MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF JUDGE.
federal defendants - the United States Department of
Agriculture, the United States Forest Service, the Kootenai
National Forest, and David E. Schmid, Christopher S. Savage,
and Lynn Hagarty in their official capacities as Forest
Service employees - move to dismiss the case, or, in the
alternative, to transfer it to the District of Montana.
See Dkt. 16. The non-federal defendants - including
Klepfer Mining Services, Eric Gregory Klepfer, Mines
Management, Inc. ("MMI"), MMI CEO Glenn M. Dobbs,
MMI president & secretary Douglas D. Dobbs, MMI Directors
& MMI Officers Inclusive, and Montanore Minerals
Corporation, Montanore Project in Lincoln & Sanders
County, Montana, All Real, Financial, Intellectual Assets
held By MMI, MMC and Newhi, Inc., and all Defendants listed
in Plaintiff's complaint under superscript "4"
- have also moved for dismissal. See Dkt. 8. For the
reasons expressed below, the Court will transfer this case to
the District of Montana.
Plaintiff Frank Wall is seeking to prevent the non-federal
defendants from mining certain property located in Montana.
He seeks an injunction (1) preventing the Forest Service from
issuing a Record of Decision related to the mining project,
and (2) freezing the assets of all non-federal defendants
"except essential cash-flow to 'keep the doors
open.'" Compl, Dkt. 1, at 5. Wall also
seeks damages "in a modest eight-figure USD sum . . .
." as well as "an estoppel against Defendants'
attorneys and the Defendants' legal gamesmanship as in
the past nine years, . . . ." Id. at 5. Wall
does not allege that he owns any of the property at issue, or
any related mining claims or patents. See, e.g., Compl,
Ex. B., at 135 of 650. Wall also suggests that his
dissatisfaction with the Montana proceedings motivated this
action. As he puts it,
WALL alleges being unfairly and maliciously treated in the
Montana State District Court and in the Missoula Federal
District Court. This litigation gives a "clean
sheet" approach with "the rest of the story"
and obviates any lawyer gamesmanship, delays and confusion
caused by the Non- Federal Defendants ....
Pl. 's Apr. 18, 2016 "Final Answer to
Non-Federal Defendants' Motion to Dismiss, Dkt. 27,
difficult to precisely or completely identify Wall's
legal theories, but in broad strokes, he is contending that
defendants have violated his "civil and Constitutional
rights, " including his Fifth and Fourteenth Amendment
rights. See Id. at 3, 13, 14-15.
sets of defendants move to dismiss Wall's complaint under
Federal Rule of Civil Procedure 12(b)(6). The non-federal
defendants also challenged this Court's subject-matter
jurisdiction under Rule 12(b)(1). The federal defendants have
also moved, in the alternative, for an order transferring
this case to the District of Montana and consolidating it
with a case currently pending in that court.
Motion to Dismiss for Lack of Subject-Matter Jurisdiction
non-federal defendants contend that this Court lacks
subject-matter jurisdiction over Wall's claim based on
the fact that the criminal statutes Wall relies upon - 18
U.S.C. §§ 241, 242, and 245 - do not create private
rights of action. See Non-Federal Defendants ' Motion
Memo, Dkt. 8-1 at 11 ("It is well settled that no
private right of action is created by any of these
statutes."). This may be so, but the Court nevertheless
has jurisdiction to adjudicate Wall's claims. In other
words, defendants are raising a defect regarding the merits
of Wall's claims - not a jurisdictional defect. Cf.
Vaughn v. Bay Environmental Mgmt, Inc., 567 F.3d 1021,
2014 (9th Cir. 2009) (discussing an ERISA claim,
the court held that a "dismissal for lack of statutory
standing is properly viewed as a dismissal for failure to
state a claim rather than a dismissal for lack of subject
Motion to Change Venue
decided subject matter jurisdiction, the Court will resolve
the government's request that this case be transferred to
the District of Montana. This request is made ...