Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 266

Filed 04/16/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CAROLE AND ROBERT TESTWUIDE, et. al. ) ) ) ) ) ) ) ) ) ) )

Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No. 01-201L Honorable Victor J. Wolski

DEFENDANT=S MOTION TO DISMISS PLAINTIFF JOYCE JAMES Defendant, United States, hereby moves pursuant to RCFC 12(b)(1) to dismiss Plaintiff Joyce James as this Court lacks jurisdiction over her claims, or alternatively, under RCFC 12(b)(6) for lack of standing. James was included in the Whitley v. United States Complaint, No. 04-1331L (Filed August 16, 2004), as the purported owner of 205 Dozier Lane, Virginia Beach, Virginia 23454 alleging a taking of the property by the United States as a result of flight operations of F/A-18 C/D aircraft at Naval Air Station Oceana. Exhibit A. Whitley v. United States was consolidated with other related cases under Testwuide v. United States on February 14, 2005. The related cases were included in the Settlement Agreement & Release ("Settlement Agreement") entered into by the parties on May 15, 2007. As discussed below, James did not own the property at the time of the alleged taking or thereafter, and therefore, must be dismissed with prejudice. In accordance with the Settlement Agreement, the United States has conducted title searches of approximately 1,350 properties in the consolidated litigation to confirm that Plaintiffs can convey avigation easements to the United States. The title review of 205 Dozier Lane, Virginia Beach, Virginia 23454, indicated that Plaintiff James was not the owner. Exhibit 1

Case 1:01-cv-00201-VJW

Document 266

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B. As reflected in his Motion to Withdraw from Representation of Joyce James, Counsel for Plaintiffs confirms that James did not have any ownership interest in this property at the time of the alleged taking or anytime thereafter. It is axiomatic that property ownership is a necessary prerequisite to a takings claim. "Without undisputed ownership of the ... property at the time of the taking[], the [plaintiff] cannot maintain a suit alleging that the Government took their property without just compensation." Cavin v. United States, 956 F.2d 1131, 1134 (Fed. Cir. 1992); see also Lacey v. United States, 595 F.2d 614 (Ct. Cl. 1979); Aaron v. United States, 340 F.2d 655, 663 (Ct. Cl. 1964) (ownership as of the date of alleged taking is necessary to maintain action for an avigation easement). Consequently, James must be dismissed with prejudice. Counsel for Plaintiffs does not oppose this motion. Counsel for Plaintiffs further recognizes that the United States will be reimbursed $18,000 from the settlement payment referenced in paragraph 1 of the Settlement Agreement and currently held in escrow upon the dismissal of James. CONCLUSION For the foregoing reasons, Defendant respectfully moves this Court to dismiss Plaintiff Joyce James for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), or alternatively, under RCFC 12(b)(6) for lack standing because James did not own the property at the time of the alleged taking.

Dated: April 16, 2008

Respectfully submitted,

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Case 1:01-cv-00201-VJW

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Ronald J. Tenpas Assistant Attorney General Environmental & Natural Resources Division United States Department of Justice

/s/ Steven D. Bryant Steven D. Bryant Environmental & Natural Resources Division United States Department of Justice 601 D Street, NW, Rm. 3120 Washington, D.C. 20004 Counsel for Defendant [email protected] 202-305-0424 Of Counsel: Robert J. Smith Navy Litigation Office 720 Kennon Street Washington Navy Yard, D.C. 20374

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Case 1:01-cv-00201-VJW

Document 266-2

Filed 04/16/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
Edgar Earl Whitley 100 Sawgrass Bend Virginia Beach, VA 23451;
And

Jeff & Heidi Blair 1000 Wymers Cour Chesapeake, VA 23322;
And

Kelvin & Dienett Cooper 1004 Baracle Cour
Virginia Beach, V A 23451;

And

Edward & Megan Moses 1004 Wasseman Drive Virginia Beach, VA 23454;
And

Steven & Mary Pancoast 1005 Blue Spring Lane Virginia Beach, VA 23452;
And

Robert & Sonya Flora 1005 Cookham Arch Chesapeake, VA 23322;
And

Wiliam & Debra Yantz

1006 Harch Drive
Chesapeake, VA 23322;
And

Eric & Andrea Cumings 1008 Culver Lane Virgina Beach, VA 23454;

1

Case 1:01-cv-00201-VJW

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And

Joseph & Jil Weeks 2045 Sanderson Road Chesapeake, VA 23322;
And
Joyce James 205 Dozier Lane Virginia Beach, V A 23454;

And
Wallace D. Plue

Tona L. Miler
2056 Decathlon Drive Virgina Beach, VA 23456;

And
James S. Kover 206 Seabridge Road Virgina Beach, VA 23451;

And
Kevin & Adele Cassidy 2064 Bierce Drive
Virgina Beach, V A 23454;

And
Craig & Elizabeth Teague
208 Farington Road
Virgiia Beach, V A 23454;

And
Andrea Valerio
2100 Sherbrooke Circle

Virginia Beach, VA 23454;

And

64

FULL-SEARCH Report for 070605-54731A - TransUnion Settlement Solutions Case 1:01-cv-00201-VJW Document 266-3 Filed 04/16/2008
0. ~ ~:;.:

Page 1 of 1

Page 1 of 4

. '.

TransUnion Settlement Solutions

jr?lt;:
TransUnion _
Lender: Application #:
Order ID: Requested By: Requested For:

TITLE SEARCH REPORT

5300 Brandywine Parkway, Ste 100 Wilmington, DE 19803
Phone: 800-238-1905 Fax: 800-648-3193

Q19378

., Fax:
070605-54731A

James_Joyce

Report Date:

07/26/2007
Joyce James 205 Dozier Lane VIRGINIA BEACH, VA 23454 VIRGINIA BEACH CITY County

Borrower: Requested Address:

Effective Date:

7 07

Fax: 202-305-0506

Current Ownership
ALICE AUDREY JAMES NONE STATED
Section 1

Deed Information

Grantor(s)
JOYCE ANNE JAMES WICKIE RIGGINS JO ELLEN JAMES RIGGINS

Grantee(s)
ALICE AUDREY JAMES NONE STATED

Type of Deed
WARRANTY Manner of Title

None Stated
Document Number

Consideration $10.00
Book 1706

Township

Vesting
Y

Page
59

¡instrument Date 09/01/1977

09/21/1977 I Recording Date

Other Deed Info NO MANNER OF TITLE STATED

Deed Information Section 2
Grantor(s) ALICE R JAMES DECEASED Grantee(s)
ALICE AUDREY JAMES HEIR JO ELLEN JAMES HEIR JOYCE ANN JAMES HEIR

Type of Deed
WILL

Manner of Title HEIR Document Number

Township

$0.00 I Consideration
Book

Page
565
I

44

Instrument Date 12/22/1971

12/23/1974 I Recording Date

Other Deed Info THIS DEED IS A WILL INSTRUMENT DATE VERIFIED GRANTEES AND GRANTOR VERIFIED

htts://transunionssi.com/report?subcode=QI9378;order _ number=070605-54 731 A;product... 4/4/2008