United States District Court, M.D. Tennessee, Nashville Division
HAYDER ABDUL HUSSEIN ALMOSAWI, d/b/a ALNAHRAIN MARKET & RESTAURANT CORP., Plaintiff,
UNITED STATES OF AMERICA, Defendant
RICHARDSON, UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss
(“Motion”) (Doc. No. 13) the Complaint (Doc. No.
1) filed by Plaintiff Hayder Abdul Hussein Almosawi, doing
business as Alnahrain Market & Restaurant Corp.
Defendant, the United States of America, filed a memorandum
in support of the Motion (Doc. No. 14). Plaintiff responded
in opposition to the Motion (Doc. No. 17), and Defendant has
replied (Doc. No. 18). As discussed below, the Motion relies
on matters outside the pleadings and will be treated as a
Fed.R.Civ.P. 56 motion for summary judgment, pursuant to
Fed.R.Civ.P. 12(d). Accordingly, the Motion runs afoul of
Local Rule 56.01's requirements for summary judgment
motions and will be denied without prejudice to refile.
a Tennessee resident, is the sole proprietor of Alnahrain
Market & Restaurant Corp., a business located at 4732B
Nolensville Pike, Nashville, TN 37211. (Doc. No. 1 at 1
¶2). Since approximately 2004, the Food and Nutrition
Service (“FNS”) of the United States Department
of Agriculture (“USDA”) has authorized Plaintiff
to participate in the Supplemental Nutrition Assistance
Program (“SNAP”). SNAP enables Plaintiff's
business to receive and be reimbursed for customer purchases
made via Electronic Benefits Transfer (“EBT”)
cards. (Id. at 2 ¶6, 3 ¶12). Participation
in SNAP is integral to Plaintiff's business;
approximately 90% of Plaintiff's customers employ EBT.
(Id. at 5 ¶30-31).
April 26, 2017, Defendant issued Plaintiff a letter charging
him with “trafficking” (as defined by 7 C.F.R.
271.2), based on findings of a preceding investigation. (Doc.
No. 1 at 4 ¶15); (Doc. No. 17 at 2). Following
subsequent appeals and review, Defendant issued a Final
Agency Decision (“FAD”) on the charges,
which permanently disqualified Plaintiff from participation
in SNAP. (Id. at 2 ¶7). Plaintiff changed
counsel around the time the FAD was issued. (Doc. No. 17 at
2). Defendant erroneously mailed notice of the FAD to an
invalid address for Plaintiff's prior counsel. (Doc. No.
1 at 3 ¶10); (Doc. No. 17 at 5). Plaintiff now seeks
de novo judicial review of the FAD pursuit to 7
U.S.C. § 2023(a)(13). (Doc. No. 1 at 1 ¶1). This
complaint was filed May 22, 2018, roughly 4 months after the
FAD issued in January 2018. (Id.); (Doc. No. 17 at
contends this suit is time-barred by Plaintiff's failure
to adhere to the 30-day filing requirement set forth in both
7 U.S.C. § 2023(a)(13) and 7 C.F.R. § 279.7(a).
Defendant moves for dismissal of the complaint pursuant to
Fed.R.Civ.P. 12(b)(1) should the filing deadline be construed
as a jurisdictional limitation and, alternatively, pursuant
to Fed.R.Civ.P. 12(b)(6) should the filing deadline be deemed
non-jurisdictional. Plaintiff responds by asserting that the
filing deadline is non-jurisdictional, that the doctrine of
“equitable tolling” is therefore available in
this case, and that the Court should equitably toll the
30-day filing clock to allow Plaintiff's claim to
TO DISMISS STANDARDS
RULE 12(b)(1) - SUBJECT MATTER JURISDICTION
to dismiss for lack of subject-matter jurisdiction under
Fed.R.Civ.P. 12(b)(1) generally come in two varieties: facial
attacks and factual attacks. Gentek Bldg. Products, Inc.
v. Sherman-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007). A facial attack questions merely the sufficiency of
the pleading. When reviewing a facial attack, a district
court takes the allegations in the complaint as true.
Id. If those allegations establish
federally-cognizable claims, jurisdiction exists.
factual attack raises a factual controversy concerning
whether subject-matter jurisdiction exists. Gentek,
491 F.3d at 330. Where there is a factual attack on the
subject-matter jurisdiction of the Court under Fed.R.Civ.P.
12(b)(1), no presumptive truthfulness applies to the
complaint's allegations; instead, the Court must weigh
the conflicting evidence to arrive at the factual predicate
that subject-matter jurisdiction does or does not exist.
Id. In making its decision, the district court has
wide discretion to allow affidavits, documents, and even a
limited evidentiary hearing to resolve jurisdictional facts.
Id.; see also Cunningham v. Rapid Response
Monitoring Servs., Inc., 251 F.Supp.3d 1187, 1192 (M.D.
Tenn. 2017). As always, the party invoking federal
jurisdiction has the burden to prove that jurisdiction.
Global Technology, Inc. v. Yubei (XinXiang) Power
Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015).
case, Defendant makes a facial attack on subject-matter
jurisdiction. Defendant's position is that, irrespective
of the substance of Plaintiff's complaint, it was filed
past both 7 U.S.C. § 2023(a)(13) and 7 C.F.R. §
279.7(a)'s 30-day statute of limitations, thus rendering
it insufficient to invoke federal jurisdiction. (See
Doc. No. 14 at 5). This is a facial attack because its
success or failure does not depend on the factual validity of
any of the complaint allegations that otherwise might
establish subject-matter jurisdiction. Accordingly, the Court
need not and will not resolve the Motion by reference to any
information outside of Plaintiff's complaint.
RULE 12(b)(6) - FAILURE TO STATE A CLAIM
purposes of a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court must take all the factual allegations in the
complaint as true. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face. Id.
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. Id. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice. Id. When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief. Id. at 1950. A legal
conclusion, including one couched as a factual allegation,
need not be accepted as true on a motion to dismiss, nor are
mere recitations of the elements of a cause of action
sufficient. Id.; Fritz v. Charter Township of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010), cited in
Abriq v. Hall, 295 F.Supp.3d 874, 877 (M.D. Tenn.
2018). Moreover, factual allegations that are merely
consistent with the defendant's liability do not satisfy
the claimant's burden, as mere consistency does not
establish plausibility of entitlement to relief even if it
supports the possibility of relief. Iqbal, 556 U.S.
determining whether a complaint is sufficient under the
standards of Iqbal and its predecessor and
complementary case, Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), it may be appropriate to “begin
[the] analysis by identifying the allegations in the
complaint that are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 680. This can be
crucial, as no such allegations count toward the
plaintiff's goal of reaching plausibility of relief. To
reiterate, such allegations include “bare assertions,
” formulaic recitation of the elements, and
“conclusory” or “bold” allegations.
Id. at 681. The question is whether the remaining
allegations - factual allegations, i.e., allegations ...