[00:00:00] Speaker 03: Number 20, 2275, Taylor against the United States. [00:00:05] Speaker 03: Mr. Dunn. [00:00:08] Speaker 05: Thank you, and good morning to the court. [00:00:11] Speaker 05: May it please the court, I think that this is a very straightforward procedural case. [00:00:17] Speaker 05: And luckily, we have the benefit of two of the preceding panel rejoining this case and hearing our arguments today. [00:00:26] Speaker 05: Specifically, to that point, Judge Toronto's authored opinion in the previous iteration that was before this court, starting on page 13 and continuing through the end of the case on page 14, discusses amendment of the case and when it might have been taken. [00:00:44] Speaker 05: Our argument is very simple this morning, that in affirming the trial court's dismissal without prejudice, that [00:00:55] Speaker 05: situated the case back where it was when the decision was entered. [00:01:01] Speaker 05: Therefore, a Rule 15 motion to amend to cure the deficiencies in the pleadings that it would have led to and were recognized by the court in the previous opinion to the dismissal at this point could have been cured when the case was mandated back down to the trial court, which is exactly what we attempted to do. [00:01:23] Speaker 04: Council, I'm having a hard time following this. [00:01:26] Speaker 04: I mean, even if a dismissal for failure to state a claim can be without prejudice, but that doesn't mean that the case is still ongoing. [00:01:36] Speaker 04: There's a final judgment dismissing the case. [00:01:40] Speaker 04: Don't you have to file a Rule 60B motion in order to reopen the case? [00:01:49] Speaker 05: No, Your Honor. [00:01:51] Speaker 05: And here's the distinction. [00:01:53] Speaker 05: We had, assuming we could have filed or we should have filed a Rule 60B motion after the judgment had been entered. [00:02:01] Speaker 05: So the opinion came out and we could have done a Rule 15 motion typically even after a dismissal. [00:02:06] Speaker 05: That's recognized in several Supreme Court cases that we mentioned in our reply brief and in our opening brief. [00:02:14] Speaker 05: But we would have been applying for a Rule 60 to a court that had decided it no longer had jurisdiction. [00:02:21] Speaker 02: Only over part of the case. [00:02:25] Speaker 05: Only over part of the case is correct. [00:02:26] Speaker 05: But if a court doesn't have jurisdiction over a portion of the case, it wouldn't make sense to continue on with that case without addressing what we believed and this court agreed was incorrect regarding that subject matter jurisdiction. [00:02:44] Speaker 05: So it would be counterintuitive and counter to rule one for us to have been required to [00:02:50] Speaker 05: forego our appeal of the subject matter question in order to pursue a amendment at that point. [00:02:58] Speaker 05: And in reality, I think that it's fair to state that whether then or now is really a question that should be of no consequence. [00:03:11] Speaker 05: The rules should be read such that if we could have done it then, and we've now been correct on our subject matter jurisdiction issue, [00:03:19] Speaker 05: we should be able to come back to that point. [00:03:23] Speaker 05: The rules are supposed to be read in a way that is just. [00:03:25] Speaker 05: It would seem to be unjust that once a party elects to correct the subject matter jurisdiction question through the appeal, which we did, that we would then now be precluded from coming back and filing a Rule 15 motion to amend. [00:03:39] Speaker 05: And whether it's a Rule 15 or Rule 60 or Rule 59, as we discussed in our briefing, [00:03:45] Speaker 05: Uh, you know, those are things that those rules are not really properly tailored to this situation. [00:03:52] Speaker 04: Um, if you're stuck with rule 59 or rule 60, that you're out of time and can't satisfy those. [00:04:00] Speaker 05: Well, we do kind of, yes, that actually we do can see that. [00:04:03] Speaker 05: That's the point is that if we had, we don't have any of the things and a rule 59 or rule 60 that would warrant the court. [00:04:11] Speaker 05: It's not, for instance, it's not my mistake. [00:04:13] Speaker 05: It's not a. [00:04:14] Speaker 05: newly discovered evidence, it was the trial judge's mistake as to his jurisdiction that led to the case ending up in this situation. [00:04:22] Speaker 05: So we really don't qualify under Rule 59 or Rule 60. [00:04:26] Speaker 04: Do you agree that when the motion to dismiss was filed in the first instance, you could, and it included the allegation of failure of state of claim, you could have sought to amend at that point? [00:04:41] Speaker 05: I think we could have, but the argument that we make is that that would have been futile. [00:04:45] Speaker 05: If this case and the previous decision addresses the sounding and tort jurisdictional question for the court of claims, our case would still have been a tort claim, and I'm sorry, not a tort claim, but a takings claim and not a tort claim at that point. [00:05:03] Speaker 05: Applying to Judge Wheeler at that point would have put us in a position of saying, well, we still want to proceed [00:05:10] Speaker 05: will clean up the complaint. [00:05:12] Speaker 05: And I believe that it should be pretty clear. [00:05:15] Speaker 05: He said, well, your case still ultimately sounds in tort, because nothing would have changed his mind on that. [00:05:23] Speaker 05: And so it would have been futile to come back and to argue, well, we've now cleaned up, and we've added the physical takings issues of this. [00:05:29] Speaker 05: And he just said, well, it still sounds in tort. [00:05:31] Speaker 05: But at best, what we could have argued is that we've now lost the claim that this court agreed with us. [00:05:37] Speaker 05: We did have, as far as the takings with regards to [00:05:41] Speaker 05: Um, the jurisdictional question that the court decided. [00:05:45] Speaker 05: And I, I, I saw a quick flash on my screen. [00:05:49] Speaker 05: I didn't mean to interrupt if I did. [00:05:51] Speaker 02: No, I, I, I had, um, I think understood judge O'Malley to be asking, um, whether you agree that you could have, um, um, um, moved to amend not after the trial judge, um, ruled. [00:06:08] Speaker 02: against you and dismissed the case, but after the motion to dismiss was filed before the trial, Judge had ruled. [00:06:18] Speaker 02: Anyway, I'm interested in that. [00:06:20] Speaker 04: Yes, that's right. [00:06:21] Speaker 04: Judge Toronto is right in his description of my question. [00:06:26] Speaker 02: Could I beg the court to... You wouldn't have known anything about futility or pointlessness or what have you at that stage, right? [00:06:38] Speaker 05: Well, I believe we did feel that it was futile at that stage because of the subject matter jurisdiction. [00:06:44] Speaker 05: I apologize if I'm misunderstanding. [00:06:45] Speaker 02: I'm sorry. [00:06:46] Speaker 02: Maybe I'm not being clear. [00:06:48] Speaker 02: Go back to the time when the government's motion was filed. [00:06:51] Speaker 02: So you don't have any ruling at that point from the trial judge. [00:06:56] Speaker 02: You could at that point have either without permission or with permission [00:07:04] Speaker 02: never mind about that for a moment, sought to amend your complaint. [00:07:11] Speaker 05: I apologize. [00:07:11] Speaker 05: I was misunderstanding. [00:07:12] Speaker 05: Yes, that is correct. [00:07:14] Speaker 05: We could have done that. [00:07:15] Speaker 05: But I'm not sure that there was a, we felt that there was a reason to, as we pointed out in our briefing, and this court disagreed with us on that. [00:07:23] Speaker 05: We felt that it was premature to rule on the motion to dismiss on grounds of failure to state a claim. [00:07:31] Speaker 05: We felt that there was sufficient. [00:07:32] Speaker 05: So we didn't agree with that assessment. [00:07:34] Speaker 05: So yes, we could have filed a motion to amend and we could have gone ahead, but we didn't agree with the government in that original motion to dismiss that the claims were insufficient. [00:07:43] Speaker 05: In fact, we argued in front of this court previously that we felt that we had sufficiently alleged the claims. [00:07:48] Speaker 05: So therefore, it wouldn't have made sense for us. [00:07:49] Speaker 05: We wouldn't have known futility at that point. [00:07:53] Speaker 05: That's correct. [00:07:54] Speaker 05: We certainly knew what we believed [00:07:57] Speaker 05: was that we had a pleading that satisfied Iqbal and Twombly, and this court disagreed. [00:08:03] Speaker 05: So we would have had to be able to foresee that this court was going to disagree with us on that point. [00:08:10] Speaker 05: So my crystal ball is good, but generally not quite that good. [00:08:15] Speaker 04: Well, Counsel, is there anything in our prior decision or in the actual remand order where we actually remanded for further proceedings [00:08:26] Speaker 05: No. [00:08:27] Speaker 05: No, there's not. [00:08:28] Speaker 05: And that's why we waited for the mandate. [00:08:30] Speaker 05: We filed a motion to amend. [00:08:32] Speaker 05: But that's why I began by discussing. [00:08:35] Speaker 05: This court did recognize that there was a Rule 15A amendment that could have been sought even after the opinion had been issued. [00:08:47] Speaker 05: And that's the- Where do you get that from, our opinion? [00:08:54] Speaker 05: Page 13 and page 14. [00:09:01] Speaker 05: So if we look at page 13 and 14, it very clearly discusses that any time before trial and before judgment has been entered, we could have filed a motion to amend under 15A. [00:09:19] Speaker 05: So we could have done that. [00:09:20] Speaker 02: Right. [00:09:22] Speaker 05: Right. [00:09:22] Speaker 05: So the opinion comes out. [00:09:23] Speaker 05: We file a motion to amend before the judgment from the court comes out. [00:09:28] Speaker 05: Conceivably and and there's a period of time there where we could have done that the It's a short period of time mind you but there's a period of time where we could have done that and Then this case would have been We could have filed that motion to amend then but again, we'd run into the futility question I guess our issue is that we in good faith relied upon the the points that this court was affirming a dismissal without prejudice and it returned it to that point and [00:09:59] Speaker 05: So if that was the affirmation, I get the argument that we could have or should have filed a Rule 59 or Rule 60, but it doesn't make any sense that those are the only two avenues when subject matter jurisdiction has been reversed. [00:10:13] Speaker 05: And we did point to a couple of cases that I'll just... Well, actually, I'll save those for Roboto if it's okay with the court. [00:10:20] Speaker 03: Finish your sentence. [00:10:22] Speaker 05: Okay. [00:10:22] Speaker 05: So we raised an Eastern District of New York case, integrated tech. [00:10:27] Speaker 05: and Development, Inc. [00:10:28] Speaker 05: versus Rosenfeld, and then also the Morongo Band of Mission Indians versus Rose from the Ninth Circuit. [00:10:34] Speaker 05: We think that those two are illustrative of where other districts and circuits have gone with this question. [00:10:40] Speaker 05: And it would make sense that this court, in line with those decisions, should allow us to file the Rule 15, should have, the district court, I'm sorry, the trial court should have allowed us to file the Rule 15 motion, considered it on its merits, and then proceeded with the case. [00:10:56] Speaker 03: All right. [00:10:56] Speaker 05: Thank you. [00:10:57] Speaker 03: Thank you. [00:10:57] Speaker 03: We'll have your rebuttal time. [00:11:00] Speaker 03: Let's hear from Mr. Yale. [00:11:04] Speaker 00: Thank you, Your Honor, and may it please the Court. [00:11:07] Speaker 00: We'd like to address a few points. [00:11:10] Speaker 00: First, contrary to Mr. Dunn's suggestions just now, this Court's decision in the first Taylor case did not provide for a remand. [00:11:21] Speaker 00: It did not provide for any further proceedings. [00:11:24] Speaker 00: The Taylor's failed to seek rehearing [00:11:27] Speaker 00: And so we just don't see that there was anything left of the case just by the plain language of the mandate. [00:11:36] Speaker 00: So that's the first point. [00:11:38] Speaker 03: You say it's irrelevant whether it was dismissed without prejudice? [00:11:44] Speaker 00: Well, the tailors have certainly pointed to no case that provides for any sort of legal significance for that in the context of [00:11:56] Speaker 00: a situation when an appellate court affirms the trial court's dismissal for failure to state a claim, even if it's with prejudice. [00:12:07] Speaker 00: So for example, one of the cases we cited, it was a Third Circuit decision called Ahmed, that dealt with a dismissal without prejudice. [00:12:21] Speaker 00: The fact that it's with prejudice doesn't mean that somehow there's no [00:12:25] Speaker 00: legal significance to the appellate court's decision. [00:12:31] Speaker 00: Again, they had an opportunity to amend throughout the litigation. [00:12:37] Speaker 00: We filed a motion to dismiss. [00:12:40] Speaker 00: They certainly had ample opportunity. [00:12:42] Speaker 00: It seems like that's been acknowledged that they could have amended their complaint. [00:12:48] Speaker 00: That's very common in civil litigation, as everyone knows, that an amended complaint could be filed. [00:12:55] Speaker 00: Certainly, there was an oral argument. [00:12:58] Speaker 00: There could have been a motion at that point. [00:13:02] Speaker 00: You know, they could have filed after the oral argument. [00:13:05] Speaker 00: And even after the decision came out, they could have, you know, they could have filed, you know, a motion or a series of motions to add additional allegations if they chose to. [00:13:20] Speaker 02: And this is Judge Arano. [00:13:22] Speaker 02: Can I just double-check? [00:13:24] Speaker 02: Do you agree, and I think this is written about in, for example, Wright and Miller, that when a Rule 15 motion to amend is filed after the initial judgment is entered, that it has to be accompanied by either a Rule 1590 or a Rule 60? [00:13:46] Speaker 00: Yes, exactly, because there's been a final judgment. [00:13:51] Speaker 00: And that said, I think we cited and quoted from Wright and Miller's. [00:13:58] Speaker 00: There's plenty of other circuits who have specifically addressed this. [00:14:02] Speaker 00: We cited to the Calvary Christian case, which essentially said exactly that, that you first have to vacate the judgment under one of those two rules. [00:14:14] Speaker 00: Now, as the trial court here pointed out, Rule 59 would be unavailable as a matter of timing. [00:14:22] Speaker 00: It's also the case that Rule 60 has a relatively high standard. [00:14:27] Speaker 00: But part of that is because this, you know, what the underlying purpose as that Calvary Christian case or Wright and Miller or many other cases have pointed out, what we're dealing with here is finality. [00:14:41] Speaker 00: And so this isn't a situation [00:14:43] Speaker 00: where it's just in the normal course of the litigation. [00:14:49] Speaker 00: I mean, by the tailors, how they interpret the rules, where they can essentially just ignore rules 59 and rule 60, in 20 years, they could file a rule 15 motion, and to try to amend the complaint, and rule 59 and rule 60 wouldn't apply, and the court would need to apply the standard from rule 15. [00:15:13] Speaker 00: that just cannot be the case, but it's not the case based upon precedent and also based upon just the plain language of the rules and how they work together. [00:15:24] Speaker 00: So for those reasons, we certainly think the trial court did not abuse its discretion. [00:15:30] Speaker 00: We also, throughout the briefing below, pointed out all of the reasons why [00:15:39] Speaker 00: Just even if we were to go look at the regulatory takings claim and navigation easement claim, why, you know, there just wasn't a valid claim regardless. [00:15:52] Speaker 02: And a lot of that was put aside the regulatory taking claim. [00:15:56] Speaker 02: Can you quickly summarize why you think the additional facts on the, what do you call it, application, the physical taking claim about the overflight because the new complaint [00:16:08] Speaker 02: provides a number of details about frequency and possible effect on the calves that the original complaint did not. [00:16:23] Speaker 00: Sure, and so the first point is we still don't think, and this was an issue that came up before, that sort of these, what we would [00:16:31] Speaker 00: characterizes sporadic overflights would really, is really comparable to the situations in Cosby and some of the other cases we cited where, you know, there's just hundreds and thousands of overflights in a, you know, per year and whatnot. [00:16:50] Speaker 00: But even setting that aside, even setting that aside, the detail that was added makes abundantly clear that [00:16:58] Speaker 00: when that claim would have arisen is in 2009 or 2010. [00:17:04] Speaker 00: We have allegations that were added to the complaint that's saying that not only were they aware of these overflies, they were damaging the enjoyment of the property for the tailors. [00:17:19] Speaker 00: That's the allegation. [00:17:21] Speaker 00: And they complained to the Air Force about them. [00:17:24] Speaker 00: they were so bad, apparently, that they were documenting them in detail. [00:17:29] Speaker 00: And so, you know, even if setting aside all of the procedural problems that we think really are the basis, certainly to affirm the judgment and certainly demonstrate that the trial court's decision was not an error, [00:17:49] Speaker 00: The additional detail that was actually added just demonstrates why, you know, there's a blatant statute of limitations problem with that particular claim. [00:18:01] Speaker 03: Well, that wasn't decided, was it? [00:18:05] Speaker 00: Well, you know, that specifically. [00:18:08] Speaker 03: You're asking us to say you're going to lose anyway, so don't bother me with these procedural details. [00:18:17] Speaker 00: Well, that's, we're saying, [00:18:19] Speaker 00: On the procedural, for all the procedural reasons, the judgment should be affirmed because they certainly had ample reasons for timeliness. [00:18:35] Speaker 00: They had ample reasons before to amend their complaint. [00:18:39] Speaker 00: So it's contrary to the mandate. [00:18:41] Speaker 00: They don't go through rule 59 and rule 60. [00:18:44] Speaker 00: All those are basis. [00:18:47] Speaker 00: to affirm the judgment of the trial court. [00:18:50] Speaker 00: But even beyond that, the trial court, in its opinion, also points out, to some extent in the context of Rule 60, but it also points out that if you can't state a claim, then that's a basis both under Rule 60 and under Rule 15. [00:19:09] Speaker 00: So is timeliness. [00:19:11] Speaker 00: And here... But you're saying that... [00:19:13] Speaker 04: alternative way to affirm is based on futility? [00:19:18] Speaker 00: Yes, it's based on futility and it's also, you know, that's the point. [00:19:24] Speaker 00: The futility argument is also in the context that we went through in detail. [00:19:29] Speaker 00: For example, you know, if you look through the regulatory takings claim and we're going through the pencentral factors, we went through and compared what was added and [00:19:41] Speaker 00: what was originally decided when the original complaint was adjudicated by this court. [00:19:48] Speaker 00: And the tailors didn't provide any meaningful response to that and sort of really deal with the first decision on the Penn Central factors. [00:20:00] Speaker 00: In fact, what they seem to suggest was that, well, Penn Central is very fact-intensive and so we can't, you know, it shouldn't be, [00:20:09] Speaker 00: essentially decided on the motion to dismiss, even though the prior Taylor decision, you know, went through the Penn Central factors and did exactly that. [00:20:22] Speaker 00: And there are numerous other cases where Penn Central has, you know, the application of the Penn Central factors has been used with respect to a motion to dismiss. [00:20:34] Speaker 00: We certainly don't think on this appellate record that there's possibly an error in the trial court's decision. [00:20:44] Speaker 00: And it certainly, the Taylor's certainly haven't demonstrated abuse of discretion. [00:20:50] Speaker 00: Really what they've demonstrated is that they had numerous opportunities, and they really didn't comply with the procedural rules that are well established. [00:21:05] Speaker 00: With that, if there's no further questions, we would ask that the court affirm the judgment of the court of federal claims. [00:21:15] Speaker 03: Any more questions for Mr. Yale? [00:21:17] Speaker 00: None for me. [00:21:18] Speaker 03: No, thank you. [00:21:19] Speaker 03: OK, thank you. [00:21:20] Speaker 03: Mr. Dunn, you have your rebuttal time. [00:21:24] Speaker 05: Thank you, Your Honor. [00:21:25] Speaker 05: So very quickly, I think that the crux of the matter was just reached. [00:21:31] Speaker 05: And the government has acknowledged [00:21:35] Speaker 05: that they're basing their argument on futility. [00:21:38] Speaker 05: Futility makes up none of the decision from the trial court in this matter at this juncture. [00:21:43] Speaker 05: It may have been, and if we were going to be arguing about an abuse of discretion with regards to whether or not it's futile, that would be a different appeal than where we are right now. [00:21:51] Speaker 05: It may end up being another appeal, but that's the point is that instead of reaching those grounds to look at this case, the trial court [00:22:02] Speaker 05: skipped out and said, well, you didn't use these rules that ultimately probably wouldn't have worked for you. [00:22:06] Speaker 05: You're out of time on any ways because you didn't do this before. [00:22:09] Speaker 05: You didn't consult your crystal ball before the trial court issued its decision and decided that you should amend the complaint because we disagreed. [00:22:20] Speaker 05: We would have had to have gone ahead and agreed that our complaint was sufficient. [00:22:24] Speaker 05: We didn't, and we never did. [00:22:25] Speaker 05: This court disagreed with us. [00:22:27] Speaker 05: The posture should be that we should have had the opportunity [00:22:31] Speaker 05: to amend the complaint to see if we can meet the standards that the government is now arguing we can't in their futility. [00:22:37] Speaker 05: The reason we didn't address those is because, and it's not part of the briefing in this case, because that's not part of the decision from the lower court that's here today. [00:22:45] Speaker 05: So we believe that the interests of justice are served by allowing these plaintiffs to go back to test the sufficiency of their actual amended complaint [00:22:56] Speaker 05: to see whether it meets the standards that the district court can proceed on and the case to be allowed to go forward from there. [00:23:02] Speaker 05: That would be the just and probably I still argue the correct procedural manner for this case to proceed. [00:23:09] Speaker 05: And I won't be labored to that anymore. [00:23:11] Speaker 05: Like I said, this is fairly simple, but I would stand for any questions. [00:23:15] Speaker 03: Any questions for Mr. Dunn? [00:23:18] Speaker 04: I don't think so. [00:23:21] Speaker 03: All right. [00:23:22] Speaker 03: And my thanks to both counsels. [00:23:24] Speaker 03: The case is taken under submission.