Opinion
No. 8:00CV552
January 2001.
MEMORANDUM AND ORDER
This matter is before the Court on defendant United States' motion to dismiss (Filing No. 7) and plaintiffs' motion to amend (Filing No. 14). Defendant United States contends that the complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted.
In reviewing a motion to dismiss, I must accept the allegations contained in the complaint to be true. United States v. Gaubert, 499 U.S. 315, 327 (1991). As stated in Doe v. Norwest Bank Minnesota, 107 F.3d 1297, 1304 (8th Cir. 1997), citing Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994), "In considering a motion to dismiss, we assume all facts alleged in the complaint are true, construe the complaint liberally in the light most favorable to the plaintiff, and affirm the dismissal only it it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle plaintiff to relief.=@ The trial court then liberally construes those allegations, De Wit v. Firstar Corp., 879 F. Supp. 947, 959 (N.D.Iowa 1995), making all reasonable inferences in favor of the non-moving party, McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir. 1992). Dismissal is the exception rather than the rule; it occurs "only in theunusual case' where the complaint on its face reveals some insuperable bar to relief," De Wit at 959 ( citing Fusco v. Xerox Corp., 676 F.2d 332 (8th Cir. 1982)), such as a missing allegation about an element necessary to obtain relief or an affirmative defense or other bar. See Doe v. Hartz, 134 F.3d 1339, 1341 (8th Cir. 1998). The court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence in support of her claim. Swartzbaugh v. State Farm Ins. Cos., 924 F. Supp. 932 (E.D.Mo. 1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
With regard to the motion to dismiss for lack of subject matter jurisdiction, federal courts are courts of limited jurisdiction. See Steel Co. v. Citizens for a Better Env't., 523 U.S. 83, 94 (1998). "The requirement that jurisdiction be established as a threshold matter "spring[s] from the nature and limits of the judicial power of the United States and is inflexible and without exception.=@ Id. at 94-95 (quoting Mansfield, C.L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884) (alteration in original)). To survive a challenge pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the pleadings must sufficiently evince a basis for subject matter jurisdiction. See Bowe v. Northwest Airlines, Inc., 974 F.2d 101, 103 (8th Cir. 1992).
Plaintiffs originally filed this complaint in state district court in the District of Garfield County, Nebraska, asserting a right to real property in Garfield County based on "continuous, open, notorious and exclusive adverse possession" of the property in excess of ten years. On or about October 27, 2000, the Garfield County action was removed to federal court (Filing No. 1).
Defendant first argues that this complaint is barred by sovereign immunity, as the United States and its agencies are immune from suit absent a waiver. United States v. Sherwood, 312 U.S. 584, 586 (1941). Further, the United States cannot be sued without its consent, and consent must exist to have jurisdiction. United States v. Mitchell, 463 U.S. 206, 212 (1983). The United States contends that the complaint of the plaintiffs contains no statement of jurisdiction and thus must be dismissed.
Plaintiffs contend that their original complaint was filed in state court and was not subject to the pleading requirements of federal rules. Fed.R.Civ.P. 8(a)(1) requires a statement of the court's jurisdiction. As a consequence, the plaintiffs have now filed a motion for leave to file an amended complaint setting forth the claimed basis for jurisdiction as required by Fed.R.Civ.P. 8(a)(1). I have reviewed the motion to amend and proposed amended complaint, and I conclude in the interests of justice that such amendment shall be allowed. Because I have concluded that plaintiffs may file their amended complaint, I further determine that the motion to dismiss on the basis of sovereign immunity should be denied at this time, subject to reassertion if and when appropriate.
Second, the United States argues that even if sovereign immunity does not bar plaintiffs' suit, an adverse possession claim is not allowed against the United States. Stull v. United States, 61 F.2d 826, 828 (8th Cir. 1932); United States v. California, 332 U.S. 19, 40 (1947). Plaintiffs agree that, in general, claims of adverse possession cannot be asserted against the United States. However, plaintiffs contend that they are not asserting adverse possession against the United States, rather plaintiffs state:
That the plaintiffs' and their predecessor's continuous, open, notorious and exclusive adverse possession under claim of title and ownership of the real estate described in Paragraph Nos. 2 and 3 above predated the Defendant, United States of America's acquisition of the property described in Paragraph Nos. 3 and 4 above by more than ten (10) years.
(Complaint, Filing No. 1 ¶ 6). Plaintiffs argue that their interest in the described property arose prior to the acquisitions of the land by the United States, and, therefore, the motion to dismiss should be denied. Tadlock v. United States, 774 F. Supp. 1035 (S.D.Miss. 1990) (court found that plaintiffs must prove adverse interest based on predecessor in interest which was prior to purchase by United States).
I find that the pleadings sufficiently suggest a basis for the adverse possession claim at this stage in the litigation. If as discovery progresses the evidence shows otherwise, the United States is free to reassert this claim in the form of a motion for summary judgment or other appropriate proceeding.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT:
1. Defendant United States' motion to dismiss (Filing No. 7) should be and hereby is denied; and
2. Plaintiffs' motion to amend complaint (Filing No. 14) is hereby granted instanter.
DATED this ___ day of January, 2001.