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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

WANDA LOU BURGESS

and DANNY BURGESS

Plaintiffs,

vs. CASE NO. 5:10cv81/RS-EMT

HOLMES COUNTY BOARD OF

COUNTY COMMISSIONERS,

HOLMES COUNTY ROAD

DEPARTMENT, and DON BENTON,

Defendants.

_________________________________________/

ORDER

Before me is Defendants’ Motion to Dismiss (Doc. 15). Plaintiffs did not 

file a response.

I. Background

I must construe all allegations in the complaint as true and in the light most 

favorable to the plaintiff. Shands Teaching Hosp. and Clinics, Inc. v. Beech Street 

Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) (citing Lowell v. American Cyanamid 

Co., 177 F.3d 1228, 1229 (11th Cir. 1999)). Plaintiffs allege that they are the sole 

owners of the property located at 1690 Highway 162 in Westville, Florida. A 

portion of this parcel is used by Defendant Don Benton as a driveway to access his 
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adjoining property, which is otherwise landlocked from public roads. Defendant 

Holmes County Road Department has once before graded the disputed road, and 

now seeks to dedicate it to the public under Florida Statute § 95.3561. Don Benton 

additionally claims a prescriptive easement permitting him to use the driveway.

Plaintiffs challenge the road’s dedication as improper and as a violation of 

the takings clause, arguing that because the parcel crosses their land only to give 

access to one private home, it fails to satisfy the “public use” part of the takings 

clause. Plaintiffs additionally allege that Defendants’ continued entry onto their 

land is illegal trespass and is causing damage to the property. Plaintiffs seek 

injunctive relief against Defendants to bar them from entry on the disputed part of 

the property.

Defendants have moved for dismissal on several grounds, including pursuant 

to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.

II. Analysis

A. Rule 12(b)(1) Standard of Dismissal for Lack of Subject Matter 

Jurisdiction 

Dismissal under Rule 12(b)(1) may result from a facial attack which 

challenges jurisdiction based on the complaint, or a factual attack which challenges 

the existence of subject matter jurisdiction regardless of the pleadings. Lawrence 

v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). A facial attack “requires the 
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court merely to look and see if [the] plaintiff has sufficiently alleged a basis of 

subject matter jurisdiction, and the allegations in his complaint are taken as true for 

the purposes of the motion.” Lawrence at 1529 (quoting Menchaca v. Chrysler 

Credit Corp., 613 F.2d 507,511 (5th Cir. 1980), cert. denied, 449 U.S. 953, 101 

S.Ct. 358 (1980))(citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 

891 (3d Cir. 1977)). Here, Defendants have made a facial attack on Plaintiffs’

complaint.

The doctrine of ripeness denies subject matter jurisdiction to claims which 

are before the court prematurely. Nat’l Adver. Co. v. City of Miami, 402 F.3d 

1335, 1339 (11th Cir. 2005). Claims under the takings clause are not ripe unless 

all remedies provided by the state have been used without resulting in just 

compensation. Williamson County Reg. Planning Comm’n v. Hamilton Bank of 

Johnson City, 473 U.S. 172, 194-95, 105 S. Ct. 3108 (1985). The Eleventh Circuit 

has held that reaching just the “public use” issue of the takings clause is error if the 

takings claim is not ripe. Bickerstaff Clay Products Co. v. Harris County, 89 F.3d 

1481, 1489 n.14 (11th Cir. 1996). 

B. Application

The State of Florida provides multiple remedies for an alleged takings 

violation. An exercise of eminent domain which is not for public use may be 

enjoined in appropriate proceedings. Isleworth Grove Co. v. Orange County Fla., 
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79 Fla. 208, 84 So. 83, 84 (1920). Furthermore, Florida Statute § 95.3561(4) 

allows landowners to challenged the re-designation of a road as public.

Plaintiffs have not alleged a failure of these state mechanisms to provide 

effective relief. Plaintiffs’ sole argument for jurisdiction is predicated upon an 

order in Hughes v. Holmes Co. Brd. of Co. Comm’rs et. al., 5:03-cv-265/RV-MD, 

which granted federal jurisdiction in another case brought by Plaintiffs’ counsel. 

However, the Eleventh Circuit has held that it is error to reach the public use issue 

before the takings claim is ripe. Bickerstaff Clay Products Co. v. Harris County, 

89 F.3d 1481, 1489 n. 14 (11th Cir. 1996). Plaintiffs do not allege that their state 

remedies have been exhausted; therefore their public use challenged is not ripe 

under Eleventh Circuit precedent and this Court lacks subject matter jurisdiction. 

Because there is no subject matter jurisdiction, I need not reach Defendants’ other 

grounds for dismissal.

III. Conclusion

Defendants’ Motion to Dismiss (Doc. 15) is granted, and this case is 

dismissed. The Clerk is directed to close the file. 

ORDERED on June 7, 2010.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE