# Lund v. United States of America

> District Court, D. Oregon · June 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10393365

## Case

- **Court:** District Court, D. Oregon
- **Decided:** June 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10393365

## How later opinions describe it (automated extraction)

- rejecting the Fourth Circuit's holding that a district court must consider new arguments raised for the first time in an objection to a magistrate judge's F&R

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOHN LUND, No. 3:19-cv-02015-AC

Plaintiff, ORDER

v.

UNITED STATES OF AMERICA and
JOHN DOES 1-15,

Defendants.

HERNÁNDEZ, District Judge:
Magistrate Judge Acosta issued a Findings and Recommendation on February 15, 2021,
in which he recommends that this Court grant Defendants’ Motion to Dismiss and give Plaintiff
leave to amend his complaint under the Quiet Title Act. F&R, ECF 26. The matter is now before
the Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).
Plaintiff and Defendants filed timely objections to the Magistrate Judge’s Findings &
Recommendation. Pl. Obj., ECF 29; Defs. Obj., ECF 30. When any party objects to any portion
of the Magistrate Judge’s Findings & Recommendation, the district court must make a de novo
determination of that portion of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1); Dawson v.
Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121

(9th Cir. 2003) (en banc).
The Court adopts in part Judge Acosta’s Findings & Recommendation. The Court agrees
with Judge Acosta that Plaintiff’s Bivens and FTCA claims are preempted by the Quiet Title Act,
and Plaintiff should be granted leave to amend to state a claim under the Quiet Title Act.
However, the Court declines to adopt the findings that: (1) Plaintiff’s claim is not time-
barred and (2) the Court does not have jurisdiction over Plaintiff’s Little Tucker Act claim. As to
the first finding, the Court cannot determine at this stage in the proceedings whether or not
Plaintiff’s Quiet Title Act claim is time-barred. When Plaintiff “or his predecessor in interest
knew or should have known of the claim of the United States” may hinge on the merits of the

case. See 28 U.S.C. § 2409a(g); Michel v. United States, 65 F.3d 130, 132 (9th Cir. 1995) (“If a
claimant asserts fee title to disputed property, notice of a government claim that creates even a
cloud on that title may be sufficient to trigger the limitations period.”).1

1 Defendants also argue in their objections that Plaintiff’s Quiet Title Act claim fails on the
merits. As this issue was not squarely presented to the magistrate judge, the Court declines to
address it now. See Brown v. Roe, 279 F.3d 742, 745–46 (9th Cir. 2002) (rejecting the Fourth
Circuit's holding that a district court must consider new arguments raised for the first time in an
objection to a magistrate judge's F&R); United States v. Howell, 231 F.3d 615, 622 (9th Cir.
2000) (“[I]t would be fundamentally unfair to permit a litigant to set its case in motion before the
magistrate, wait to see which way the wind was blowing, and—having received an unfavorable
recommendation—shift gears before the district judge.” (citation omitted)).
As to the second finding, Plaintiff’s claim under the Little Tucker Act may be reasonably
construed as an alternative theory of relief. See Schema v. United States Dep’t of Agric., No.
2:14-CV-0630 MCE CKD, 2014 WL 4377918, at *2 (E.D. Cal. Sept. 4, 2014) (“Defendants
have not cited any authority for the proposition that a Plaintiff may not simultaneously pursue
both Tucker Act and Quiet Title Act claims in this instance at this stage in the proceeding.

Therefore, the Court finds that, although inartfully pled, Plaintiff’s Complaint contains causes of
action under the Tucker Act and under the [Quiet Title Act].”). While Plaintiff’s Quiet Title Act
claim is premised on Plaintiff’s claim of exclusive ownership, Plaintiff alleges in his inverse
condemnation claim that Defendants “unilaterally created an easement” in his property. Compl.
¶ 17. Accordingly, the Court declines to dismiss Plaintiff’s Little Tucker Act claim at this stage
in the proceedings.
CONCLUSION
The Court ADOPTS IN PART Magistrate Judge Acosta’s Findings & Recommendation
[26]. Therefore, Defendants’ Motion to Dismiss [7] is GRANTED in part and DENIED in part,

and Plaintiff’s Bivens and FTCA claims are dismissed. Plaintiff may file an amended complaint
within 14 days of this Order.
IT IS SO ORDERED.

DATED: ______J_u_n_e_ _9_, _2_0_2_1_______.

_________________________________
MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393365. Public record. Not legal advice.