United States District Court, D. Alaska
ORDER RE MOTION TO DISMISS
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 8 is Defendant Golden Valley Electric
Association's (“GVEA”) Motion to Dismiss. At
Docket 11, Plaintiff Allen Wilson filed an opposition to the
motion. No. reply was filed. Oral argument was not requested
and was not necessary to the Court's determination of the
motion.
GVEA
seeks dismissal under both Federal Rule of Civil Procedure
12(b)(1), asserting that the Court lacks subject matter
jurisdiction to hear this case, and under Rule 12(b)(6),
asserting that Mr. Wilson's complaint fails to state a
claim for which relief can be granted.
LEGAL
STANDARDS
I.
Dismissal Under Rule 12(b)(1)
“A
Rule 12(b)(1) jurisdictional attack may be facial or
factual.”[1] In this case, GVEA makes a fact-based
challenge. In order to survive such a challenge, a plaintiff
must establish and prove jurisdiction.[2] “In
reviewing an order dismissing an action for lack of subject
matter jurisdiction, we must accept all of the
plaintiff's factual allegations as
true.”[3]However, “unlike a Rule 12(b)(6)
motion, a Rule 12(b)(1) motion can attack the substance of a
complaint's jurisdictional allegations despite their
formal sufficiency, and in so doing rely on affidavits or any
other evidence properly before the
court.”[4]
II.
Dismissal Under Rule 12(b)(6)
When
reviewing a Rule 12(b)(6) motion, a court considers only the
pleadings and documents incorporated into the pleadings by
reference, as well as matters on which a court may take
judicial notice.[5] “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.'”[6] A claim is plausible on its face
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”[7] Thus, there must
be “more than a sheer possibility that a defendant has
acted unlawfully.”[8] A court “accept[s] factual
allegations in the complaint as true and construe[s] the
pleadings in the light most favorable to the nonmoving
party.”[9] When a motion to dismiss for failure to
state a claim is granted, a court “should freely give
leave when justice so requires.”[10] But leave to
amend is properly denied as to those claims for which
amendment would be futile.[11]
DISCUSSION
I.
Background
Plaintiff
Allen Wilson initiated this action on April 6,
2018.[12] He alleges that on or about July 11,
1966, power lines were installed across his property without
his consent. He seeks “either . . . equitable
compensation for the right of way or the lines removed from
my property.”[13] He also seeks compensation for a 1977
right of way, or, again, removal of the power
lines.[14] It is undisputed that Mr. Wilson
received a Land Patent from the United States government for
the property in 1972.[15]
The
Court takes judicial notice of the following: GVEA's last
right-of-way permit on the property expired in July 2016.
Prior to the expiration, GVEA filed an eminent domain action
in the Alaska Superior Court.[16] On December 18, 2017, the
Superior Court entered a Final Judgment Determining
Compensation, which award Mr. Wilson the sum of $5, 240; that
same day, the Superior Court also entered a Final Order of
Condemnation, which accorded to GVEA a right-of-way easement
across the property.[17]
II.
...