Ventura-Melendez v. United States of America
Filing
40
OPINION AND ORDER granting 24 Motion to Dismiss. Judgment of dismissal with prejudice is to be entered accordingly. Signed by Judge Daniel R. Dominguez on 9/7/2021. (EA)
Case 3:20-cv-01134-DRD Document 40 Filed 09/07/21 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HECTOR VENTURA-MELÉNDEZ,
CIVIL NO. 20-1134 (DRD)
Ex Parte Petitioner
OPINION AND ORDER
Pending before the Court is party of interest, United States of America’s Motion to Dismiss
Complaint. See Docket No. 24. Essentially, the Government is seeking a dismissal with prejudice
of Ex Parte Petitioner, Hector Ventura-Meléndez’s petition for a claim of ownership of a property
allegedly acquired through adverse possession from the United States. See Docket No. 1, Exhibit
No. 1, p. 2 ¶¶ 6 and 7. The property in question was identified in the Complaint as:
RURAL: Parcel of land located in Barrio Puerto Ferro, sector Lujan, in the
municipality of Vieques, Puerto Rico. It is constituted by zero point nine thousand
five hundred fifty‐five cuerdas (0.9555 cdas), equivalent to three thousand seven
hundred fifty‐five point six thousand three hundred twenty‐four square meters
(3,755.6324 m2). To the North, in various alignments that add up to a distance of
five eight point six zero three six lineal meters (58.6036 m), it is adjacent to the
Municipality of Vieques and the Department of the Navy of the United States of
America. To the East, in various alignments that add up to a distance of eight two
point nine nine zero one lineal meters (82.9901 m), it is adjacent to the
Municipality of Vieques and the Department of the Navy of the United States of
America. To the South, in various alignments that add up to a distance of three
four point nine seven zero seven lineal meters (34.9707 m), it is adjacent to the
Municipality of Vieques and the Department of the Navy of the United States of
America. To the West, in various alignments that add up to a distance of seven
zero point nine six nine nine lineal meters (70.9699 m), it is adjacent to PR Road
Number nine nine seven (997).
See Docket No. 1, Exhibit 1, p. 1 ¶ 2. The petitioner filed his respective Response in Opposition
thereto. See Docket No. 35. The Government later filed a Reply. See Docket No. 39.
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For the reasons stated herein, the Court GRANTS the Government’s Motion to Dismiss
Complaint (Docket No. 24), and accordingly dismisses the instant case with prejudice.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The instant case arises from a Notice of Removal filed by the Government wherein an Ex
Parte Petition (Civil No. VQ2020cv00001) was removed from the Puerto Rico Court of First
Instance, Vieques Part, to the District Court as the property subject to the Petition is a property
of the United States Government. See Docket No. 1, ¶ 1. The notice of removal was brought
pursuant to 28 U.S.C. § 1441(a) which provides that,
(a) Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place
where such action is pending.
See id., ¶ 4. According to the Government, “[t]he instant case is removable to the United States
District Court for the District of Puerto Rico, pursuant to 28 U.S.C. § 1441(a) because this Court
has original jurisdiction of the matter under the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a. The
QTA provides the “exclusive means by which adverse claimants can challenge the United States’
title to real property.” Block v. North Dakota, 461 U.S. 276, 286 (1983). Moreover, “[t]he public
policy embodied in the maxim nullum tempus occurrit regi (time does not run against the King)
excludes the operation of adverse possession against the United States.” United States v. Hato
Rey Bldg. Co., 886 F.2d 448, 450 (1st Cir. 1989).
Taking the allegations set forth in the Complaint as true, the facts are as follows: Mr.
Ventura’s Petition vests upon the civil possession of a property which began in 1984. He seeks
for the Court to order the Property Registrar to register the property under his name as when he
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began the civil possession of the property, he believed that the property belonged to the
Municipality of Vieques, as the property at some point had been transferred to said Municipality
by the United States. See Docket No. 34, ¶ 3.
Accordingly, “[o]n November 27, 2019, Ventura filed his ex-parte case at the Court of First
Instance, Vieques Part claiming adverse possession title by virtue of the dispositions [of the]
current law at the time, specifically Article 185 of the Mortgage Law of 2015, 30 L.P.R.A., section
6291.” Id., ¶ 5. However, the Government filed a Notice of Removal, as a party in interest,
pursuant to 28 U.S.C. § 1441(a) essentially alleging original jurisdiction as the Petition related to
a property of the United States Government, as such, the United States “has a vested interest in
the matter.” Docket No. 1, ¶¶ 2, 5. The Government further argues that “[t]he property in
question appears to have been acquired by the United States through the Treaty of Paris between
the Kingdom of Spain and the United States in 1899, henceforth, the United States acquired title
to all public lands formerly owned by Spain. (30 Stat. 1754, Article II).” Id. at ¶ 3.
Thereafter, the Government filed a Motion to Dismiss Complaint (Docket No. 24),
essentially arguing that although the Property subject to the Complaint was transferred to the
Municipality of Vieques on December 22, 2010 under the Federal Lands-to-Parks Program of the
United States Department of the Interior, it was solely for the public’s recreational enjoyment.
See Docket No. 24, ¶ 2.
Pursuant to the authority included in the Federal Property and Administrative Services
Act of 1949, as amended, the General Services Administration (hereinafter, “GSA”) determined
the subject Property to be a surplus to the need of the United States of America. See Docket No.
24, Exhibit 2. Accordingly, the Property was assigned to the Department of Interior. See Docket
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No. 24, Exhibit 3. Then, it was the Department of Interior who conveyed the Property to the
Municipality of Vieques under the Federal Lands-to-Parks Program for recreational use and
enjoyment, but subject to restrictions of use.
Accordingly, the Property was transferred through a Quitclaim Deed (hereinafter, the
“Deed”) to the Municipality. Therein, the property subject to the Complaint is described as
Parcel-A and A-1 as follows:
Parcel-A
All that certain piece or parcel of land named Parcel 'A', situated in the Ward of
Destino, Municipality of Vieques, Puerto Rico, bounded on the north by various
owners of the Destino Community; on the south by the lands owned by U.S. Navy;
on east by lands owned by the U.S. Navy, and on the west by the parcel from lands
owned by the Commonwealth of Puerto Rico; said parcel being more particularly
described as follows:
Beginning at Control station 'E-32', a U. S. concrete monument located at the edge
of State Road No. 997 on the Destino Area, said station having Lambert
Coordinates North 111,757.192 feet, East 846,842.5640 feet, thence S 15º31
'09.01 "E, 3,999.2727 feet to Point E-8, a 2" diameter steel pipe, marking the
southern corner and TRUE POINT OF BEGINNING of the hereinafter described
parcel, said Point E-8, having Lambert Coordinates North 107,904.0564 feet, East
847,912.6137 feet; thence S 54º51 '01.1 "W, 2,895.630 feet to Point 1; thence S
48º3'25.3" W, 40.274 feet to Point E-3, a 3/4 diameter steel bar on a concrete base
as well as all following points; thence N2756'00.0" E, 863.909 feet to Point E-4;
thence N 17º57'00.0" E, 984.250 feet to Point E-4A; thence N 1757'O0.0"E,
984.250 feet to Point E-4B; thence N 1757'00.0" E, 292.299 feet to Point E-5;
thence S 73º22'00.0"E, 440.760 feet to Point E-6, thence S 32º43'00.0"E, 991.872
feet to Point E-7; thence S 52º28'00.0"E, 426.21 O feet to Point E-8 the TRUE
POINT OF BEGINNING, containing 57.1573 acres, more or less, as shown and
identified on the U. S. Naval station, Roosevelt Roads, Puerto Rico, Public Works
Drawing No. 6005 dated January 29, 1993, entitled "SURVEY OF VARIOUS
PARCELS, DESTINO AREA PARCEL 'A' & PARCEL 'A-1', VIEQUES, PUERTO RICO."
Parcel A-1
All that certain piece or parcel of land named Parcel 'A1', situated in the Ward of
Destino, Municipality of Vieques, Puerto Rico, bounded on the north by the lands
owned by U.S. Navy; on the south by the lands owned by the U.S. Navy; on the
east by the lands owned by U.S. Navy; and on the west by various owners of the
parcel Destino Community; said parcel being more particularly described as
follows:
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Beginning at Control Station 'E-32', a U.S. concrete monument located at the edge
of State Road No. 997 on the Destino Area, said station having Lambert
Coordinates North 111,757.5192 feet, East 846,842.5640 feet, thence S
34º09'11.1" E, 2,717.6868 feet to Point E-28, a 3/4" diameter steel bar on a
concrete base, marking the southern corner and TRUE POINT OF BEGINNING of
the hereinafter described parcel, said Point E-28, having Lambert Coordinates
North 109,508.5237 feet, East 848,368.2903 feet; thence N 88º52'43.0"E, 493.302
feet to Point 9, a 2" diameter steel pipe as well as following points; thence S
20º52'32.0" E, 291.359 feet to Point 8; thence S14º23'33.0" W, 83.713 feet to
Point 7; thence S 56º32'32.0"W, 88.231 feet to Point 6; thence S 76º12'29.0"W,
296.568 feet to Point 5; thence S 80º56'43.O"W, 83.932 feet to Point 4; thence S
79º28'06.5"W, 138.181 feet to Point 3A; thence S 33º04'00.6"W, 102.721 feet to
Point 79; thence S 11 º01 '45.0"E, 27.233 feet to Point 82; thence S 6º07'05.0"W,
271.999 feet to Point 53; thence S 20º13' 46.O"W, 428.939 feet to Point 2A;
thence S14º31'20.9"W, 171.479 feet to Point 2; thence S 53º48'58.9"W, 223.491
feet to point E-8, thence N 2º06'28.8"E, 706.875 feet to Point A, a 3/4" diameter
steel bar on a concrete base as well as following points; thence N 81 º48'19.5"E,
254.320 feet to Point B; thence N 11 º40'00.0"E, 880.001 feet to Point E-28 the
TRUE POINT OF BEGINNING, containing 10,9537 acres, more or less, as shown and
identified on the U.S. Naval station, Roosevelt Roads, Puerto Rico, Public Works
Drawing No. 6005 dated January 29, 1993, entitled, "SURVEY OF VARIOUS
PARCELS, DESTINO AREA PARCEL 'A' & PARCEL 'A-1', VIEQUES, PUERTO RICO."
Id., at ¶ 3; see Exhibit 1, pp. 1-2. As part of the covenants, the Deed specified that “[t]he Property
shall be used and maintained in perpetuity for the public park and public recreation purposes for
which it was conveyed as set forth in the Program of Utilization and plan contained in the
application . . .” Docket No. 24, Exhibit 1 at 3, ¶ 1. It was further agreed that,
[the] Property shall not be sold, leased, assigned, or otherwise disposed of except
to another eligible governmental agency that the Secretary of the Interior agrees
in writing can assure the continued use and maintenance of the Property for public
part of public recreational purposes subject to the same terms and conditions in
the original instrument of conveyance. Any mortgage, lien, or any other
encumbrance not wholly subordinate to the reverter interest of the Granter shall
constitute an impermissible disposal. (Emphasis ours).
Id. at ¶ 3. Essentially, “Plaintiff is alleging adverse possession of a property of the United States,
when in fact the property was transferred to the Municipality.” Docket No. 24 at ¶ 4.
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In the alternative, the Government suggests that the Complaint should be dismissed for
failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), as if
Plaintiff alleges that the property was adversely possessed or transferred to him by the
Municipality, an impermissible disposal will ensue and make the Property subject to be reverted,
and must therefore, be returned to the United States. Id., ¶ 5.
In Response, Plaintiff argues that he began the civil possession of the Property in 1984. At
the time, he believed the Property belonged to the Municipality of Vieques because it had been
transferred to the Municipality by the United States. See Docket No. 34 at 2, ¶ 3. Plaintiff raises
several arguments in support of the contention that he believed the Municipality owned the
property he was civilly possessing, to wit,
1. In 1996, the Municipality of Vieques filed suit against Ventura requesting
him to remove some construction equipment located at Ventura, property
alleging they were scrap. The Municipality alleged that they were the
owner of the property in which the equipment was located. The court
dismissed the complaint stating that the issue was related to the
boundaries of the property and invited the parties to perform a survey to
resolve the situation. It never happened.
2. In 2001, Ventura finished the construction of his residency of
approximately 2,124 square meters.
3. In relation to said construction, in February 2002, the Municipality
endorsed the permit to provide water and electricity to the house built by
Ventura.
4. In October 2010, the Municipality endorsed Ventura’s petition to obtain
the Use Permit for his residency.
5. In 2013, Ventura ceded approximately one acre of his two-acre property
to David Lee Castro Lee. The property ceded was located in the northern
part of the property. On May 17, 2013, Mr. Castro sold said property to
Evgeny Platonov. See exhibit 1.
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6. In said deed, a survey was formed part of the deed showing the division of
Ventura’s two- acre property in two independent properties.
7. Later, Mr. Platonov built a house in the property which was never finished.
Id. at 3. The United States was notified of Plaintiff’s Petition because the survey he performed
showed the federal government as an adjacent owner. As such, Plaintiff is required to notify the
Petition to all adjacent owners. See Docket No. 34 at 3, ¶ 8. By virtue of said notification is that
the United States removed the case to this Court. According to Plaintiff, “[t]he facts revealed
during this litigation confirm that the last immediate owner of the property was the Municipality
of Vieques since 2010 and one of its prior owners was the United States.” Id., at 4, ¶ 10. As such,
Plaintiff requests a dismissal without prejudice in order to pursue an adverse possession action
against the Municipality. However, the Court finds that Plaintiff is precluded from pursuing said
action and explains.
I.
STANDARD OF REVIEW
A motion to dismiss may be filed pursuant to Federal Rule of Civil Procedure 12 (b) (6)
which states that “a party may assert [. . .] defense by motion [of] failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint in a suit must clearly state all of
the plaintiffs’ claims against the defendants and specify a claim for relief stating the remedy that
plaintiffs believe should be granted to them. Federal Rule of Civil Procedure 8(a) requires
plaintiffs to provide “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff must “provide the grounds of his entitlement [with]
more than labels and conclusions.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), See OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (“in order to ‘show’ an entitlement of
relief above the speculative level on the assumption that all the allegations in the complaint are
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true (even if doubtful in fact).’) (quoting Twombly, 550 U.S. at 555) (citation omitted). Thus, a
plaintiff must, and is now required to, present allegations that “nudge [his] claims across the line
from conceivable to plausible” in order to comply with the requirements of Rule 8(a). Id. at 570;
see e.g., Ashcroft v. Iqbal, 556 U.S. 662
When considering a motion to dismiss under this rule, the Court’s inquiry occurs in a twostep process under the current context-based “plausibility” standard established by Twombly,
and Iqbal. “Context based” means that a plaintiff must allege sufficient facts that comply with
the basic elements of the cause of action. See Iqbal, 556 U.S. at 677-679 (concluding that
plaintiff’s complaint was factually insufficient to substantiate the required elements of a Bivens
claim, leaving the complaint with only conclusory statements). First, the Court must “accept as
true all of the allegations contained in a complaint[,]” discarding legal conclusions, conclusory
statements and factually threadbare recitals of the elements of a cause of action. Iqbal, 556 U.S.
at 678. “Yet we need not accept as true legal conclusions from the complaint or ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Maldonado v. Fontanes, 568 F.3d 263,
268 (1st Cir. 2009) (quoting Iqbal, 556 U.S. 678) (quoting Twombly, 550 U.S. at 557).
Under the second step of the inquiry, the Court must determine whether, based upon all
assertions that were not discarded under the first step of the inquiry, the complaint “states a
plausible claim for relief.” Iqbal, 556 U.S. 679. This second step is “context-specific” and requires
that the Court draw from its own “judicial experience and common sense” to decide whether a
plaintiff has stated a claim upon which relief may be granted, or, conversely, whether dismissal
under Rule 12(b)(6) is appropriate. Id.
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Thus “[i]n order to survive a motion to dismiss, [a] plaintiff must allege sufficient facts to
show that he has a plausible entitlement to relief.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 41
(1st Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged —but has not ‘show[n]’ ‘that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Furthermore,
such inferences must be at least as plausible as any “obvious alternative explanation.” Id. at 67980 (citing Twombly 550 U.S. at 567).
Further, the First Circuit has cautioned against equating plausibility with an analysis of the
likely success on the merits, affirming that the plausibility standard assumes “pleaded facts to be
true and read in a plaintiff’s favor” even if seemingly incredible. Sepúlveda-Villarini v. Dep’t of
Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550 U.S. at 556). Instead, the First
Circuit has emphasized that “[t]he make-or-break standard . . . is that the combined allegations,
taken as true, must state a plausible, [but] not a merely conceivable, case for relief.” SepúlvedaVillarini, 628 F.3d at 29. Additionally, a district court may not weigh evidence in deciding a motion
to dismiss under Fed. R. Civ. P. 12(b)(6). See Massachusetts Delivery Ass’n v. Coakley, 671 F.3d
33, 39 n. 6 (1st Cir. 2012) (emphasizing that a primary difference between a motion to dismiss
under Rule 12(b)(1) and Rule 12(b)(6) is that, under Rule 12(b)(1), a court may weigh the evidence
and make factual determinations).
However, a complaint that rests on “bald assertions, unsupportable conclusions,
periphrastic circumlocutions, and the like” will likely not survive a motion to dismiss. Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Similarly, unadorned factual assertions as to the elements
of the cause of action are inadequate as well. Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592 (1st
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Cir. 2011). “Specific information, even if not in the form of admissible evidence, would likely be
enough at [the motion to dismiss] stage; pure speculation is not.” Id. at 596; see Iqbal, 556 U.S.
at 681 (“To be clear, we do not reject bald allegations on the ground that they are unrealistic or
nonsensical. . .. it is the conclusory nature of [the] allegations, rather than their extravagantly
fanciful nature, that disentitles them to the presumption of truth.”); see Mendez Internet Mgmt.
Servs. v. Banco Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and Iqbal
standards require District Courts to “screen out rhetoric masquerading as litigation.”).
The First Circuit outlined two considerations for district courts to note when analyzing a
motion to dismiss. García-Catalán v. United States, 734 F.3d 100, 104 (1st Cir. 2013). First, a
complaint modeled on Form 11 of the Appendix of the Federal Rules of Civil Procedure which
contains sufficient facts to make the claim plausible is ordinarily enough to surpass the standard
prescribed under Twombly-Iqbal. Id. at 104. Second, district courts should accord “some latitude
in cases where “[a] material part of the information needed is likely to be within the defendant’s
control.” Id. (more latitude is appropriate in cases where “it cannot reasonably be expected that
the [plaintiff], without the benefit of discovery, would have any information about” the event
that gave rise to the alleged injury.) (internal citations and quotations omitted).
III.
LEGAL ANALYSIS
A. Loss of title of United States to lands in territories through adverse possession or
prescription pursuant to 48 U.S.C. § 1489
48 U.S.C. § 1489 provides that “[o]n and after March 27, 1934, no prescription or statute
of limitations shall run, or continue to run, against the title of the United States to lands in any
territory or possession or place or territory under the jurisdiction or control of the United States;
and no title to any such lands of the United States or any right therein shall be acquired by
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adverse possession or prescription, or otherwise than by conveyance from the United States.”
The Supreme Court has explained that “[w]hen the United States becomes entitled to a claim,
acting in its governmental capacity, and asserts its claim in that right, it cannot be deemed to
have abdicated its governmental authority so as to become subject to a state statute putting a
time limit upon enforcement.” United States v. Summerlin, 310 U.S. 414, 417 (1940). Therefore,
the public policy manifested in the maxim nullum tempus occurrit regi (time does not run against
the King) excludes the applicability of adverse possession against the United States. See United
States v. Thompson; 98 U.S. 486 (1879) United States v. Summerlin, 310 U.S. 414, 417, 60 S.Ct.
1019 1020, 84 L.Ed. 1283 (1940). See Texas v. Louisiana, 410 U.S. 702, 93 S.Ct. 1215, 35 L.Ed.2d
646 (1973); United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947); United
States v. Pappas, 814 F.2d 1342 (9th Cir.1987); United States v. Stubbs, 776 F.2d 1472 (10th
Cir.1985); United States v. 1,629.6 Acres of Land, 503 F.2d 764 (3d Cir.1974); Engel v. United
States, 258 F.2d 50 (6th Cir.1958).
Plaintiff argues that the United States is authorized by law to dispose of its properties
under certain conditions. Section 484 of the United States Code provides in its pertinent part
that,
[t]he Administrator, in the Administrator’s discretion and under regulations that
the Administrator may prescribe, may assign to the Secretary of the Interior for
disposal surplus real property, including buildings, fixtures, and equipment
situated on the property, that the Secretary recommends as needed for use as a
public park or recreation area.
48 U.S.C. § 484. It is further added that “[t]he Secretary transfers or leases surplus Federal real
property on an “as is, where is,” basis without warranty of any kind.” 34 C.F.R. 12.9. According
to Plaintiff, “when in 2010 the government transferred the property to the Municipality, the
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residence of Ventura had been constructed 9 years before. The United States did not
demand[sic.] to the Municipality to evict Ventura as part of the transaction.
The applicable normative is fatal to Plaintiff’s argument, as the rule of law is that adverse
possession does not run against the United States of America. Most critical and determinative,
the Quitclaim Deed specifically provides the option to seek reversion of the Property should the
Grantee utilize the Property for a purpose that was not intended by the Government upon
transfer to the Municipality. Although Plaintiff puts forth an argument that is deeply researched,
rich in references to the law and well drafted, the arguments are ultimately unfounded.
Therefore, a dismissal of the case at bar is warranted.
IV.
CONCLUSION
For the aforementioned reasons, the Court hereby GRANTS the Government’s Motion to
Dismiss Complaint (Docket No. 24). Judgment of dismissal with prejudice is to be entered
accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 7th day of September, 2021.
S/Daniel R. Domínguez
Daniel R. Domínguez
United States District Judge
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