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Metter v. United States Army Corps of Engineers

United States District Court, D. Nebraska

March 25, 2014

MARY ANN METTER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EDWARD O. METTER, DECEASED, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant. JUSTIN ERICKSON and JENNIFER ERICKSON, Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant

Page 1091

[Copyrighted Material Omitted]

Page 1092

For Mary Ann Metter, as Personal Representative of the Estate of Edward O. Metter, estate of Edward O Metter (8:13-cv-00133-JMG-CRZ), Plaintiff: Andrew D. Sibbernsen, LEAD ATTORNEY, SIBBERNSEN, STRIGENZ LAW FIRM, Omaha, NE.

For United States Army Corps of Engineers, United States (8:13-cv-00133-JMG-CRZ), Defendants: Paul D. Boeshart, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE - LINCOLN, Lincoln, NE.

For Justin Erickson, Husband, Jennifer Erickson, Wife (8:13-cv-00134-JMG-CRZ), Plaintiffs: Andrew D. Sibbernsen, LEAD ATTORNEY, SIBBERNSEN, STRIGENZ LAW FIRM, Omaha, NE.

For United States Army Corps of Engineers, United States (8:13-cv-00134-JMG-CRZ), Defendants: Paul D. Boeshart, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE - LINCOLN, Lincoln, NE.

OPINION

Page 1093

John M. Gerrard, United States District Judge.

MEMORANDUM AND ORDER

This matter is before the Court on the defendant's motion to dismiss, or in the alternative, for summary judgment (case no. 8:13-cv-133, filing 13; case no. 8:13-cv-134, filing 13). The defendant has also moved to substitute the United States of America as the sole defendant. That motion will be granted and the United States will be substituted as the defendant. For the reasons discussed below, the defendant's motion to dismiss or for summary judgment will be granted.

STANDARD OF REVIEW

The defendant's motion to dismiss rests upon jurisdictional grounds, and is therefore properly considered under Fed.R.Civ.P. 12(b)(1). The party asserting subject matter jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). A Rule 12(b)(1) motion can be presented as either a " facial" or a " factual" challenge. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). When reviewing a facial challenge, the Court restricts itself to the face of the pleadings, and the nonmovant receives the same protections as it would facing a Rule 12(b)(6) motion. Id. By contrast, when reviewing a factual challenge, the Court considers matters outside the pleadings, and the nonmovant does not receive the benefit of Rule 12(b)(6) safeguards. Id. Moreover, unlike a motion for summary judgment, the Court is free ...


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