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Hussein Almosawi v. United States

United States District Court, M.D. Tennessee, Nashville Division

August 5, 2019




         Before 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.


         Plaintiff, 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).

         On 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, [2] 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 3, 5).

         Defendant 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 proceed.



         Motions 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. Id.

         A 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).

         In this 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.

         II. RULE 12(b)(6) - FAILURE TO STATE A CLAIM

         For 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. at 678.

         In 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 ...

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