affirmative defenses, asserted in Defendants' Answer to Complaint and

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					             Case 1:09-cv-00280-CFL                            Document 13     Filed 10/19/2009   Page 1 of 3



                    IN THE UNITED STATES COURT OF FEDERAL CLAIMS


REUNION, INC.,                                                            )
CYPRESS BRAKE PROPERTIES, L.P.,                                           )
AND ANNANDALE INVESTORS, L.P.,                                            )
                                                                          ) No. 09-280L
                                                Plaintiffs,               )
                                                                          ) Hon. Charles F. Lettow
            v.                                                            )
                                                                          ) Electronically filed
THE UNITED STATES of AMERICA,                                             ) October i 9, A.D. 2009
                                                                          )
                                                Defendant.                )
                                                                          )


           PLAINTIFFS' MOTION TO STRIKE INSUFFICIENT DEFENSES
            Reunion, Inc., Cypress Brake Properties, L.P., and Annandale Investors,
L.P. ("Owners"), acting pursuant to Rule 12(f) of this Court's Rules, hereby

move this Court to enter an order striking, as insuffcient, Defendants'                               two

affirmative defenses, asserted in Defendants' "Answer to Complaint and
Affrmative Defenses" (docket no. 12) ("Defendants' Answer"). In support hereof
the Owners would respectfully show the following:

           Defendants' Answer contains two affrmative defenses:

                                                         First Aff1lnative Defense

           Plaintiffs' Complaint should be dismissed for failure ta state a claim upon which relief

can be granted.

                                                       Second ~Ajril111ative Defense

           Plaintiffs' Complaint s1iould be dismissed for lack of subject matter jurisdiction.                  ¡
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            Case 1:09-cv-00280-CFL                Document 13       Filed 10/19/2009      Page 2 of 3



            The two defenses boil down to the same defense, in light of Defendants'
admission, in the very same pleading:


               4. Defendant admits that 28 U.S.c. § 1419(a)(1) (the "Tucker Act") confers


  juiisdiction on the United States Court of           Federal Claims to hear clainis based on the Fifth

  Amendment to the United States Constitution. The remaii1Íig allegatiòns asseit legal

  conclusions to \vbich no response is required.


Answer p. 1 & ii4. Logically, if this Court has jurisdiction of such claims, the
only way this Court can lack                   jurisdiction is if the Complaint fails to state such
a claim.

           Both of these defenses are "insuffcient" within the meaning Rule 12(f).

The Complaint does state a claim. At an absolute minimum, it alleges that
Defendant has taken private property for public use without paying just
compensation, in violation of the Fifth Amendment - so much so that the

Answer also states the same claim. In it Defendant repeatedly

admits to a temporary physical taking of a leasehold interest in the ,lORTAC propeity

occupied by the FAA for the period frOln October 1. 2008 to Deceinber 31~. 2009.

Answerp. 2 & ii6; ii8; ii25. The Defendant further
adniits that tbe FAA has not
 paid rent for the leasehold of the VORT AC propeity sÌnce the expiration of the lease and that it

 contiues to occupy the VORTAC property.

¡d. at p. 2 & ii22. The Fifth Amendment, in its majestic simplicity, requires
nothing further.



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         Case 1:09-cv-00280-CFL   Document 13     Filed 10/19/2009   Page 3 of 3




         The Owners are well aware of the "retirement" of Conley's "famous

observation," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (U.S. 2007)

(overruling Conley v. Gibson, 355 U.S. 41 (1957)), but even the most exacting
application of Twombly leaves the Complaint herein, which is filled with
relevant factual detail, entirely intact. The assertion that this Complaint

"should be dismissed for failure to state a claim" is indefensible. Defendants'

affirmative defenses ought to be stricken.
         WHEREFORE, premises considered, the Owners pray that this Court wil
enter an order striking the Defendants' affirmative defenses, and granting the

Owners such other or further relief as to which they may be justly entitled.



                                       ~¿;
                                      Robert M. Frey (MB #5531)
                                      Admitted this Court March 30, A.D. 2009
                                       BUTLER, SNOW, O'MARA, STEVENS &
                                         CANNADA, PLLC
                                      Post Offce Box 22567
                                      Jackson, Mississippi 39205
                                      Phone: (601) 985-4624
                                      Fax: (601) 985-4500
                                      Email: bob.frey(ibutlersnow.com

                                      ATTORNEY FOR PLAINTIFFS
Jackson 4493246vl



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