Baas v. Garland Real Estate, LLC et al
MEMORANDUM OPINION AND ORDER granting 3 MOTION to Dismiss for Lack of Jurisdiction and remanding matter to Otero County District Court by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDWARD P. BAAS,
SECRETARY OF VETERAN AFFAIRS;
VENDOR CONNECT, LLC;
GARLAND REAL ESTATE, LLC;
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on a Motion to Dismiss for Lack of Subject
Matter Jurisdiction (Motion to Dismiss) by Defendant Secretary of Veterans Affairs (the
Secretary) [Doc. 3].
Plaintiff Edward P. Baas (Plaintiff) did not respond to the
Secretary’s Motion to Dismiss within the deadline set by D.N.M. LR Civ. 7.4(a). The
Court has considered the parties’ submissions and the relevant law, and is otherwise fully
informed. For the following reasons, the Court GRANTS the Secretary’s Motion to
The following facts are derived from Plaintiff’s Complaint for Breach of Contract
(Complaint) and an Affidavit by Brad Blancett, Vice President of Client Operations for
VRM Mortgage Services. [Doc. 1-2; Doc. 3-1] See Hoag v. United States, 99 Fed. Cl.
246, 250 (2011) (“When deciding a case based on a lack of subject matter jurisdiction,
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this court must assume that all undisputed facts alleged in the complaint are true and must
draw all reasonable inferences in the non-movant’s favor.”). Plaintiff offered to buy a
property at 9 Foothills Lane in Tularosa, New Mexico, from the Secretary. [Id. ¶ 12]
Plaintiff paid $500 in earnest money and secured a $58,500 conventional loan to finance
the purchase, pending an appraisal of the property. [Id.; Doc. 3-2, pg. 2] A contract to
purchase the property was executed in November, 2016.
[Id. ¶ 13]
Seller at its sole discretion may rescind the Contract of Sale of the Property
and return the Purchaser’s Earnest Money under any of the following
conditions: Property is damaged prior to the Closing Date, Seller is unable
to deliver the Property as advertised, Seller is unable or unwilling to
remove valid objections to title prior to the Closing Date, any errors are
made in the calculations concerning the offer to sell the Property, Seller is
unable to acquire title to the Property, or the Property is subject to any
[Doc. 3-2, pg. 3 (Emphasis added)]
Before the appraisal could be completed, VRM Mortgage Services, acting on
behalf of the Secretary, [Doc. 3-1, Brad Blancett Affidavit, ¶¶ 2, 5] approved the
destruction of the walls within the house. [Id. ¶ 14] The damage to the walls rendered
the appraisal impossible. [Id.] Plaintiff asked Defendant[s]1 to return the walls to their
former condition and Defendant agreed to do so. [Id. ¶ 15] Bids for the repair work were
obtained. [Id. ¶ 16] Roughly two weeks later, Defendant[s] informed Plaintiff that
“nothing was going to be done to fix the damage done to the home.” [Id. ¶ 17] Plaintiff
offered to fix the walls himself, but was told he was not allowed in the house. [Id. ¶ 18]
It is not clear from Plaintiff’s Complaint which of the named defendants took these
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VRM Mortgage Services, acting on behalf of the Secretary, canceled the contract and
signed the paperwork for return of Plaintiff’s earnest money. [Doc. 3-1, Brad Blancett
Affidavit, ¶ 10]
Plaintiff filed the Complaint in the Twelfth Judicial District Court and the
Secretary removed the matter to this Court. [Doc. 1] In the Complaint, Plaintiff alleges
that “Defendants breached the contract by materially altering the subject property in such
a way as to completely frustrate the fulfillment of the contract as originally agreed to by
both parties” and that “Defendant[s] breached by failing to deliver or maintain the subject
property in a condition that would allow the Plaintiff to complete performance of the
contract for sale.”
[Doc. 1-2, ¶ 20]
Plaintiff further alleges that “the Defendants
knowingly engaged in conduct that undermined the existing contract for sale of the above
referenced house by approving and hiring an unknown contractor to remove drywall and
insulation from most rooms in the house.” [Id. ¶ 21] He seeks “specific performance,
specifically to order the Defendant to repair the damage intentionally done to the property
and sell the house to the Plaintiff under the terms of the original agreement.” [Id. pg. 4]
The Secretary now moves for dismissal. [Doc. 3] See Fed. R. Civ. P. 12(b)(1).
Under D.N.M. LR Civ. 7.1(b), “[t]he failure of a party to file and serve a response
in opposition to a motion within the time prescribed for doing so constitutes consent to
grant the motion.” Plaintiff neglected to file a response to the Secretary’s Motion to
Dismiss. Thus, the Court considers Plaintiff’s failure to respond as consent to grant the
Motion to Dismiss. In addition, the Court has carefully considered the merits of the
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motion and is satisfied that it is meritorious. Cf. Reed v. Bennett, 312 F.3d 1190, 1194-95
(10th Cir. 2002) (holding that, where a party fails to respond to a motion for summary
judgment, the party waives the right to respond to or controvert the facts asserted by the
moving party but the Court should only grant summary judgment if the uncontroverted
facts entitle the moving party to summary judgment).
The Secretary argues that 1) this Court lacks subject matter jurisdiction over
Plaintiff’s claims pursuant to “the Tucker Act” and “the Little Tucker Act,” and 2) the
claims should not be transferred to the Court of Federal Claims. [Doc. 3]
The Tucker and Little Tucker Acts
28 U.S.C. § 1491 and 28 U.S.C. § 1346(a)(2) are known as “the Tucker Act” and
“Little Tucker Act,” respectively. See Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d
1074, 1080 (10th Cir. 2006). The Tucker Act provides that
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491 (Emphasis added). “The Tucker Act . . . is a jurisdictional statute; it
does not create any substantive right enforceable against the United States for money
damages. The Act merely confers jurisdiction upon the United States Court of Federal
Claims whenever the substantive right exists.” Johnson v. United States, 107 Fed. Cl.
379, 382 (2012) (alterations, internal quotation marks, and citation omitted). The Little
Tucker Act “grants federal district courts concurrent jurisdiction over contract claims
against the government where plaintiffs seek no more than $10,000 in damages.”
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Robbins, 438 F.3d at 1081. “The Supreme Court has long held that neither the Tucker
Act nor the Little Tucker Act authorize relief other than money damages for such contract
Because neither the Tucker Act nor the Little Tucker Act creates a substantive
right, that right must exist elsewhere.
“[A] plaintiff must identify and plead an
independent contractual relationship, constitutional provision, federal statute, or
executive agency regulation that provides a substantive right to money damages.”
Johnson, 107 Fed. Cl. at 382. In a contract case, this “money-mandating requirement” is
typically “satisfied by the presumption that money damages are available for breach of
contract, with no further inquiry being necessary.” Holmes v. United States, 657 F.3d
1303, 1314 (Fed. Cir. 2011). If the contract expressly precludes money damages, or if it
provides for non-monetary damages, “Tucker Act jurisdiction may also be lacking.”
Higbie v. United States, 778 F.3d 990, 993 (Fed. Cir.), cert. denied, 136 S. Ct. 37, 193 L.
Ed. 2d 25 (2015). In the latter case, “it is proper for the court to require a demonstration
that the agreements could fairly be interpreted as contemplating monetary damages in the
event of breach.” Id. (internal quotation marks and citation omitted).
The Secretary first argues that this Court does not have jurisdiction over this
matter because Plaintiff seeks more than $10,000 in damages and the Tucker Act vests
exclusive jurisdiction over such claims in the United States Court of Federal Claims.
[Doc. 3, pg. 5-6] Although Plaintiff does not specifically seek money damages, he
requests that the Court order the Secretary to sell the property to him. [Doc. 1-2, pg. 4]
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The price of the property is $61,000. [Doc. 3-2, pg. 2] Thus, Plaintiff’s claim is greater
than $10,000 and this Court lacks jurisdiction over it. See Hoag, 99 Fed. Cl. at 248
(holding that the Court of Federal Claims had jurisdiction where the plaintiff sought an
“unspecified amount of damages” and the contract was for sale of property priced at
The Secretary next argues that the matter should not be transferred to the Court of
Federal Claims because that court lacks jurisdiction over Plaintiff’s claims. [Doc. 3, pg.
6-10] “Under 28 U.S.C. § 1631, when a civil action is filed in a federal district court that
lacks jurisdiction over the action, ‘the court shall, if it is in the interest of justice, transfer
such action ... to any other such court in which the action ... could have been brought at
the time it was filed.’” Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1303 (Fed.
Cir. 2008). “A case may be transferred under section 1631 only to a court that has
subject matter jurisdiction.” Id.
To determine whether the transferee court would have jurisdiction, the Court
examines 1) whether “the claim is founded upon a money-mandating source” and 2)
whether “the plaintiff has made a nonfrivolous allegation that it is within the class of
plaintiffs entitled to recover under the money-mandating source.” Id. at 1309. The
Secretary argues that this test fails under the first prong because the purchase contract
does not expressly mandate money damages for breach. [Doc. 3, pg. 8] But, as stated
above, there is a presumption that the remedy for breach of contract is money damages.
Holmes, 657 F.3d at 1314. The Secretary next maintains that the contract is not moneymandating because it provides that “Seller . . . may rescind the Contract of Sale of the
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Property and return the Purchaser’s Earnest Money” under the circumstances found in
this case. [Doc. 3, pg. 9] But this provision has nothing to do with the remedies for
breach of contract. It simply guides permissible conduct under the contract and, hence,
what conduct constitutes a breach. In other words, the Secretary’s argument goes to
whether there was a breach at all, not whether money damages are available for such
Even if both prongs of this test are satisfied, however, the Court of Federal Claims
lacks jurisdiction because it does not have the authority to grant Plaintiff the requested
relief. Plaintiff requests only that the Secretary be ordered to sell the property to him.
[Doc. 1-2, pg. 4] Although he also requests attorney fees and costs, he asserts no claim
for substantive money damages. See Villegas v. Clinton, No. CIV.A. H-10-0029, 2010
WL 5387553, at *6 (S.D. Tex. Dec. 20, 2010) (distinguishing between attorney fees and
substantive money damages). In Hoag v. United States, a case similar to that sub judice,
the plaintiff brought a claim for specific performance and money damages for breach of
contract against the United States after the United States accepted her offer to purchase a
property but then failed to close on the sale. 99 Fed. Cl. at 249. The Court of Federal
Claims held that neither the Tucker Act nor the Federal Declaratory Judgment Act, 28
U.S.C. § 2201, gave it authority to grant equitable relief or specific performance, and,
therefore, dismissed those claims. Id. at 252 (“[T]he claims in plaintiff’s complaint
which request equitable relief and specific performance cannot be entertained in this
court, and must be dismissed.”); see Robbins, 438 F.3d at 1082 (“[T]he Tucker and Little
Tucker Acts impliedly forbid federal courts from ordering declaratory or injunctive relief,
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at least in the form of specific performance, for contract claims against the government.”
(internal quotation marks, citation, and footnote omitted)).
It did not dismiss the
plaintiff’s claim for money damages based on breach of contract. Id. at 254.
The Court concludes that Plaintiff’s Complaint may not be transferred to the Court
of Federal Claims because, like in Hoag, that court lacks jurisdiction to grant the relief
For the foregoing reasons, the Court GRANTS the Secretary’s Motion to Dismiss.
IT IS FURTHER ORDERED that this matter dismissed without prejudice with
respect to Defendant Secretary of Veterans Affairs and the matter is remand to the Otero
County District Court as to the remaining Defendants.
SO ORDERED this 17th day of July, 2017.
M. CHRISTINA ARMIJO
Chief United States District Judge
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