The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
This matter comes before the Court on the motion of Defendant, United States of America's ("United States"), to dismiss Plaintffs, Dennis, Spencer, Rickie, Cynithia and Vickie Robinson's (collectively, "Robinsons" or "Plaintiffs") Complaint in accordance with Federal Rule of Civil Procedure 12(b)(1).*fn1
Plaintiffs oppose the motion.
For the reasons set forth below, the United States' motion is granted without leave to amend.
This lawsuit involves 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 Compl., filed May 06, 2011, [ECF No. 1], ¶¶ 1, 17.) Specifically, Plaintiffs allege that, "[b]ased on the United States' awareness and knowledge of the [Tribe's] planned construction activities, it knew or should have known that these activities would adversely affect the easement . . . and that, as a result, these activities would violate the Robinsons' legal rights." (Id. ¶¶ 17, 29.)
The Robinsons' first claim for relief seeks damages for loss of lateral support; their second claim seeks damages for loss of subjacent support; the third claim seeks damages under a strict liability theory for property damage; the Robinsons' 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; the sixth claim alleges a continuing nuisance; the seventh claim also rests on a nuisance theory for the alleged encroachment upon Plaintiffs' property; the Robinsons' eighth and final claim is a also a nuisance claim for obstruction of the road to their property. 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 alleged damage, and violated its duty to maintain the subject easement. (Id. ¶ 17.)
In 2004, the Robinsons filed an almost identical action arising out of the same basic nucleus of fact - namely, the alleged encroachment upon the Robinsons' easement caused by the Tribe's construction. See Robinson v. United States, Civ. No 04-00734, filed April 01, 2004.*fn2 Counts one through seven of the 2004 complaint were identical to counts one through seven of this action. The Robinsons, in filing this complaint, however, added an eighth count for continuing nuisance based on obstruction of the road to the Robinsons' property. The Robinsons also included four additional paragraphs to the complaint containing factual allegations regarding new hotel construction that Plaintiffs allege also encroached upon their easement.
Given the factual similarities between the two actions, on August 25, 2011, District Judge Morrison C. England, Jr., signed a related case order. (See Related Case Order, filed Aug. 25, 2011, [ECF No. 18].)
Judge England held that "[e]xamination of the . . . civil actions reveals that these actions are related within the meaning of Local Rule 123(a)" because they "are based on the same or similar claims, the same property transaction or event, similar questions of fact and the same questions of law." (Id. at 2:1-6.) Thus, the 2004 action was reassigned to Judge England. (Id. at 2:11-16.)
On March 03, 2011, the United States filed a motion to dismiss the 2004 action pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court granted the United States' motion, holding that the United States' sovereign immunity precluded the Court from exercising subject matter jurisdiction over the Robinsons' claims.
Lack of subject matter jurisdiction may be asserted by either party or the court, sua sponte, at any time during the course of an action. Fed. R. Civ. P. 12(b)(1). Once challenged, the burden of establishing a federal court's jurisdiction rests on the party asserting the jurisdiction. See Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). The court presumes a lack of subject matter jurisdiction until it is proved otherwise. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).
"It is a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, ...