Schwent et al v. National Resource Conservation Service et al

Filing 26

ORDER granting 15 Motion to Dismiss; denying 17 Motion to Dismiss by Judge Benjamin H. Settle.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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VINCENT SCHWENT and DEBRA
SHAPIRO SCHWENT,
Plaintiffs,

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v.

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THE NATURAL RESOURCE
8 CONSERVATION SERVICE, et al.,
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CASE NO. C16-5708BHS
ORDER GRANTING FEDERAL
DEFENDANTS’ MOTION TO
DISMISS AND DENYING
DEFENDANTS WILLETS’
MOTION TO DISMISS

Defendants.

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This matter comes before the Court on Defendants Natural Resource Conservation

12 Service (“NRCS”) and David Kreft’s (collectively “Federal Defendants”) motion to
13 substitute and dismiss (Dkt. 15) and Defendants Rita Willets and Ward Willets’
14 (“Willets”) motion to dismiss (Dkt. 17). The Court has considered the pleadings filed in
15 support of and in opposition to the motions and the remainder of the file and hereby rules
16 as follows:
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I. PROCEDURAL HISTORY

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On August 12, 2016, Plaintiffs Vincent Schwent and Debra Shapiro Schwent

19 (“Schwents”) filed a complaint against the Federal Defendants and the Willets. Dkt. 1.
20 On August 17, 2016, the Schwents filed an amended complaint for trespass, nuisance,
21 constitutional tort, and breach of easement agreement. Dkt. 7. The Schwents request
22 compensatory damages, injunctive relief, and attorney’s fees and costs. Id.

ORDER - 1

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On October 20, 2016, the Federal Defendants moved to substitute the United

2 States of America for the Federal Defendants, to dismiss all non-tort claims, to dismiss
3 the named Federal Defendants, and to dismiss the requests for injunctive relief. Dkt. 15.
4 On October 28, 2016, the Willets filed a motion to dismiss. Dkt. 17. On November 8,
5 2016, the Schwents responded to both motions and filed a second amended complaint.
6 Dkts. 20, 21. On November 14, 2016, the Federal Defendants replied and moved to
7 strike the second amended complaint. Dkt. 22. On November 21, 2016, the Willets
8 replied. Dkt. 23.
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II. FACTUAL BACKGROUND

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In October 2013, the Schwents purchased property adjacent to the Willets’

11 property. Dkt. 7, ¶¶ 1.1, 3.1. After the 2014-2015 winter, a field on the Schwents’
12 property began to flood. Id. ¶ 3.5. The Schwents claim that the excess water is coming
13 from the Willets’ property. Id. ¶ 1.1. After investigation, the Schwents discovered that
14 the NRCS holds a conservative easement over portions of the Willets’ property and that
15 this portion of the property contains a beaver colony with numerous beaver dams. Id. ¶¶
16 3.6–3.8. The Schwents assert that the excessive water coming from the beaver dams
17 constitutes a taking of their property without just compensation, acts as a nuisance,
18 establishes trespass by nuisance, and violates the easement agreement. Id. ¶¶ 4.1–4.2.
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III. DISCUSSION

20 A.

Motion to Strike

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The Federal Defendants move to strike the Schwents’ second amended complaint

22 because it was improperly filed. Dkt. 22 at 1–2. The Court agrees that this complaint

ORDER - 2

1 was improper. A party may only amend its pleading once as a matter of course. Fed. R.
2 Civ. P. 12(a)(1). Otherwise, “a party may amend its pleading only with the opposing
3 party’s written consent or the court’s leave.” Fed. R. Civ. P. 12(a)(2). In this case, the
4 Schwents filed an amended complaint, Dkt. 7, and then filed another amended complaint
5 without the opposing party’s consent or leave of court. Therefore, the Court strikes the
6 second amended complaint (Dkt. 20).
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Motion to Substitute

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The Federal Defendants move to substitute the federal government as the named

9 government defendant. Dkt. 15. The Schwents do not oppose the motion, and the
10 substitution appears proper. See 28 U.S.C. § 2679. Therefore, the Court grants the
11 motion, and the Clerk shall add the United States of America as a party and terminate the
12 Federal Defendants.
13 C.

Willets’ Motion to Dismiss

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Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil

15 Procedure may be based on either the lack of a cognizable legal theory or the absence of
16 sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department,
17 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the
18 complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295, 1301
19 (9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed
20 factual allegations but must provide the grounds for entitlement to relief and not merely a
21 “formulaic recitation” of the elements of a cause of action. Bell Atlantic Corp. v.
22 Twombly, 127 S. Ct. 1955, 1965 (2007). Plaintiffs must allege “enough facts to state a

ORDER - 3

1 claim to relief that is plausible on its face.” Id. at 1974. When deciding a motion to
2 dismiss, the Court’s consideration is limited to the pleadings. Fed. R. Civ. P. 12(d).
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In this case, the Willets argue that the Schwents fail to state a claim for nuisance

4 or trespass. Dkt. 17. However, the facts as pled state a claim for relief. First,
5 “[n]uisance is a substantial and unreasonable interference with the use and enjoyment of
6 land.” Grundy v. Thurston Cty., 155 Wn.2d 1, 6 (2005). While the Willits may
7 ultimately submit evidence to show that the interference is not unreasonable or is
8 otherwise unavoidable, the Court’s review for the current motion is limited to the
9 allegations in the pleadings. Accordingly, the Court denies the motion on this issue
10 because the Schwents have alleged an unreasonable interference with the use and
11 enjoyment of their land.
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Second, trespass can occur by the deposit of excess water on another’s property.

13 See, e.g., Borden v. City of Olympia, 113 Wn. App. 359, 373 (2002). The facts as pled
14 allege a deposit of excess water on the Schwents’ property. Therefore, the Court denies
15 the Willets’ motion.
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Finally as to the Willets, the Court notes that the complaint barely squeaks by a

17 motion to dismiss. It appears likely, though not definite, that a dispositive motion
18 highlighting the relevant Washington authorities on these torts and supported by proper
19 evidence would resolve these matters for the Willets. Almost every case cited in the
20 Willets brief, including Bracey v. King, 199 Ga. App. 831 (1991), addressed either
21 summary judgments or final judgments.
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ORDER - 4

1 D.

Government’s Motion

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The Government argues that the Schwents’ inverse condemnation claim and

3 breach of the easement claim must be dismissed for any amount over $10,000. Dkt. 15 at
4 9–11. The Schwents provide no plausible response. Instead, they argue that the Court
5 has supplemental jurisdiction over these claims under 28 U.S.C. 1367. Dkt. 21 at 12.
6 While that statute grants the Court discretion to hear claims that are part of the same case
7 or controversy as the claims within the original jurisdiction of the Court, the Ninth
8 Circuit has held that § 1367 “cannot operate as a waiver of the United States sovereign
9 immunity.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088 n.3 (9th Cir.
10 2007). Accordingly, the Court grants the Government’s motion and dismisses these
11 claims without prejudice because the Schwents could possibly state a claim if they
12 limited damages to $10,000.
IV. ORDER

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Therefore, it is hereby ORDERED that Federal Defendants’ motion to substitute

15 and dismiss (Dkt. 15) is GRANTED and the Willets’ motion to dismiss (Dkt. 17) is
16 DENIED. The Schwents are granted leave to amend their complaint to correct the
17 deficiencies identified in this order.
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Dated this 17th day of January, 2017.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 5