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
) Hon. Charles F. Lettow
) Electronically filed
THE UNITED STATES of AMERICA, ) October i 9, A.D. 2009
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. ¡
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
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
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 &
Post Offce Box 22567
Jackson, Mississippi 39205
Phone: (601) 985-4624
Fax: (601) 985-4500
ATTORNEY FOR PLAINTIFFS