD and Albertus also briefly urge that the complaint should be dismissed for insufficient service of process because Crosson hand-delivered copies of the original complaint and summons. However, because they do not assert that amended complaint suffers from the same deficiency, the Court will not grant dismissal on this basis.
IV. Conclusion
Based on the foregoing, RA-LIN's motion [22] to dismiss is granted, and Crosson's claims are dismissed with prejudice as to RA-LIN. Crosson's third claim for relief is also dismissed as to CCSD and Albertus because the Court lacks jurisdiction to consider it. CCSD and Albertus's response [20] to the amended complaint is denied.
Finally, Crosson's motion [29] for leave to file oversized memorandum is granted and was considered in this order's analysis. CCSD and Albertus's motion [8] to dismiss the original complaint, RA-LIN's motion [13] to dismiss the original complaint, and Crosson's motion [14] for leave to file opposition are denied as moot.
IT IS SO ORDERED this 28th day of May, 2020.