United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge United States District Court
the Court are the Motion to Dismiss Complaint for Cause (Doc.
4) filed by Defendant Ronald E. Moon and the Motion to Amend
Counter Claim Damages and Supporting Affidavit (Doc. 10)
filed by Defendant and Counterclaimant Wanda Joyce Murray.
For the following reasons, both will be denied.
Moon's Motion to Dismiss
12(b)(6) motions test the legal sufficiency of a pleading.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Generally, courts may only consider the allegations in the
complaint when ruling on a motion to dismiss. Branch v.
Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) overruled
on other grounds by Galbraith v. Cnty. of Santa Clara,
307 F.3d 1119 (9th Cir. 2002). "All allegations of
material fact are taken as true and construed in the light
most favorable to the plaintiff." SmileCare Dental
Group v. Delta Dental Plan of California, Inc., 88 F.3d
780, 782-83 (9th Cir. 1996). Nonetheless, a court may dismiss
a complaint if it lacks a cognizable legal theory.
Id. at 783. Thus, in order to survive a motion to
dismiss, the "complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks and citations
omitted). A claim has facial plausibility when a court can
draw a "reasonable inference" from the facts
alleged that the defendant is liable for the misconduct
asserts that the United States' "claims should be
denied and Moon awarded all expenses and costs incurred in
this matter." (Doc. 4 at 2.) However, Moon fails to
connect the bald assertions of fact contained in his motion
to an articulated legal principle which would justify
dismissal of the United States' claims against him. The
closest Moon gets to making a legal argument for dismissal is
to assert that the statute of limitations for the United
States' claims, "governed by Mont. Code ANN 22-2-207
(1) (2)," has "long passed." (Id. at
1-2.) However, the statute cited by Moon, Montana Code
Annotated § 22-2-207(1 )-(2), does not exist.
And, as noted by the United States, it is not subject to
"local statutes of limitations" even if the statute
did exist. (Doc. 9 at 4 (citing United States v. John
Hancock Mut. Life Ins. Co., 364 U.S. 301, 308 (I960)).)
United States provided the applicable federal statutes of
limitations and the Court finds that this action was brought
within the timelines therein established. (Id. at
4-5.) The United States' first claim is for trespass and
was brought within three years of the reported and ongoing
violations, thus complying with the applicable statute of
limitations provided in 28 U.S.C. § 2415(b). The United
States' second claim, seeking a declaration of the United
States' rights under an easement, is subject to 28 U.S.C.
§ 2415(c), which states that "[n]othing herein
shall be deemed to limit the time" for the United States
to bring "an action to establish the title to, or right
of possession of, real or personal property." (Docs. 1
at 5-11; 9 at 6-10.) Accordingly, Moon's argument lacks
remainder of Moon's Motion fails to present argument in
any way and merely provides bald assertions of fact. Although
pro se litigants' pleadings are afforded liberal
construction, the Court will not go so far as to supply
potential arguments to a mere recitation of unsupported
statements of fact. Moon's Motion will be denied.
Murray's Motion to Amend Counterclaim
seeks to amend her counterclaim as it relates to damages on
each of her ten counterclaims. (Doc. 10 at 2-3.) Murray
appears to desire the inclusion of the language "Damages
to be proven at Trial" to all of her counterclaims
except for the ninth, regarding which she seeks damages of
$100, 000. (Id. at 2-3.) Federal Rule of Civil
Procedure 15(a)(2) provides that the Court "should
freely give leave when justice so requires." The Ninth
Circuit has found that under Rule 15(a), "leave to amend
should be freely granted where the opposing party will not be
prejudiced thereby." Richardson v. United
States, 841 F.2d 993, 999 (9th Cir. 1988). The United
States has indicated that it "does not object to Murray
amending her counterclaim" but, as currently filed, the
United States cannot efficiently respond. (Doc. 11 at 2.)
Court's Local Rule 15.1 requires that when a party moves
for leave to amend a pleading, "the proposed pleading
must be attached to the motion as an exhibit. If leave is
granted, the party must promptly file the pleading."
Further, this Court's Local Rule 83.8(a) provides that a
self-represented litigant such as Murray "is bound by
the federal rules and all applicable local rules." Here,
Murray's Motion is not accompanied by the proposed
pleading as an exhibit. This Court will not grant
Murray's Motion without an attached exhibit showing the
pleading with her desired amendments. Accordingly, IT IS ORDERED
that Moon's Motion to Dismiss (Doc. 4) is DENIED.
FURTHER ORDERED that Murray's Motion to Amend (Doc. 10)
is DENIED WITHOUT PREJUDICE.
 It is worth noting that the affidavit
attached to Murray's Motion does not appear to relate to
any aspect of the Motion. Accordingly, it ...