Cangemi v. United States

19-1076
Cangemi v. United States

United States Court of Appeals
For the Second Circuit

August Term 2020

Argued: October 23, 2020
Decided: September 7, 2021

No. 19-1076

THOMAS CANGEMI, JODI CANGEMI, MARIANN
COLEMAN, FRANCIS J. DEVITO, LYNN R. DEVITO,
LEON KIRCIK, ELIZABETH KIRCIK, CAROL C. LANG,
TERRY S. BIENSTOCK, DANIEL LIVINGSTON,
VICTORIA LIVINGSTON, ROBIN RACANELLI, JAMES E.
RITTERHOFF, THELMA WEINBERG TRUSTEE OF THE
THELMA WEINBERG REVOCABLE LIVING TRUST,
GALE H. RITTERHOFF,

Plaintiffs-Appellants,

ELSIE V. THOMPSON TRUST, JOHN TOMITZ,

Plaintiffs,

v.

UNITED STATES OF AMERICA, TOWN OF EAST
HAMPTON,

Defendants-Appellees,

UNITED STATES ARMY CORPS OF ENGINEERS, COL.
MATTHEW W. LUZZATTO, Commander, United
States Army Corps of Engineers, New York
 District, in his official capacity, COL. (RET.) JOHN
R. BOULE, II, in his individual capacity, WILLIAM J.
WILKINSON, in his individual capacity, COUNTY
OF SUFFOLK, STATE OF NEW YORK, BASIL SEGGOS,
Commissioner of the New York State Department
of Environmental Conservation, in his official
capacity, ROSSANA ROSADO, Secretary of the New
York State Department of State, in her official
capacity,

Defendants. *

Appeal from the United States District Court
for the Eastern District of New York
No. 12-cv-3989, Joanna Seybert, Judge.

Before: RAGGI, SULLIVAN, and NARDINI, Circuit Judges.

Plaintiffs-Appellants, property owners in the Town of East Hampton
(“Plaintiffs”), appeal from two separate decisions of the district court (Seybert, J.)
concerning their claims that the jetties abutting Lake Montauk Harbor (the
“Jetties”) have caused significant erosion on their properties. In the first decision,
the district court dismissed Plaintiffs’ Federal Tort Claims Act (“FTCA”) claims
against Defendant-Appellee the United States for lack of subject matter
jurisdiction on sovereign immunity grounds, citing the FTCA’s discretionary
function exception. In the second decision, the district court granted judgment as
a matter of law to Defendant-Appellee the Town of East Hampton (the “Town”)

*The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
In accordance with Rule 43(c)(2) of the Federal Rule of Appellate Procedure, the following
substitutions are made regarding the Defendants in this case: (1) Col. Matthew W. Luzzatto,
Commander of the U.S. Army Corps of Engineers, New York District, is substituted for former
Commander Col. (Ret.) John R. Boule, II; (2) Basil Seggos, Commissioner of the New York State
Department of Environmental Conservation, is substituted for former Commissioner Joe
Martens; and (3) Rossana Rosada, Secretary of the New York State Department of State, is
substituted for former Secretary Cesar A. Perales.

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on Plaintiffs’ state-law private nuisance and trespass claims. Plaintiffs argue that
the district court erred in both decisions because (1) the FTCA’s discretionary
function exception does not apply to the United States’ management of the Jetties;
and (2) the Town, as the owner of the land beneath the Jetties, had a duty to
mitigate the erosion caused by the Jetties. We disagree. The district court correctly
concluded that Plaintiffs’ claims against the United States are barred by sovereign
immunity, and we hold that, under New York law, the Town’s ownership of the
land beneath the Jetties, standing alone, did not give rise to a duty to mitigate any
erosion caused by the Jetties.

AFFIRMED.

TIMOTHY F. HILL, Sinnreich Kosakoff & Messina
LLP, Central Islip, NY, for Plaintiffs-Appellants.

VINCENT LIPARI (Varuni Nelson, Rachel G.
Balaban, on the brief), Assistant United States
Attorneys, for Jacquelyn M. Kasulis, Acting United
States Attorney for the Eastern District of New
York, Central Islip, NY, for Defendant-Appellee
United States of America.

STEVEN C. STERN, Sokoloff Stern LLP, Carle Place,
NY, for Defendant-Appellee Town of East Hampton.

RICHARD J. SULLIVAN, Circuit Judge:

Plaintiffs-Appellants, seaside property owners in the Town of East

Hampton, New York (“Plaintiffs”), appeal from a final judgment of the district

court in favor of Defendants-Appellees the United States and the Town of East

Hampton (the “Town”). Plaintiffs challenge two decisions of the district court. In

the first decision, the district court dismissed Plaintiffs’ Federal Tort Claims Act

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(“FTCA”) claims against the United States for lack of subject matter jurisdiction on

sovereign immunity grounds, citing the FTCA’s discretionary function exception.

See Cangemi v. United States, No. 12-cv-3989 (JS), 2017 WL 1274060, at *1 (E.D.N.Y.

Mar. 31, 2017) (“Cangemi III”); Fed. R. Civ. P. 12(b)(1). 1 In the second, the district

court granted the Town’s motion for judgment as a matter of law after trial on

Plaintiffs’ state-law private nuisance and trespass claims. See Cangemi IV, 374 F.

Supp. 3d at 231, 239; Fed. R. Civ. P. 50(b). On appeal, Plaintiffs argue that (1) the

FTCA’s discretionary function exception does not apply to the federal

government’s management of the jetties abutting Lake Montauk Harbor; and (2)

the Town was not entitled to judgment as a matter of law because, as the owner of

the land underneath the jetties, it had a duty to mitigate erosion caused by those

jetties. For the reasons set forth below, we reject these arguments and affirm the

district court’s judgment.

1 Although Plaintiffs directly challenge only two of the district court’s decisions, the district court
issued four decisions involving the key issues on appeal: (1) Cangemi v. United States, 939 F. Supp.
2d 188 (E.D.N.Y. 2013) (“Cangemi I”); (2) Cangemi v. United States, No. 12-cv-3989 (JS), 2016 WL
915173 (E.D.N.Y. Mar. 7, 2016) (“Cangemi II”); (3) Cangemi III, 2017 WL 1274060; and (4) Cangemi
v. Town of East Hampton, 374 F. Supp. 3d 227 (E.D.N.Y. 2019) (“Cangemi IV”).

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 I. BACKGROUND

A. Facts

1. The Jetties and Lake Montauk Harbor Federal Navigation Project

This case centers around two rock jetties standing at the mouth of Lake

Montauk Harbor, which is located in the Town of East Hampton on the northern

shore of the south fork of Long Island. The Lake Montauk Harbor jetties (the

“Jetties”) stabilize the inlet and provide access to the harbor, which houses a U.S.

Coast Guard station and serves as the largest commercial fishing port in New

York. The Jetties were first constructed in 1926 by a private development company

managed by entrepreneur Carl Fisher, who owned much of the land surrounding

Lake Montauk Harbor and used it primarily as a private yacht club.

Fisher’s development company went into receivership during the Great

Depression, so representatives from the Town of East Hampton urged the federal

government to preserve access to the harbor. In response to these efforts, the U.S.

Army Corps of Engineers (“USACE”) surveyed the harbor and informed Congress

that federal intervention to improve and maintain Lake Montauk Harbor was

justified because it was the only harbor of refuge within fifty miles for large vessels

navigating near the east end and South Fork of Long Island during rough weather,

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and because the harbor benefitted the public by providing recreational and

economic opportunities for the community. The USACE issued its

recommendation to Congress in part because Fisher’s development company had

agreed to convey to the United States, free of charge, all right of way to Lake

Montauk Harbor, its bed, shores, and structures, and to dedicate them to

permanent, public use as a navigable waterway.

To facilitate the federal government’s involvement, in 1941, Fisher’s

development company transferred to the Town title to the Jetties and the land

under Lake Montauk Harbor. In 1942, the Town then granted the federal

government a permanent easement to use and develop the Jetties, the channel, and

the waters of Lake Montauk Harbor as a Federal Navigation Project (“FNP”). The

Town retained, and still retains, legal title to the Jetties and the land underneath

Lake Montauk Harbor.

Congress formally approved the Lake Montauk Harbor FNP under the

Rivers and Harbors Act of 1945. See Pub. L. No. 79-14, § 2, 59 Stat. 10, 13 (1945).

As an FNP, the Jetties, channel, and waters of Lake Montauk Harbor fell under the

exclusive authority of the federal government. But in 1962, as a condition of

continued federal involvement, the Town executed an “Assurance of Local

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Cooperation” with the federal government, in which the Town reauthorized its

1942 easement and agreed to indemnify the federal government for “claims for

damages that may occur from the construction and maintenance of the

improvements” to Lake Montauk Harbor as part of the FNP. App’x at 4605.

Federal development of the harbor was completed in 1968, when the east

and west Jetties were repaired and extended to their current lengths. Although

the design of the Jetties has remained unchanged since 1968, the USACE repaired

the eastern jetty in 1995 and performed periodic dredging of the Lake Montauk

Harbor channel from 1966 to 2011. To this day, the USACE maintains the Jetties

pursuant to the FNP; the Town does not control or manage them.

2. The 1991 Resolution and Reconnaissance Study

In 1991, the Senate Committee on Environmental and Public Works asked

the USACE to “determin[e] if further improvements for navigation [were]

advisable” in Lake Montauk Harbor. Id. at 385. As a general matter, when the

USACE receives such congressional authority, it investigates possibilities for

federal improvement and issues a “reconnaissance study,” which is a preliminary

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document stating whether federal interests exist in continuing to the next

development phase – the issuance of a “feasibility study.” 2

In May 1995, the USACE completed the Lake Montauk Harbor

Reconnaissance Study, which reported that navigation into Lake Montauk Harbor

had become difficult due to deterioration of the east Jetty. The Reconnaissance

Study recommended rehabilitating the Jetties, deepening the channel at the

entrance to Lake Montauk Harbor, and using dredged and “bypassed” sand to

replenish the shoreline to the west of the Jetties, which had experienced erosion. 3

3. The Feasibility Cost Sharing Agreement

The USACE’s 1995 Reconnaissance Study concluded that a feasibility study

was needed to chart a course of action for rehabilitating Lake Montauk Harbor. In

broad strokes, a feasibility study provides a detailed report of all engineering,

design, and real estate activities required for a development project. See 33 U.S.C.

§ 2282(a)(2); Army Corps of Engineers at 11–12. Unlike a reconnaissance study, a

2See Nicole T. Carter & Charles V. Stern, Cong. Rsch. Serv. R41243, Army Corps of Engineers: Water
Resource Authorizations, Appropriations, and Activities 7–9 (2017) (hereinafter “Army Corps of
Engineers”).
3 In this context, sand “dredging” referred to the removal of sand from the already-existing
channel, while sand “bypassing” referred to the transportation of sand from the eastern shoreline
to the western shoreline via truck, barge, or temporary hydraulic pipeline.

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feasibility study is a complete decision document that presents a final

recommendation to Congress. Army Corps of Engineers at 12. Congress may then

accept or reject the USACE’s recommendation, as only Congress has the final

authority to approve and fund a project. Id.

The USACE cannot begin a feasibility study without a “feasibility cost

sharing agreement” with a nonfederal sponsor that commits to sharing 50% of the

cost of the study. See 33 U.S.C. § 2215(a)(1)(A). To that end, in February 2002, the

USACE entered into a feasibility cost sharing agreement (the “FCSA”) with the

New York State Department of Environmental Conservation. The FCSA provides,

at Article II.A., that the USACE “shall expeditiously prosecute and complete the

[Lake Montauk Harbor Feasibility] Study.” App’x at 423. Further, Article X.A. of

the FCSA states that either party may terminate the FCSA upon thirty days’

written notice, and that upon such termination, “both parties shall conclude their

activities relating to the [Feasibility] Study and proceed to a final accounting.” Id.

at 427. The preamble to the FCSA also specifies that nothing in the agreement

“obligates either party to implement a project.” Id. at 422.

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 4. The Feasibility Scoping Meeting, 3x3x3 Paradigm, and DRAA

Progress on the Lake Montauk Harbor Feasibility Study (“LMH Study”)

slowed to a crawl in the years following the signing of the FCSA. Nevertheless, in

September 2006, the USACE held a meeting for the LMH Study to explore different

alternatives for the completed development project.

On February 8, 2012, Major General Michael J. Walsh, Deputy Commanding

General for the USACE’s Civil and Emergency Operations, issued a memorandum

establishing the “3x3x3 Paradigm,” which provided that certain USACE feasibility

studies should be completed within three years, cost no more than three million

dollars, and have three levels of review. Importantly, the 2012 memorandum

made clear that the 3x3x3 Paradigm would apply only to feasibility studies that

“ha[d] not reached a Feasibility Scoping Meeting (FSM) by 31 December 2011.” Id.

at 2053.

Anthony Ciorra, former Chief of the Civil Works Branch of the Programs

and Project Management Division of the USACE New York District, testified that

the September 2006 meeting for the LMH Study qualified as a “feasibility scoping

meeting” within the meaning of the 3x3x3 Paradigm. Id. at 2046. Moreover, on

April 3, 2014, the USACE updated its Lake Montauk Harbor Project Management

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Plan to confirm that an “Alternatives” meeting – “another term used to refer to a

feasibility scoping meeting” – had taken place in September 2006. Id. at 2047–48.

Ciorra testified (and a strategy paper appended to the Project Management Plan

confirmed) that, in light of the completion of this Feasibility Scoping Meeting prior

to December 31, 2011, the LMH Study was “grandfathered” – i.e., it was exempted

from the requirements of the 3x3x3 Paradigm. Id. at 2046, 2048, 2061, 2094.

On January 29, 2013, Congress enacted the Disaster Relief Appropriations

Act of 2013 (“DRAA”), which provided federal funding for various USACE

feasibility studies, including the LMH Study, for projects that would help

remediate damage caused by Superstorm Sandy. See Pub. L. No. 113-2, tit. II, 127

Stat. 4, 5 (2013). On April 13, 2015, Joseph Vietri, Chief of the Policy and Planning

Division for the USACE North Atlantic Division, issued a memorandum setting

“proposed . . . milestone” dates for feasibility studies “being conducted under the

[DRAA].” App’x at 2101. Pursuant to this memorandum, the proposed

completion date of the LMH Study was set for April 17, 2017. As of April 19, 2019

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– the date that Plaintiffs filed their Notice of Appeal – the final LMH Study Report

had not yet been issued. 4

5. The Lake Montauk Harbor Feasibility Study

During the course of its work on the LMH Study, the USACE considered

twelve different options for improving the navigation into Lake Montauk Harbor

and nine different options for reducing storm damage and shoreline erosion

around Lake Montauk Harbor. The USACE rejected some of these alternatives for

various reasons, including cost and efficacy. For instance, although the USACE

appeared to recognize that the Jetties contributed to erosion on the western

shoreline, it rejected a plan that would have addressed that erosion by modifying

the Jetties. It explained that “[u]nless both Jetties are removed and [the] channel

[is] closed, partial modification would not meet the purpose of restoring natural

sediment transport . . . to prevent downdrift beach erosion.” Id. at 482–83. The

4 According to the USACE’s website, of which we may take judicial notice, see 23-34 94th St.
Grocery Corp. v. N.Y.C. Bd. of Health, 685 F.3d 174, 183 n.7 (2d Cir. 2012), the USACE issued a draft
feasibility report for public review in July 2019, and a final report was approved in February 2021.
See USACE, Fact Sheet – Lake Montauk Harbor Feasibility Study, NY, USACE New York District
Website (Apr. 9, 2021), https://www.nan.usace.army.mil/Media/Fact-Sheets/Fact-Sheet-Article-
View/Article/487490/fact-sheet-lake-montauk-harbor-feasibility-study/.

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USACE further noted that altering the Jetties would “contradict[] the navigation

channel improvement purpose” of the plan. Id.

At a public meeting in March 2014, the USACE gave a presentation

discussing three specific proposals for developing the Lake Montauk Harbor FNP.

One option was to take no action. Id. at 509. “Alternative 1” was a “Navigation

Only Plan,” which involved deepening the channel, placing the dredged material

on the western shoreline, and dredging on a five-year cycle, for a total cost of

approximately $26 million. Id. at 510, 513. Another option, “Alternative 2,” was a

“Navigation and Coastal Storm Risk Management Plan,” which involved all of the

development under Alternative 1 but also included bypassing approximately

230,000 cubic yards of sand to address erosion on the western shoreline and

continued sand bypassing on a regular basis. Id. at 511. Alternative 2 had an

estimated cost of $41 million. Id. at 513.

6. The Town’s Efforts to Mitigate Erosion

As discussed above, once the Town ceded control of the Jetties to the

USACE, it no longer managed the Jetties themselves or the navigable waters of

Lake Montauk Harbor. The Town did, however, recognize that the Jetties

appeared to cause erosion to the shoreline to the west of the Jetties. As early as

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1994, Town representatives wrote to the USACE requesting the federal

government’s assistance in addressing “the severe downdrift scouring caused by

the Federal jetties.” Id. at 4617. And the Town undertook its own efforts to address

erosion, including a Local Waterfront Revitalization Program (“LWRP”). The final

LWRP report, approved by the New York Secretary of State in 2007, acknowledged

that the Jetties caused “downdrift scouring” to the beaches along Soundview

Drive to the west of the Jetties. Id. at 6062.

Consistent with the observations made in the LWRP report, the Town also

proposed a sand bypass plan to address erosion to the west of the Jetties. Under

that proposal, the Town would transport 5,000 to 10,000 cubic yards of surplus

sand from the Town-owned portion of Gin Beach (east of the Jetties) to the eroded

Soundview Drive shoreline to the west. This sand bypass plan progressed to the

point that the Town Board approved resolutions to proceed with the project, and

permits were obtained to perform the work. Town representatives also attended

meetings with state representatives regarding other sand bypass options that

would not require federal involvement. Ultimately, however, the Town never

commenced any of these sand bypass projects.

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B. Procedural History

1. State Court Action and Cangemi I

The parties’ long-winding litigation began in January 2011, when Plaintiffs,

a group of Montauk residents owning property west of the Jetties, sued the Town,

Suffolk County, the State of New York, and several New York state officials in

New York state court. The Plaintiffs asserted various state common-law claims,

as well as state and federal constitutional claims, all premised on the erosion

caused by the Jetties and the Town’s and New York’s failure to mitigate that

erosion. On February 17, 2012, the New York Supreme Court dismissed Plaintiffs’

state complaint on the ground that the United States was a necessary party because

it was “the entity that performed the repairs and extensions of the [J]etties

pursuant to the [FNP] and would be involved in mitigation measures.” Cangemi

v. Town of East Hampton, 2012 N.Y. Slip Op. 30538(U), at 4 (Sup. Ct. Feb. 17, 2012).

Plaintiffs then commenced this action in federal court against the Town and

the United States on June 14, 2012. 5 In their operative Amended Complaint, filed

5 Plaintiffs also named as defendants the State of New York, Suffolk County, several New York
state officials, a Town official, the USACE, and a USACE official, but those additional defendants
were subsequently dismissed from the case (either by stipulation or by order of the district court),
and Plaintiffs do not challenge those dismissals on appeal. In addition, while Plaintiffs originally

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September 14, 2012, Plaintiffs asserted three claims relevant to this appeal. First,

Plaintiffs alleged that both the Town and the United States were liable for private

nuisance, under New York law, on the theory that the Jetties (owned by the Town

and controlled by the federal government) interrupted “the natural east-to-west

littoral movement of . . . sand,” resulting in severe erosion to Plaintiffs’ properties.

App’x at 53. Second, Plaintiffs alleged that – for essentially the same reasons –

“[t]he design, construction, maintenance[,] and continued presence of the Jetties

constitute[d] . . . an absolute public nuisance.” Id. at 59. Third, Plaintiffs alleged

that the Town and the United States were liable for trespass, under New York law,

on the theory that the Jetties caused the “unauthorized entry and acceleration of

waters” onto Plaintiffs’ property. 6 Id. at 64.

filed their complaint in the Southern District of New York, the parties agreed to transfer the case
to the Eastern District of New York in August 2012.
6 Plaintiffs also alleged additional claims against the Town and the United States that are not
directly at issue in this appeal, including: (1) New York common-law claims for (a) negligence,
(b) unjust enrichment, and (c) appropriation of resources; (2) denial of due process under the U.S.
Constitution; (3) denial of equal protection under the U.S. Constitution; (4) unlawful taking of
property under the U.S. Constitution; (5) unlawful taking of property under the New York
Constitution; and (6) as to the United States only, violation of the Administrative Procedure Act.

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 On August 27, 2012, the Town moved to dismiss Plaintiffs’ amended

complaint. 7 As relevant to this appeal, the Town argued that Plaintiffs failed to

plausibly allege their private nuisance claim because they made no allegations that

the Town had (1) acted intentionally to create erosion on Plaintiffs’ properties or

(2) acted negligently, since the Town had no duty to mitigate the effects of the

Jetties that were operated entirely by the federal government. The Town also

argued that Plaintiffs failed to properly plead their trespass claim because they

failed to allege the requisite level of intent to give rise to a trespass.

In a March 29, 2013 memorandum and order, the district court denied the

Town’s motion to dismiss Plaintiffs’ private nuisance, public nuisance, and

trespass claims. Cangemi I, 939 F. Supp. 2d at 205–07. In pertinent part, the district

court held that Plaintiffs plausibly alleged that the Town had engaged in

intentional or negligent conduct with respect to the Jetties, such that the Town

could be liable for nuisance and trespass. Id. at 198, 203–05. Moreover, the district

court rejected the Town’s argument that it did not have a duty to mitigate the

7More precisely, the Town moved to dismiss Plaintiffs’ original complaint, but because Plaintiffs’
amended complaint did not substantially alter the claims against the Town, the parties agreed –
and the district court ordered – that the Town’s motion to dismiss would be applied to the
amended complaint.

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effects of the Jetties, reasoning that, as alleged in the amended complaint, the Town

was more than “a mere instrumentality” of the federal government in managing

the Jetties. Id. at 205 n.9 (internal quotation marks omitted). 8

2. Cangemi II and III

On March 6, 2015, the United States filed a motion to dismiss for lack of

subject matter jurisdiction, asserting that Plaintiffs’ claims against it were barred

by the doctrine of sovereign immunity. Specifically, the United States argued that

Plaintiffs’ tort claims (including their private nuisance and trespass claims) fell

within the FTCA’s discretionary function exception, meaning that the United

States had not waived its sovereign immunity as to such claims. The United States

argued that the USACE was not subject to any mandatory directive prescribing a

certain course of conduct with respect to the Jetties or the Lake Montauk Harbor

FNP, and that the USACE’s management of the Jetties was grounded in questions

of public policy – the two elements necessary to satisfy the discretionary function

exception.

8In that same decision, the district court dismissed several of Plaintiffs’ other claims – including
their federal takings, due process, and equal protection claims – on the ground that they were
barred by the relevant statutes of limitations. See id. at 199–201.

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 Initially, the district court denied the United States’ motion to dismiss in a

March 7, 2016 memorandum and order. Cangemi II, 2016 WL 915173, at *7. The

court agreed with the United States that the USACE’s management of the Jetties

(including the LMH Study) was “either grounded in policy concerns or, at the very

least, susceptible to policy analysis.” Id. at *5 n.4. But the court concluded that the

discretionary function exception did not apply because both the 3x3x3 Paradigm

and the LMH Study FCSA “provide[d] a prescribed course of action” – specifically,

that the USACE was required to complete the LMH Study within a certain

timeframe so that the federal government could respond to the erosion caused by

the Jetties. Id. at *6–7 (internal quotation marks and alterations omitted).

One year later, however, the district court reversed course. After the United

States submitted a motion for reconsideration pointing to evidence in the record

that the district court had overlooked, the court granted the United States’ motion

to dismiss for lack of subject matter jurisdiction. Cangemi III, 2017 WL 1274060, at

*3–4. Although the court acknowledged that it had already concluded, in Cangemi

II, that the USACE’s actions were susceptible to a policy analysis, it conceded that

it had “overlooked the FCSA’s termination provision” and other language in the

FCSA showing that the FCSA did not impose a mandatory directive. Id. at *4. The

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court also recognized that new materials submitted with the United States’ motion

(including an affidavit from Anthony Ciorra) made clear that the USACE had held

a “Feasibility Scoping Meeting” before December 31, 2011, thereby exempting the

LMH Study from the 3x3x3 Paradigm. Id. at *7. Accordingly, because Cangemi II

had relied on the FCSA and the 3x3x3 Paradigm as the only sources of mandatory

directives imposed on the USACE concerning the Jetties, the district court

dismissed Plaintiffs’ tort claims against the United States on sovereign immunity

grounds. Id. at *4.

In the same decision, the district court nevertheless denied the Town’s

motion for summary judgment on Plaintiffs’ private and public nuisance and

trespass claims. Id. at *10–11. Relying extensively on the reasoning from

Cangemi I, in which it had denied the Town’s motion to dismiss, the court

concluded that Plaintiffs’ claims against the Town could not “be resolved as a

matter of law at [that] stage.” Id. at *11.

3. Trial and Cangemi IV

Plaintiffs’ state-law private nuisance, public nuisance, and trespass claims

against the Town proceeded to trial from June 4 to June 29, 2018. Cangemi IV, 374

F. Supp. 3d at 232. At the close of Plaintiffs’ case and again at the close of the

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Town’s case, the Town moved for judgment as a matter of law pursuant to Federal

Rule of Civil Procedure 50(a) on the grounds that (1) it had no duty to remediate

the effects of the Jetties because it lacked control over the Jetties; and (2) it engaged

in no intentional conduct that could give rise to liability for nuisance or trespass.

Id. at 232, 235. The district court reserved decision on the motions and submitted

the case to the jury. Id. at 232. The jury found for Plaintiffs on their claims for

private nuisance and trespass, found for the Town on the public nuisance claim,

and awarded Plaintiffs $355,961.27 in compensatory damages. Id. After the

verdict, the Town renewed its motion for judgment as a matter of law pursuant to

Federal Rule of Civil Procedure 50(b) and, alternatively, moved for a new trial

pursuant to Rule 59. Id.

In a March 15, 2019 memorandum and order, the district court granted the

Town’s renewed motion for judgment as a matter of law. Id. at 231, 238. Although

“mindful” of its prior orders, in which it had stated “that Plaintiffs had ‘at least

plausibly suggested that [the Town] can maintain the Jetties without creating a

nuisance or trespass by remedial actions,’” id. at 234 (quoting Cangemi I, 939 F.

Supp. 2d at 198); see also Cangemi III, 2017 WL 1274060, at *8, the district court

concluded that “the evidence at trial . . . convinced th[e] [c]ourt that the Town

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simply could not and did not exercise control over the [J]etties sufficient to impose

liability on it.” Cangemi IV, 374 F. Supp. 3d at 234.

With respect to Plaintiffs’ private nuisance claim, the district court held that,

because the Town lacked control over the Jetties, Plaintiffs could not show the

necessary intent or causation to prove an intentional private nuisance, since the

Town was a “mere instrumentality” of the USACE and did not actually maintain

the Jetties. Id. at 235 (internal quotation marks omitted). And although the court

recognized that the failure to act can in some circumstances give rise to nuisance

liability under New York law, such liability was inappropriate in this case because

the Town was under no legal duty to act given its lack of control over the Jetties.

Id. at 236. The court similarly concluded that, because the Town had no duty to

act, Plaintiffs could not show negligent private nuisance. Id. at 237.

With respect to Plaintiffs’ trespass claim, the district court again focused on

the Town’s lack of intentional conduct concerning the Jetties, explaining that

because “the Town did not act intentionally and willfully or negligently . . . , no

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reasonable fact-finder could have found it liable for the intrusion of water upon

Plaintiffs’ property.” Id. at 238. 9

Following the district court’s decision and entry of the final judgment,

Plaintiffs filed a timely notice of appeal.

II. DISCUSSION

On appeal, Plaintiffs principally challenge two of the district court’s

decisions. First, they contend that the district court erred when it dismissed their

tort claims against the United States on sovereign immunity grounds, arguing that

those claims are not barred by the FTCA’s discretionary function exception.

Second, they argue that the district court improperly granted the Town’s renewed

motion for judgment as a matter of law because Plaintiffs’ private nuisance and

trespass claims were established at trial through evidence showing that the Town

knew of harm caused by the Jetties but failed to remediate that harm, and through

evidence showing that the Town authorized the building of the Jetties and derived

a benefit from them. We address each of these challenges in turn.

9 In the alternative, the district court granted the Town’s motion for a new trial. Id. at 238.
Essentially for the same reasons that it granted the Town’s renewed motion for judgment as a
matter of law, the court concluded that “the verdict was against the weight of the evidence”
because “[t]he Town did not control the [J]etties, could not and did not engage in conduct, and
lacked the requisite intent.” Id.

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A. Plaintiffs’ Claims Against the United States

On appeal from a dismissal pursuant to Rule 12(b)(1), including on

sovereign immunity grounds, we review a district court’s legal conclusions de novo

and factual findings for clear error. 10 See Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000). “In resolving a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside

the pleadings.” Id.

“Absent an unequivocally expressed statutory waiver, the United States

. . . [is] immune from suit based on the principle of sovereign immunity.” County

of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) (internal quotation marks

omitted). The FTCA provides for a limited waiver of sovereign immunity for

“injury or loss of property . . . caused by the negligent or wrongful act or omission”

of a federal government employee “acting within the scope of his office or

10As a technical matter, Plaintiffs challenge the district court’s grant of the United States’ motion
for reconsideration, a decision we have previously reviewed for abuse of discretion. See Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). But because an error of law constitutes an
abuse of discretion, see RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003), and
because Plaintiffs challenge the district court’s dismissal under 12(b)(1), not its decision to
reconsider its earlier order, we review the district court’s dismissal de novo, cf., e.g., Bayerische
Landesbank v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 52 n.3 (2d Cir. 2012) (declining to review
district court’s order denying a motion for reconsideration for abuse of discretion because that
decision was “essentially an affirmance” of the district court’s prior ruling “on the merits”
(internal quotation marks omitted)).

24
employment.” 28 U.S.C. § 1346(b)(1). But the FTCA is limited by a number of

exceptions, including the so-called “discretionary function exception,” which bars

“[a]ny claim . . . based upon the exercise or performance or the failure to exercise

or perform a discretionary function or duty on the part of a federal agency or an

employee of the Government, whether or not the discretion involved be abused.”

28 U.S.C. § 2680(a). Thus, for acts that fall under the discretionary function

exception, the United States has not waived its sovereign immunity, and federal

courts lack subject matter jurisdiction over claims premised on those acts. See Fazi

v. United States, 935 F.2d 535, 537 (2d Cir. 1991).

The Supreme Court has developed a two-part framework, known as the

“Berkovitz/Gaubert” test, for determining whether the discretionary function

exception applies to a given claim. See United States v. Gaubert, 499 U.S. 315, 322–

23 (1991); Berkovitz v. United States, 486 U.S. 531, 536–37 (1988). Under the

Berkovitz/Gaubert test, the discretionary function exception bars a claim where

“(1) the acts alleged to be negligent [or wrongful] . . . [are] discretionary, in that

they involve an element of judgment or choice and are not compelled by statute

or regulation and (2) the judgment or choice in question [is] . . . grounded in

25
considerations of public policy or susceptible to policy analysis.” Coulthurst v.

United States, 214 F.3d 106, 109 (2d Cir. 2000) (internal quotation marks omitted).

Because plaintiffs bear the initial burden of showing that their claims against

the United States fall within the FTCA’s limited waiver of sovereign immunity,

plaintiffs also bear the initial burden of showing that their claims are not barred

by the discretionary function exception. See Molchatsky v. United States, 713 F.3d

159, 162 (2d Cir. 2013) (citing Gaubert, 499 U.S. at 324–25). Plaintiffs can overcome

a motion to dismiss premised on the discretionary function exception by showing

that either (1) the United States’ allegedly tortious act (or failure to act) was

inconsistent with a “specific mandatory directive” – i.e., a “federal statute,

regulation, or policy [that] specifically prescribes a course of action for [the federal

government] to follow,” Berkovitz, 486 U.S. at 536, 544; or (2) the allegedly tortious

“judgment or choice in question” is not “grounded in considerations of public

policy or susceptible to policy analysis,” Coulthurst, 214 F.3d at 109 (internal

quotation marks omitted).

Here, Plaintiffs challenge the district court’s dismissal of their claims against

the United States on both grounds. First, Plaintiffs argue that the USACE was

subject to and violated two sources of mandatory directives: (1) the FCSA and

26
(2) the 3x3x3 Paradigm. Plaintiffs contend that both of these directives required

the USACE to conduct the LMH Study within a prescribed timeframe, and that the

USACE failed to complete the LMH Study within that timeframe. Second,

Plaintiffs argue that the extensive and unjustified delays associated with the LMH

Study were not grounded in considerations of public policy. But as the district

court correctly concluded, neither the FCSA nor the 3x3x3 Paradigm actually

imposed upon the USACE a mandatory timeline for completing the LMH Study.

See Cangemi III, 2017 WL 1274060, at *4. And while Plaintiffs are correct that the

LMH Study experienced significant (and largely unexplained) delays, the district

court properly recognized that the USACE was afforded substantial discretion in

undertaking that feasibility study and managing the FNP at Lake Montauk Harbor

– including the discretion not to take any action to mitigate the adverse effects of

the Jetties. See id.; Cangemi II, 2016 WL 915173, at *5 n.4. Accordingly, the district

court correctly found that both parts of the Berkovitz/Gaubert test were satisfied and

properly dismissed Plaintiffs’ FTCA claims against the United States.

1. Neither the FCSA nor the 3x3x3 Paradigm imposes a mandatory
directive.

Though Plaintiffs look to the FCSA as the source of a mandatory directive,

the very first section of that agreement makes clear that “entering into this

27
Agreement in no way obligates either” the State of New York or the federal

government “to implement a project,” and that “whether the [federal government]

supports a project authorization and budgets it for implementation depends upon,

among other things, the outcome of the [LMH] Study and whether the proposed

solution is consistent with the . . . budget priorities of the Administration.” App’x

at 422. Article X.A. of the FCSA also provides that the federal government can

terminate or suspend the agreement at any point prior to submitting the

“feasibility report to the Office of Management and Budget” upon thirty days’

written notice. Id. at 422, 427. Upon such termination, “both parties shall conclude

their activities relating to the [LMH] Study and proceed to a final accounting . . . .”

Id. at 427. These provisions in the FCSA reveal that the federal government was

free to walk away from the LMH Study at any point.

Plaintiffs’ sole argument for a mandatory directive in the FCSA comes from

Article II.A., which provides that the federal government “shall expeditiously

prosecute and complete the [LMH] Study.” Id. at 423. The district court correctly

rejected this argument for two key reasons. First, the term “expeditiously” is

“undefined and does not constitute a fixed or readily ascertainable standard to

prevent the government’s conduct from falling into the discretionary function

28
exception.” Cangemi III, 2017 WL 1274060, at *4 n.7 (internal quotation marks,

alterations, and emphasis omitted). Indeed, Plaintiffs do not point to any specified

time at which their claims premised on the FCSA accrued.

Second, Plaintiffs’ reading of Article II.A. imposes an artificial obligation on

the USACE to actually complete the LMH Study, which directly conflicts with the

FCSA’s preamble and Article X.A. Under Plaintiffs’ theory, the USACE was under

a mandatory duty to complete the LMH Study (in some “expeditious[]” yet

undesignated timeframe), even though the USACE was explicitly under no

obligation to complete any final project and could terminate the FCSA –

automatically triggering the end of the LMH Study – upon thirty days’ written

notice. Plaintiffs’ narrow reading of Article II.A. thus ignores the substantial

discretion afforded to the USACE by the rest of the FCSA, and the district court

properly held that the FCSA did not give rise to a mandatory directive.

Plaintiffs’ arguments premised on the USACE’s 3x3x3 Paradigm policy fare

no better. The 3x3x3 Paradigm imposed a three-year timeline for the feasibility

studies to which it applied, but the memorandum announcing the 3x3x3 Paradigm

explicitly stated that this timeline applied only to “feasibility studies that have not

reached a Feasibility Scoping Meeting . . . by 31 December 2011.” App’x at 2053

29
(emphasis added). As part of its motion to dismiss Plaintiffs’ action for lack of

subject matter jurisdiction, the United States submitted an undisputed declaration

by Anthony Ciorra, an updated Lake Montauk Harbor Project Management Plan,

and a USACE strategy paper appended to that Plan, all making clear that the

“Feasibility Scoping Meeting” for the LMH Study occurred in September 2006. See

id. at 2046–48, 2061, 2084, 2094. The materials submitted with the United States’

motion to dismiss thus reflect that the LMH Study did not violate the 3x3x3

Paradigm because it was “grandfathered” and therefore exempt. Id. at 2094.

Plaintiffs argue that the Ciorra declaration is “self-serving” and should not

have been credited by the district court. But while the declaration was surely “self-

serving” in the sense that it supported the United States’ contention that the

district court lacked subject matter jurisdiction, it was supported by references to

the updated Lake Montauk Harbor Project Management Plan, the internal USACE

strategy paper, and Ciorra’s prior deposition testimony. After the United States

presented this evidence supporting its motion to dismiss, it was Plaintiffs’ burden

to come forward with evidence supporting their assertion of jurisdiction. See

Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (explaining that when

plaintiffs oppose a motion to dismiss for lack of subject matter jurisdiction

30
supported by evidence outside the pleadings, they “need to come forward with

evidence of their own to controvert that presented by the defendant if the

affidavits submitted on a 12(b)(1) motion reveal the existence of factual problems

in the assertion of jurisdiction” (internal quotation marks and alterations

omitted)). Because they did not do so, the district court was entitled to rely on the

Ciorra declaration, which conclusively establishes that the LMH Study was

exempt from the strictures of the 3x3x3 Paradigm. 11

2. The LMH Study is susceptible to policy analysis.

The district court also correctly held that the United States satisfied the

second prong of the Berkovitz/Gaubert test because the LMH Study – along with the

USACE’s management of the FNP at Lake Montauk Harbor – is “susceptible to

policy analysis.” Gaubert, 499 U.S. at 325. Congress has enumerated a multitude

of policy concerns that must be balanced in any USACE feasibility study, including

11To the extent that Appellants argue that the LMH Study was subject to a mandatory deadline
by virtue of the April 2015 USACE memorandum that set “start and end milestone dates” for the
LMH Study pursuant to the DRAA, App’x at 2101–03, we also reject that memorandum as a
source of a mandatory directive. Appellants appear to conflate the 3x3x3 Paradigm with the
separate timeline established in the April 2015 memorandum. But putting that confusion aside,
neither the DRAA nor the 2015 memorandum imposed a mandatory timeline for completion of
the LMH Study. The 2015 memorandum merely established “proposed . . . milestone[s]” for
completion. Id. at 2101. Accordingly, Appellants have not met their burden of showing that the
deadlines imposed by this 2015 memorandum were mandatory rather than “involv[ing] an
element of judgment or choice.” Coulthurst, 214 F.3d at 109 (internal quotation marks omitted).

31
“the economic, environmental, and social benefits and detriments of the

recommended plan and alternative plans considered by the Secretary and . . . the

public acceptability, and the purposes, scope, and scale of the recommended

plan.” 33 U.S.C. § 2282(a)(2). Moreover, as the district court recognized, decisions

regarding whether to ultimately approve and fund a given FNP are grounded in

policy and thus are exclusively for Congress. See Cangemi II, 2016 WL 915173, at

*3 (“[T]he decision to approve a USACE project is for Congress, not the judiciary.”

(citing County of Vernon v. United States, 933 F.2d 532, 535 (7th Cir. 1991)).

Accordingly, the USACE’s management of the Lake Montauk Harbor FNP and the

LMH Study are clearly susceptible to policy analysis.

Plaintiffs appear to argue that, even though these authorities granted the

USACE broad discretion in conducting the LMH Study and operating the Lake

Montauk Harbor FNP, the United States cannot satisfy the second prong of the

Berkovitz/Gaubert test because the USACE in this case did not actually undertake a

policy analysis in declining to abate the erosion caused by the Jetties in a timely

manner. The record evidence undermines the assertion that the USACE failed to

undertake a policy analysis in this case: the USACE weighed at least twelve

different alternatives for improving navigation into Lake Montauk Harbor and

32
presented three of those in a public meeting in March 2014. See App’x at 478–83,

509. One of the three “Alternatives” presented at the meeting was to take no action

to expand the FNP at Lake Montauk Harbor or to mitigate the effects of the erosion

caused by the Jetties. See id. at 509. As noted above, the discretionary function

exception applies not only where the federal government has actually undertaken

a public policy analysis, but also where the decision at issue is merely “susceptible

to policy analysis.” Gaubert, 499 U.S. at 325 (emphasis added). Thus, even if the

USACE had failed to engage in a policy analysis here, the broad discretion

afforded to the USACE in undertaking the LMH, alone, is enough to satisfy the

second prong of the Berkovitz/Gaubert test.

In sum, because neither the FCSA nor the 3x3x3 Paradigm prescribes a

specific course of action abridging the USACE’s broad discretion in carrying out

the LMH Study, and because that study and the Lake Montauk Harbor FNP are

clearly susceptible to policy analysis, Plaintiffs’ FTCA claims against the United

States were properly dismissed under the discretionary function exception. 12

12Because we conclude that the district court properly dismissed Plaintiffs’ claims against the
United States under the discretionary function exception, we do not reach the United States’
alternative argument that the district court also lacked subject matter jurisdiction over Plaintiffs’
claims under the FTCA’s “private analogue” requirement, 28 U.S.C. §§ 1346(b)(1), 2674, which
bars claims “based on governmental action of the type that private persons could not engage in

33
B. Plaintiffs’ Claims Against the Town

1. The district court had subject matter jurisdiction over Plaintiffs’
state-law claims.

Before addressing the merits of the district court’s decision to grant

judgment as a matter of law to the Town on Plaintiffs’ state-law claims, we must

first determine whether the district court properly exercised jurisdiction over

those claims after it dismissed the last of Plaintiffs’ claims against the United States

in 2017. Although neither Plaintiffs nor the Town challenges the district court’s

jurisdiction in this regard, “[e]very federal appellate court has a special obligation

to satisfy itself not only of its own jurisdiction, but also that of the lower courts in

a cause under review.” Cohen v. Postal Holdings, LLC, 873 F.3d 394, 398 (2d Cir.

2017) (internal quotation marks omitted).

Here, Plaintiffs’ assertion of subject matter jurisdiction over Plaintiffs’ state-

law claims against the Town appears to be premised on the existence of

supplemental jurisdiction under 28 U.S.C. § 1367(a). 13 Ordinarily, where a plaintiff

and hence could not be liable for under local law.” Liranzo v. United States, 690 F.3d 78, 86 (2d Cir.
2012) (internal quotation marks omitted).
13Neither Plaintiffs’ amended complaint nor any of the district court’s decisions cites to a specific
statutory basis for subject matter jurisdiction over the Plaintiffs’ state-law claims against the
Town. While those claims could sound in diversity if Plaintiffs were all residents of states other
than New York – after all, it is at least conceivable that the properties in question were all summer

34
has asserted one or more federal claims pursuant to 28 U.S.C. § 1331, we review a

district court’s exercise of supplemental jurisdiction over additional state-law

claims only for abuse of discretion. See Lundy v. Cath. Health Sys. of Long Island Inc.,

711 F.3d 106, 117–18 (2d Cir. 2013). This is true even where a district court exercises

supplemental jurisdiction after dismissing all federal claims in a case on the merits.

See Kroshnyi v. U.S. Pack Courier Servs., 771 F.3d 93, 102 (2d Cir. 2014). Where a

district court dismisses all federal claims under Rule 12(b)(1) of the Federal Rules

of Civil Procedure, however, the district court is precluded from exercising

supplemental jurisdiction over the remaining state-law claims. See Cohen, 873 F.3d

at 399. This is because, under the supplemental jurisdiction statute, “a district

court cannot exercise supplemental jurisdiction unless there is first a proper basis

for original federal jurisdiction.” Id. (internal quotation marks omitted); see also 28

U.S.C. § 1367(a) (conferring supplemental jurisdiction “in any civil action of which

the district courts have original jurisdiction”).

homes and that none of the Plaintiffs were New York residents – Plaintiffs’ amended complaint
appears to foreclose such a scenario, as it states that Plaintiff Robin Racanelli “maintains a
residence located in New York County, New York.” App’x at 44. Because we conclude that the
district court properly exercised supplemental jurisdiction over Plaintiffs’ state-law claims
against the Town, however, we need not determine whether the district court also could have
exercised jurisdiction over those claims under 28 U.S.C. § 1332.

35
 Thus, while it ordinarily “makes little practical difference whether the

district court labels its dismissal of an action as one for lack of subject matter

jurisdiction under Rule 12(b)(1) or for failure to state a claim under 12(b)(6),” the

distinction matters in cases like this one where a district court decides to retain

jurisdiction over state-law claims after dismissing all federal claims. Cohen, 873

F.3d at 399 (internal quotation marks and alterations omitted). Because the district

court dismissed Plaintiffs’ tort claims against the United States in Cangemi III on

sovereign immunity grounds, that was a jurisdictional dismissal under Rule

12(b)(1). See Makarova, 201 F.3d at 113. Were these claims the only ones

purportedly giving rise to supplemental jurisdiction, the district court therefore

would have been powerless to retain jurisdiction over Plaintiffs’ remaining state-

law claims against the Town. See Cohen, 873 F.3d at 399.

In an earlier decision, however, the district court dismissed several other

federal claims raised by Plaintiffs (against both the Town and the United States)

because they were barred by the statute of limitations applicable to 42 U.S.C.

§ 1983. See Cangemi I, 939 F. Supp. 2d at 199–201; see also supra note 8. Although

the district court did not specify whether it was dismissing those claims under

Rule 12(b)(1) or 12(b)(6), the law is clear that “[w]here the dates in a complaint

36
show that an action is barred by a statute of limitations,” a motion to dismiss based

on the statute of limitations is properly treated as one under Rule 12(b)(6) rather

than Rule 12(b)(1). Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir.

1989); see also Harris v. City of New York, 186 F.3d 243, 247–51 (2d Cir. 1999)

(examining motion to dismiss § 1983 claims on statute-of-limitations grounds as

one brought under Rule 12(b)(6)). Here, the district court dismissed Plaintiffs’

§ 1983 claims under the applicable statute of limitations by looking solely to the

allegations appearing on the face of Plaintiffs’ amended complaint, see Cangemi I,

939 F. Supp. 2d at 199–201, so the dismissal is properly treated as one under

12(b)(6). Accordingly, because there was no jurisdictional defect with those initial

federal claims against the Town (as there was with Plaintiffs’ tort claims against

the United States that were barred by the discretionary function exception), the

district court was not precluded from exercising supplemental jurisdiction over

Plaintiffs’ state-law claims against the Town. See Cohen, 873 F.3d at 400.

Of course, the fact that the district court was not precluded from exercising

supplemental jurisdiction over Plaintiffs’ state-law claims against the Town does

not necessarily mean that it did not abuse its discretion in doing so. See Cohen, 873

F.3d at 404 (Calabresi, J., concurring) (explaining that, “after all federal claims have

37
been dismissed, the default rule is that federal courts should not decide related

state-law claims unless there is good reason for doing so”). But we find no such

abuse of discretion here because of the district court’s long history with this case

and familiarity with the issues by the time it dismissed Plaintiffs’ claims against

the United States in Cangemi III. See Kroshnyi, 771 F.3d at 102 (holding that the

district court did not abuse its discretion in exercising supplemental jurisdiction,

given “the advanced state of the litigation and the [district] [c]ourt’s long

familiarity with the issues in the case, combined with the likely hardship to both

parties should plaintiff be forced to re-file in state court” (internal quotation marks

omitted)).

We emphasize, however, that litigants should be diligent in establishing a

firm basis for the district court’s jurisdiction throughout all stages of a case, lest

they risk needless and expensive litigation on the merits of an issue that no longer

belongs in federal court (or never did in the first instance). “Federal courts are not

courts of general jurisdiction,” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

541 (1986), and district courts “lack the power to disregard such limits as have

been imposed by the Constitution or Congress,” Durant, Nichols, Houston, Hodgson,

& Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009). Here, but for the

38
district court’s earlier exercise of original jurisdiction over Plaintiffs’ federal claims

– which were eventually dismissed on statute-of-limitations grounds – the district

court would have been powerless to retain jurisdiction over Plaintiffs’ state-law

claims against the Town following Cangemi III, and we would be similarly barred

from considering the parties’ arguments regarding the merits of those claims.

2. The district court properly granted the Town’s renewed motion for
judgment as a matter of law.

Having determined that the district court properly exercised supplemental

jurisdiction over Plaintiffs’ state-law claims against the Town, we now turn to the

merits of Plaintiffs’ challenge to the district court’s order granting judgment to the

Town as a matter of law on those claims. We review de novo a district court’s

resolution of a renewed motion for judgment as a matter of law under Federal Rule

of Civil Procedure 50(b), considering the evidence in the light most favorable to

the non-moving party and “giving that party the benefit of all reasonable

inferences that the jury might have drawn in [that party’s] favor from the

evidence.” Legg v. Ulster Cnty., 979 F.3d 101, 114 (2d Cir. 2020) (internal quotation

marks omitted). A district court may grant such a motion against a party only

when “the court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party.” Fed. R. Civ. P. 50(a)(1). Plaintiffs argue

39
that the district court erred in granting the Town’s renewed motion for judgment

as a matter of law because the jury had a legally sufficient basis for finding the

Town liable on Plaintiffs’ private nuisance and trespass claims.

a. Private Nuisance

On appeal, Plaintiffs assert two principal theories for their private nuisance

claims against the Town. First, they argue that the Town is liable for private

nuisance because it knew that the Jetties (the nuisance) caused erosion on

Plaintiffs’ properties and it had the ability to mitigate that erosion (primarily

through sand bypass projects) but failed to do so. Second, Plaintiffs argue that the

Town consented to the creation of the Jetties and derived a benefit from those

Jetties, which serves as an alternative basis for nuisance liability. Although the

district court previously denied the Town’s motion to dismiss and motion for

summary judgment on similar grounds, it ultimately reached the correct

conclusion when it rejected Plaintiffs’ theories of nuisance liability and granted

judgment as a matter of law in favor of the Town. The jury lacked a legally

sufficient basis for finding in favor of Plaintiffs on their New York private nuisance

claims because (1) the Town did not construct the Jetties and (2) the Town did not

40
and could not control the Jetties, which were the sole responsibility of the federal

government.

Under New York law, a private nuisance claim may be brought under the

theory that a defendant intentionally interfered with others’ right to enjoy their

land or that a defendant’s negligence caused an interference with others’ right to

enjoy their land. See Copart Indus. v. Consol. Edison Co., 41 N.Y.2d 564, 569 (1977)

(citing Restatement (Second) of Torts § 822 (Am. L. Inst. 1975)). Where intentional

nuisance is alleged, plaintiffs must prove five elements: “(1) an interference

substantial in nature, (2) intentional in origin, [and] (3) unreasonable in character,

(4) with a person’s property right to use and enjoy land, (5) caused by another’s

conduct in acting or failing to act.” Id. at 570. Where “a nuisance has its origin in

negligence, negligence must be proven.” Id. at 569 (internal quotation marks

omitted).

Whether a nuisance action is premised on intentional conduct or negligence,

“the duty to abate a private nuisance existing on real property arises from the

power to possess the property and control the activities that occur on it.” Taggart

v. Costabile, 14 N.Y.S.3d 388, 392 (2d Dep’t 2015). As such, a landowner that has

relinquished control of its property “will not be liable for private nuisance that

41
arises on the property if the landowner neither created the nuisance nor had notice

of it at the time that possession of the property was transferred.” Id.

The record reveals that the Jetties were first built by a private development

company in 1926, and that the Town obtained a deed to the Jetties and the land

underneath in 1941 to facilitate granting a permanent easement to the federal

government to take control of the Jetties. At trial, Plaintiffs did not present any

evidence suggesting that the Town constructed, repaired, or maintained the

Jetties. Nor could they have, as federal law prohibits the Town from interfering

with the Jetties and the Federal Navigation Project at Lake Montauk Harbor. See,

e.g., 33 U.S.C. § 408. Moreover, at trial, a USACE representative testified that

“maintenance responsibilities for the federal project [at Lake Montauk Harbor] are

100 percent federal,” App’x at 3589, and several Town witnesses testified to the

same. Indeed, Plaintiffs concede in their reply brief that “if the Town were to

dismantle the [J]etties this would run afoul of the easement and of the [USACE’s]

navigational mandate.” Pls.’ Reply Br. at 7.

Despite acknowledging that the Town had no ability to control the Jetties,

Plaintiffs contend that “[t]his case has never been about such an absurd

postulation.” Id. at 7–8. Rather, they argue that the Town should be held liable

42
for private nuisance because (1) it still owns the property on which the Jetties are

located, (2) the Town was aware of the erosion occurring on Plaintiffs’ properties,

and (3) the Town could have taken remedial measures to address the erosion, such

as undertaking a sand bypass project. But far from being “an absurd postulation,”

id. at 7–8, the Town’s lack of control over the Jetties definitively resolves Plaintiffs’

private nuisance claims.

As the Second Department has explained, “the duty to abate a private

nuisance existing on real property arises from the power to possess the property

and control the activities that occur on it.” Taggart, 14 N.Y.S.3d at 392. This

principle dates back almost a century to the decision of the New York Court of

Appeals in Wilks v. New York Telephone Co., 243 N.Y. 351 (1926), in which the court

held that a landowner that did not originally construct the nuisance at issue (a

faulty telephone wire) could not be held liable for private nuisance where the

telephone wire was under the sole possession, control, and maintenance of the

United States at the time of the accident. Id. at 356, 360–62. The key principle

underlying Wilks and its progeny is that, where liability is premised on a failure to

abate a nuisance, there must be a duty to act. See Restatement (Second) of Torts

§ 824 (“The conduct necessary to make the actor liable for . . . private nuisance may

43
consist of . . . a failure to act under circumstances in which the actor is under a duty

to take positive action to . . . abate the . . . invasion of the private interest.”). And

where a landowner no longer controls the land at issue and did not create the

nuisance in the first instance, there is no such duty.

Here, the Town simply had no ability to “possess the property” containing

the alleged nuisance or “control the activities that occur on it.” Taggart, 14

N.Y.S.3d at 392. Thus, it does not matter whether the Town may have been better

positioned to undertake a sand bypass project than other entities; New York law

is clear that it had no obligation to do so. The mere fact that the Town owned the

property underneath the Jetties did not impose upon it a duty to take affirmative

steps to remediate the downstream erosion the Jetties may have caused. 14

14 Plaintiffs also appear to argue that the Town’s 1962 “Assurance of Local Cooperation” gave rise
to a duty to mitigate the effects of the Jetties because the Town agreed to indemnify the federal
government for “claims for damages that may occur from the construction and maintenance of
the improvements” to Lake Montauk Harbor as part of the FNP. App’x at 4605. But even if this
indemnification clause did reach Plaintiffs’ private nuisance claims (an issue we do not decide),
at most, this would simply require the Town to indemnify the federal government if it were found
liable for private nuisance. Cf. Raquet v. Braun, 90 N.Y.2d 177, 183 (1997) (explaining the
distinction between liability based on a duty running to the injured party and common-law
indemnification, which involves “a separate duty owed [to] the indemnitee by the indemnitor”).
It would not create a duty running from the Town to the Plaintiffs to mitigate all adverse effects
of the Jetties.

44
 Plaintiffs alternatively argue that, even if the Town’s mere ownership of the

property under the Jetties did not give rise to a duty to mitigate their effects, the

Town was still obligated to take action because it had knowledge of and thereby

“consented” to the nuisance, and because the Town “continues to derive a benefit

from the nuisance.” Pls.’ Br. at 43 (internal quotation marks omitted). 15 But a

landowner’s knowledge of or benefit from a nuisance does not give rise to

nuisance liability under New York law unless the property owner was aware of or

had reason to be aware of the nuisance at the time it relinquished control of the

property. See Taggart, 14. N.Y.S.3d at 392 (granting defendant landowners’ motion

for summary judgment where the plaintiffs “did not allege that the defendants

created the alleged nuisance, or that they knew or had reason to know that the

15 In passing, Plaintiffs argue that the Town “create[d] or participate[d] in the creation or
maintenance of the nuisance,” on the theory that the Town “function[ed] as the initiator of the
[J]etty rehabilitation.” Pls.’ Br. at 36, 39. However, all of Plaintiffs’ cases supporting this theory
– most of which involve holding joint tortfeasors liable for public nuisance – pertain to defendants
who directly participated in the creation of the nuisance, even if their relationship to the ultimate
harm was relatively remote. See, e.g., In re MTBE Prods. Liab. Litig., 725 F.3d 65, 121 (2d Cir. 2013)
(rejecting the notion that Exxon was “too remote” from the contamination of a drinking well with
MTBE because (1) “Exxon manufactured gasoline containing MTBE and supplied that gasoline
to service stations in Queens” and (2) “Exxon knew station owners would store this gasoline in
underground tanks that leaked”). By contrast, Plaintiffs point to no cases in which remote,
indirect involvement of a defendant with no knowledge of the potential downstream
consequences of its actions – such as the Town’s advocacy for federal rehabilitation of the Jetties
in the 1930s and 40s – qualifies as “creating” a nuisance under New York law.

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allegedly objectionable activities would take place at the time that the property

was leased to the tenants”); see also Wilks, 243 N.Y. at 362; N.Y. Pattern Jury

Instructions § 2:116 (Comm. on Pattern Jury Instructions 2019).

Here, Plaintiffs contend that the Town knew that the Jetties were causing

erosion as early as 1994 and that the Town benefits from the Jetties because of the

accumulation of sand on public beaches to the east of the Jetties and the municipal

benefits generated by the harbor. But Plaintiffs presented no evidence at trial

indicating that the Town knew or had any reason to believe that the Jetties would

cause erosion to the private beaches to the west of the Jetties when the Town

relinquished control of the Jetties in 1942. Thus, any awareness that the Town

gained about the alleged nuisance after that transfer of title did not give rise to a

duty to abate that nuisance, see Taggart, 14 N.Y.S.3d at 392; Wilks, 243 N.Y. at 362,

and the district court properly granted judgment as a matter of law to the Town

on Plaintiffs’ private nuisance claims. 16

16We also reject Plaintiffs’ argument that the district court erred by deciding the issue of negligent
nuisance, despite instructing the jury not to reach that issue if it found the Town liable for
intentional private nuisance. With respect to negligent nuisance, the district court correctly
concluded that the Town’s lack of a legal duty to mitigate the effects of the Jetties precluded such
a claim. See Cangemi IV, 374 F. Supp. 3d at 237. This was an issue of law that was proper for the
district court to decide, and Plaintiffs point to no case law supporting their assertion that this
decision somehow “usurped” the jury’s function. Pls.’ Br. at 52.

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 b. Trespass

The district court also appropriately granted the Town’s renewed motion

for judgment as a matter of law on Plaintiffs’ trespass claims. Under New York

law, a trespass requires that a defendant “intend[] the act which produces the

unlawful intrusion” onto another’s property, “where the intrusion is an immediate

or inevitable consequence of the act.” Volunteer Fire Ass’n of Tappan, Inc. v. County

of Rockland, 956 N.Y.S.2d 102, 105 (2d Dep’t 2012). Here, as the district court

recognized, “the only action the Town has taken” with respect to the Jetties “was

to relinquish control over them.” Cangemi IV, 374 F. Supp. 3d at 234. Thus,

Plaintiffs’ only plausible argument that the Town took action that caused waters to

flow unnaturally onto their property is premised on (1) the Town’s advocating for

the Lake Montauk Harbor FNP in the 1930s and 40s and (2) the Town’s grant of an

easement to the federal government in 1942.

But, as already discussed, Plaintiffs presented no evidence at trial

suggesting that the Town knew or had any reason to know in 1942 that the Jetty

rehabilitation project (which would not be completed for another 26 years) would

result in altering the flow of water in such a way as to cause erosion on properties

subsequently acquired by Plaintiffs. See Phillips v. Sun Oil Co., 307 N.Y. 328, 331

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(1954) (holding that a defendant is not liable in trespass for liquids intruding onto

another’s property “unless [the defendant] had good reason to know or expect that

subterranean and other conditions were such that there would be passage from

defendant’s to plaintiff’s land”). The disruption of the flow of water was therefore

not “an immediate or inevitable consequence” of the Town’s intentional conduct

in passing control of the Jetties over to the federal government. Volunteer Fire Ass’n

of Tappan, 956 N.Y.S.2d at 105. 17

3. The law of the case doctrine did not compel denial of the Town’s
motion for judgment as a matter of law.

Finally, Plaintiffs contend that the district court erred by deviating from the

“law of the case” when it reversed its prior rulings and granted the Town’s Rule

50(b) motion. Plaintiffs argue that, because the district court denied the Town’s

motion to dismiss Plaintiffs’ private nuisance and trespass claims in Cangemi I and

denied the Town’s motion for summary judgment on those claims in Cangemi III,

it unduly prejudiced Plaintiffs by granting the Town’s renewed motion for

17Because we affirm the district court’s grant of the Town’s renewed motion for judgment as a
matter of law on these grounds, we need not consider the Town’s alternative bases for affirming
the district court’s judgment – i.e., that Plaintiffs’ state-law claims are preempted by federal law
and that any private nuisance or trespass caused by the Jetties was protected by a prescriptive
easement. See Town’s Br. at 54–59. We likewise need not reach the issue of whether the district
court properly granted, in the alternative, the Town’s motion for a new trial.

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judgment as a matter of law after trial in Cangemi IV. See Colvin v. Keen, 900 F.3d

63, 69 (2d Cir. 2018) (explaining that a district court abuses its discretion under the

law of the case doctrine when it makes “a change of ruling” that “cause[s]

prejudice to the appellant”). Plaintiffs’ law of the case argument fails for two

distinct reasons.

First, the district court’s decision in Cangemi IV did not directly conflict with

its previous decisions in Cangemi I and Cangemi III. Rather, as the district court

explained in Cangemi IV, its apparent about-face on Plaintiffs’ private nuisance and

trespass claims stemmed from the lack of any evidence presented at trial that the

Town exercised control over (or even had the ability to exercise control over) the

Jetties. See Cangemi IV, 374 F. Supp. 3d at 234. The law of the case doctrine cannot

bar a district court from holding plaintiffs to their ever-increasing burden of proof

over the course of a lawsuit. See, e.g., Sagendorf-Teal v. County of Rensselaer, 100 F.3d

270, 277 (2d Cir. 1996) (concluding that new evidence presented during trial

justified the district court’s reconsideration of a prior ruling); McAnaney v. Astoria

Fin. Corp., 665 F. Supp. 2d 132, 142 (E.D.N.Y. 2009) (explaining that the law of the

case doctrine “is inapposite” to issues that have been developed through discovery

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“because of the divergent standard of review applicable to motions to dismiss and

motions for summary judgment”).

Second, even if it could be said that the district court reconsidered its

decisions in Cangemi I and III on purely legal grounds, the law of the case doctrine

is “discretionary and does not limit a court’s power to reconsider its own decision

prior to final judgment.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d

1245, 1255 (2d Cir. 1992). While the district court perhaps could have addressed

the legal arguments it considered in its 2019 decision at an earlier stage of the case,

district courts are by no means obligated to deny a Rule 50 motion simply because

earlier in the litigation they denied a motion to dismiss or a motion for summary

judgment on the same issue. As we have recently explained, if the law of the case

doctrine “were pushed so far as to call upon the reviewing court to vacate a

changed, but correct, judgment, solely by reason of the change,” the doctrine

“would then mean that the initial incorrect ruling would bind not only the court

that made it, but also the court of appellate review, whose function is to correct

errors, rather than perpetuate them.” Colvin, 900 F.3d at 72. Simply put, the

district court eventually got it right with respect to Plaintiffs’ private nuisance and

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trespass claims, and it did not abuse its discretion in reconsidering its previous

legal conclusions prior to a final judgment.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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