The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
This matter comes before the Court on Defendant United States of America's ("United States") Motion to Dismiss Plaintiffs Dennis, Spencer, Rickie, Cynthia and Vickie Robinson's (collectively, "Plaintiffs") First Amended Complaint ("FAC").*fn1
Plaintiffs oppose the motion. For the reasons set forth below, the United States' motion is granted without leave to amend.
The factual background of this action has been recounted in detail by this Court and Ninth Circuit*fn2 on three separate occasions. To this end, and in the interest of concision, the Court only discusses those facts necessary to the understanding of this Order.
The focus of this lawsuit is land held in trust by the United States for the benefit of the Indians of the Mooretown Rancheria, also known as the Maidu Indians of California ("Tribe"). Plaintiffs' complaint alleges that the Tribe's construction of a casino and other facilities on the land has encroached upon, and interfered with, Plaintiffs' rights to a sixty foot, non-exclusive road and utility easement Plaintiffs allege they own. (Pl.'s First Am. Compl. ["FAC"], filed Feb. 25, 2011, [ECF No. 85], ¶¶ 1, 17.)
Specifically, Plaintiffs allege that the "subject easement has been damaged and its integrity threatened in that it has had lateral and/or subjacent support removed causing or potentially causing erosion among other damage" because of the Tribe's construction activity on the land the United States holds in trust. (Id. ¶¶ 17, 29.)
Plaintiffs' first claim for relief seeks damages for loss of lateral support; Plaintiffs' second claim seeks damages for loss of subjacent support; the third claim seeks damages under a strict liability theory for loss of subjacent support; Plaintiffs' fourth claim seeks damages under a negligence theory for loss of lateral support; the fifth claim also seeks damages under a negligence theory for property damages caused to the subject easement; Plaintiffs' sixth claim alleges a continuing nuisance; the seventh claim rests on a nuisance theory for the alleged encroachment upon Plaintiffs' property.*fn3
The gravamen of Plaintiffs' complaint is that The United States "took no steps to warn or give notice to the [Tribe] that the planned activities would" interfere with Plaintiffs' use of the easement, refused to take steps to rectify the damage, and violated its duty to maintain the subject easement.
Plaintiffs filed this case on April 12, 2004. (Pl.'s Compl., [ECF
No.1].) After limited discovery, the United States filed a motion to
dismiss under Federal Rule of Civil Procedure 122(b)(1) for lack of
jurisdiction, arguing that the Court lacks subject matter jurisdiction
over Plaintiffs' claims because the Quiet Title Act bars Plaintiffs
from proceeding against the United States and because the Tribe is a
necessary and indispensable party. Judge Ralph Beistline,*fn4
acting by designation to serve in the Eastern District,
granted the United States' motion, holding that "[b]ecause the
disputed title is for Indian land held in trust by the government, the
[Quiet Title] Act's Indian Land Exception applies and this Court lacks
jurisdiction to hear [Plaintffs'] claims." (Order, filed Sept. 5, 2007
[ECF No. 52], at 8:11-13.) Plaintiffs appealed the dismissal to the
Ninth Circuit. The Ninth circuit vacated the order dismissing
Plaintiffs' complaint and remanded "so that the district court may
consider whether jurisdiction over this claim lies under the" Federal
Tort Claims Act ("FTCA"). Robinson, 586 F.3d at 688.
On May 3, 2010, the United States filed its second motion to dismiss, arguing that the case should be dismissed under Federal Rule of Civil Procedure 12(b)(1) because the United States did not waive sovereign immunity, and thus, the Court lacked subject matter jurisdiction over Plaintiffs' claims (Defs.' Mot. to Dismiss, filed May 3, 2010 [ECF No. 70], at 6:8-10.) On January 27, 2011, Judge Beistline issued an order granting the United States' motion to dismiss. (Order, filed Jan. 27, 2010 [ECF No. 84].)*fn5 Judge Beistline held that Plaintiffs "failed to carry the burden of establishing that the United States had waived its sovereign immunity." (Id. at 8.)
On February 25, 2011, Plaintiffs filed their FAC, which contains essentially the same claims set forth in the original complaint but adds certain factual allegations Plaintiffs maintain establish that their claims lie under the FTCA. The United States filed its third motion to dismiss -- the motion that is subject of this Order -- asserting that Plaintiffs failed to amend their complaint in compliance with Judge Beistline's specific instruction to plead with particularity the manner in ...