Opinion
Case Nos.: 3:01cv394/RV/MCR and 3:02cv407/RV/MCR
February 26, 2003
ORDER
All of the defendants have filed a joint motion to dismiss the amended complaint (doc, 41) based on Federal Rule of Civil Procedure 12(b)(1) and 12(b)(2).
The defendants move, in the alternative, for summary judgment. Because there has been no discovery in this case, and the defendants have not yet answered the complaints, I treat the defendants' motion as a motion to dismiss. The grounds asserted by the defendants attack the sufficiency and timeliness of the complaints.
Plaintiff Bonne L. Pace, appearing pro se, brings this consolidated action for damages against defendants Gothard, Platt, Klar, and Lee (collectively, the "individual defendants"), all federal officials, in their individual capacities based on Bivens v. Six Unknown Agents of Federal Bureau of Narcotis, 403 U.S. 388, 91 So. Ct. 1999, 29 L.Ed.2d 619 (1971), and against the United States based on the Federal Tort Claims Act ("FTCA"), [ 28 U.S.C. § 2671, et. seq.]. Pace'sBivens claim asserts a "constitutional tort," namely, deprivation of her property without due process of law in violation of the Fifth Amendment, because the individual defendants sought forfeiture, in relation to her husband's criminal case, of her interest in property she held with her husband as tenants by entirety. Pace's FTCA claims allege intentional interference with contractual relationship, negligent hiring and supervision, respondeat superior liability for negligence of federal employees, and intentional infliction of emotional distress. The United States and the individual defendants now move to dismiss the complaint arguing that (1) this court lacks personal jurisdiction over the individual defendants, (2) the plaintiff's claims are barred by the applicable statute of limitations, and (3) the individual defendants are protected from suit by either absolute or qualified immunity. Because the statute of limitations is controlling, I need not address the other arguments raised by the defendants.
Pace originally filed all of her claims in Case No. 3:01cv394/RV. Without explanation, on September 30, 2002, Pace voluntarily dismissed all of her federal tort claims and, on the same day, refiled them separately in Case No. 3:02cv407/RV. This court, sua sponte, and with consent of the parties, consolidated the cases back together.
I. BACKGROUND
On March 19, 1997, a federal grand jury in the District of Arizona indicted Don Pace, plaintiff's husband, in an 81-count indictment. The indictment included a forfeiture count, pursuant to Title 18, United States Code, Section 982(a)(1), against Unit #202, Via Delfino, a condominium located in Naples (Collier County), Florida (the "Delfino property"). The indictment alleged that Don Pace had used $165,370.11 of commingled funds derived from mail fraud and wire fraud to purchase the Delfino property in 1993, in violation of the money laundering provisions of Title 18, United States Code, Section 1957. In January of 1997, the Paces had entered into a contract for the sale of the Delfino property and, also, into a contract for the purchase of a new home in Walton County, Florida, with a mailing address of 305 Pelican Circle, Panama City, Florida (the "Pelican Circle property"). On January 14, 1997, defendant Arch Gothard, a special agent with the Federal Bureau of Investigation ("FBI") in Tuscon, Arizona, sent a letter to the FBI office in Tampa, Florida, requesting that agents there initiate proceedings to forfeit the Delfino property. On March 20, 1997, the United States filed a lis pendens in Collier County, Florida, noticing that the Delfino property was subject to forfeiture. However, on April 4, 1997, the Government dismissed the criminal lis pendens and filed a civil complaint for forfeiture against the Delfino property, as well as a civil lis pendens. Don and Bonne Pace held title to the Delfino property as tenants by entirety.
The indictment charged conspiracy, mail fraud, wire fraud, money laundering, and tax violations.
The Government filed the civil lis pendens in Arizona on April 4, 1997, and in Collier County, Florida, on April 7, 1997, the same day that the Paces closed on the sale of the Delfino property. See United States v. James Daniel Good Real Property, 510 U.S. 43, 58, 114 S.Ct. 492, 503, 126 L.Ed.2d 490 (1993) (recognizing lis pendens as means for Government to secure legitimate interests without seizing property subject to forfeiture).
On April 7, 1997, the Paces closed on the sale of the Delfino property for $1,050,000, and had $596,262.20 of the proceeds wired to the escrow account of an attorney in Destin, Florida. The Paces instructed the attorney to hold these funds in escrow for the purchase of the Pelican Circle property. On April 16, 1997, in the District Court for the District of Arizona, the Government filed an ex parte motion for a restraining order and an accounting to protect its interest in the proceeds from the sale of the Delfino property. Along with the motion, defendant Gothard submitted an affidavit describing the status of the proceeds from the sale of the Delfino property and stating his belief that the proceeds were subject to forfeiture. On the same day, United States District Judge Frank Zapata granted the Government's motion, ordered an accounting, and restrained the disbursement of the funds held in the Destin attorney's escrow account.
Also, on April 16, 1997, a federal grand jury issued a superseding indictment against Don Pace correcting the money laundering charge to allege a violation of Title 18, United States Code, Section 1956(a)(1)(B)(i), and deleting the specific amount of commingled funds alleged to have been utilized. Count 79 alleged that Don Pace directed that proceeds from mail and wire fraud be wired to an account at First American Title Company for the purchase of the Delfino property in violation of Title 18, United States Code, Section 1956.
On April 30, 1997, Judge Zapata entered an order dissolving the prior restraining order as to the $596,262.20 held in the Destin attorney's escrow account "for the sole and exclusive purpose of permitting Pace and his spouse, Bonne Pace, to purchase the Pelican property." The order required that the Pelican Circle property be transferred to the Paces in fee simple absolute as tenants by the entirety and immediately upon transfer of title, that both Don Pace and Bonne Pace execute a promissory note for $596,262.20 and, as security, a first mortgage of the Pelican Circle property in favor of the United States, pending the resolution of the criminal case against Don Pace. The order stated that the execution of the note and mortgage by Don and Bonne Pace "shall not be construed as an admission or waiver of any right or defense pursuant to Federal or State law nor shall it be construed as a destruction of the tenancy by the entirety held by Don and Bonne Pace," The order also prohibited the Paces from encumbering or transferring the Pelican Circle property during the pendency of the criminal case. The note specified that it would be payable "up to the amount of funds that Donald H. Pace is ordered [to pay in the criminal and civil actions in Arizona]." On May 2, 1997, Don and Bonne Pace executed the promissory note and mortgage.
In accordance with the Arizona court order, the deed to the Pelican Circle property, the promissory note, the mortgage, and the April 30, 1997, order were recorded in Walton County, Florida, in May 1997. Plaintiff asserts that the only reasons she agreed to sign the promissory note and mortgage were duress and undue influence exerted upon her by Assistant United States Attorney Jon R. Cooper.
On May 17, 1999, Pace has filed an action for declaratory judgment in this court against the United States alleging that the promissory note and mortgage were invalid due to lack of consideration, duress, and undue influence and that the note and mortgage were obtained in violation of Pace's Fifth Amendment rights. In that case, Pace sought an order declaring that the note and mortgage were null and void, On December 15, 2000, the jury returned a verdict in Don Pace's criminal case finding him guilty of some of the counts in the indictment, but not guilty of the counts related to the forfeiture of the Pelican Circle property. Judge Zapata then ordered the Government to release its lien on the Pelican Circle property, which the Government did by executing a disclaimer of interest on January 9, 2001, which was eventually recorded in Walton County, Florida. Because the Government had disclaimed any interest in the Pelican Circle property, on March 12, 2001, I granted Bonne Pace judgment on the pleadings as to her declaratory judgment action, declaring the note and mortgage on the Pelican Circle property void. Nearly seven months later, on October 4, 2001, Pace filed her original complaint in this action. II. DISCUSSION
The defendants filed a motion to dismiss Pace's original complaint alleging similar grounds to the instant motion, and Pace subsequently filed an amended complaint, which she is permitted to do as a matter of course, prior to the defendants' filing of a responsive pleading. FED. R. CIV. PROC. 15(a). Because the defendants' motion to dismiss addressed the original complaint, not the amended complaint, I denied the motion as moot. (Doc, 35). I did not address the merits of the defendants' motion, which are now properly before the court on the motion to dismiss the amended complaint.
A. Lack of Subject Matter Jurisdiction — Statute of Limitations
The Government asserts that this court lacks jurisdiction over the plaintiff's FTC A claims because they are barred by the statute of limitations. Title 28, United States Code, Section 2401(b) provides, in relevant part, that, "A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." Because the Government's waiver of sovereign immunity for tort claims is conditioned upon the statute of limitations, the Section 2401(b) two-year statute of limitations is jurisdictional and cannot be waived. Flory v. United States, 138 F.3d 157, 158 (5th Cir. 1998); Krueger v. Saiki, 19 F.3d 1285, 1286 (8th Cir. 1994). On a motion to dismiss for lack of subject matter jurisdiction that attacks the factual basis for the existence of the court's jurisdiction, but does not implicate the merits of the plaintiff's case, a court may "weigh the evidence and satisfy itself as to the existence of its power to hear the case."Garcia v. Copenhaver, Bell Associates, M.D.'s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id.
There is no dispute that Pace did not submit her administrative tort claim to the IRS until August 27, 2001, and she did not file this action until October 4, 2001. The central issue is the date on which Pace's federal tort claims accrued. The Government contends that Pace's tort claims accrued, at the latest, on May 2, 1997. According to the Government, by that date, Pace was fully aware of the civil and criminal lis pendens noticing that the property and its proceeds were subject to forfeiture and had executed the note and mortgage in favor of the Government on the Pelican Circle property. Pace contends that the Government's conduct constituted a "continuing tort," tolling the limitations period until this court dissolved the note and mortgage on March 12, 2001.
Pace's FTCA claims originally filed on October 4, 2001, were actually voluntarily dismissed on September 30, 2002, and refiled the same day in another complaint which, as discussed above, was consolidated back into this case. For this motion, I consider the earlier filing date as determinative for statute of limitations purposes.
For both Bivens and FTCA claims, the question of when a cause of action accrues is a matter of federal law, Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). The general rule is that a cause of action accrues when the injury and the person who caused the injury are discovered or could have been discovered through reasonable diligence. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (applying discovery rule in § 1983 cases); United States v. Duke, 229 F.3d 627, 630 (7th Cir. 2000) (Opinion of Posner, J.) (discovery rule applied to wrongful forfeiture motions under Federal Rule of Criminal Procedure 41(e)). Pace concedes in the amended complaint that she became aware of the lis pendens filed in relation to the Delfino property on April 11, 1997, and that she signed the note and mortgage in favor of the Government on the Pelican Circle property on May 2, 1997. I find that Pace's tort claims accrued no later than May 2, 1997.
Pace's claim that the defendants' conduct constitutes a continuing violation, tolling the accrual of her claims, is without merit. The statute of limitations begins to run on the date an interest in property is wrongfully appropriated, Kittrell v. City of Rockwall, 526 F.2d 715 (5th Cir. 1976). Continuing deprivation of property wrongfully seized, without any further wrongful act, does not constitute a continuing violation that would toll the running of the statute of limitations. Schaefer v. Stack, 641 F.2d 227 (5th Cir. Unit B 1981); see also Perkins-Alexanderv. Sanchez, 2001 WL 877149 (7th Cir. June 18, 2001) (unpublished) (forfeiture of home in relation to criminal prosecution was a single injury and did not constitute continuing violation that would toll statute of limitations for Bivens claims). "A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation." Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981) (emphasis added);see also McCume v. Grand Rapids, 842 F.2d 903, 906-07 (6th Cir. 1988). Pace cites no acts by any defendant subsequent to May 2, 1997, that furthered her injury. Pace's prevention from accessing any equity in her interest in the Pelican Circle property was due to her failure to assert her claim of the illegality of any encumbrance of her interest in the property. Because the encumbrance of Pace's interest in the Pelican Circle property was a discrete event, the statute of limitations was not tolled due to a continuing violation. Because Pace did not present her tort claims prior to May 2, 1999, they are barred by the statute of limitations in Title 28, United States Code, Section 2401(b). Accordingly, the plaintiff's FTCA claims must be dismissed.
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit adopted the precedent of the former Fifth Circuit as binding precedent.
Judge Zapata's order requiring the execution of the note and mortgage expressly did not destroy the tenancy by entirety held by the Paces and provided that the note and mortgage should not be construed "as an admission or waiver of any right or defense pursuant to Federal or State law." The Eleventh Circuit decision upon which Pace relies for her allegation of the illegality of the encumbrance of her interest was in existence at that time, and Pace could have collaterally attacked the encumbrance of her interest without necessarily interfering with, or calling into question, her husband's criminal prosecution.
Pace has apparently abandoned her earlier argument that her husband's prosecution tolled the statute of limitations, and rightly so. Pace was not a party to the prosecution and could have independently asserted the wrongful encumbrance of her interest in the Pelican Circle property even during her husband's prosecution. Indeed, the plaintiff and her husband jointly filed Bivens claims against IRS agents, including defendants Platt, Klar, and Lee, for wrongfully withholding tax refunds in relation to Don Pace's criminal prosecution prior to the termination of the prosecution. The plaintiff also brought her declaratory judgment action against the Government to void the note and mortgage on the Pelican Circle property, based on the same facts as the instant case, while her husband was still being prosecuted.
Although assertion of the defense of statute of limitations toBivens claims is not jurisdictional, I have already made the critical determinations necessary to evaluate the individual defendants' claims that the plaintiff's Bivens claims are barred by the statute of limitations. Bivens claims, like Section 1983 claims, are subject to the most closely analogous state statute of limitations. In this case, the statute of limitations is that for personal injury actions. The individual defendants assert that, because most of the events related to the plaintiff's claim occurred in Arizona, Arizona's two-year statute of limitations for personal injury actions applies, instead of Florida's four-year statute of limitations.See § 12-542(1), Ariz. Rev. Stat. (2002); § 95.11(3), Fla. Stat. (2002), Nevertheless, regardless of which statute of limitations applies, because plaintiff's Bivens claims accrued on May 2, 1997, and she did not file her Bivens claims until October 4, 2001, over four-and-a-half years later, her claims are barred by either statute of limitations. Accordingly, the plaintiff's Bivens claims must be dismissed.
"Granting a motion to dismiss based on a limitations defense is entirely appropriate when the pleader's allegations leave no doubt that an asserted claim is time-barred." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998); see also Robinson v. Johnson, 313 F.3d 128, 136 (3d Cir. 2002).
For the reasons discussed above, I likewise reject the plaintiff's argument that the statute of limitations with respect to herBivens claims was tolled due to a continuing violation.
III. CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss the amended complaint (doc. 41) is GRANTED. The amended complaint is dismissed, with prejudice, because the claims are time-barred.
DONE and ORDERED
JUDGMENT
This action came to trial or hearing before the Court with the Honorable Roger Vinson presiding. The issues have been tried or heard and a decision has been rendered.It is hereby ORDERED and ADJUDGED that the amended complaint is DISMISSED, with prejudice, because the claims are time-barred.