GLJ, Inc. v. United States, No. 1:20-cv-00009-RGE-SBJ

CourtU.S. District Court — Southern District of Iowa
Writing for the CourtRebecca Goodgame Ebinger, United States District Judge
Citation505 F.Supp.3d 863
Parties GLJ, INC., Plaintiff, v. UNITED STATES of America; United States Department of Defense; and United States Air Force, Defendants.
Docket NumberNo. 1:20-cv-00009-RGE-SBJ
Decision Date04 December 2020

505 F.Supp.3d 863

GLJ, INC., Plaintiff,
v.
UNITED STATES of America; United States Department of Defense; and United States Air Force, Defendants.

No. 1:20-cv-00009-RGE-SBJ

United States District Court, S.D. Iowa, Western Division.

Signed December 4, 2020


505 F.Supp.3d 868

Stuart J. Dornan, Dornan, Troia, Howard, Breitkreutz & Conway PC LLO, Omaha, NE, for Plaintiff.

Eric Anthony Rey, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Rebecca Goodgame Ebinger, United States District Judge

I. INTRODUCTION

Plaintiff GLJ, Inc. brings an action under the Federal Tort Claims Act (FTCA) against Defendants United States of America, United States Department of Defense, and United States Air Force. GLJ seeks to recover for damages allegedly caused by Defendants' improper disposal of contaminates and hazardous substances at the Offutt Air Force Base Atlas "D" Missile Facility Site 3. Defendants argue GLJ's claims are barred under the FTCA. Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, the Court grants Defendants' motion.

II. BACKGROUND

The Court accepts the following facts as true for the purpose of analyzing Defendants' motion to dismiss. See Brown v. Medtronic, Inc. , 628 F.3d 451, 459 (8th Cir. 2010) ; see also Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990) (affording the same procedural protections to a non-moving party in review of a Rule 12(b)(1) facial attack and a motion brought under Rule 12(b)(6) ).

From 1958 to 1959, Defendants acquired title and easements to over 460 acres of property near Missouri Valley, Iowa, to establish Offutt Air Force Base Atlas "D" Missile Facility Site 3 (Site 3). Am. Compl. ¶¶ 6–7, ECF No. 16. As part of the operations of Site 3, Defendants used a toxic substance called Trichloroethylene/Trichloroethene (TCE) to flush out the Atlas "D" missile's thrust chamber, oxidizer dome, and "various tubing." Id. ¶ 9. During the process of using TCE, Defendants caused contaminants to be released into the land and water supply surrounding Site 3. Id. ¶¶ 10–13.

In 1965, after the Atlas "D" missile was phased out, Site 3 was reported as excess real property to the General Administration Services. Id. ¶ 15. The Department of the Army took control of Site 3 until it was

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reported as excess real estate again in 1969. Id. ¶ 16. At that time, the Department of the Army conveyed it to the Department of Health, Education, and Welfare. Id. In 1971, the Department of Health, Education, and Welfare conveyed the Site 3 property by quitclaim deed to Iowa Western Community College. Id. ¶ 17. In 2005, Iowa Western Community College transferred 288.75 acres to the Iowa Western Community College Foundation. Id. ¶ 18. Iowa Western Community College Foundation had the property undergo a Pre-Comprehensive Environmental Response, Compensation and Liability Information System Site Screening Assessment. Id. ¶ 19. The assessment indicated further investigation was needed to determine whether the property was contaminated by Defendants' past activity on Site 3. Id.

On April 14, 2006, Iowa Western Community College Foundation transferred 288.75 acres by warranty deed to GLJ. Id. ¶ 21. GLJ planned to develop the property into a residential community containing fifty-two lots. Id. ¶ 22. GLJ sold thirty out of the fifty-two anticipated lots. Id. In September 2013, the United States Army Corps of Engineers reported there was "potential for contamination by TCE and its breakdown products" at the former Site 3. Id. ¶ 24. In 2015, a remedial investigation confirmed TCE contamination in the soil, groundwater, drinking water, and surface water of the former Site 3, including GLJ's property. Id. ¶ 25. In early January 2018, the Iowa Department of Natural Resources (DNR) sent a letter informing GLJ that water wells could not be installed on twenty-four of its lots due to TCE contamination. Id. ¶ 27. The lots the Iowa DNR identified included two lots previously sold by GLJ. Id. ¶ 28. GLJ has been unable to sell twenty-two of the anticipated fifty-two lots due to the TCE contamination. Id. ¶ 31.

GLJ alleges Defendants and its agents "failed to take appropriate action to prevent and remediate migration of hazardous substances" after the initial contamination of the former Site 3. Id. ¶ 33. GLJ alleges that because of Defendants' failure to act, it has suffered damages from its inability to sell the contaminated lots. Id. ¶ 34.

In accordance with the FTCA, GLJ submitted an administrative tort claim to the United States Air Force on March 20, 2019. Id. ¶ 5. The United States Air Force denied GLJ's claim on October 25, 2019. Id. GLJ then filed an action in this Court on March 2, 2020. Compl., ECF No. 1. GLJ filed an amended complaint on July 2, 2020. ECF No. 16. GLJ alleges claims under Iowa law for negligence, continuous trespass, and continuous nuisance. Id. ¶¶ 38–68. GLJ asserts the Court's jurisdiction is proper under the FTCA, 28 U.S.C. § 1346(b). Id. ¶ 3.

Defendants move to dismiss GLJ's amended complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). ECF No. 18. GLJ resists Defendants' motion. ECF No. 23. The parties did not request oral argument, and the Court declines to order it, finding the parties' briefing adequately presents the issues. See Fed. R. Civ. P. 78(b) ; LR 7(c). Having considered the applicable law and the parties' submissions, the Court grants Defendants' motion.

Additional facts are set forth below as necessary.

III. LEGAL STANDARD

A party may bring a Rule 12(b)(1) motion as either a "factual attack" or a "facial attack," and the difference between the two affects a court's standard of review. Stalley v. Catholic Health Initiatives , 509 F.3d 517, 520–21 (8th Cir. 2007) (citing Osborn , 918 F.2d at 729 n.6 ). A factual attack challenges the existence of

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subject matter jurisdiction, despite the jurisdictional allegations of the pleadings. Branson Label, Inc. v. City of Branson , 793 F.3d 910, 914–15 (8th Cir. 2015). In analyzing a factual attack, a court may go beyond the pleadings and consider extrinsic evidence to determine whether it has subject matter jurisdiction. Osborn , 918 F.2d at 729 n.6. In contrast, a facial attack challenges the sufficiency of the pleadings. See Titus v. Sullivan , 4 F.3d 590, 593 (8th Cir. 1993). Thus, in analyzing a facial attack to a court's jurisdiction, "the court restricts itself to the face of the pleadings and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Osborn , 918 F.2d at 729 n.6 (citations omitted).

Here, the Defendants bring their Rule 12(b)(1) motion as a facial attack. ECF No. 18-1 at 3. Under this review, a court addresses any deficiencies in the pleadings and must "accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law." Stalley , 509 F.3d at 521. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); accord Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 594 (8th Cir. 2009). "The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.’ " Topchian v. JPMorgan Chase Bank, N.A. , 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders , 199 F.3d 968, 973 (8th Cir. 1999) ). The Court must accept as true all factual allegations in the complaint, but not its legal conclusions. Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955 ). "In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences most favorably to the complainant." United States ex rel. Raynor v. Nat'l Rural Utils. Coop. Fin., Corp. , 690 F.3d 951, 955 (8th Cir. 2012).

A plausible claim for relief "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Plaintiffs must "nudge[ ] their claims across the line from conceivable to plausible, [else] their complaint must be dismissed." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

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  • Palmer Holdings & Invs., Inc. v. Integrity Ins. Co., No. 4:20-cv-154-JAJ
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • December 7, 2020
    ...should accord to the affidavits. See id. (citing Voice Capture, Inc. v. Intel Corp. , 354 F. Supp. 2d 997, 1007–08 (S.D. Iowa 2004) ).1 505 F.Supp.3d 863 The Court is skeptical of Plaintiffs’ contention that the affidavits are somehow embraced by the pleadings. However, even if the Federal ......
1 cases
  • Palmer Holdings & Invs., Inc. v. Integrity Ins. Co., No. 4:20-cv-154-JAJ
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • December 7, 2020
    ...should accord to the affidavits. See id. (citing Voice Capture, Inc. v. Intel Corp. , 354 F. Supp. 2d 997, 1007–08 (S.D. Iowa 2004) ).1 505 F.Supp.3d 863 The Court is skeptical of Plaintiffs’ contention that the affidavits are somehow embraced by the pleadings. However, even if the Federal ......

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