Smith v. All persons claiming a present or future Interest

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
IDA SMITH,
Plaintiff,
v.
ALL PERSONS CLAIMING A PRESENT OR
FUTURE INTEREST IN ESTATE 13,
FRIIS, LINDA V. SMITH-FRANCIS,
WILLIAM E. SMITH, ELOISE V. SMITH-
HENDRICKS, BAB FRIIS NO. 1, PAUL
HOFFMAN, JANE HOFFMAN-WALKER,
ELEANOR ADAMS HOFFMAN, MAXWELL
ADAMS HOFFMAN, GLORIA FRANCOIS
MCGOWAN, DAVID A. BORNN AS TRUSTEE
TO THE GAF TRUST ESTATE 14 JOHN’S
FOLLY EXCLUDING ALL HEIRS AT LAW,
ESTATE 15 CONCORDIA A, CORAL BAY
QUARTER, ST JOHN UNITED STATES
VIRGIN ISLANDS, NATIONAL PARK
SERVICE, LAND RESOURCES DIVISION,
DEPARTMENT OF INTERIOR, THE UNITED
STATES OF AMERICA, STANLEY
SELENGUT, WILLIAM B. POPPELTON,
LORRAINE A. POPPELTON, KEVIN M.
WALSH, MARIA K. STURATIS, SCOTT E.
WILMOSKI, CHARLES M. PERDUE,
MONICA PERDUE, JOZSEF NEMETH,
NANCY NEMETH, FRED S. PATTERSON,
MARGARET D. PATTERSON, JOHN R.
PERGOLIZZI, TREASURE VIEW LLC,
GEORGE PILLORGE, DEBORAH PILLORGE,
SCOTT L. HARTSHORN, CLAUDETTE C.
HARTSHORN, HEINZ G. FISHER, LINDA
G. BURDET TRUSTEES OF THE HEINZ G.
FISHER TRUST, DONALD DURANTE,
SAFIA B. DURANTE, CRAIG E.
MITCHELL, ALAN MARTIN KAUFMAN,
RACHELLE KAUFMAN, JEFFREY J.
McCRAVE, ANN McCRAVE, DOROTHY K.
JANOSKO, WILLIAM R. KINCER, SUSAN
B. KINCER, SUSAN GREER
LITTLEFIELD, WAYNE CHESTERFIELD,
MONIQUE FRANCOIS, PEDRITO
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 2
FRANCOIS, SALT POND VISTA LLC,
V.I. JOSEPH PALMINTERI, CARRIE
GLENN, MARC KAVE, EMILY J.
BRATTON, RICK HATHAWAY, RENE A.
SERVANT aka RENE H. SERVANT, MARIE
THERESE L. SERVANT, LORI JANE
SNACK, BRIAN K. WALDEN,
MINISTER ISHMAEL R. MUHAMMED,
MICHAEL CARPER, REUBEN WHEATLEY,
et al.,
Defendants.
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APPEARANCES:
Ida Smith
New York, NY
Pro se plaintiff,
Ronald W. Sharpe, USA
Jason Cohen, AUSA
St. Thomas, VI
For the United States National Park Service,
Maria Tankenson Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Paul Hoffman; Jane Hoffman Walker; and David A. Bornn,
Trustee of the GAF Trust,
Rafael F. Muilenburg, Esq.
Morrisette & Muilenburg
St. John, U.S.V.I.
For William E. Smith; Eloise V. Smith; Deborah Pillorge;
Claudette C. Hartshorn; Scott L. Hartshorn; Linda V. Smith-
Francis; and George Pillorge,
Gloria McGowan
Pro se,
Wayne Chesterfield
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 3
Monique Francois
Pro se,
Pedrito Francois
Pro se,
Joseph Palminteri
Pro se,
W. Mark Hillsman, Esq.
Law Offices of Norman P. Jones, P.C.
St. Thomas, U.S.V.I.
For Carrie Glenn; Lori Jane Snack; William B. Poppelton;
Lorraine A. Poppelton; Maria K. Sturaitis; Charles M.
Purdue; Monica Purdue; Salt Pond Vista, LLC; Heinz G.
Fisher; Linda G. Burdet, Trustee of the Heinz G. Fisher;
Safia B. Durante; Donald Durante,
Marc Kave
Pro se,
Emily J. Bratton
Pro se,
Rick Hathaway
Pro se,
Rene A. Servant
Pro se,
Marie Therese Servant
Pro se,
Brian K. Walden
Pro se,
John H. Benham, III, Esq.
Watts, Benham & Sprehn, P.C.
St. Thomas, U.S.V.I.
For Stanley Selengut,
Mark D. Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Kevin M. Walsh and Treasure View LLC,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 4
Scott E. Wilmoski
Pro se,
Jozef Nemeth
Pro se,
Nancy Nemeth
Pro se defendant.
Fred S. Patterson
Pro se,
Margaret D. Patterson
Pro se defendant.
John R. Perqulizzi
Pro se,
Terryhill Enterprises, II
Pro se,
Missouri LLC
Pro se,
Craig E. Mitchell
Pro se,
Michael E. Fitzsimmons, Esq.
Stryker, Duensing, Casner & Dollison
St. Thomas, U.S.V.I.
For Alan Martin Kaufman,
Ann McCrave
Pro se,
Jeffrey J. McCrave
Pro se,
William R. Kincer
Pro se,
Susan B. Kincer
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 5
Susan Greer Littlefield
Pro se,
Kurt Shore
Pro se,
Suzanne L. Shore
Pro se,
Dorothy Janosko (also known as “Dorothy K. Janoko”)
Pro se.
MEMORANDUM OPINION
GÓMEZ, J.
Before the Court is the motion of the United States for
judgment on the pleadings, which the Court construes as a facial
motion to dismiss for lack of subject-matter jurisdiction.
I. FACTUAL AND PROCEDURAL HISTORY
In March, 2011, Ida Smith (“Smith”) initiated this action
to determine boundaries and to quiet title to various parcels of
property in St. John, United States Virgin Islands.
Subsequently, Smith filed an amended complaint (the “First
Amended Complaint”). ECF No. 4.
On October 17, 2013, the Magistrate Judge granted Smith
leave to file a Second Amended Complaint on or before October
31, 2013. On November 1, 2013, Smith filed her amended complaint
(the “Second Amended Complaint”), which named more than thirty
defendants, including the National Park Service, an agency of
the United States. ECF No. 268.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 6
The Court sua sponte nunc pro tunc granted Smith an
extension of time to file her amended complaint until November
1, 2013. The Court then held that the Second Amended Complaint
was the operative complaint.
Thereafter, the United States filed the instant motion.
II. DISCUSSION
Subject-matter jurisdiction may be challenged by either “a
facial attack on the complaint,” Doe v. Goldstein's Deli, 82
Fed. App'x 773, 775 (3d Cir.2003) (citing Mortensen v. First
Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977), or a
factual challenge, which “question[s] the existence of subject
matter jurisdiction in fact, apart from the pleadings.” Id.
Regardless of the form of the challenge, “[t]he plaintiff always
bears the burden of convincing the court, by a preponderance of
the evidence, that the court has jurisdiction.” Id. (citing
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189
(1936); Makarova v. United States, 201 F.3d 110, 113 (2d
Cir.2000)).
“In reviewing a facial attack, the court must only consider
the allegations of the complaint and documents referenced
therein and attached thereto, in the light most favorable to the
plaintiff.” Gould Elecs. Inc. v. United States, 220 F.3d 169,
176 (3d Cir.2000) (citing PBGC v. White, 998 F.2d 1192, 1196 (3d
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
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Cir.1993). “[W]hen the court does not hold an evidentiary
hearing on the motion to dismiss, the plaintiff need only
establish a prima facie case of . . . jurisdiction and the
plaintiff is entitled to have its allegations taken as true and
all factual disputes drawn in its favor.” Miller v. Yacht Sales,
Inc. v. Smith, 384 F.3d 93, 97 (3d Cir.2004).
III. ANALYSIS
The United States’s motion is titled as a motion for
judgment on the pleadings. The motion argues that the claims
against the United States must be dismissed for failure to
comply with the United States’s limited waiver of sovereign
immunity for actions involving real property and for failure to
adequately plead standing.
This Court lacks subject-matter jurisdiction to proceed on
claims against the United States unless: (1) the United States
has waived sovereign immunity, see Cudjoe ex rel. Cudjoe v.
Dep't of Veterans Affairs, 426 F.3d 241, 246 (3d Cir. 2005), and
(2) the plaintiff has standing to bring the claims, see
Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007).
Therefore, the Court will construe the United States’s motion as
a facial motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 8
By enacting the Quiet Title Act (“QTA”), Congress waived
sovereign immunity for certain actions involving real property.
See generally 28 U.S.C. 2409A. At the same time, Congress
required that in an action brought pursuant to the QTA, that
“[t]he complaint set forth with particularity the nature of the
right, title, or interest which the plaintiff claims in the real
property, the circumstances under which it was acquired, and the
right, title, or interest claimed by the United States.” 28
U.S.C. § 2409a(d).
In her complaint, Smith alleges that she has:
a present interest in the remnant lands of Estate 14
John’s Folly, Coral bay Quarter, St. John,
U.S.V.I[.], by which she is entitled, due to the
entire seventy five acres of Estate 14 John’s Folly
having been parceled out to all of the legal heirs
except . . . [her].
ECF No. 268, at ¶ 1 (emphasis supplied). Significantly, while
Smith refers to the remnant lands of Estate 14 John’s Folly, she
does not identify what land is the remnant land that she
believes she has inherited. Reviewing Smith’s complaint in its
entirety, the Court can only surmise that the remnant lands bear
some relation to the United States Coast and Geodetic Survey
referenced in her complaint. Regardless, it is not the Court’s
obligation, nor is it the United States’s obligation, to guess
at the real property claimed by Smith. See 28 U.S.C. § 2409a(d).
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 9
Because Smith has failed to identify the remnant land that she
alleges is claimed by the United States, she has failed to
comply with the QTA’s requirement that she “set forth with
particularity the nature of the right, title, or interest which
. . . [she] claims in the real property . . . .” See id.
The QTA also requires that Smith “set forth with
particularity . . . the circumstances under which . . . [the
right, title, or interest which she claims] was acquired . . .
.” 28 U.S.C. § 2409a(d). In McMaster v. United States, 731 F.3d
881 (9th Cir. 2013), the Ninth Circuit, applying the QTA,
considered whether the plaintiffs had adequately pled the
circumstances under which they acquired their interest in the
property at issue. In that case, Ken McMaster, Maureen E.
Galitz, and Steven E. Fawl (collectively, “McMaster”) purchased
title to a mining claim from Edwin Lynch, the mining claim’s
originator(“Lynch”). Id. at 893-94. McMaster asserted, in
relevant part, that he, not the United States, had title to
improvements and structures located on the mining claim. Id. at
897. The United States filed a motion to dismiss the QTA claim
for failure to state a claim. Id. at 884-85. The district court
granted the motion and dismissed the QTA claim on the basis that
McMaster failed to sufficiently allege how he had obtained
ownership of the structures. Id.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
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On appeal, the Ninth Circuit affirmed the district court.
See id. at 898. It reasoned that:
With regard to the origins of the title to the
improvements, McMaster only generally alleges that
the structures were constructed incident to mining
operations, and specifically alleges that the cabin
was built sometime in the early 1890s. Nowhere does
McMaster allege whether or how Lynch obtained title,
or whether he retained title until he sold the Oro
Grande mining claim to McMaster. These particular
facts are important because title to the structures
may have passed to the Government at some time. When
a claim is abandoned or deemed invalid, the title to
surface structures passes to the United States. See
Brothers v. United States, 594 F.2d 740, 741 (9th
Cir.1979). Thus, McMaster has failed to plead with
particularly sufficient facts showing all of the
circumstances under which his title to the
structures was acquired, 28 U.S.C. § 2409a(d), and
has failed to satisfy his burden under the QTA. See
28 U.S.C. § 2409a(d).
Id.
McMaster v. United States is instructive here. To plead her
claims with sufficient particularity, Smith must allege her
chain of title. See id. Moreover, she must assert when and how
she and her predecessors in interest received their interests in
the property in dispute. See id.
Here, Smith alleges that her title to “Estate 14 John’s
Folly derives from the former Danish owner of record Mary Ann
Enoe also known as Mary Ann Evans . . . .” ECF No. 268, at ¶ 1.
She further alleges that her “ancestors [sic] interest in Estate
14 John’s Folly is recorded in The St. John Matricul 1913, Book
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
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3-H, pp. 183-188 in the Office of the Recorder of Deeds, St.
Thomas and St. John Division.” Id. Significantly, she does not
allege her chain of title or when and how she and her
predecessors in interest received their interest in the property
in dispute.
As such, having considered the allegations in Smith’s
complaint, the Court concludes that Smith has not adequately
identified her interest in any land claimed by the United States
or adequately identified the circumstances under which she
acquired that interest. Therefore, because Smith has failed to
comply with the QTA, the Court will dismiss Smith’s claims
against the United States.
In addition, as her complaint currently stands,
establishing standing is problematic for Smith.
[A] litigant [must] have standing to invoke the
power of a federal court. The standing question is
whether the plaintiff has alleged such a personal
stake in the outcome of the controversy as to warrant
his invocation of federal-court jurisdiction and to
justify exercise of the court's remedial powers on
his behalf.
In re Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 244 (3d Cir. 2012)(internal quotations,
alterations, and citations omitted).
To adequately plead standing, a plaintiff’s complaint must
establish three elements:
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
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First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest
which is (a) concrete and particularized; and (b)
actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between
the injury and the conduct complained of—the injury
has to be fairly traceable to the challenged action
of the defendant, and not the result of the
independent action of some third party not before
the court. Third, it must be likely, as opposed to
merely speculative, that the injury will be
redressed by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.
2130, 2136, 119 L. Ed. 2d 351 (1992)(internal quotations,
alterations, citations, and footnotes omitted). “In evaluating
whether a complaint adequately pleads the elements of standing,
courts apply the standard of reviewing a complaint pursuant to a
[Federal] Rule [of Civil procedure] 12(b)(6) motion to dismiss
for failure to state a claim . . . .” In re Schering Plough
Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243
(3d Cir. 2012).
As previously noted, Smith has failed to identify the
remnant lands she claims. As such, Smith’s complaint contains no
factual allegation showing that the United States has injured
her. That is, there are no allegations showing that the United
States had laid claim to any real property that she claims.
Smith does allege that:
There exists a dispute or controversy as to the
location of the boundary lines between Estate 14
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
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John’s Folly and parcel No. 30-3 Remainder Estate
Concordia A No. 15 Coral Bay Quarter, St. John[,]
U.S. Virgin Islands as denoted by the Department of
interior, Virgin Islands National Park, United
States of America maps and various other Federal
survey maps most importantly the original survey.
Significantly, however, “conclusory or bare-bones allegations .
. . [do not] survive a motion to dismiss . . . .” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(internal quotations
omitted) (interpreting Federal Rule of Civil Procedure
12(b)(6)). Therefore, Smith’s conclusory assertion of a dispute
is not sufficient to establish standing. See id.
Accordingly, the Court will dismiss Smith’s claims against
the United States for lack of subject matter jurisdiction on the
basis that she has failed to comply with the QTA and failed to
adequately allege that she has standing to bring these claims.
The Court is not, however, satisfied that Smith could not
allege a viable claim. As such, the Court will grant Smith leave
to amend her claim against the United States. Any such amendment
must be filed by no later than 3:00 P.M. on Monday, August 8,
2016.
An appropriate Order follows.
S\
CURTIS V. GÓMEZ
District Judge
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