Rockwell et al v. United States Department of Defense et al

Filing 57

ORDER OF DISMISSAL: Motions to Dismiss at Docket 54 and 56 are GRANTED, case is DISMISSED with prejudice w/o leave to amend. (See Order for details). Signed by Judge Sharon L. Gleason on 12/10/2018. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

DAVID ROCKWELL, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
DEFENSE, et al.,

Case No. 4:18-cv-00001-SLG

Defendants.

ORDER OF DISMISSAL
Before the Court at Docket 54 is Defendant United States’ Motion to Dismiss. At
Docket 56 is Defendants Lendlease (US) Public Partnerships, LLC and North Haven
Communities, LLC’s (“NHC”) Motion to Dismiss. Plaintiffs did not file responses to either
motion by the dates responses would have been due.
The Rockwells filed an amended complaint at Docket 49. The amended complaint
asserts two claims for relief: violation of the Fair Housing Act, 42 U.S.C. §3601 et seq.,
and a breach of contract/third-party beneficiary claim. In its prior order, the Court held
that Plaintiffs had stated a plausible claim for relief as to Defendant NHC under the Fair
Housing Act. 1 The Court granted NHC’s motion to dismiss the breach of contract—third
party beneficiary claim, but granted leave to amend as to that claim. 2
The United States seeks dismiss of the Rockwells’ claims against it for lack of
subject matter jurisdiction and failure to state a claim for which relief can be granted. The

1

Docket 41 at 13.

2

Docket 41 at 19.

United States maintains that the FHA claim against the federal government must be
dismissed with prejudice because the United States has not waived sovereign immunity
under the act. The government is correct that the Fair Housing Act does not contain a
waiver of sovereign immunity. Therefore, the Rockwells’ claims against the United States
for violations of the Fair Housing Act are barred by the federal government’s sovereign
immunity and must be dismissed. 3
As to the breach of contract claim against the United States, that too must be
dismissed for the reasons set forth by the government in its motion. First, the Rockwells
have not shown that they are the intended third party beneficiaries of contractual terms
between the government and a third party. Second, even if a contract claim could
proceed against the United States, the proper court with subject matter jurisdiction to hear
such a claim over $10,000 would be the Court of Federal Claims. Nor does the amended
complaint contain sufficient, non-conclusory allegations that would permit the Court to
determine that the federal government could be liable for the Rockwells’ alleged injuries
under a breach of contract theory. For the foregoing reasons, the United States’ Motion
to Dismiss at Docket 54 will be granted.
Lendlease and NHC also separately seek dismissal of the claims against them.
As to Lendlease, the amended complaint raises no allegations of discriminatory conduct
by Lendlease, such that dismissal of that defendant is warranted on that basis alone. As
to the Fair Housing Act claim against NHC, the Court finds that the claim was filed outside
the deadline under the applicable statute of limitations and will be dismissed on that basis.

3

See Karbusheva v. Redwood Apartments, 2014 WL 6855848 (D. Idaho Dec. 3, 2014).

Case No. 4:18-cv-00001-SLG, Rockwell, et al., v. U.S. Dep’t of Defense, et al.
Order of Dismissal
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Dismissal would also appear warranted based on derivative immunity, as discussed by
these defendants in their motion to dismiss. As to the breach of contract claim against
NHC, the amended complaint does not correct the deficiencies that the Court identified
in its original dismissal order. The Rockwells have not alleged facts that would plausibly
establish that they were intended third party beneficiaries of a contract between the
United States and NHC and/or Lendlease.
For the foregoing reasons, the motions to dismiss at Docket 54 and 56 are each
GRANTED.

Because the Rockwells were accorded one opportunity to amend the

deficiencies in their complaint, and because it appears that it would be futile to permit
another amended complaint, this dismissal will be with prejudice and without leave to
amend. 4 The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 10th day of December, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

4

A “district court’s ‘decision to dismiss [an] amended complaint with prejudice [may be]
appropriate in light of [plaintiffs’] repeated failure to cure the deficiencies in [their] pleadings.’”
Destfino v. Reiswig, 630 F.3d 952, 959 (9th Cir. 2011) (emphasis in original) (quoting
Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993)).

Case No. 4:18-cv-00001-SLG, Rockwell, et al., v. U.S. Dep’t of Defense, et al.
Order of Dismissal
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