vexatious opinion by u.s. court of appeals

8/9/2019 Vexatious Opinion by U.S. Court of Appeals

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FILED

U.S. COURT OFAPPEALSELEVENTH CIRCUIT

MAR 5, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13170

Non-Argument Calendar

________________________

D. C. Docket No. 07-00228-CV-FTM-29-SPC

JORG BUSSE,

Plaintiff-Appellant,

KENNETH M. ROESCH, JR., et al.,

Plaintiffs,

versus

LEE COUNTY, FLORIDA,

BOARD OF LEE COUNTY COMMISSIONERS,

THE LEE COUNTY PROPERTY APPRAISER,

STATE OF FLORIDA, BOARD OF TRUSTEES OF THE

INTERNAL IMPROVEMENT TRUST FUND,

KENNETH M. WILKINSON, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 5, 2009)


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Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Jorg Busse, proceeding pro se, appeals the district courts dismissal of his

third amended complaint in his civil rights action against various state and local

governmental entities and officials in Florida, pursuant to 42 U.S.C. 1983 and

1985. The district court dismissed Busses federal claims because he had either

failed to adequately plead them or had not established federal subject matter

jurisdiction. In the absence of any viable federal claims, the court declined to

retain jurisdiction over Busses state law claims. Based on our review of the

record and the parties briefs, we AFFIRM the dismissal.

I. BACKGROUND

On 10 December 1969, the Board of Commissioners of Lee County, Florida

(the Board) adopted a resolution claiming certain lands in the Cayo Costa

subdivision as public lands (the Resolution). R10-288 at 9. In the Resolution,

the Board identified the relevant lands by reference to a map of the subdivision

which showed that, along with a number of designated land parcels in the

subdivision, there were also a number of unidentified areas on the eastern and

western edges of the subdivision. Id. The Board laid claim to all of these non-

designated parcels and accretions thereto for the use and benefit of the public for

public purposes. Id.


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Busse asserts that he currently owns Lot 15A of the Cayo Costa subdivision

along with all accretions thereto and that the Resolution violates his property rights

under both federal and state law. Id. at 1. To vindicate his rights, he brought suit

in the United States District Court for the Middle District of Florida against an

array of state and local parties, including the Lee County Board of Commissioners,

the county property appraiser, and the Florida Department of Environmental

Protection. Id. In his third amended complaint, Busse made six claims:1

unconstitutional deprivation under 42 U.S.C. 1983; unconstitutional temporary

takings; trespass; conspiracy, fraud, and malfeasance regarding the designation of

certain unplatted lots; conspiracy to materially misrepresent and defraud; and

oppression or slander of title. Id. at 38. He asserted that an array of statutory and

constitutional provisions supported the exercise of jurisdiction: two civil rights acts

42 U.S.C. 1983 and 28 U.S.C. 1343; Articles Three and Four and the Due

Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments of

the United States Constitution; the 1899 Rivers and Harbors Appropriation Act (33

U.S.C. 403); the 1862 Homestead Act, the federal common law doctrine of

The full list of defendants includes: Lee County, Florida; the Board of Lee County1

Commissioners, in their official and private capacities; Kenneth M. Wilkinson, the Lee County

property appraiser, in his official and private capacity; the State of Florida Board of Trustees ofthe Internal Improvement Trust Fund of the State of Florida, in their official and private

capacities; the Florida Department of Environmental Protection, the Florida Division of

Recreation and Parks, and the Cayo Costa State Park staff, in their individual and privatecapacities; and Jack N. Peterson, Lee County Attorney, in his official and private capacity. Id.


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accretion and erosion; the Federal Appraisal Standards, Uniform Standards of

Professional Appraisal Practice, and 12 U.S.C. 33313351; and the Federal

Declaratory Judgment Act (28 U.S.C. 2201). Id. at 23.

The defendants subsequently filed separate motions to dismiss Busses third

amended complaint, primarily based on lack of subject matter jurisdiction and

failure to state a claim. R10-285, 291, 303, 304. The district court granted these

motions and dismissed Busses third amended complaint. R11-338. In so doing,

the court first found that Busse had made out a valid takings claim but that it had

no jurisdiction over that claim since he had failed to show that he had pursued all

available state remedies before bringing suit. Id. at 710. The court then

concluded that Busse had not made out a valid claim under any of his other alleged

federal bases. Id. at 1015. Given that the court did not have jurisdiction over any

of Busses federal claims, it chose to dismiss his state law claims. Id. at 15. Busse

now appeals the dismissal of all of the claims in his third amended complaint.

II. DISCUSSION

We review de novo a district courts legal conclusions regarding subject

matter jurisdiction, including the determinations that a claim is not ripe or that the

court lacks subject matter jurisdiction over it. See Lanfear v. Home Depot, Inc.,

536 F.3d 1217, 1221 (11th Cir. 2008); Elend v. Basham, 471 F.3d 1199, 1204

(11th Cir. 2006). We also review a grant of a motion to dismiss for failure to state


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a claim de novo, accepting the allegations in the complaint as true and construing

them in the light most favorable to the plaintiff. Gandara v. Bennett, 528 F.3d

823, 826 (quotation marks and citation omitted). The decision not to exercise

supplemental jurisdiction over a state law claim is reviewed for abuse of discretion.

See Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 738 (11th Cir. 2006).

Since Busse is proceeding pro se, we construe his pleadings liberally. See Miller

v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).

On appeal, Busse argues that the district court erred in dismissing his federal

claims. He asserts that his Takings Clause claim was ripe for review and that he

had properly stated claims involving violations of his procedural due process,

equal protection, and substantive due process rights under the Fifth and Fourteenth

Amendments. Additionally, we read Busses brief liberally to argue that the2

district court abused its discretion in refusing to exercise supplemental jurisdiction

over his state law claims. We address these arguments in turn.

A. Takings Clause Claims

Busses brief on appeal does not discuss the other jurisdictional bases cited in his third2

amended complaint Articles Three and Four of the United States Constitution; the 1899

Rivers and Harbors Appropriation Act; the 1862 Homestead Act; the federal common law

doctrine of accretion and erosion; the Federal Appraisal Standards, Uniform Standards ofProfessional Appraisal Practice, and 12 U.S.C. 33313351; and the Federal Declaratory

Judgment Act. Generally arguments not raised in a brief on appeal are deemed abandoned. See

Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Furthermore, we agree with thedistrict courts analysis of these provisions and find that none of them could serve as a potential

jurisdictional basis for Busses claims. See, e.g., Arthur v. Haley, 248 F.3d 1302, 1303 n.1 (11th

Cir. 2001) (per curiam) (noting that appellate courts can and should sua sponte inquire intosubject matter jurisdiction whenever it appears to be lacking).


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Busse contends that the Resolution constituted an unconstitutional taking of

his property rights in Lot 15A. The Fifth Amendment prohibits the taking of

private property for public use, without just compensation a condition made

applicable to the States by the Fourteenth Amendment. U.S. Const. amend. V;

Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct. 2448, 2457 (2001)

(noting that the Fourteenth Amendment made the Takings Clause applicable to the

States). A plaintiff can bring a federal takings claim only if he can show that he

did not receive just compensation in return for the taking of his property. See Eide

v. Sarasota County, 908 F.2d 716, 720 (11th Cir. 1990). As a result, for a takings

claim to be ripe, a plaintiff must demonstrate that he unsuccessfully pursued the

available state procedures to obtain just compensation before bringing his federal

claim. Id. at 721.

In this case, Busses claim would not be ripe because he has not shown that

he attempted to obtain or secure relief under established Florida procedures. Since

at least 1990, Florida courts have recognized that an inverse-condemnation remedy

is available for alleged takings violations. See Reahard v. Lee County, 30 F.3d

1412, 1417 (11th Cir. 1994). Busse contends that his claim would still be ripe

since that remedy was unavailable in 1969 when the Board of Commissioners

enacted the Resolution. However, our past circuit precedent dictates that a

Florida property owner must pursue a reverse condemnation remedy in state court


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before his federal takings claim will be ripe, even where that remedy was

recognized after the alleged taking occurred. Id. Accordingly, regardless of

whether Busse has a valid property interest in Lot 15A, because he has not alleged

that he sought and was denied compensation through available state procedures, his

Takings Clause claim would not be ripe for review. We thus conclude that the

district court did not err in finding that it lacked subject matter jurisdiction over

Busses Takings Clause claim.

B. Procedural Due Process Claims

Busse asserts that his procedural due process rights were violated since Lee

County had no authority to take his land nor jurisdiction over it and because the

Resolution was improperly executed. The Fourteenth Amendment provides that no

state shall deprive any person of life, liberty, or property, without due process of

law. U.S. Const. amend. XIV, 1. A plaintiff could make a procedural due

process claim by challenging the procedures by which a regulation was adopted,

including the failure to provide pre-deprivation notice and hearing. See Villas of

Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 615 (11th Cir. 1997); Zipperer

v. City of Fort Myers, 41 F.3d 619, 623 (11th Cir. 1995). For such a claim to be

valid, however, the plaintiff would have to allege that state law failed to provide

him with an adequate post-deprivation remedy. See Tinney v. Shores, 77 F.3d 378,

382 (11th Cir. 1996) (per curiam).


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Based on these standards, we find that Busse has failed to state a valid

procedural due process claim. Florida provides him an adequate post-deprivation

remedy, inverse condemnation, and he makes no argument that this procedure is

inadequate. Even if it was inadequate, though, Busse still would not have a valid

procedural due process claim. The Resolution constituted a legislative act since it

was a general provision that affected a large number of persons and area, 200 acres

in all, rather than being specifically targeted at Busse or his immediate neighbors.

See 75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288, 1294 (11th Cir.

2003). Since alleged problems with the adoption of such acts cannot serve as the

basis for a procedural due process claim, Busse could not cite them as the basis for

his claim. See id. (noting that if government action is viewed as legislative in

nature, property owners generally are not entitled to procedural due process).

Accordingly, we find that the district court did not err in dismissing Busses

procedural due process claims.

C. Equal Protection Claims

Busse also argues that his equal protection rights were violated because the

Board, in adopting the Resolution, treated differently privately-owned property and

state-owned property. The Fourteenth Amendment forbids states from deny[ing]3

In his brief on appeal, Busse argues that he experienced different treatment than other3

landowners in Lee County. However, we need not address this argument since he did not

mention this in his third amended complaint and we find that none of the exceptions that wouldallow us to consider an issue not raised before the district court would apply here. See Narey v.


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to any person within its jurisdiction the equal protection of the laws. U.S. Const.

amend. XIV, 1. [T]o properly plead an equal protection claim, a plaintiff need

only allege that through state action, similarly situated persons have been treated

disparately. Thigpen v. Bibb County, 223 F.3d 1231, 1237 (11th Cir. 2000)

abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 122 S. Ct. 2061 (2002).

Under Florida law, counties can exercise eminent domain over any land that

is not owned by the state or federal government. See Fla. Stat. 127.01(1)(a)

(2006). Since a state landowner would not be subject to the eminent domain power

but Busse, as a private landowner, would be, Busse could not be similarly situated

to a state landowner. Busse therefore cannot rely on his disparate eminent domain

treatment vis-a-vis state landowners as the basis for an equal protection claim.

Since Busse made no other allegations of disparity in his third amended complaint,

we find that he has failed to plead a valid equal protection claim and that the

district court correctly dismissed this claim.

D. Substantive Due Process Claim

Busse also appears to allege that the Resolution denied him his substantive

due process property rights. Substantive due process protects only those rights that

are fundamental, a description that applies only to those rights created by the

Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (discussing the exceptions to this general rule).


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United States Constitution. See Greenbriar Village, L.L.C. v. Mountain Brook,

City, 345 F.3d 1258, 1262 (11th Cir. 2003) (per curiam). Property rights would

not be fundamental rights since they are based on state law. See id. Busse thus

could not bring a viable substantive due process claim based on the alleged denial

of a state-defined property right. See id. Accordingly, we find that the district

court properly dismissed his substantive due process claims.4

E. Supplemental Jurisdiction

Busse also contends that the court abused its discretion in not hearing his

pendent state law claims. The decision to exercise supplemental jurisdiction over

pendent state claims rests within the discretion of the district court. Raney v.

Allstate Ins. Co., 370 F.3d 1086, 108889 (11th Cir. 2004) (per curiam). Since the

district court had dismissed all claims over which it has original jurisdiction, it

therefore had the discretion not to exercise supplemental jurisdiction over Busses

state law claims. 28 U.S.C. 1367(c)(3). Furthermore, we expressly encourage

district courts to take such action when all federal claims have been dismissed pre-

trial. See Raney, 370 F.3d at 1089. Accordingly, the district court did not abuse

The district court, in addressing Busses substantive due process claim, mentions that4

assertions of irrational and arbitrary government action could not serve as the basis for such a

claim. Even under a liberal reading of Busses complaint, though, we do not think he made suchallegations. In the third amended complaint, he discusses takings violations and procedural

problems with the enactment of the Resolution but never questions the rationale for its passage.

Accordingly, we need not address whether he has a valid substantive due process claim based onarbitrary and capricious government action.


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its discretion when it chose not to retain supplemental jurisdiction over Busses

state law claims.

III. CONCLUSION

Busse contends that the district court incorrectly dismissed his federal claims

regarding alleged takings and deprivations of property rights. Since Busses

takings claim was not ripe because he had not pursued available state remedies and

he failed to adequately plead his other federal claims, the district court correctly

dismissed all of these claims. As a result, despite Busses objections to the

contrary, the district court also did not commit an abuse of discretion in not

exercising jurisdiction over his state law claims. Accordingly, we AFFIRM the

district courts dismissal of Busses third amended complaint.

AFFIRMED.


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David Souter

U.S. Supreme Court Justice

RE: Lee County [FL] O.R.569/875 An eminent domainscam of giant proportions

Case-fixing in the U.S. Court of Appeals

We are writing to you in the matter of the corruption and case-fixing in the U.S. Court of

Appeals for the 11th

Circuit.

Common intelligence dictates that residents use designated streets to get to their lots.

Unintelligently, the 11th

Circuit cannot tell the difference between a designated street and

unidentified areas. See Plat Book 3, p. 25 at www.leeclerk.org.

In West Peninsular Title Co.1, corrupt Chief Circuit Judge Edmondson co-wrote:

And, plaintiffs arbitrary and capricious due process claim is ripe. Plaintiffs

accused the County of applying an arbitrary and capricious action ..Plaintiffs claim was ripe as soon as the County applied the ordinance See Eide v.

Sarasota County, 908 F.2d 716, 724 n.13(11th

Cir. 1990).

But the County insists that adjoining landowners own the strip parcels, citingMurrell v. United States, 269 F.2d 458 (5th Cir.1959), as an alternative to 16.33Acres.

For Appellees bribes, Edmondson now changed his mind and conspired to pervert a platteddesignated street into an unidentified area in order to fix Appellants Cases. Here forbribes,ripeness vanished, andjustice is for sale in the 11

thCircuit.

The Appellant(s) also own property in N.H. and wish you the best for your retirement.

/s/ Jennifer Franklin Prescott /s/Dr. Jorg Busse

1http://bulk.resource.org/courts.gov/c/F3/41/41.F3d.1490.93-4449.93-4104.htmlVolume 41, The Federal Reporter, 3d Ed. [Nov., 1994 Jan., 1995]


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Text-only versionThese search terms are highlighted: united states v 16.33 acres

41 F.3d 1490

WEST PENINSULAR TITLE CO., Absolute, Inc., Marion H.Cooper,

for Estate of Alfred R. Cooper, Plaintiffs-Appellees,v.

PALM BEACH COUNTY, Carol A. Roberts, Chair of Board ofCounty Commissioners of Palm Beach County,

Defendants-Appellants.

Nos. 93-4104, 93-4449.

United States Court of Appeals,Eleventh Circuit.

Jan. 10, 1995.

Patti A. Velasquez, Asst. County Atty., West Palm Beach, FL, Robert S. Hackleman, Ft.

Lauderdale, FL, for appellants in No. 93-4104.

Sharon M. Pitts, Patti A. Velasquez, Asst. County Atty., West Palm Beach, FL, Robert S.

Hackleman, Ft. Lauderdale, FL, for appellants in No. 93-4449.

Jeffrey A. Aman, Smith, Williams & Bowles, P.A., Tampa, FL, Joan E. O'Dell, Gregory L.

Williams, Smith, Williams & Bowles, P.A., Washington, DC, for appellees in both cases.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, MELTON* , Senior District Judge.

PER CURIAM:

After a jury trial, the district court entered judgment for plaintiffs. Defendantsraise several arguments, hoping mainly to void concessions made in district court inthe joint pretrial stipulation. The district court is affirmed.

1

The controversy concerns the ownership of strip parcels (roads and ditches)offered by Palm Beach Farms for dedication to Palm Beach County in 1912. A 1976instrument entitled "Notice of Withdrawal of Platted Roads, Streets, and OtherUnexercised Rights" revoked the offer of dedication. In 1986, pursuant to localOrdinance No. 86-18 (the "Ordinance"), defendant Palm Beach County (the

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"County"), began a practice of selling easement and right of way interests inproperty originally acquired through dedication. In return for a "privilege fee," theCounty issued an abandonment resolution, which, when recorded, transferredownership of the parcel to the payor of the fee. This dispute began when the Countyattempted to collect fees in exchange for abandonment resolutions for parcels that,according to plaintiffs, had never been accepted by the County.

Plaintiffs, claiming that they were successors in interest to Palm Beach Farms(and thus owners of the strip parcels), challenged the County's practice as anunconstitutional taking--under the Fifth and Fourteenth Amendments--of theirproperty.1 The County conceded that it never expressly accepted the dedication;but, at trial, the County attempted to show that it had impliedly accepted thededication by using the strip parcels. The jury found for plaintiffs, deciding that theCounty had not accepted the 1912 offer of dedication within a reasonable time. Thedistrict court entered judgment for plaintiffs: plaintiffs were judged the fee simpleowners of the pertinent strip parcels; defendants were enjoined from applying theOrdinance to plaintiffs' property; and plaintiffs were awarded attorney's fees.Defendants appeal.

3

The County now contests plaintiffs' standing, arguing that plaintiffs could notpossibly own the strip parcels (and thus have no interest at stake). But givenplaintiffs' allegations and the County's stipulations in the district court, the recordsupports both standing and jurisdiction. A "case or controversy" exists in this casebecause the parties genuinely disputed ownership of the strip parcels in the districtcourt. The County stipulated to plaintiffs' chain of title, agreeing that plaintiffs weresuccessors in interest to Palm Beach Farms. The controversy was thus limited to adecision about whether the offer of dedication was accepted.2 Plaintiffs have

standing to challenge the application of the Ordinance to what they assert is theirproperty.

4

But the County insists that adjoining landowners own the strip parcels, citingMurrell v. United States, 269 F.2d 458 (5th Cir.1959), as an alternative to 16.33

Acres. This decision is not about standing: what the County is really arguing is thatplaintiffs failed to join indispensable parties. Amicus Boywic Farms agrees, arguingthat it was harmed by the entry of judgment in favor of plaintiffs. Because thedistrict court could only determine who, as between plaintiffs and the County, hadthe better claim to the strip parcels, amicus is not bound by the district court'sorder. It was no abuse of discretion for the district court to refuse to dismiss thiscase for failure to join indispensable parties. The County, as movant, had theburden "to show the nature of the unprotected interests of the absent parties," 5AWright & Miller, Federal Practice and Procedure Sec. 1359; yet, the County'scitation to the record reveals only that it established the existence of adjoininglandowners (not the nature of allegedly unprotected interests).

5

And, plaintiffs' "arbitrary and capricious" due process claim is ripe.3 Plaintiffs

accused the County of applying an arbitrary and capricious action (assertingownership to the strip parcels and recording abandonment resolutions whichtransferred title) to their property. Plaintiffs' claim was ripe as soon as the Countyapplied the ordinance and the petition process (including a $400 nonrefundableapplication fee) to the undedicated strip parcels. See Eide v. Sarasota County, 908F.2d 716, 724 n. 13 (11th Cir.1990).

6

The County argues that no subject matter jurisdiction exists because plaintiffs'claims are so frivolous. But the course of litigation and stance of the County in

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district court undercuts its claim of frivolousness. We also note that the pretrialstipulation plainly reads that "[n]either party contests subject matter ...jurisdiction."4 If the County actually thought plaintiffs' claims were frivolous, itshould not have so willingly conceded facts giving rise to jurisdiction in thestipulation. Because the district court had subject matter jurisdiction over plaintiffs'federal claims, the court did not err by including plaintiffs' state claims fordeclaratory relief--pendent jurisdiction was proper.

The County also argues that the district court erred by interpreting the stipulationas a "winner-take-all" proposition. That is, the County says it reserved a right tomake several arguments, after the jury's fact finding, by referring to "undisposed ofmotions" in the stipulation. We disagree. The parties agreed that the jury'sconclusion would "be outcome determinative of all of the federal and state claims."The County does not argue that it was unfairly duped into signing the stipulation.And, we owe great deference to the trial judge's interpretation and enforcement ofpretrial stipulations. See Morrison v. Genuine Parts Co., 828 F.2d 708 (11thCir.1987); Hill v. Nelson, 676 F.2d 1371, 1373 n. 8 (11th Cir.1982). In the light of thestipulations, the district court did not err when it refused to entertain the County'spost-verdict motions.

8

Defendants raise other arguments, none of which present grounds for reversal.The district court's judgment is AFFIRMED.

9

Honorable Howell W. Melton, Senior U.S. District Judge for the Middle District ofFlorida, sitting by designation

*

Application of the Ordinance, according to plaintiffs, put a "cloud" on plaintiffs' titlebecause title to the strip parcels was transferred to the payor of the privilege fee.Plaintiffs' property was, in other words, not transferable so long as the County continued

to demand fees for the "abandonment" of property it never owned

1

"[S]tanding cannot be waived and may be asserted at any stage of litigation." Harris v.Evans, 20 F.3d 1118, 1121 n. 4 (11th Cir.1994) (en banc). We disagree with the County'sargument that plaintiffs' ownership claim is so obviously frivolous that standing couldnot possibly exist, regardless of stipulated facts pointing to standing. In support of thisclaim, the County cites the allegedly "remarkably similar" case ofUnited States v.16.33 Acres of Land, 342 So.2d 476 (Fla.1977), as binding precedent denying plaintiffs'ownership claim. But 16.33 Acres is distinguishable because in that case the governmentexpressly accepted the offer of dedication. Id. at 479

2

Because we conclude that plaintiffs' arbitrary and capricious due process claim was ripe,we say nothing about whether plaintiffs' additional constitutional claims were ripe. Wedo note, however, that plaintiffs were not granted relief pursuant to a specific claim.Instead, the County stipulated that plaintiffs would be entitled to the remedies requestedif plaintiffs prevailed on any of the disputed fact issues

3

Parties may not stipulate jurisdiction. Bush v. United States, 703 F.2d 491, 494 (11thCir.1983). And we do not say that jurisdiction was proper because jurisdiction wasstipulated. Instead, we look to the record; we affirm the district court's conclusion that

4

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the stipulated facts give rise to jurisdiction. For example, the County arguesfrivolousness by pointing to purported transfers--by plaintiffs' predecessors in interest--that the County says are null and void. But the County stipulated to plaintiffs' chain oftitle; and, the County agreed that it was undisputed that "plaintiffs are the successors ininterest to the Palm Beach Farms Company." The record was set in district court

CC | TRANSFORMED BY PUBLIC.RESOURCE.ORG

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