FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 6, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12353

Non-Argument Calendar

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D. C. Docket No. 05-00302-CV-T-26-TGW

DONNA HAND, individually and as

personal representative of 

Opal O. Hand’s estate, 

Plaintiff-Appellant, 

JOHN KEITH HAND, individually 

as son of Opal Hand, 

JULIE A. HAND, individually 

as daughter of Opal Hand, 

Plaintiffs, 

versus 

CARGILL FERTILIZER, INC., 

a.k.a. Gardinier Inc., 

a.k.a. East Tampa Chemical Plant, 

a.k.a. U.S. Phosphoric, 

CARGILL, INC., parent company 

of Cargill Fertilizer, Inc., 

CARGILL FERTILIZER, LLC, 

Defendants-Appellees. 
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________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 6, 2005)

Before ANDERSON, BIRCH and PRYOR, Circuit Judges.

PER CURIAM: 

Donna Hand, John Keith Hand, and Julie A. Hand, proceeding pro se, appeal

the dismissal of their complaint against Cargill Fertilizer, Inc., Cargill, Inc., and

Cargill Fertilizer, LLC (collectively Cargill), for the wrongful death of Opal Hand

from radiation exposure. Because the district court correctly concluded that the

claims of the Hands were preempted by federal law and their complaint failed to

state a claim under the Price-Anderson Act, we affirm the dismissal of their

complaint.

I. BACKGROUND

The Hands sued Cargill in Florida state court and alleged that Opal Hand

died from leukemia caused by exposure to radiation from the clothing of her

husband, Leon Joel Hand, who was employed at an uranium extraction plant of

Cargill. Cargill removed the action to federal court on the ground that the

complaint was preempted by the Price-Anderson Act and the federal courts had

exclusive jurisdiction. See 42 U.S.C. §§ 2014(hh), 2210(n)(2). Cargill also moved
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to dismiss the complaint for failure to state a claim. The Hands moved to remand

the action to state court and opposed Cargill’s motion to dismiss. 

The district court ruled that the Hands’ claims were preempted by the PriceAnderson Act and dismissed the complaint “without prejudice to allowing [the

plaintiffs] an opportunity to amend.” The district court granted the Hands 17 days

until April 8, 2005, to amend their complaint, after which the complaint, if not

amended, would be dismissed with prejudice. Because the Hands did not amend

their complaint within the time allowed by the district court, the order of dismissal

without prejudice became final on April 8, 2005. See Briehler v. City of Miami,

926 F.2d 1001, 1003 (11th Cir. 1991). The district court entered another order

declaring the case dismissed with prejudice on April 12, 2005, and entered

judgment for Cargill on April 13, 2005. 

II. STANDARD OF REVIEW 

We review the denial of a motion to remand de novo. Valdivieso v. Atlas

Air., Inc., 305 F.3d 1283, 1284 (11th Cir. 2002). We also review the dismissal of a

complaint for failure to state a claim de novo. Silva v. Bieluch, 351 F.3d 1045,

1046 (11th Cir. 2003). 

III. DISCUSSION

The Hands make three arguments on appeal: (1) the district court erred
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when it denied their motion for remand; (2) the district court abused its discretion

when it dismissed the complaint with prejudice; and (3) the district court erred

when it did not require Cargill to answer the complaint. We address each

argument in turn. 

A. The District Court Correctly Denied the Motion to Remand.

The Hands argue both that the notice of removal of their case to federal

court was untimely and the removal was improper. Both arguments fail. Cargill

timely removed this action to federal court, which had exclusive jurisdiction over

the Hands’ complaint. 

As to the issue of timeliness, a civil action may be removed to federal court

within thirty days of service of process on the defendant. See 28 U.S.C. § 1446(b). 

The 30-day time for removal “is triggered by simultaneous service of the summons

and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and

apart from service of the summons, but not by mere receipt of the complaint

unattended by any formal service.” Murphy Bros., Inc. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344, 347-48, 119 S. Ct. 1322, 1325 (1999). The record shows that

the Hands served Cargill with a summons and complaint approximately three

months after the Hands filed their complaint in state court. Because Cargill filed

the notice of removal within 30 days of their receipt of the summons and
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complaint, the notice of removal was timely under section 1446(b). 

The removal also was proper. As the Hands concede, their complaint

against Cargill arises under the Price-Anderson Act. The federal courts have

exclusive jurisdiction over actions arising under the Price-Anderson Act. 42

U.S.C. § 2210(n)(2); see Roberts v. Florida Power & Light Co., 146 F.3d 1305,

1308 (11th Cir. 1998). 

B. The District Court Correctly Dismissed the Complaint 

for Failure to State a Claim.

The Hands allege that Opal Hand was injured from exposure to radiation

from the uranium extraction plant of Cargill. To state a claim of negligence for

public liability injury under the Price-Anderson Act, the complaint had to allege

“exposure to radiation in excess of the permissible ‘dosage’ levels set by federal

regulation.” Roberts, 146 F.3d at 1307. The Hands’ complaint failed to allege that

Opal was exposed to radiation in excess of the dosage levels set by federal

regulation. The complaint alleged, at most, that Cargill neglected to monitor the

exposure limits at its facility, but this allegation was insufficient to establish

liability. 

Because the complaint failed to state a claim under Federal Rule of

Procedure 12(b)(6), the district court correctly dismissed the complaint, without

prejudice, and granted the Hands leave to amend. The dismissal became final
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when the Hands failed to amend their complaint within the time allowed. See

Briehler, 926 F.2d at 1003. When the Hands filed their notice of appeal, they

“wiave[d] the right to later amend” their complaint. Id. 

The Hands argue the district court abused its discretion when it dismissed

their complaint. The Hands argue that, under Federal Rule of Civil Procedure

41(b), the district court was required to find that the failure to amend the complaint

was willful or that a lesser sanction than dismissal would not suffice. The Hands

would be correct if the district court had dismissed the complaint under Rule 41(b),

but the dismissal of the Hands’ complaint was based on their failure to state a

claim under Rule 12(b)(6), not their failure to amend. The dismissal was not a

sanction. The district court was not required to find willful noncompliance or that

a lesser sanction would not suffice. 

If, as the Hands allege, they did not receive the order of the district court that

granted them leave to file an amended complaint within 17 days, then the Hands

should have moved the district court to set aside the dismissal and permit them to

file an amended complaint. Because the Hands did not move the district court to

set aside the dismissal and permit them to file an amended complaint, we are

unable to consider their arguments, raised for the first time on appeal, that their

failure to amend their complaint was excusable. See Wright v. Hanna Steel Corp.,
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270 F.3d 1336, 1342 (11th Cir. 2001). 

C. Cargill Was Not Required to File an Answer to the Complaint.

Finally, the Hands assert that the district court should have required Cargill

to file an answer to their complaint. The Hands argue that Federal Rule of Civil

Procedure 81(c) required Cargill to file an answer within either 5 days of the date

of removal or 20 days from the date of service, whichever was later. The Hands

misread Rule 81. Rule 81 provides the defendant “shall answer or present the

other defenses or objections available under these rules.” Fed. R. Civ. P. 81(c)

(emphasis added). The motion to dismiss, which was filed by Cargill five business

days after the notice of removal, satisfied the obligation of Cargill under Rule 81. 

See Fed. R. Civ. P. 12(b)(6), 81(c). 

IV. CONCLUSION

Because the Hands’ complaint was preempted by the Price-Anderson Act

and exclusive jurisdiction rested in the federal courts, the district court did not err

when it denied the Hands’ motion for remand. The district court also correctly

dismissed the Hands’ complaint for failure to state a claim upon which relief could

be granted. 

AFFIRMED.