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Baas v. Secretary of Veteran Affairs

United States District Court, D. New Mexico

July 17, 2017

EDWARD P. BAAS, Plaintiff,


          M. CHRISTINA ARMIJO Chief United States District Judge.

         THIS MATTER is before the Court on a Motion to Dismiss for Lack of Subject Matter Jurisdiction (Motion to Dismiss) by Defendant Secretary of Veterans Affairs (the Secretary) [Doc. 3]. Plaintiff Edward P. Baas (Plaintiff) did not respond to the Secretary's Motion to Dismiss within the deadline set by D.N.M. LR Civ. 7.4(a). The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS the Secretary's Motion to Dismiss.


         The following facts are derived from Plaintiff's Complaint for Breach of Contract (Complaint) and an Affidavit by Brad Blancett, Vice President of Client Operations for VRM Mortgage Services. [Doc. 1-2; Doc. 3-1] See Hoag v. United States, 99 Fed.Cl. 246, 250 (2011) (“When deciding a case based on a lack of subject matter jurisdiction, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant's favor.”). Plaintiff offered to buy a property at 9 Foothills Lane in Tularosa, New Mexico, from the Secretary. [Id. ¶ 12] Plaintiff paid $500 in earnest money and secured a $58, 500 conventional loan to finance the purchase, pending an appraisal of the property. [Id.; Doc. 3-2, pg. 2] A contract to purchase the property was executed in November, 2016. [Id. ¶ 13] The contract provided that

Seller at its sole discretion may rescind the Contract of Sale of the Property and return the Purchaser's Earnest Money under any of the following conditions: Property is damaged prior to the Closing Date, Seller is unable to deliver the Property as advertised, Seller is unable or unwilling to remove valid objections to title prior to the Closing Date, any errors are made in the calculations concerning the offer to sell the Property, Seller is unable to acquire title to the Property, or the Property is subject to any redemption rights.

[Doc. 3-2, pg. 3 (Emphasis added)]

         Before the appraisal could be completed, VRM Mortgage Services, acting on behalf of the Secretary, [Doc. 3-1, Brad Blancett Affidavit, ¶¶ 2, 5] approved the destruction of the walls within the house. [Id. ¶ 14] The damage to the walls rendered the appraisal impossible. [Id.] Plaintiff asked Defendant[s][1] to return the walls to their former condition and Defendant agreed to do so. [Id. ¶ 15] Bids for the repair work were obtained. [Id. ¶ 16] Roughly two weeks later, Defendant[s] informed Plaintiff that “nothing was going to be done to fix the damage done to the home.” [Id. ¶ 17] Plaintiff offered to fix the walls himself, but was told he was not allowed in the house. [Id. ¶ 18] VRM Mortgage Services, acting on behalf of the Secretary, canceled the contract and signed the paperwork for return of Plaintiff's earnest money. [Doc. 3-1, Brad Blancett Affidavit, ¶ 10]

         Plaintiff filed the Complaint in the Twelfth Judicial District Court and the Secretary removed the matter to this Court. [Doc. 1] In the Complaint, Plaintiff alleges that “Defendants breached the contract by materially altering the subject property in such a way as to completely frustrate the fulfillment of the contract as originally agreed to by both parties” and that “Defendant[s] breached by failing to deliver or maintain the subject property in a condition that would allow the Plaintiff to complete performance of the contract for sale.” [Doc. 1-2, ¶ 20] Plaintiff further alleges that “the Defendants knowingly engaged in conduct that undermined the existing contract for sale of the above referenced house by approving and hiring an unknown contractor to remove drywall and insulation from most rooms in the house.” [Id. ¶ 21] He seeks “specific performance, specifically to order the Defendant to repair the damage intentionally done to the property and sell the house to the Plaintiff under the terms of the original agreement.” [Id. pg. 4] The Secretary now moves for dismissal. [Doc. 3] See Fed. R. Civ. P. 12(b)(1).


         Under D.N.M. LR Civ. 7.1(b), “[t]he failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.” Plaintiff neglected to file a response to the Secretary's Motion to Dismiss. Thus, the Court considers Plaintiff's failure to respond as consent to grant the Motion to Dismiss. In addition, the Court has carefully considered the merits of the motion and is satisfied that it is meritorious. Cf. Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002) (holding that, where a party fails to respond to a motion for summary judgment, the party waives the right to respond to or controvert the facts asserted by the moving party but the Court should only grant summary judgment if the uncontroverted facts entitle the moving party to summary judgment).

         The Secretary argues that 1) this Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to “the Tucker Act” and “the Little Tucker Act, ” and 2) the claims should not be transferred to the Court of Federal Claims. [Doc. 3]

         The Tucker and Little Tucker Acts

         28 U.S.C. § 1491 and 28 U.S.C. § 1346(a)(2) are known as “the Tucker Act” and “Little Tucker Act, ” respectively. See Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1080 (10th Cir. 2006). The Tucker Act provides that

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, ...

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