United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
John Lee Anderson, III has moved to dismiss the
Plaintiffs' complaint; he contends the claims are barred
by the applicable statutes of limitation. Doc. 13. The motion
is GRANTED in part and DENIED in part.
“Amy, ” “Vicky, ” and
“Alice” were repeatedly sexually abused when they
were minors. Doc. 10 at ¶¶ 19-37. Images of their
abuse were distributed, and continue to be circulated, on the
internet. Id. In April 2006, law enforcement agents
found images depicting child sex abuse on Anderson's
computer. Id. at ¶ 39. Analysts from the
National Center for Missing and Exploited Children identified
images of each of the Plaintiffs among the images on
Anderson's computer. Id. at ¶¶ 41-46.
On January 28, 2009, Anderson was charged with knowingly
possessing child pornography in violation of 18 U.S.C. §
2252(a)(4)(B) and pled guilty on the same day. Id.
at ¶¶ 47-48; United States v. Anderson,
5:09-cr-5, Doc. 4 (M.D. Ga.). Anderson was sentenced to 70
months in prison and 20 years supervised release. Doc. 10 at
¶ 50; Anderson, 5:09-cr-5, Doc. 16.
26, 2009, Amy and Alice received victim identification
notices from the Department of Justice informing them that
Anderson possessed their images. Doc. 10 at ¶¶ 15,
17. On August 4, 2009, Vicky received a victim identification
notice. Id. at ¶ 16. Before that, the
Plaintiffs had no knowledge of Anderson. Doc. 10 at ¶
53. At the time of notification, Alice was still a minor,
while Amy and Vicky were adults. Id. at ¶¶
7, 2016, the Plaintiffs filed this complaint alleging claims
under 18 U.S.C. § 2255, 18 U.S.C. § 2252A, and the
Georgia Racketeer Influenced and Corrupt Organizations Act
(RICO), O.C.G.A. §§ 16-14-1, et seq. Doc.
1. Plaintiffs filed an amended complaint on September 26,
2016. Doc. 10.
avoid dismissal pursuant to Rule 12(b)(6), a complaint must
contain sufficient factual matter to “‘state a
claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “At the motion to dismiss stage, all
well-pleaded facts are accepted as true, and the reasonable
inferences therefrom are construed in the light most
favorable to the plaintiff.” Garfield v. NDC Health
Corp., 466 F.3d 1255, 1261 (11th Cir. 2006) (quotation
marks and citation omitted). The complaint must “give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Twombly, 550
U.S. at 555 (quotation marks and citation omitted).
“Under Rule 12(b)(6), dismissal is proper when, on the
basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action.”
Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278
(11th Cir. 2015) (quotation marks omitted) (quoting
Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).
statute of limitations is an affirmative defense.
“Because [a] statute of limitations bar is an
affirmative defense, . . . plaintiff[s] [are] not required to
negate the affirmative defense in their complaint.”
Alvarez v. U.S. Immigration and Customs Enf't,
818 F.3d 1194, 1229 (11th Cir. 2016) (quotation marks and
citation omitted). “A complaint is subject to dismissal
for failure to state a claim when its allegations, on their
face, show that an affirmative defense bars recovery on the
claim.” Douglas v. Yates, 535 F.3d 1316, 1321
(11th Cir. 2008) (quotation marks and citation
Amy's and Vicky's § 2255 Claims
argues Amy's and Vicky's § 2255 claims are
barred by the ten year statute of limitations found in 18
U.S.C. § 2255(b). Doc. 13 at 5, 10. That statute of
limitations begins to run “after the right of action
first accrues or in the case of a person under a
legal disability, not later than three years after the
disability.” 18 U.S.C. § 2255(b) (emphasis added).
question here is whether Amy's and Vicky's claims
accrued when Anderson committed his crimes, which was in or
before January 2006, or when Amy and Vicky received notice of
Anderson's crimes in 2009. “Accrual, ” when
used to define the starting point of a statute of
limitations, is ambiguous. Foudy v. Miami-Dade Cty.,
823 F.3d 590, 593-94 (11th Cir. 2016); White v. Mercury
Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1431
(11th Cir. 1997). Accrual can mean the occurrence of an event
or it can mean the plaintiff's discovery of that
occurrence. Because Anderson committed his crimes more
than ten years before the Plaintiffs filed this action,
Anderson contends that Amy's and Vicky's § 2255
claims accrued when the crimes occurred. Doc. 13 at 5, 10.
Amy and Vicky argue their claims accrued when they learned of
Anderson's criminal conduct in 2009. Doc. 14 at 4-8. In
short, the issue is whether the discovery rule applies to
§ 2255 claims. This is a question of first impression in
Discovery Rule in the Eleventh Circuit
speaking, the federal discovery rule provides that a cause of
action accrues when a plaintiff is aware of his injury and
its cause. Although it has been said that the discovery rule
“is bad wine of recent vintage, ” TRW Inc. v.
Andrews, 534 U.S. 19, 37 (Scalia, J., concurring), it
still has a place at the table. The Eleventh Circuit's
decision in White v. Mercury Marine, Div. of
Brunswick, 129 F.3d 1428 (1997), is a good starting
point for figuring out where that place is. There, the Court
interpreted the general maritime statute of limitations, 46
U.S.C. § 763a, which runs “from the date the cause
of action accrued.” White, 129 F.3d at
1430-31. Noting the ambiguity of “accrue” and the
absence of legislative history, the Eleventh Circuit turned
to two Supreme Court cases interpreting similar statutory
language. Id. at 1431.
the Eleventh Circuit discussed Urie v. Thompson, 337
U.S. 163 (1949), in which the Supreme Court addressed when a
Federal Employers Liability Act (FELA) silicosis claim
accrued to determine if a railroad worker's claim was
barred by the three year statute of limitations.
White, 129 F.3d at 1432. The railroad argued the
worker's claim accrued when he contracted silicosis,
which, given his prolonged exposure to silica dust, must have
occurred more than three years before he filed suit. 337 U.S.
at 169. The Supreme Court disagreed, holding the claim
accrued on the date the worker first knew or should have
known of his injury and its cause. Id. at 170. As
the Eleventh Circuit in White put it, the Supreme
Court reasoned that “adopting an actual occurrence or
onset theory of accrual would punish the worker's
‘blameless ignorance' in ways that the FELA's
‘humane legislative plan' never intended.”
129 F.3d at 1432. The plaintiff in White sought to
distinguish Urie, arguing it stood not for the
application of the injury discovery rule but rather for the
most plaintiff-friendly accrual theory. Id. at 1433.
The Eleventh Circuit disagreed, noting that the discovery
rule is neutral and thus should not be applied only when it
works to a plaintiff's benefit. Id.
[The discovery rule] protects plaintiffs who are unaware of
their injury, while requiring those plaintiffs who have
“discovered” their injury to file suit within the
prescribed period. It, like the statute of limitations in
general, is a neutral balancing of interests, which must be
neutrally applied regardless of the party it benefits in a
Eleventh Circuit then examined United States v.
Kubrick, 444 U.S. 111 (1979), which addressed the
Federal Tort Claims Act's requirement that a plaintiff
present his claim within two years after his claim accrued.
White, 129 F.3d at 1433. In Kubrick, the
plaintiff knew of his injury and its cause but did not know
the injury was negligently inflicted. 444 U.S. at
114-15. Thus, the plaintiff argued his claim did not accrue
until he discovered his injury was the result of negligence.
Id. at 115. The Supreme Court disagreed and held
that the plaintiff's claim accrued when he discovered his
injury and its cause rather than when the plaintiff realized
he had a cause of action. Id. at 122-23.
White, the Eleventh Circuit found Urie and
So, twice the Supreme Court has been presented with federal
statutes of limitations language materially identical to that
in the general maritime statute of limitations, and twice the
Supreme Court has held that courts should use the discovery
rule to determine when a cause of action accrues. It is a
familiar canon of statutory construction that courts should
construe similar statutory language similarly. . . . We see
no good reason to give the term “accrue” as
Congress used it in the general maritime statute of
limitations a different meaning from that the Supreme Court
gave the identical term when Congress used it in the FELA and
129 F.3d at 1434. Indeed, the Eleventh Circuit observed that
it seemed Congress had agreed with “the Supreme
Court's construction of the word ‘accrue,
'” given that the Supreme Court in Kubrick
“practically invited Congress” to address its
interpretation of accrue “if the Court had misjudged
the legislative intent on the matter.” Id. at
1434-35. Yet, Congress enacted the general maritime statute
of limitations well after Urie and Kubrick,
“suggest[ing] that Congress tacitly accepted the
[Supreme] Court's interpretation [of accrue], or at least
was not noticeably upset with it.” Id. at
1434. Accordingly, the Eleventh ...