McKown v. United States of America et al

Filing 77

ORDER Granting Defendants' Motion To Dismiss Plaintiff's Remaining Claims With Prejudice (Docket No. #69 ) ORDER Denying Plaintiff's Request That The Action Be Dismissed Without Prejudice (Docket No. #73 ), signed by Magistrate Judge Sheila K. Oberto on 3/28/2013. CASE CLOSED. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN H. McKOWN, IV,

CASE NO. 1:09-cv-00810-SKO

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ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS PLAINTIFF'S
REMAINING CLAIMS WITH
PREJUDICE

Plaintiff,

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v.
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(Docket No. 69)
UNITED STATES OF AMERICA, et al.,
ORDER DENYING PLAINTIFF'S
REQUEST THAT THE ACTION BE
DISMISSED WITHOUT PREJUDICE

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Defendants.
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(Docket No. 73)
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/
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I.

INTRODUCTION

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On December 5, 2012, Defendants United States of America, et al. ("Defendants") filed a

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Motion to Dismiss, seeking dismissal of the remaining claims in this case with prejudice. (Doc. 69.)

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On February 25, 2013, Plaintiff John H. McKown, IV ("Plaintiff") filed a Request for Dismissal,

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seeking dismissal without prejudice. (Doc. 73.) On March 13, 2013, Defendants filed a reply

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supporting their assertion that the case should be dismissed with prejudice.

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The Court has reviewed the parties' briefs and supporting documents and determined that this

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matter is suitable for decision without oral argument pursuant to the Local Rules of the United States

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District Court, Eastern District of California, Rule 230(g). For the reasons set forth below,

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Defendants' Motion to Dismiss is GRANTED and the case is DISMISSED WITH PREJUDICE.

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II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

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On May 7, 2009, Plaintiff filed a verified complaint against the United States, the Secretary

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of the Interior, the Secretary of Agriculture, and a number of employees of the United States Forest

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Service ("Forest Service") in their official capacities. (Doc. 1.) Plaintiff alleged that his family held

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title to the quartz mining claims known as White Cap Nos. 1-3 (the "mining claims")1, located in

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Kern County, California, since 1969, and that it was believed that his predecessors had a patent on

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the mining claims since 1928. (Doc. 1, ¶¶ 16-17.) Plaintiff's complaint alleged claims for

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(1) declaratory and injunctive relief, requesting that the Forest Service be precluded from regulating

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his use of three mining claims, designated as the White Cap Nos. 1-3, under the California Desert

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Protection Act of 1994; (2) quiet title, requesting that the Court identify him as the owner of the

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White Cap Nos. 1-3; (3) civil rights violations under Bivens v. Six Unknown Federal Agents of the

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Federal Bureau of Narcotics ("Bivens"), 403 U.S. 388 (1971), alleging that Forest Service officials

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deprived him of constitutional rights; and (4) illegal restraint of interstate commerce due to actions

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by officials with the Forest Service and the Bureau of Land Management ("BLM"). (Doc. 1.)

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On May 18, 2009, Plaintiff also filed an action in the United States Court of Federal Claims

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("CFC"), alleging claims related to the facts in this action. See McKown v. United States, Case No.

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09-371 L (Fed. Cl.).

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On October 19, 2009, Defendants filed a motion to stay proceedings pending the resolution

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of the administrative dispute before the United States Department of Interior's Office of Hearing and

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Appeals ("OHA") regarding the determination of Plaintiff's three mining claims. (Doc. 24.)

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Defendants contended that the administrative agency's determination whether Plaintiff has a valid

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property interest in the White Cap Nos. 1-3 would likely resolve the remaining issues in this

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litigation. On December 14, 2009, the Court granted Defendants' motion and the action was stayed

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pending the OHA's ruling on Plaintiff's White Cap Nos. 1-3 mining claims. (Doc. 30.) Plaintiff's

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CFC case was also stayed to allow the parties to complete the administrative proceedings. (See Doc.

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24, p. 3, n.2.)

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On May 25, 2010, the OHA ruled against Plaintiff, finding that his mining claims as to the

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White Cap Nos. 1-3 were null and void. (Doc. 33-1.) Plaintiff appealed the decision with the

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Under the General Mining Law of 1872, 30 U.S.C. Section 21-54, (the "Mining Law") miners have limited
rights for prospecting and mining valuable mineral deposits on federal land. The M ining Law allows private parties to
acquire nonexclusive possessory interest on federal land and to assert a claim for mining purposes and ownership. See
United States v. Shumway, 199 F.3d 1093, 1098-99 (9th Cir. 1999).

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Interior Board of Lands Appeal ("IBLA"). (Doc. 33-3.) On June 30, 2011, the IBLA affirmed the

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OHA decision that Plaintiff's mining claims were null and void. (Doc. 35-1.)

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On October 6, 2011, Plaintiff filed a motion to vacate the Court's order staying this action

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as Plaintiff exhausted all his administrative remedies. Plaintiff also filed a motion to amend the

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complaint, requesting leave to file a first amended complaint ("FAC") to add causes of action under

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the Administrative Procedure Act ("APA") so as to seek judicial review of the IBLA decision.

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(Docs. 38-40.) On November 18, 2011, the Court granted Plaintiff's motion to amend, and held that

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the non-APA claims were to remain stayed pending the resolution of the APA claims. (Doc. 47.)

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On November 21, 2011, Plaintiff filed the FAC, adding the APA claims to the previously alleged

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claims. (Doc. 48.)

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The parties briefed Plaintiff's APA appeal of the IBLA decision. (Docs. 59, 62-64.) On

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November 5, 2012, the Court issued an order denying Plaintiff's APA appeal and affirming the

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IBLA's decision that Plaintiff's mining claim was invalid. (Doc. 68.) As Plaintiff's APA claims were

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fully resolved by the Court's decision, the stay was lifted as to the remaining non-APA claims and

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Defendants were ordered to file a responsive pleading. (Doc. 68.)

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On December 5, 2012, Defendants filed the instant Motion to Dismiss, asserting that the

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Court's order denying the APA claims and affirming the invalidity of Plaintiff's mining claims also

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resolved Plaintiff's non-APA claims. (Doc. 69, 6:10-7:15.) On January 29, 2013, Plaintiff filed an

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ex parte application for an extension of time to continue the motion to dismiss, indicating that he

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needed additional time to decide whether to oppose the motion. (Doc. 71.) The Court granted

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Plaintiff's ex parte application and ordered that Plaintiff's opposition brief or notice of

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non-opposition be filed on or before February 27, 2013. (Doc. 72.)

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On February 25, 2013, Plaintiff filed a Request for Dismissal (docketed as a Motion to

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Dismiss), requesting that the remaining causes of action be dismissed without prejudice. (Doc. 73.)

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On February 27, 2013, the Court issued an Order re Briefing on Parties' Motions to Dismiss, ordering

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Defendants to file a reply brief to their Motion to Dismiss to inform the Court whether they agree

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to dismiss Plaintiff's action without prejudice or state why the case should be dismissed with

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prejudice. (Doc. 74.) On March 13, 2013, Defendants filed their reply, contending that Plaintiff's

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claims should be dismissed with prejudice. (Doc. 75.)

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III.

DISCUSSION

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Defendants' Motion to Dismiss seeks dismissal with prejudice of Plaintiff's remaining

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claims, causes of action 1 through 4, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

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to state a claim upon which relief may be granted and Rule 12(b)(1) for lack of subject matter

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jurisdiction to Plaintiff's claims of Constitutional violations. (Doc. 69.) Defendants contend that

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the Court's affirmance of the IBLA's decision and finding that Plaintiff does not have a valid mining

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claim establishes that Plaintiff had no legal right to conduct any mining activities at White Cap Nos.

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1-3. (Doc. 69, 6:22-23.) Defendants thus assert that Plaintiff's first through fourth causes of action

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– for declaratory, injunctive, and mandamus relief; quiet title; Bivens violations; and illegal restraint

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on interstate commerce – fail as they are predicated on Plaintiff having a valid mining claim. (Doc.

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69, 6:22-7:7.) Defendants additionally contend that Plaintiff's third and fourth causes of action for

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Constitutional claims for Bivens violations and restraint on interstate commerce must also be

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dismissed for lack of subject matter jurisdiction because Plaintiff sued the Forest Service employees

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in their official capacity, and the United States has not waived sovereign immunity with respect to

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claims for damages for Constitutional violations. (Doc. 69, 7:8-15.)

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Plaintiff does not oppose Defendants' motion and voluntarily requests that causes of action

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1 through 4 be dismissed. (Doc. 73.) Plaintiff, however, requests dismissal of the claims without

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prejudice, while Defendants' seek dismissal with prejudice. As such, there is no question as to

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whether the claims should be dismissed – the only issue is whether the claims should be dismissed

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with or without prejudice.

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A.

Legal Standard

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Federal Rule of Civil Procedure 41(a)(1)(B) allows the courts to grant a plaintiff's request

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for a voluntary dismissal without prejudice "unless a defendant can show that it will suffer some

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plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). "'[L]egal

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prejudice' means 'prejudice to some legal interest, some legal claim, some legal argument.'" Id. at 976

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(citing Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)). The court has broad
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discretion whether to dismiss an action with or without prejudice. Hargis v. Foster, 312 F.3d 404,

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412 (9th Cir. 2002).

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In determining whether an action should be dismissed with or without prejudice, a court may

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consider whether the plaintiff is requesting a voluntary dismissal only to avoid a near-certain adverse

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ruling. An attempt by the plaintiff to avoid an adverse decision on the merits may constitute legal

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prejudice. Martin v. Winett, No. 1:04-CV-05358-LJO, 2012 WL 2360800, at *2 (E.D. Cal. June 20,

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2012) (citing In re Sizzler Restaurants Int'l, Inc., 262 B.R. 811, 822 (Bankr. C.D. Cal. 2001)).

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"[T]he avoidance of an adverse ruling is an abusive reason to seek dismissal." White v. Donley, No.

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CV05-7728ABCFMOX, 2008 WL 4184651, at *3 (C.D. Cal. Sept. 4, 2008) (citing Terravona v.

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Kincheloe, 852 F.2d 424, 429 (9th Cir.1988)). A party should not be permitted to avoid an adverse

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decision on a dispositive motion by dismissing a claim without prejudice. Martin, 2012 WL

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2360800, at *2 (citing Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)).

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Other factors the court may consider in determining whether a defendant will suffer legal

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prejudice are (1) the defendant's effort and expense involved in preparing for trial; (2) excessive

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delay and lack of diligence on the part of the plaintiff in prosecuting the action; (3) insufficient

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explanation of the need to take a dismissal; and (4) the fact that summary judgment has been filed

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by the defendant. Fischer v. Zespri Fresh Produce N. Am., Inc., No. 1:07-CV-00610-LJO, 2007 WL

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2385074, at *8-9 (E.D. Cal. Aug. 17, 2007) (citing Paulucci v. City of Duluth, 826 F.2d 780, 783

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(8th Cir. 1987)).

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B.

Analysis

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Plaintiff's Request for Dismissal states in its entirety that "Plaintiff John H. McKown IV

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hereby requests that the First through Fourth Causes of Action of the Complaint be dismissed by the

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above-entitled Court WITHOUT prejudice." (Doc. 73, 2:1-3.) Plaintiff provides no explanation as

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to why he is seeking a voluntary dismissal without prejudice at this stage of the litigation, especially

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in light of the Court's February 1, 2013, order that Plaintiff file either an opposition brief or a notice

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of non-opposition to Defendants' motion to dismiss. (Doc. 72, 4:21-22.) Plaintiff did neither, and

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instead filed a request for dismissal without prejudice.

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As noted above, on November 5, 2012, the Court issued an order denying Plaintiff's APA

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appeal and affirming the IBLA's decision that Plaintiff's mining claims were invalid. (Doc. 68.)

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Plaintiff's fifth through ninth causes of action related to the APA appeal were thus dismissed, and

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the stay as to the remaining non-APA claims was lifted. (Doc. 68, 34:20-28.) Defendants' Motion

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to Dismiss asserts that the Court's finding that Plaintiff's mining claim was invalid effectively

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dismisses Plaintiff's remaining causes of action, since they rely upon Plaintiff having a valid mining

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claim. (Doc. 69, 10:20-13:7.) Plaintiff does not oppose this assertion. (See Doc. 73.) Instead,

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Plaintiff requests that dismissal be without prejudice. As such, it appears that Plaintiff is seeking

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to voluntarily dismiss the action without prejudice to avoid an adverse ruling against him.

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In considering Defendants' Motion to Dismiss Plaintiff's remaining non-APA claims,

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Plaintiff's first cause of action for declaratory and injunctive relief requests that the Court preclude

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the Forest Service from regulating Plaintiff's access and use of White Cap Nos. 1-3. (Doc. 48,

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¶¶ 19 51.) Plaintiff requests that Defendants be restrained from enforcing the California Desert

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Protection Act of 1994 ("CDPA") and restricting Plaintiff's use of the mining claims, as well as

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restricting Plaintiff's access to the mining claims by motor vehicles. (Doc. 48, ¶ 50.) However, the

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IBLA determined and this Court has affirmed that Plaintiff does not have a valid mining claim.

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(Doc. 68.) As such, Plaintiff has no right to conduct mining activities at White Cap Nos. 1-3, and

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his request for declaratory and injunctive relief to prelude the Forest Service from applying the

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restrictions of the CDPA to prevent Plaintiff's mining activities is moot. See CDPA, Pub. L. No.

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104(c), 108 Stat. 4483 (Establishing that, subject to valid existing rights (which Plaintiff does not

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have) the Kiavah Wilderness lands (where White Cap Nos. 1-3 are located) are withdrawn from

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location, entry, and patent under the United States mining laws).

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Plaintiff's second cause of action for quiet title likewise fails, as Plaintiff requests that the

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Court declare Plaintiff is "the owner of his mining claims" and that Defendants have no adverse

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interest to Plaintiff's claim. (Doc. 48, ¶ 56.) Since Plaintiff does not have a valid mining claim to

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White Cap Nos. 1-3, he has no property interest in which he would be entitled to quiet title. See

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Lowe v. Union Oil Co. of California, 487 F.2d 477, 478 (9th Cir. 1973) (affirming the district court's

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dismissal of defendants' quiet title action due to a lack of a valid mining claim).

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The third cause of action for a Bivens claim and the fourth cause of action for an interstate

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commerce claim against the Forest Service employees also fail due to Plaintiff's lack of a valid

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mining claim. Plaintiff alleges that the Forest Service employees violated his Constitutional rights

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when they applied the restrictions of the CDPA and deprived Plaintiff of his ownership interest in

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the mining claims. (Doc. 48, ¶¶ 57-118.) However, an invalid mining claim creates no right of any

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kind against the United States. See Hafen v. United States, 30 Fed. Cl. 470, 473 (Fed. Cl. 1994) ("If

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a mining claim is found to be valid, the claimant gains certain exclusive possessory rights. No right,

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however, arises from an invalid claim of any kind." (emphasis added) (citing Best v. Humboldt

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Placer Min. Co., 371 U.S. 334, 337 (1963))).

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The third and fourth causes of action also fail because the Court lacks subject matter

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jurisdiction over the Constitutional claims. Plaintiff is suing the Forest Service employees in their

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official capacities. (See Doc. 48, ¶¶ 2-12.) A suit against federal employees "in their official

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capacity is essentially a suit against the United States." Gilbert v. DaGrossa, 756 F.2d 1455, 1458

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(9th Cir. 1985). "It is well settled that the United States is a sovereign, and, as such, is immune from

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suit unless it has expressly waived such immunity and consented to be sued." Id. (citing United

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States v. Shaw, 309 U.S. 495, 500-01 (1940)). However, "the United States has not waived its

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sovereign immunity in actions seeking damages for constitutional violations." Thomas-Lazear v.

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F.B.I., 851 F.2d 1202, 1207 (9th Cir. 1988) (citing United States v. Testan, 424 U.S. 392, 400-402

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(1976)). As such, "no Bivens-like cause of action is available against federal agencies or federal

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agents sued in their official capacities." Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1257

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(9th Cir. 2008) (citing FDIC v. Meyer, 510 U.S. 471, 485-86 (1994)). Accordingly, the third and

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fourth causes of action alleging Constitutional violations against the Forest Service employees in

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their official capacities must be dismissed as "the courts lack subject matter jurisdiction to hear

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constitutional damage claims against the United States, because the United States has not waived

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sovereign immunity with respect to such claims." Rivera v. United States, 924 F.2d 948, 951

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(9th Cir. 1991). Thus, considering Defendants' Motion to Dismiss on the merits, all of Plaintiff's

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remaining non-APA claims warrant dismissal.

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As such, Plaintiff's request that the first through fourth causes of action be dismissed without

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prejudice appears to be an attempt to avoid an adverse ruling on the merits of Defendants' Motion

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to Dismiss since Plaintiff's remaining causes of action in this case are invalid. As noted, an attempt

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by the plaintiff to avoid an adverse decision on the merits may constitute legal prejudice. Martin,

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2012 WL 2360800, at *2 (citing In re Sizzler Restaurants, 262 B.R. at 822). "[T]he mere temporary

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avoidance of a claim-dispositive motion is not a legitimate reason to seek dismissal of those claims

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without prejudice; indeed, the avoidance of an adverse ruling is an abusive reason to seek dismissal."

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White, 2008 WL 4184651, at *3 (citing Terravona, 852 F.2d at 429) Defendants would thus suffer

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legal prejudice due to Plaintiff's attempt to avoid an adverse ruling if Plaintiff's remaining claims are

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dismissed without prejudice.

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Further, the other factors the court may consider in determining legal prejudice also weigh

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in favor of dismissing Plaintiff's claims with prejudice. As noted above, the court may consider

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(1) the defendant's effort and expense involved in preparing for trial; (2) excessive delay and lack

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of diligence on the part of the plaintiff in prosecuting the action; (3) insufficient explanation of the

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need to take a dismissal; and (4) the fact that summary judgment has been filed by the defendant.

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Fischer, 2007 WL 2385074, at *8-9 (citing Paulucci, 826 F.2d at 783).

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Defendants have incurred significant time and expense in litigating this action since it was

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filed on May 7, 2009. The validity of Plaintiff's mining claims have been considered by OHA and

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found to be invalid; that decision was then affirmed by the IBLA and this Court. (See Doc. 68.)

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"Without the finality of dismissal with prejudice, defendants face potential relitigation of issues

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occurring long ago, that they have spend . . . years defending." Martin, 2012 WL 2360800, at *4;

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see also White, 2008 WL 4184651, at *3 ("Dismissing the claims without prejudice would harm

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Defendant's legal interest in the timely final adjudication of Plaintiff's long-pending claims.")

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There has also been excessive delay on Plaintiff's part in litigating this action. Plaintiff filed

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a total of four ex parte applications seeking extensions of time to submit his opening brief for the

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APA appeal and his opposition to the instant motion, despite repeated admonishments by the Court

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to respect its scheduling orders. (See Docs. 53, 55, 56, 57, 58, 71, 72.) In granting Plaintiff's fourth

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ex parte application requesting an extension of time, the Court noted that Plaintiff's counsel had not

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communicated with his client in the nearly eight weeks since Defendants' Motion to Dismiss had

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been filed and counsel failed to explain why he was too "busy" to oppose the motion. (Doc. 72.)

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The Court found that "Plaintiff's continued disregard for deadlines in this action is unacceptable,"

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but nonetheless allowed Plaintiff an extension of time to permit Plaintiff to either oppose

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Defendants' motion on the merits or file a notice of non-opposition. (Doc. 72.) Plaintiff did neither,

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but instead sought dismissal without prejudice. (Doc. 73.) This appears to be yet another delay

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tactic on Plaintiff's part in a case in which he has no valid claims.

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Plaintiff has failed to provide an explanation as to why he seeks dismissal without prejudice;

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he simply "requests that the First through Fourth Causes of Action of the Complaint be dismissed

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by the above-entitled Court WITHOUT prejudice." (Doc. 73.) No explanation is given as to why

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dismissal without prejudice would be appropriate in this action, especially in light of the fact that

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the Court has already considered and ruled on the merits of Plaintiff's claims when affirming the

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IBLA decision. (Doc. 68.)

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Finally, if Plaintiff's claims are dismissed without prejudice, there may remain some

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ambiguity as to Plaintiff's ownership interests in White Cap Nos. 1-3, particularly to his quiet title

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claim. "The prejudice resulting from uncertainty over title to land is also a valid consideration."

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Fischer, 2007 WL 2385074, at *9 (citing Ferguson v. Eakle, 492 F.2d 26, 29 (3d Cir.1974)).

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Accordingly, for the reasons set forth above, dismissal without prejudice of Plaintiff's claims

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would result in plain legal prejudice to Defendants. See Smith, 263 F.3d at 975-76. Defendants'

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Motion to Dismiss is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE.

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IV.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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CONCLUSION AND ORDER

Defendants' Motion to Dismiss is GRANTED and Plaintiff's remaining non-APA
claims are DISMISSED WITH PREJUDICE;

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2.

Plaintiff's request to have the claims dismissed without prejudice is DENIED; and

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3.

The Clerk of the Court is DIRECTED to administratively close this action.

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IT IS SO ORDERED.

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Dated:
ie14hj

March 28, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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