United States of America v. 22.58 Acres of Land, More or Less, Situated in Montgomery County, State of Alabama et al

Filing 33

MEMORANDUM OPINION AND ORDER that the 16 Motion to Dismiss is DENIED, and the portion of Defendant's Reply to the Plaintiff's Response to Motion to Dismiss that the Court construed as a Motion to Transfer or Stay 27 is DENIED. It is fur ther ORDERED that if the parties have reached a settlement in the Tucker Act case that they agree resolves the issues in this case, they shall file a joint motion to stay or dismiss this case within seven days of the date of this memorandum opinion and order. Signed by Hon. Chief Judge Mark E. Fuller on 2/3/2010. (Attachments: # 1 Civil Appeals Checklist)(br, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION U N IT E D STATES OF AMERICA, PLAINTIFF, v. 2 2 .5 8 ACRES OF LAND, MORE OR, L E S S , SITUATED IN MONTGOMERY C O U N T Y , STATE OF ALABAMA, A N D OSI, INC., et al., D EFEN D A N TS. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:08-CV-180-MEF (W O ) MEMORANDUM OPINION AND ORDER I . INTRODUCTION T h is condemnation action is the latest installment in a protracted litigation between th e United States and OSI, Inc. ("OSI") that arose out of the Government's alleged c o n ta m in a tio n of property owned by OSI in Montgomery County, Alabama. The case is p r e s e n t l y before this Court on a Motion to Dismiss (Doc. # 16), filed by OSI on April 14, 2 0 0 8 . The Court has carefully considered the arguments of counsel and the applicable law. For the reasons set forth below, the Court finds that the Motion is due to be DENIED. II. JURISDICTION AND VENUE T h is Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. 1 3 3 1 , 1346(a)(4), and 1367. Defendants have not argued that the court lacks personal ju ris d ic tio n over them, and there is no dispute that venue is proper pursuant to 28 U.S.C. -1- 1391(b). III. FACTUAL AND PROCEDURAL HISTORY T h e facts surrounding this action for condemnation are many and varied. The ones re le v a n t to the current motion are few. The Court will confine itself to the latter set of facts f o r purposes of this Memorandum Opinion and Order, but any with interest can find the full b a c k g ro u n d at OSI, Inc. v. United States, 525 F.3d 1294, 1296-97 (11th Cir. 2008) (OSI III); O S I, Inc. v. United States, 285 F.3d 947, 949-50 (11th Cir.2002) (OSI I); OSI, Inc. v. United S ta te s, 510 F. Supp. 2d 531, 534-35 (M.D. Ala. 2007) (Fuller, C.J.) (OSI II). A. First Action in this Court On August 19, 1998, OSI filed a complaint in this Court that began the now decadelo n g litigation between the parties. The case was assigned to the Honorable Myron H. T h o m p s o n and styled OSI, Inc. v. United States, et al. and given the case number 2:98-CV9 2 0 -M H T . In that case, OSI claimed that the Government deposited hazardous materials on a n d around its property and wrongfully fenced some of its property to contain the waste. The G o v e rn m e n t operated a landfill on what is now OSI's property from 1956 until the early 1 9 7 0 s pursuant to leases with the land's previous owners. OSI purchased the parcel in 1979. OSI sought injunctive relief under the Resource Conservation and Recovery Act ("RCRA") a n d reimbursement of costs it expended to clean up contamination under the Comprehensive E n v iro n m e n ta l Response Compensation and Liability Act ("CERCLA"). OSI also sought m o n e ta ry recovery for various torts under the Federal Tort Claims Act ("FTCA"). -2- Judge Thompson dismissed all claims against the defendants in that case in March, 2 0 0 1 . On appeal, the Eleventh Circuit affirmed the dismissal of the federal tort claims, but v a c a te d the dismissal of the CERCLA and RCRA claims. OSI I, 285 F.3d at 947. The case w a s reassigned to the undersigned after remand. See OSI II, 510 F. Supp. 2d at 534-35. Defendants then filed motions for summary judgment, which were met by OSI's partial cross m o t io n . This Court granted the Government's motions, denied OSI's motion, and entered a final judgment in this case in January, 2007. Id. The Eleventh Circuit affirmed this final O p in io n in June, 2008. OSI III, 525 F.3d at 1294. While the first District Court case was w o rk in g toward a conclusion, OSI instituted an action in the Court of Federal Claims. B. Action in the Court of Federal Claims O S I filed a complaint against the United States in the Court of Federal Claims on July 2 6 , 2004. OSI, Inc. v. The United States, 73 Fed. Cl. 39 (2006) ("Tucker Act case"). That a c tio n sought compensation from the Government for the contamination of OSI's property. In its complaint, OSI alleged that the Government's actions "amount[ed] to an `inverse c o n d e m n a tio n ' in violation fo the Fifth Amendment to the United States Constitution." Id. at 39-40. First, OSI claimed that the contamination of groundwater caused by the disposal o f waste materials upon its land constituted a taking of its property. Second, OSI claimed th a t the Government's placement of a fence on its property amounted to a taking. OSI sought $ 1 0 ,0 0 0 ,0 0 0 .0 0 and other damages and expenses in this action. The Government filed a Motion to Dismiss these claims, arguing that 28 U.S.C. -3- 1500 barred the Court of Federal Claims from exercising jurisdiction over the condemnation c la im because of the complaint for CERCLA response costs was pending before this Court. S e c tio n 1500, a provision of the Tucker Act, prevents the Court of Federal Claims from e x e rc isin g jurisdiction if a plaintiff "ha[s] the same claim against the United States or its a g e n t pending in another Court at the time of the filing [in the Court of Federal Claims]." Id . at 43 (citing Keene Corp. v. United States, 508 U.S. 200, 207 (1993); Harbuck v. United S ta te s, 378 F.3d 1324, 1328 (Fed. Cir. 2004)). Section 1500 only precludes a claim if the c la im pending in the other court arises from the same operative facts and seeks the same re lie f . Id. at 44 (citing Harbuck, 378 F.3d at 1328).1 The Court of Federal Claims held first th a t the CERCLA claims then pending before this Court and the claims then pending before t h e Court of Federal Claims arose from the same operative facts. The Court of Federal C la im s went on to hold, however, that the two actions did not seek the same relief and that th e action was therefore not barred by 1500. Hence, the Court of Federal Claims denied D e f e n d a n t's Motion to Dismiss. That case is currently involved in a program of Alternative D is p u te Resolution ("ADR") sponsored by the Court of Federal Claims and is stayed pending re s o lu tio n of the ADR. Counsel for the Government in the instant action has represented that th e Tucker Act case is nearing settlement. 1 This determination is made as of when the claim is brought. Id. (citing Keene, 508 U.S. -4- at 207). C. The Present Action O n March 13, 2008, the United States, at the request of the Deputy Assistant Secretary o f the Air Force (installations), instituted this action seeking condemnation of certain real p ro p e rty located in Montgomery County, Alabama. (Doc. # 1.) OSI owns some of the land th e government seeks to condemn, which is adjacent to Maxwell Air Force Base in M o n tg o m e ry County, Alabama. The Government claims it has authority to take the land u n d e r 40 U.S.C. 3114, 3113, 10 U.S.C. 2663, 9773, and Public Law 109-289, which a p p ro p ria te d funds for the purpose. The Government claims that "[t]he public use for which s a id land is taken is to conduct environmental work at Remedial Action OU No. 1 Project, M a x w e ll Air Force Base . . . and for such other uses as may be authorized . . . ." (Doc. # 1-2.) T h e Government claims the estimated compensation for the three tracts and estates involved is $53,000.00. The Government seeks to condemn only certain estates in the abovere f e re n c e d parcels: an "Environmental Restoration Easement" across tract No. 166-E-1, w h ic h is to last twenty years; a "Monitoring Well Easement" over tract No. 166-E-2, which is also to last twenty years; and a "Temporary Grading and Drainage Easement" over tract N o . 166-E-3, which is to last only two years. (Doc. # 1-2.) The Government filed a Motion to Deposit Funds (Doc. # 2) and a Declaration of T a k in g (Doc. # 3) in support of its Complaint for Condemnation. The Government also filed a Motion for Order for Delivery (Doc. # 4) and a Notice of Condemnation (Doc. # 5). In response to these filings by the Government, OSI filed a Motion to Dismiss. (Doc. -5- # 16).2 OSI argues in its Motion that the pendency of the action in the Court of Federal C la im s requires dismissal of the instant action. The Government responds that, while the two c a s e s are closely related, there is nothing about the unresolved Federal Claims case that re q u ire s dismissal of the case currently before the Court. After careful consideration of the s u b m iss io n s of the parties, and for the reasons set forth below, the Court finds that OSI's M o tio n to Dismiss is due to be DENIED. IV. LEGAL STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Therefore, for the p u rp o s e s of adjudging a Rule 12(b)(6) motion to dismiss, the court will accept as true all w e ll-p le a d e d factual allegations and view them in the light most favorable to the plaintiff. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007); Pielage v. M c C o n n e ll, 516 F.3d 1282, 1284 (11th Cir. 2008). While Federal Rule of Civil Procedure 8 (a )(2 ) requires only that a complaint contain "a short and plain statement of the claim s h o w in g that the pleader is entitled to relief," as a general matter, to survive a motion to d is m is s for failure to state a claim, the plaintiff must allege "enough facts to state a claim to re lie f that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2 0 0 7 ). Plaintiff's "[f]actual allegations must be enough to raise a right to relief above a s p e c u la tiv e level on the assumption that the allegations in the complaint are true." Id. at The other named defendant is Sarah G. Spear, as Revenue Commissioner of Montgomery County, Alabama. She filed an Answer on April 7, 2008 (Doc. # 15), in which she denied having sufficient knowledge to answer the averments in the complaint and also noted that any ad valorem taxes due as a result of the condemnation were to be paid to her. -6- 2 1965. It is not sufficient that the pleadings merely "[l]eave open the possibility that the p la in tif f might later establish some set of undisclosed facts to support recovery." Id. at 1968 (in te rn a l quotation and alteration omitted). V. DISCUSSION T h e difficulty presented by this Motion is a result of the particulars of the eminent d o m a in power of the United States. In particular, that the Government can exercise that p o w e r in two ways: it can enter into physical possession of property without authority of a court o rd e r; or it can institute condemnation proceedings under various Acts of C o n g re s s providing authority for such takings. Under the first m e th o d -- p h ys ic a l seizure--no condemnation proceedings are instituted, and th e property owner is provided a remedy under the Tucker Act, 28 U.S.C. 1 3 4 6 (a )(2 ) and 1491, to recover just compensation. Under the second p ro c e d u re the Government may . . . take immediate possession upon order of c o u rt before the amount of just compensation has been ascertained. United States v. Dow, 357 U.S. 17, 21 (1958) (internal citations and quotations omitted). The p rim a ry issue presented by this Motion is whether a first-filed complaint by a landowner that c la im s the Government has effected a taking using the first method and seeks damages under th e Tucker Act precludes the Government from instituting condemnation using the second p ro c e d u re during the pendency of the first-filed action. The Court finds that it does not. As an initial matter, the Court notes that there is nothing about the statutory scheme t h a t governs takings that indicates that once a landowner has filed an action for damages u n d e r the Tucker Act a district court loses jurisdiction over a proceeding to condemn the s a m e subject property. The Declaration of Taking Act expresses an affirmative showing of -7- congressional intent to grant jurisdiction to the district court over taking cases involving p ro p e rty subject to a declaration of taking. See Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 12 (1990). Congress did not provide any exception for cases where a Tucker Act c la im was pending, and the Court must assume that was intentional. Stephenson v. United S ta te s, 33 Fed. Cl. 63, 74 (1994) ("The Declaration of Taking Act expresses an affirmative s h o w in g of congressional intent to grant jurisdiction to the district court over taking cases in v o lv in g property subject to a declaration of taking. . . . This court must assume that C o n g re s s ' failure to provide any exception for cases where a Tucker Act claim was pending in this court was intentional."); see Georgia-Pacific Corp. v. United States, 568 F.2d 1316, 1 3 2 1 (Ct. Cl. 1978) (holding, where a landowner filed a claim in the Court of Claims under th e Tucker Act before the Government filed a declaration of taking in the district court, that th e district court retained jurisdiction to adjudicate the taking during the pendency of the T u c k e r Act claim); see also Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (Congress is deemed to know the state of the law at the time it passes legislation). Therefore, the details o f the statutory scheme do not evince a congressional intent to preclude the filing of c o n d e m n a tio n actions pursuant to the Declaration of Takings Act when a claim involving the s a m e property is pending pursuant to the Tucker Act. The question then becomes whether th e principle of comity known as the "first-filed rule" compels this Court to transfer or stay th is case pending resolution of the action pending in the Court of Federal Claims.3 The Court OSI raised the first-filed rule in its Reply to The Plaintiff's Response to Motion to Dismiss. (Doc. # 27). The Court has construed the portion of the Reply that raises the first-filed rule as a Motion to Transfer or Stay. -83 finds that it does not. The so-called "first-filed rule" is a well-established rule of federal comity first a rtic u la te d in this country by Chief Justice John Marshall: "In all cases of concurrent ju ris d ic tio n , the Court which first has possession of the subject must decide it." Smith v. M c Iv e r, 9 Wheat. (22 U.S.) 532, 535 (1824); McGregor & Werner, Inc. v. Motion Picture L a b o ra to r y Technicians Local 780, 806 F.2d 1003, 1004 (11th Cir. 1986) (noting that the f ir s t-f ile d rule is well-settled). The rule provides that "where two actions involving o v e rla p p in g issues and parties are pending in two federal courts, there is a strong p re s u m p tio n across the federal circuits that favors the forum of the first-filed suit." Manuel v . Convergys Corp., 430 F.3d 1132, 1136 (11th Cir. 2005). The result of this presumption is that "the party objecting to jurisdiction in the first-filed forum carry the burden of proving `c o m p e llin g circumstances' to warrant an exception to the first-filed rule." Id.; see also M e r r ill Lynch Pierce, Fenner & Smith v. Haydu, 675 F.2d 1169, 1174 (11th Cir. 1982) ("In a b s e n c e of compelling circumstances, the court initially seized of a controversy should be the o n e to decide the case.") The rule serves important functions, such as "to avoid the waste of duplication, to a v o id rulings which may trench upon the authority [other] courts, and to avoid piecemeal re s o lu tio n of issues that call for a uniform result." West Gulf Maritime Ass'n v. ILA Deep Sea L o c a l 24, 751 F.2d 721, 729 (5th Cir. 1985). Its main purpose is to promote judicial e f f ic ie n c y. Fuller v. Abercrombie & Fitch Stores, Inc., 370 F. Supp. 2d 686, 689 (E.D. Tenn. 2 0 0 5 ). The first-filed rule should not be applied too rigidly or mechanically and a District -9- Court may in its discretion decline to follow the first-filed rule if following it would frustrate ra th e r than further these purposes. See Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 6 2 8 (9th Cir. 1991). If the second-filed court invokes the rule, the court can either stay the s e c o n d -f ile d action pending the outcome of the first-filed suit or transfer the second-filed a c tio n to the court of the first-filed action. Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 5 9 9 , 606 (5th Cir.1999); Save Power Ltd. v. Syntek Finance Corp., 121 F.3d 947, 952 (5th C ir. 1997). Duplicative lawsuits are those in which the issues "have such an identity that a d e te rm in a tio n in one action leaves little or nothing to be determined in the other." Fuller, 370 F . Supp. 2d at 688; Smith v. S.E.C., 129 F.3d 356, 361 (6th Cir. 1997). In determining w h e th e r actions are duplicative and the first-to-file rule applies, courts consider three factors: (1 ) the chronology of the actions; (2) the similarity of the parties involved; and (3) the s im i l a r i t y of the issues at stake. Fuller, 370 F. Supp. 2d at 688; Alltrade, Inc. v. Uniweld P ro d s., Inc., 946 F.2d 622, 625-26 (9th Cir.1991); Thomas & Betts Corp. v. Hayes, 222 F. S u p p . 2d 994, 996 (W.D. Tenn. 2002); Smithers-Oasis Co. v. Clifford Sales and Mktg., 194 F . Supp. 2d 685, 687 (N.D. Ohio 2002). The parties and issues need not be identical. Save P o w e r Ltd. v. Syntek Finance Corp., 121 F.3d 947, 950-51 (5th Cir.1997). Rather, the c ru c ia l inquiry is whether the parties and issues substantially overlap. Save Power, 121 F.3d a t 950-51. The first-filed rule does not require transfer or stay of the instant case for three re a s o n s . The first results from the specialized jurisdiction of the other court involved in the -10- litigation The second and third result from the nature of the involvement of federal c o u rts-- a n d particularly local district courts--in eminent domain takings and the language in the specialized statutes and Federal Rules of Civil Procedure that govern proceedings in e m in e n t domain. Together, they illustrate why this Court can (and must) continue to exercise ju ris d ic tio n over this condemnation action. First, the first-filed rule does not require transfer of the instant action because the C o u rt of Federal Claims does not have jurisdiction over this condemnation action 4 . The T u c k e r Act, 28 U.S.C. 1491 authorizes the Court of Federal Claims "to render judgment u p o n any claim against the United States founded either upon the Constitution, or any Act o f Congress or any regulation of an executive department, or upon any express or implied c o n tra c t with the United States, or for liquidated or unliquidated damages in cases not s o u n d in g in tort." Id. 1491(a)(1). This jurisdictional statute confers, among other things, e x c lu s iv e jurisdiction over "inverse condemnation" actions against the United States upon th e Court of Federal Claims. The District Courts, on the other hand, have original ju ris d ic tio n over actions by the United States to condemn real estate within their districts for u s e by the United States. 28 U.S.C. 1358 ("The district courts shall have original ju ris d ic tio n of all proceedings to condemn real estate for the use of the United States or its d e p a rtm e n ts or agencies."); id. 1403 ("Proceedings to condemn real estate for the use of The Court also doubts that the rule suggests a stay. See Smith v. McIver, 9 Wheat. (22 U .S .) 532, 535 (1824) ( "In all cases of concurrent jurisdiction, the Court which first has p o s s e s s io n of the subject must decide it." (emphasis added)). -11- 4 the United States or its departments or agencies shall be brought in the district court of the d is tric t where the land is located or, if located in different districts in the same State, in any o f such districts."). Therefore, the Court could not transfer this action to the Court of Federal C la im s, even if the first-filed rule suggested that course of action. Second, while there is some overlap between the issues presented in the two cases, the d if f e re n c e s are sufficiently significant that a determination of the first-filed Tucker Act case w o u ld leave material issues to be determined in this case. Fuller, 370 F. Supp. 2d at 688; S m ith v. S.E.C., 129 F.3d 356, 361 (6th Cir. 1997). In particular, it is not clear whether the G o v e rn m e n t would become owner of the estates it seeks in this action as a result of the T u c k e r Act case, and condemnation might still be necessary to achieve the Government's p ro s p e c tiv e objectives. In short, it appears that even if OSI prevailed entirely in the Court o f Federal Claims the Government might still seek to condemn the monitoring and cleanup e s ta te s it seeks to condemn in this action. Indeed, the Government claims it would proceed in this case in any event. Hence, staying the instant case would not serve judicial economy. S e e Fuller, 370 F. Supp. 2d at 689.5 The Court is aware that it has the authority to decide compensation as of the date of actual taking, even if that taking occurred prior to the filing of the declaration, and to award the value of the taken property to the owners at the time of the taking, not to the record owners at the time the declaration was later filed. Stephenson, 33 Fed. Cl. at 74; see Dow, 357 U.S. at 20-21. Hence, it appears that this Court could afford all of the relief OSI seeks in the Tucker Act case, which is a good enough reason to stay that case pending resolution of this condemnation action (the Court of Federal Claims sometimes stays first-filed Tucker Act cases on this basis. See G e o r g ia -P a c ific Corp., 568 F.2d at 1321; Stephenson, 33 Fed. Cl. at 74). That is not what is requested, however. There is an asymmetry in the power of the two courts before which these cases are pending regarding the relief they can provide. Unlike this Court, which can afford all relief sought in both actions, it does not appear that the Court of Federal Claims can afford the -12- 5 Finally, the statutory scheme and specialized rules governing this proceeding reveal th e special nature of condemnation actions and Congress' intent that local district courts re s o lv e them expeditiously and certainly. In light of these considerations, a district court n e e d not abstain from working toward such a resolution during the pendency of parallel T u c k e r Act claims. Under The Declaration of Taking Act, 40 U.S.C. 3114, et seq., upon th e filing of a declaration of taking in a district court, "[just] compensation shall be d e te r m in e d and awarded in the proceeding and established by judgment." 40 U.S.C. 3114 (e m p h a s is added). Furthermore, under Federal Rule of Civil Procedure 71.1(i)(3), the c o n d e m n a tio n court can not dismiss a condemnation action as to any part of the property of w h ic h the plaintiff has taken possession or any lesser interest, but must instead award just c o m p e n s a tio n for the possession so taken. Fed. R. Civ. P. 71.1(i)(3) ("At any time before c o m p e n s a tio n has been determined and paid, the court may, after a motion and hearing, d is m is s the action as to a piece of property. But if the plaintiff has already taken title, a lesser in te re s t, or possession as to any part of it, the court must award compensation for the title, le s se r interest, or possession taken."); see also Kirby Forest Indus., 467 U.S. 1, 12 n.18 (1 9 8 4 ) (noting that the substantively identical predecessor rule to Fed. R. Civ. P. 71.1(i)(3) " f o rb id s the district court to dismiss an action (without awarding just compensation) if the G o v e rn m e n t has acquired any `interest' in the property"). These commands suggest a stay relief sought in this action. Hence, what is a good reason to stay the Tucker Act case is not a good reason to stay this condemnation action; a stay here would seemingly need to be lifted once the Tucker Act case concluded because the Government would still seek the relief it seeks in this case, whether it won or lost in the Court of Federal Claims. -13- of this action would violate Congress' intent that local district courts adjudicate c o n d e m n a tio n actions quickly, as evinced by 40 U.S.C. 3114 and Fed. R. Civ. P. 71.1. The practice of the Court of Federal Claims to stay first-filed Tucker Act cases p e n d in g resolution of condemnation actions in local district courts supports this conclusion. See Preseault, 494 U.S. at 12 (holding that The Declaration of Taking Act expresses an a f f irm a ti v e showing of congressional intent to grant jurisdiction to the district court over ta k in g cases involving property subject to a declaration of taking); Georgia-Pacific Corp., 5 6 8 F.2d at 1321 (holding, where a landowner filed a claim in the Court of Claims under the T u c k e r Act before the Government filed a declaration of taking in the district court, that the d is tric t court retained jurisdiction to adjudicate the taking during the pendency of the Tucker A c t claim); Stephenson, 33 Fed. Cl. at 74 (affirming district court jurisdiction over a c o n d e m n a tio n action when there was a first-filed Tucker Act claim).6 Therefore, because of th e special relationship between a local district court and lands within its district, together w ith the particularized rules and streamlined process afforded by 3114 and Rule 71.1, the C o u rt is disinclined to relinquish resolution of this dispute to a Court that does not have ju ris d ic tio n over this case. These cases suggest that the "strong presumption" the first-filed rule plays out differently under the unique circumstances of condemnation actions in such a way that the rule does not apply as simply in condemnation cases as it does in more routine litigation. Manuel, 430 F.3d a t 1136 (noting that the first-filed rule creates only a presumption, not an obligation). -14- 6 VI. CONCLUSION O S I sought by the Motion to Dismiss to have this Court dismiss the instant c o n d e m n a tio n action because OSI had previously filed a claim for damages arising from an a lle g e d inverse condemnation of some of the same property that is subject of this c o n d e m n a tio n action. The issue thus presented by the motion was a novel one: whether a f irs t-f ile d complaint by a landowner that claims the Government has effected a taking th ro u g h possession and seeks damages under the Tucker Act precludes the Government from in s titu tin g a condemnation during the pendency of the first-filed action. For the foregoing re a s o n s , the Court holds that a property owner cannot prevent the Government from in s titu tin g a taking under the Declaration of Takings Act by first filing a complaint for d a m a g e s under the Tucker Act. Therefore, it is hereby O R D E R E D that the Motion (Doc. # 16) is DENIED, and the portion of Defendant's R e p ly to the Plaintiff's Response to Motion to Dismiss that the Court construed as a Motion to Transfer or Stay (Doc. # 27) is DENIED. It is further ORDERED that if the parties have reached a settlement in the Tucker Act c a s e that they agree resolves the issues in this case, they shall file a joint motion to stay or d is m is s this case within seven days of the date of this memorandum opinion and order. The C o u rt will rule on the other pending motions after that date. Done this the 3rd day of February, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE -15-

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