Robert J. Wright v. Frank Gregg

Wright appeals the dismissal of his suit against Gregg, Director of the Bureau of Land Management (BLM), for want of subject matter jurisdiction. Wright brought that suit to prevent the BLM from closing Jenny Creek Bridge. In his second amended complaint, Wright asserted jurisdiction under: (1) 28 U.S.C. § 2671 et seq., the Federal Torts Claims Act; (2) 28 U.S.C. § 1346 (a)(2), the Tucker Act; and (3) 28 U.S.C. § 2409a, the Quiet Title Act. Gregg moved to dismiss under Fed.R.Civ.P. 12(b) on the grounds the court lacked subject matter jurisdiction and Wright had failed to state a claim upon which relief could be granted. The district court accepted the magistrate’s recommendation the action be dismissed for lack of subject matter jurisdiction. We reverse.

The district court found Wright failed to comply with the procedural requirements of the Federal Torts Claims Act. We have held the procedural requirements of 28 U.S.C. § 2675 are jurisdictional in nature. Blain v. United States, 552 F.2d 289, 291 (9th Cir. 1977). Under 28 U.S.C. § 2675 , an action cannot be brought until the claimant has first presented the claim to the appropriate federal agency, is denied relief in writing by…

dissenting:

The majority reading of McClellan is fraught with potential dangers. I would restrict that ejectment case to its facts and not transfer its questionable quiet title action reasoning to this case.

The only issue then remaining would be whether it was an abuse of discretion to dismiss the action rather than dismiss the complaint and allow another effort at amendment. Ordinarily discretion is abused when the pleader’s affidavits or other evidence show either that the court actually has jurisdiction over the case or that the nonmoving party might be able to amend to allege jurisdiction. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 552 (1969); Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1382 (10th Cir. 1978), cert. denied, 441 U.S. 952 , 99 S.Ct. 2182 , 60 L.Ed.2d 1058 (1979); Hoefferle Truck Sales, Inc. v. Divco-Wayne Corp., 523 F.2d 543 (7th Cir. 1975). However, this general rule should not apply when the plaintiff fails to seek leave to amend and, as here, adamantly refuses to amend even up through the time of oral argument. Here the magistrate’s findings and recommendations clearly stated why jurisdiction was lacking:

In Wright’s…

685 F.2d 340 Robert J. WRIGHT, Plaintiff-Appellant, v. Frank GREGG, Defendant-Appellee. No. 80-3471. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 6, 1982. Decided Aug. 26, 1982. Robert J. Wright, Noti, Or., for plaintiff-appellant. James L. Sutherland, Asst. U. S. Atty., Eugene, Or., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before BROWNING, Chief Judge, and WALLACE and BOOCHEVER, Circuit Judges. PER CURIAM: 1 Wright appeals the dismissal of his suit against Gregg, Director of the Bureau of Land Management (BLM), for want of subject matter jurisdiction. Wright brought that suit to prevent the BLM from closing Jenny Creek Bridge. In his second amended complaint, Wright asserted jurisdiction under: (1) 28 U.S.C. § 2671 et seq., the Federal Torts Claims Act; (2) 28 U.S.C. § 1346 (a)(2), the Tucker Act; and (3) 28 U.S.C. § 2409a, the Quiet Title Act. Gregg moved to dismiss under Fed.R.Civ.P. 12(b) on the grounds the court lacked subject matter jurisdiction and Wright had failed to state a claim upon which relief could be granted. The district court accepted the magistrate's recommendation…