Prak v. Skaf

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CAPTAIN PRAK and

SARAH ANGERLILLO,

Plaintiffs,

Case No. 23-cv-03403-SPM

v.

KHALID SKAF, RANA SKAF,

COOK FUTURES LLC, CHESTER

GURLEY, CAROL J. GURLEY,

RICHARD D. ABELL, R. SCOTT

ABELL, SCOTT L. ROBERTSON,

DENNIS WHEELER, UNITED

STATES DEPARTMENT OF

INTERIOR, and DANIEL

LUTCHKA,

Defendants.

AMENDED MEMORANDUM AND ORDER

McGLYNN, District Judge:

Pending before this Court are Plaintiffs’ Motion for Leave to File Third

Amended Complaint under Federal Rule of Civil Procedure 15(a)(2) (Doc. 146), and

Motion to Dismiss Plaintiffs’ Second Amended Complaint (“SAC”) filed by Defendant

United States Department of Interior (“USDOI”). (Doc. 115). For the reasons set forth

below, the Court DENIES the Motion for Leave to Amend and GRANTS the Motion

to Dismiss. This Court further REMANDS the case to the First Judicial Circuit,

Williamson County, Illinois.

PROCEDURAL BACKGROUND

This action originated in the Circuit Court of the First Judicial Circuit,

Williamson County, Illinois on September 15, 2023 when plaintiffs filed their initial

complaint against defendants herein, to wit, 2023CH21. (Doc. 1-2). The complaint was

filed in two counts and included a Petition for Preliminary Injunction. (Id.).

On October 17, 2023, a notice of removal was filed in this court pursuant to the

provisions of 28 U.S.C. § 1441(a). (Doc. 1). Specifically, USDOI asserted that this

Court had original subject matter jurisdiction over this matter because plaintiffs

sought to quiet title to land in which the U.S. had an interest. (Id.). Indeed, an action

to quiet title to land in which the U.S. claims an interest is removable to the federal

district court in the district where the state action is pending. (Id); see also 28 U.S.C.

§§ 1441(d) and 2409a.

On October 25, 2023, plaintiffs filed four separate motions, including a Motion

to Grant Preliminary Injunction. (Docs. 8, 10, 12, and 14). On October 26, 2023,

plaintiffs sought numerous entries of default; however, said defaults were denied

because plaintiffs had neither first sought a clerk’s entry of default nor had they

provided the requisite returns of service. (Docs. 17, 18). On October 31, 2023, after

filing the returns of service, plaintiffs again sought several entries of default; however,

prior to any defaults being entered, numerous defendants filed their entries and were

granted extensions to file responsive pleadings. (Doc. 33).

On November 20, 2023, defendants R. Scott Abell, Richard D. Abell, and Scott

L. Robertson, collectively referred to as “Abell Defendants”, and defendants Khalid

Skaf and Rana Skaf, collectively referred to as “Skaf Defendants”, and defendant Cook

Futures LLC (“Cook Futures”) filed their respective motions to dismiss. (Docs. 51, 53,

and 54). On November 21, 2023, the Court held a status hearing via telephone. (Doc.

55). At the conference, plaintiffs advised of their intent to file an amended complaint;

therefore, leave was granted before addressing the pending motions to dismiss. (Doc.

56).

On December 11, 2023, plaintiffs filed first amended complaint (“FAC”), which

was the first pleading in this Court. (Doc. 63). Accordingly, all pending motions

addressing the complaint were terminated as moot. (Doc. 65). However, on December

22, 2023, the Abell defendants filed a motion to dismiss FAC (Doc. 70); and, on

December 26, 2023, the Skaf defendants, USDOI, and Cook Futures filed their

motions to dismiss. (Docs. 75, 76, and 79).

On January 25, 2024, this Court held a hearing on Plaintiffs’ Motion for

Preliminary Injunction. (d/e 99). During the proceeding, it became clear to the Court

that Daniel Lutchka was a necessary party in this matter and that the plaintiffs would

need to file an amended complaint to add a defendant. (d/e 107).

On March 4, 2014, plaintiffs filed a Second Amended Complaint (“SAC”) which

added Daniel Lutchka as a defendant, and which set forth the following counts:

• Count I – Implied Easement by Necessity;

• Count II – Easement by Necessity;

• Count III – Prescriptive Easement;

• Count IV – Petition for Preliminary Injunction; and,

• Count V – Express Easement. (Doc. 113).

The counts retained their prior designations, although additional supporting

documentation was added along with Lutchka as a defendant. (Id.). In light of the

FAC, all prior motions were terminated as moot; however, the defendants again filed

motions to dismiss SAC. (Docs. 115, 118-120).

Although numerous motions to dismiss are pending, the Court is first

considering the motion to dismiss filed by the USDOI1. (Doc. 115). The government

seeks dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure with

claims that the allegations of the SAC do not fit within the narrow waiver of sovereign

immunity set forth in the Quiet Title Act, 28 U.S.C. § 2409a. (Doc. 115). The

government contended that plaintiffs failed to properly allege the terms and existence

of a specific easement, which was alternatively pled by plaintiffs as an implied

easement by necessity, an easement by necessity, a prescriptive easement, or an

express easement. (Id.). Finally, the government also asserted that preliminary

injunctions are barred under the Quiet Title Act. (Id.).

Plaintiffs filed a response to the government’s motion to dismiss; however, much

of the response was spent arguing semantics and common sense, not law. (Doc. 116).

Plaintiffs countered that they pled sufficient facts within SAC such that there is no

guess work and that all respondents know the stance of all others. (Id.). Plaintiffs

further asserted that Coyote Lane is outside the jurisdiction of the refuge. (Id.).

On June 4, 2024, plaintiffs filed their motion for leave to amend, which included

the proposed Third Amended Complaint (“TAC”) as an exhibit. (Doc. 146, 146-1).

Plaintiffs claimed that judicial economy supported an amended pleading; however,

USDOI, the Skaf defendants, the Abell defendants, Cook Futures, and Lutchka all

filed responses in opposition and/or objections to motion for leave to amend. (Docs. 150,

152, 153, 155, and 156). Within the proposed TAC, plaintiffs added a Count VI,

1 The United States Department of the Interior removed this case, arguing that this Court has original

subject matter jurisdiction to the extent it seeks to quiet title to land in which the United States has an

interest. However, if this motion is granted, the United States would no longer be a party, making this a

dispositive issue. Indeed, if it appears to the Court at any time before final judgment that it lacks

subject-matter jurisdiction, it must remand the case. 28 U.S.C. § 1447.

entitled “Quiet Title”, which sought an independent survey to be performed. (Doc. 146-

1).

LEGAL STANDARD

I. Motion for Leave to Amend

Federal Rule of Civil Procedure 15(a)(2) provides that, if a party cannot amend

under 15(a)(1), it may only amend its pleading “with the opposing party’s written

consent or the court’s leave.” FED. R. CIV. PROC. 15(a)(2). Upon a request to amend,

a court “should freely give leave when justice so requires.” Id. However, a court may

deny leave to a moving party “if the amendment would be futile.” Gandhi v. Sitara

Capital Mgmt., LLC, 721 F.3d 865, 869 (7th Cir. 2013)(citing Hukic v. Aurora Loan

Servs., 588 F.3d 420, 432. (7th Cir. 2009)). An amendment would be futile if “the

new pleading would not survive a motion to dismiss.” Id. (citing Brunt v. SEIU, 284

F.3d 715, 720-721 (7th Cir. 2002)).

II. Motion to Dismiss

The purpose of a motion to dismiss filed pursuant to Rule 12(b)(6) is to decide

the adequacy of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990). Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

claim in a complaint for “failure to state a claim upon which relief can be granted.”

FED. R. CIV. P. 12(b)(6). When reviewing a Rule 12(b)(6) motion, the Court accepts as

true all well-pled facts in the complaint and draws all possible inferences in favor of

the plaintiff. Bell Atl. Corp.v. Twombly, 550 U.S. 544, 555 (2007)). “[L]egal conclusions

and conclusory allegations merely reciting the elements of the claim are not entitled to

this presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.

2011) (citing Iqbal, 566 U.S. at 678).

In general, a complaint must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief”. Fed. R. Civ. P. 8(a)(2). This requirement

is generally satisfied if the complaint (1) describes the claim in sufficient detail to give

the defendant fair notice of what the claim is and the grounds upon which it rests, and

(2) plausibly suggests that the plaintiff has a right to relief above a speculative level.

Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v.

Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. “[I]t is not enough for a complaint to avoid foreclosing possible bases

for relief; it must actually suggest that the plaintiff has a right to relief . . . by

providing allegations that ‘raise a right to relief above the speculative level.’”

Concentra Health Servs., 496 F.3d at 777 (quoting Bell Atl., 550 U.S. at 555).

III. Sovereign Immunity

It is “axiomatic that the United States may not be sued without its consent and

that the existence of consent is a prerequisite for jurisdiction.” United States v.

Mitchell, 463 U.S. 206, 212 (1983) (citations omitted); see FDIC v. Meyer, 510 U.S. 471,

475 (1994) (“Sovereign immunity is jurisdictional in nature.”). Sovereign immunity

shields the United States and its agencies from suit. San Juan Cnty. v. United States,

754 F.3d 787, 792 (10th Cir. 2014).

The party bringing suit against the United States has the burden to prove that

sovereign immunity has been waived. Macklin v. United States, 300 F.3d 814, 819 (7th

Cir. 2002). As the Supreme Court has frequently held, “a waiver of sovereign

immunity is to be strictly construed, in terms of its scope, in favor of the sovereign.”

Department of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999); United States v.

Nordic Village, 503 U.S. 30, 34 (1992) (government’s consent to be sued is construed

“strictly in favor of the sovereign”). “Consequently, plaintiffs may not proceed unless

they can establish that the United States has waived its sovereign immunity with

respect to their claim.” Iowa Tribe Of Kan. & Neb. v. Salazar, 607 F.3d 1225, 1232

(10th Cir. 2010).

IV. Quiet Title Act

The Quiet Title Act of 1972 (QTA), 28 U.S.C. § 2409a, is “the exclusive means by

which adverse claimants [can] challenge the United States’ title to real

property.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286

(1983). Indeed, 28 U.S.C. § 1346(f) provides that “[t]he district courts shall have

exclusive original jurisdiction of civil actions under section 2409a to quiet title to an

estate or interest in real property in which an interest is claimed by the United

States.” The QTA creates a limited waiver of sovereign immunity “to adjudicate a

disputed title to real property in which the United States claims an interest.” 28

U.S.C. § 2409a(a).

It is important to note that Congress attached conditions to the waiver of

sovereign immunity of the United States under the QTA. “[W]hen Congress attaches

conditions to legislation waiving the sovereign immunity of the United States, those

conditions must be strictly observed, and exceptions thereto are not to be lightly

implied.” Block, 461 U.S. at 287. In fact , a complaint brought under the QTA must

“set forth with particularity the nature of the right, title, or interest which the plaintiff

claims in the real property, the circumstances under which it was acquired, and the

right, title, or interest claimed by the United States.” 28 U.S.C. § 2409a(d). Moreover,

“[a]ny civil action under this section … shall be barred unless it is commenced within

twelve years of the date upon which it accrued.” 28 U.S.C. § 2409a(g). The QTA also

specifies that civil actions “shall be tried by the court without a jury” and that “no

preliminary injunction shall issue”. See 28 U.S.C. § 2409a(f) and 28 U.S.C. § 2409a(c).

ANALYSIS

In this case, plaintiffs are pro se. While the undersigned must view pro se

complaints liberally and “with an understanding eye”, courts should not “become an

advocate” for a pro se plaintiff. Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 555

(7th Cir. 1996). Indeed, even pro se litigants are not entitled to a general dispensation

from the rules of procedure. See Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994).

The undersigned is mindful that this case was removed from Illinois state court on

October 17, 2023 and notes that Illinois law will be applied to the easement claims

because the real property at issue is located in Illinois. See Hoyt v. Benham, 813 F.3d

349, 353 (7th Cir. 2016) (applying Indiana law to claim for easement brought under

Quiet Title Act).

I. Motion For Leave To Amend

Plaintiffs’ second amended complaint (“SAC”) is brought in five counts, with all

five counts purportedly asserted against all 11 defendants. (Doc. 113). On June 4,

2024, plaintiffs sought leave to file third amended complaint (“TAC”) (Doc. 142). In the

proposed TAC, plaintiffs seek to add a Count VI against all defendants, which is

entitled “Quiet Title”, and which seeks an independent survey in the prayer for relief.

(Doc. 146-1). Although plaintiffs argued that judicial economy favored an amendment;

this Court disagrees. Indeed, more than 8 months have elapsed since removal, but

discovery has not yet even begun, and another amended pleading would just result in

another round of motions to dismiss and additional, unnecessary delay.

Although Count VI is entitled, “Quiet Title”, it is not brought under the Quiet

Title Act, 28 U.S.C. § 2409a. In fact, the claims raised in Count VI concern state law

and refer to a 1992 sale and deed between plaintiffs’ predecessor, Karl Stein, and

defendant Lutchka; they do not involve federal law nor do they concern and/or involve

USDOI. Because the proposed Count VI deals with a boundary issue and does not

arise out of the same ‘case or controversy’ as the claims brought against USDOI, this

Court declines leave to amend and declines supplemental jurisdiction. (Doc. 155).

As set forth infra, to maintain suit against the United States, a plaintiff must

identify a statute that confers subject matter jurisdiction on the district court … and a

federal law that waives the sovereign immunity of the United States to the cause of

action. Macklin v. United States, 300 F.3d 814, 819 (7th Cir. 2002). In this case,

plaintiffs have failed to do so. It is clear to this Court that granting leave to amend

and file the proposed TAC would be futile as the TAC would not survive a motion to

dismiss by USDOI. See Foman v. Davis, 371 U.S. 178 (1962). Accordingly, this Court

denies plaintiffs’ motion to amend.

II. MOTION TO DISMISS

USDOI argues that plaintiffs have not pled sufficient facts to fit within the

limited waiver of sovereign immunity under the Quiet Title Act. (Doc. 115). This Court

concurs.

Within counts I-III and V of the SAC, plaintiffs asserted against USDOI and the

other named defendants2, the existence of an easement, albeit under alternative

theories (implied easement by necessity, easement by necessity, prescriptive

easement, and express easement); however, plaintiffs did not comply with the pleading

requirements set forth in the QTA. As set forth infra, a complaint seeking to quiet

title as against the United States must clearly identify the plaintiffs’ property claims,

as well as the United States' adverse claims in that same property.

The QTA provides that “[t]he complaint shall set forth with particularity the

nature of the right, title, or interest which the plaintiff claims in the real property, the

circumstances under which it was acquired, and the right, title, or interest claimed by

the United States.” 28 U.S.C. § 2409a(d). It is undisputed that the United States took

almost 80 acres through eminent domain in 1939 and established Crab Orchard

National Wildlife Refuge. However, plaintiffs have not set forth their interest with

particularity, as required under the QTA. Instead, they raised the existence of an

easement under several theories against 11 different defendants. The mere fact that

plaintiffs alleged alternative easement theories belies any specificity.

2 Each count of the SAC was directed against every defendant and did not specify what actions, if any,

were done by which defendant(s). Additionally, each subsequent count incorporated by reference many

of the preceding paragraphs, although many were not applicable to the respective count. While this did

not rise to impermissible “shotgun pleading” because the defendants were put on notice of the claims

against them, there are concerns when multiple defendants are grouped together. E.g., Weiland v. Palm

Beach Cty. Sheriff's Off., 792 F.3d 1313, 1324–25 (11th Cir. 2015); Koh v. Graf, No. 11-cv-02605, 2013

WL 5348326, at *5 (N.D. Ill. Sept. 24, 2013).

As a condition on the United States' waiver of sovereign immunity, a failure to

satisfy these pleading requirements is a jurisdictional bar to a plaintiff's quiet

title claim. See United States v. Mottaz, 476 U.S. 834, 843 (1986) (holding that the

QTA “provides the United States' consent to suit concerning its claim to [certain]

lands, provided, of course, that the plaintiff challenging the Government's title meets

the conditions attached to the United States' waiver of immunity”); Washington

County v. United States, 903 F.Supp. 40, 42 (D. Utah 1995) (holding that by failing to

identify “with particularity” any interest in real property or describing “the

circumstances under which” any property interest was acquired, plaintiff “failed to

comply with the conditions and requirements of 28 U.S.C. § 2409a by which the

United States consents to suit in quiet title actions”).

A plaintiff is not relieved of its obligation to plead its interests in property with

precision, simply because the other parties may know the details of the property at

issue. Hazel Green Ranch, LLC v. U.S. Dep't of Interior, 2010 WL 1342914, *6

(E.D.Cal. Apr. 5, 2010) (“It is of no moment that Plaintiffs claim to have met with

Federal Defendants to discuss the roads. The complaint must stand on its

own.”), aff'd, 490 Fed.Appx. 880 (9th Cir. 2012). As a condition on the United States'

waiver of sovereign immunity, a failure to satisfy the pleading requirements under the

QTA is a jurisdictional bar to a plaintiff's quiet title claim. Board of Com'rs of Catron

County, N.M. v. U.S., 934 F.Supp.2d 1298 (D.N.M.2013).

Notwithstanding the foregoing, Count IV of SAC is also an impermissible

petition for preliminary injunction. Indeed, the very language of the QTA states, “[n]o

preliminary injunction shall issue in any action brought under this section.” 28 U.S.C.

§2409a(c).

Clearly, plaintiffs have failed to comply with the requirements under the QTA.

As such, they have failed to state a claim upon which relief can be granted.

Accordingly, USDOI shall be dismissed with prejudice.

III. REMAND

On October 17, 2023, defendant USDOI filed its Notice of Removal of this

action. (Doc. 1). The district court has original subject matter jurisdiction over this

case because plaintiffs were seeking to quiet title to land in which the United States

has an interest. As set forth infra, the undersigned has determined that the

plaintiffs did not comply with the QTA and that the United States has not waived

its sovereign immunity. In light of the foregoing, USDOI is DISMISSED with

prejudice from this action.

If it appears to the Court at any time before final judgment that it lacks

subject-matter jurisdiction, it must remand the case. 28 U.S.C. § 1447. It is the

removing party’s burden to establish by a preponderance of the evidence that all

elements of jurisdiction existed at the time of removal. Meridian Sec. Ins. Co. v.

Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). Because jurisdiction not lie with this

Court, this case shall be remanded.

CONCLUSION

For the reasons set forth above, the Court DENIES Plaintiffs’ Motion for Leave

to File Third Amended Complaint and GRANTS with Prejudice the Motion to

Dismiss filed by defendant United States Department of Interior. Additionally, this

action shall be REMANDED to the First Judicial Circuit Court, Williamson County,

Illinois as this Court no longer has jurisdiction.

IT IS SO ORDERED.

DATED: July 2, 2024

s/ Stephen P. McGlynn_

STEPHEN P. McGLYNN

U.S. District Judge