United States District Court, S.D. Florida
ALTMAN, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court upon the Motion to
Dismiss (the “Motion”) [ECF No. 27] filed by the
Third-Party Defendant, the United States of America, on April
5, 2019. That Motion argues both that the Third-Party
Plaintiff, Globenet Cabos Submarinos America, Inc.
(“Globenet”), fails to state a claim against the
United States, and that, in any event, the Court does not
have subject matter jurisdiction to hear the claim. Globenet
filed its Response in Opposition (the “Response”)
[ECF No. 41] on May 3, 2019, and the matter ripened on May
10, 2019, when the United States filed its Reply (the
“Reply”) [ECF No. 43].
to Federal Rule of Civil Procedure 12(b), a defendant may
move for dismissal of a claim based on one or more of seven
specific defenses: (1) lack of subject matter jurisdiction;
(2) lack of personal jurisdiction; (3) improper venue; (4)
insufficiency of process; (5) insufficiency of service of
process; (6) failure to state a claim upon which relief can
be granted; and (7) failure to join a party under Rule 19.
See Fed. R. Civ. P. 12(b).
motion to dismiss is only granted when the movant
demonstrates ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.'” Harper v. Blockbuster
Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir.
1998) (citing Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). “On a motion to dismiss, the facts stated in
appellant's complaint and all reasonable inferences
therefrom are taken as true.” Stephens v. Dep't
of Health and Human Servs., 901 F.2d 1571, 1573 (11th
motion to dismiss under Rule 12(b)(1) may attack subject
matter jurisdiction either facially or factually.
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th
Cir. 1990). On a facial challenge, the Court must, as with
other Rule 12(b) motions, limit its review to the factual
allegations in the complaint-accepting well-pled allegations
as true. Id. A factual attack, however, challenges
“the existence of subject matter jurisdiction in
fact” and requires that the Court examine materials
outside of the pleadings, such as testimony, declarations,
and affidavits, to ensure the proper exercise of its
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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 679 (quoting Twombly, 550 U.S. at 555).
1927, Congress enacted legislation that authorized the
federal government to purchase or condemn private lands for
the purpose of constructing the “Intracoastal Waterway,
” a submerged tract of land that runs from Trenton, New
Jersey, to Brownsville, Texas. See Answer ¶ 8.
Acting on this authority, the United States initiated
condemnation proceedings in a number of federal courts along
the eastern seaboard-all with an eye towards acquiring
rights-of-way over the lands through which the Intracoastal
Waterway now runs. See Id. ¶ 9. These actions
were on the whole successful. As relevant here, in 1935, this
Court entered a final judgment, in which it transferred to
the United States the rights to a narrow strip of land in
Palm Beach County, Florida (the “Subject
Property”). See Id. ¶ 10. It is
undisputed that, as a part of this judgment, the prior owners
of this land received “just compensation” from
the federal government. See id.
years later, in 2003, the United States, acting through the
Army Corps of Engineers, granted Globenet a Consent to
Easement (“Consent”) over a portion of this land.
See Answer Ex. D (the “Consent”) [ECF
No. 24-4]. That Consent gave Globenet a right-of-way,
commensurate with the government's own right-of-way, to
lay fiber optic cable over a sliver of the Intracoastal
Waterway. See Answer ¶¶ 15-16. The Consent
was subject to a number of conditions-one of which required
Globenet to obtain both the consent of the State of Florida
and of the owners of the property on which the Intracoastal
had been built. See Consent ¶ 1. Globenet
acquired the State's consent later in 2003, when
Florida's Board of Trustees of the Internal Improvement
Trust Fund granted Globenet an easement to lay fiber optic
cable over the Subject Property. See Answer Ex. E
(the “Florida Consent”) [ECF No. 25-5]. Thus, as
of 2003, Globenet had obtained, from both the United States
and the State of Florida, the right to lay its fiber optic
cable over the Subject Property.
Spanish Trail is a Florida limited liability company that
claims to have purchased the Subject Property in 2016.
See generally Notice of Removal [ECF No. 1]. In
2018, it brought suit against Globenet in the 15th Judicial
Circuit in and for Palm Beach County, alleging that Globenet
has neither an interest in the Subject Property nor any right
to lay its cable there. See Notice of Removal Ex. 3
[ECF No. 1-3]. Globenet answered on December 23, 2018,
and, in addition to responding to South Spanish Trail's
complaint, brought its own claims against both South Spanish
Trail and the United States. See Notice of Removal
Ex. 4 [ECF No. 1-4]. On March 25, 2019, Globenet amended its
Answer and Third-Party Complaint. See Answer [ECF
the United States, Globenet asserts only what it calls a
“Breach of Easement” claim. See Answer
¶¶ 57-61. That claim alleges that the “United
States breached its easement obligations owed to Globenet,
” id. ¶ 59, and that this “breach
deprived Globenet of a legitimate constitutionally protected
interest, ” id. ¶ 61. Specifically,
Globenet says that the United States engaged in a
“taking” without just compensation, in violation
of the Fifth Amendment to the U.S. Constitution. See
Response at 9, 11.
April 5, 2019, the United States moved to dismiss
Globenet's Third-Party Complaint. See generally
Motion. In its Motion, the United States argues both that the
Court lacks subject matter jurisdiction over the claim,
see Id. at 2, and that Globenet fails to state a
claim upon which relief may be granted, see Id. at
9. Specifically, the United States says that Globenet's
“Breach of Easement” claim, properly construed,
“is nothing more than a breach of contract
claim.” Mot. at 2 (cleaned up). Then, citing
Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221
(5th Cir. 1976), the United States contends that this Court
lacks subject matter jurisdiction over breach of contract
claims against the federal government-even where those claims
seeks only specific performance. See Id. Finally,
noting that there are no set of circumstances under which
Globenet could plead a viable contract claim, the United
States asks this Court to dismiss Globenet's Third-Party
Complaint with prejudice. See Id. at 8.
responds that it has, in fact, stated a valid Takings Clause
claim under the Fifth Amendment. See Response at 10
(“In its amended third-party claim, Globenet asserts a
federal takings claim against the United States related to
the Government's breach of its obligations under the
[Consent].” (citing Answer ¶¶ 57-61)).
Globenet then surveys the jurisprudential record from other
circuits and argues that, where a contract claim implicates a
constitutional question-such as an alleged violation of the
Takings Clause-a district court does have jurisdiction over
that claim. See Response at 11 (citing Transohio
Sav. Bank v. Dir., Office of Thrift Supervision, 967
F.2d 598, 610 (D.C. Cir. 1992)).
Contract Claims Against the United States
United States is generally immune from suit unless it has
expressly waived that immunity by statute. See Zelaya v.
United States, 781 F.3d 1315, 1322 (11th Cir. 2015). In
1976, Congress amended the Administrative Procedure Act (the
“APA”) so as to waive sovereign immunity for a
broad range of suits that seek non-monetary relief from
federal agencies or officials. See 5. U.S.C. §
702. But this waiver is subject to certain well-specified
exceptions. Nothing in the APA, for example, “confers
authority to grant relief if any other statute that grants
consent to suit expressly or impliedly forbids the relief
which is sought.” Id. Similarly, the APA only
waives sovereign immunity for actions ...