In the United States Court of Federal Claims
ANNE F. DAY,
Plaintiff,
v. No. 24-2088 (Filed May 20, 2025) THE UNITED STATES,
Defendant.
Lindsay S.C. Brinton, Lewis Rice LLC, St. Louis, MO, for plaintiff.
David A. Harrington, Civil Division, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER Granting the Government’s Motion to Dismiss and Dismissing Without Prejudice
Anne F. Day seeks just compensation and reimbursement of attorneys’ fees and litigation
expenses from the United States for an alleged Fifth Amendment taking of her property. The gov-
ernment moves to dismiss Ms. Day’s complaint for failure to state a claim, arguing that the com-
plaint does not identify the property that was allegedly taken. Because the complaint does not meet
this court’s minimum pleading standards, the court will grant the government’s motion to dismiss
and will dismiss the complaint without prejudice.
I. Background
Norfolk Southern Railway Company held a railroad easement over a rail corridor. ECF No.
1 at 2 [¶3]. The corridor extended about thirty-one miles, across Henderson and Polk counties in
North Carolina and Greenville and Spartanburg counties in South Carolina. Id. In October 2024,
1 Norfolk Southern filed a notice with the Surface Transportation Board, seeking authorization to
abandon its right-of-way. Id. at 2 [¶4]. In December 2024, the Saluda Grade Trails Conservancy
requested a Notice of Interim Trail Use or Abandonment, expressing interest in negotiating a trail
use agreement for the corridor to ultimately convert the rail corridor to a trail. Id. at 2 [¶5]; ECF
No. 1-3. The board granted the conservancy’s request, issuing the interim notice under the National
Trails System Act, 16 U.S.C. § 1247(d), and 49 C.F.R. § 1152.29. ECF No. 1 at 2 [¶6]; ECF No.
1-4.
Ms. Day filed a complaint in this court on the day the board issued the interim notice. ECF
No. 1 at 1. She alleges that the government, through the board, effected a Fifth Amendment taking
of her property. ECF No. 1 at 5 [¶18]. Ms. Day alleges that she owns a piece of land adjacent to
Norfolk Southern’s former railroad right-of-way. Id. at 4 [¶15]. She states that her property “in-
cludes but is not limited to the land under the former railroad right-of-way that is now subject to
an easement for public recreation and railbanking.” Id. She does not specify the address, parcel
number, or even county in which her property sits. See ECF No. 1. She does not specify which
state—North Carolina or South Carolina—her property is in, but she calls herself a “North Caro-
lina owner,” implying that the relevant property is in North Carolina. Id. at 4 [¶16].
Ms. Day seeks just compensation and reimbursement of attorneys’ fees and litigation ex-
penses under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, 42 U.S.C. § 4654(c). Id. at 5 [¶¶20-21]. The government moves to dismiss.
II. Discussion
The government moves to dismiss Ms. Day’s complaint under rule 12(b)(6) of the Rules
of the Court of Federal Claims (RCFC), arguing that the complaint fails to state a claim because,
in violation of RCFC 8, she did not identify her property by address, parcel number, or county.
ECF No. 8 at 1-2, 4-5. The government argues that Ms. Day’s omission deprives the government 2 of fair notice and impedes its ability to investigate her claim. Id. at 4-5. The government notes that
it requested by email that Ms. Day amend her complaint before the government filed this motion,
but Ms. Day chose not to. Id. at 2. Ms. Day responds that RCFC 8 does not require her to include
a parcel number or street address at the pleading stage and that her allegations provide sufficient
notice by identifying the property as “adjacent to” the corridor at issue and subject to Norfolk
Southern’s notice. ECF No. 9 at 1-9.
This court’s jurisdiction is primarily defined by the Tucker Act, which provides the court
with exclusive jurisdiction to decide specific types of monetary claims against the United States.
Kanemoto v. Reno, 41 F.3d 641, 644 (Fed. Cir. 1994); 28 U.S.C. § 1491(a)(1). The Tucker Act
grants the court “jurisdiction to render judgment upon any claim against the United States founded
... upon the Constitution.” 28 U.S.C. § 1491(a)(1). Because takings claims are “founded upon the
Constitution,” they are “within the jurisdiction of the Court of [Federal] Claims to hear and deter-
mine.” Knick v. Township of Scott, 588 U.S. 180, 190 (2019) (quotation marks omitted).
To allege a taking, a plaintiff must establish (1) that she held a property interest at the time
of the alleged taking and (2) that the government’s actions amounted to a compensable taking of
that property interest. American Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed.
Cir. 2004); see also Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (en banc)
(explaining that the first issue in rails-to-trails cases is who owned the land when the alleged taking
occurred). The court determines the parties’ property ownership under the law of the state in which
the property sits “by analyzing the original deeds that conveyed the property” to the plaintiff. Chi-
cago Coating Co., LLC v. United States, 892 F.3d 1164, 1167 (Fed. Cir. 2018); see Castillo v.
United States, 952 F.3d 1311, 1319 (Fed. Cir. 2020).
3 On a motion to dismiss for failure to state a claim under RCFC 12(b)(6), the court must
accept well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff’s
favor. See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). To be well-pleaded, “a
pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled
to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atlantic Corp v. Twombly,
550 U.S. 544, 545 (2007)). While the court’s rule “does not require detailed factual allegations …
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(cleaned up). “A complaint must be dismissed under Rule 12(b)(6) when the facts asserted do not
give rise to a legal remedy, or do not elevate a claim for relief to the realm of plausibility.” Laguna
Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 2012) (citing Lindsay, 295 F.3d
at 1257; Iqbal, 556 U.S. at 679). A plaintiff must plead “enough facts to state a claim to relief that
is plausible on its face,” sufficient to “nudge[] [her] claims across the line from conceivable to
plausible” to avoid dismissal. Twombly, 550 U.S. at 570.
A. Ms. Day fails to state a takings claim with sufficient specificity
To plausibly allege a taking, Ms. Day must plead that she held a cognizable property inter-
est at the time of the alleged taking and that the government’s actions amounted to a taking of that
interest. American Pelagic Fishing, 379 F.3d at 1372. Ms. Day’s complaint must comply with this
court’s rule 8, which requires a “short and plain statement of the claim showing that the pleader is
entitled to relief.” RCFC 8(a)(2). It must also comply with this court’s rule 9, which requires that,
“[i]n pleading a claim for just compensation under the Fifth Amendment of the United States Con-
stitution, a party must identify the specific property interest alleged to have been taken by the
United States.” RCFC 9(i).
Ms. Day’s complaint does neither. It states that she owns land “adjacent to the former rail-
road right-of-way” and that her property “includes but is not limited to the land under the former 4 railroad right-of-way.” ECF No. 1 at 4 [¶15]. Ms. Day does not clarify whether her alleged property
includes a portion of the right-of-way or merely abuts it, and she fails to provide any identifying
information such as a parcel number, land description, address, county, or even the state in which
her alleged property is located. See generally ECF No. 1. The government argues that the omission
of identifying information makes it almost impossible for the government to determine whether
Ms. Day owns a compensable property interest and whether the board’s action affected that inter-
est. ECF No. 8 at 4-5. While that argument is a little overstated, because Ms. Day has already
disclosed to the government what property she owns, the government is correct that this court’s
rules require that information to be in the record, in the complaint itself.
Ms. Day, relying on Schell & Kampeter, Inc. v. United States, 159 Fed. Cl. 829 (2022),
argues that she is not required to identify in her complaint the property she alleges was taken. ECF
No. 9 at 5-9. She is incorrect, both under binding Supreme Court authority and under this court’s
cases. This court’s rule 8, which parallels rule 8 of the Federal Rules of Civil Procedure, “requires
more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will
not do.” Twombly, 550 U.S. at 545. Ms. Day’s allegations “must be enough to raise a right to relief
above the speculative level” and must “nudge[] [her] claims across the line from conceivable to
plausible.” Id. at 555, 570. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts are “not bound to
accept as true a legal conclusion couched as a factual allegation.” Id. To allege a taking, a party
must show that she owns property. American Pelagic Fishing, 379 F.3d at 1372. Thus, while Ms.
Day is correct that notice pleading is all that is required, which requires only facial plausibility
(ECF No. 9 at 3), there is no way for the court to know whether Ms. Day has alleged a facially
5 plausible claim without her providing some specific information about where her property is. And
the complaint certainly does not “identify the specific property interest” as required by RCFC 9(i).
In Schell, the plaintiffs identified land in Miller County, Missouri, and provided the county
tax parcel numbers for at least three specific parcels alleged to be affected by the taking. 159 Fed.
Cl. at 830-31. After the statute of limitations expired, the plaintiffs sought to amend their complaint
to add more parcels that had not been named in the original complaint. Id. The court observed that
the plaintiffs’ original “allegations easily satisfy the notice pleading requirements of Rule 8” and
explained that the proposed amendment that would include the omitted parcel numbers was “un-
necessary” because the initial complaint already met the rules’ requirements. Id. at 831. In contrast,
Ms. Day provides only a general reference to a “31.3-mile segment of rail corridor” spanning “four
counties in two states” (ECF No. 1 at 2 [¶3]) and declines to identify any parcel numbers or provide
clarifying details (ECF No. 9). The court’s order in Cumming v. United States, No. 24-1550, ECF
No. 17 (Fed. Cl. Apr. 23, 2025), which Ms. Day cites as additional authority (ECF No. 11), relies
exclusively on Schell. Because the complaint in Schell identified specific parcels, those cases are
distinguishable, and regardless, neither is binding.
Ms. Day cites Dobyns v. United States, 91 Fed. Cl. 412 (2010), in addition to Schell and
Cumming, to argue that she does not need to identify her specific property at the pleading stage
because discovery is the appropriate mechanism for providing that information. ECF No. 9 at 6-7
n.5; see Schell, 159 Fed. Cl. at 832; Cumming, No. 24-1550, ECF No. 17 at 1. And she argues that
she does not want to disclose her property in her complaint for fear of being wrong and having the
government try, as it tried (unsuccessfully) in Schell, to avoid liability based on mistakes in the
complaint. ECF No. 9 at 8-9 & n.7. But discovery is for learning information that the opposing
side has, not for learning information in a plaintiff’s own possession, and as discussed below, it
6 does not take the place of a plaintiff’s required pre-suit investigation. The plaintiff in Dobyns did
not fail to identify the basic facts underlying his claim. Instead, the court in Dobyns explained that
“discovery, as the name implies, serves more than to verify facts already known (and pled). Rather,
… [t]he purpose of discovery is to allow a broad search for facts, the names of witnesses, or any
other matters which may aid a party in the preparation or presentation of his case.” 91 Fed. Cl. at
426. Here, Ms. Day concedes that she knows the location of her own property and even provided
it to the government in initial disclosures, but she chooses not to include that information in her
complaint. ECF No. 9 at 8-9. That conflicts with the requirements of rule 8 and with the Supreme
Court’s interpretation of a plaintiff’s pleading obligations in Iqbal and Twombly. Iqbal, 556 U.S.
at 678; Twombly, 550 U.S. at 545. And discovery, which happens after an answer has been filed,
cannot take the place of an adequate complaint. See Iqbal, 556 U.S. at 678-79.
The Federal Circuit has also explained that a plaintiff has an obligation under RCFC 11 to
conduct a pre-suit investigation to avoid “baseless filings, which abuse the judicial system and
burden courts and parties with needless expense and delay.” Judin v. United States, 110 F.3d 780,
784 (Fed. Cir. 1997). The court of appeals stressed that “Rule 11 is not about after-the-fact inves-
tigation”; it imposes a “duty of reasonable inquiry” at the point of filing a complaint. Id. at 785.
That duty includes the obligation to allege, based on a reasonable investigation, facts sufficient to
support the claim at the time the complaint is filed. Id. at 784-85. Ms. Day apparently has those
facts in her possession, but she has not alleged them.
In the context of intellectual property, which has analogues to real property, the Federal
Circuit has elaborated on the pleading requirements under Iqbal and Twombly. The Federal Circuit
explained that a complaint must include “factual allegations that, when taken as true, articulate
why it is plausible that the accused product infringes the patent claim.” Bot M8 LLC v. Sony Corp.
7 of America, 4 F.4th 1342, 1353 (Fed. Cir. 2021) (citing Iqbal and Twombly). Thus, a plaintiff in a
patent case must plead, under Iqbal and Twombly, not only the particular patent that it accuses the
defendant of infringing, but a particular patent claim. A patent claim is analogous to a description
of a parcel of property. Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 U.S.
502, 510 (1917) (likening a patent claim to the description of real property in a deed “which sets
the bounds to the grant which it contains”). No court would allow a plaintiff to allege patent in-
fringement without saying what patent she owns. Likewise, Ms. Day has not met that standard for
pleading and has not described her property at all, and her complaint does not demonstrate an
adequate pre-suit investigation. See Preseault 100 F.3d at 1533 (One of the “determinative issues”
in rails-to-trails cases “is who owned the strips of land involved.”); see also Barclay v. United
States, 443 F.3d 1368, 1372, 1378 (Fed. Cir. 2006) (assessing the statute of limitations based on
the complaint’s having identified the relevant property interests with sufficient specificity).
The deficiencies in Ms. Day’s complaint also cannot be remedied by her initial disclosures
in discovery. As the government notes (ECF No. 8 at 7; ECF No. 10 at 5), initial disclosures can
be amended throughout the litigation, so they provide a moving target. Further, as the government
explains (ECF No. 8 at 5), it needs to locate the property to be able to answer the complaint.
Providing information about the location of property is not providing the government with a “pro-
cedural sword” (ECF No. 9 at 8-9). It is allowing the government to investigate the plaintiff’s
allegations before undertaking litigation. Under Iqbal, allowing initial disclosures to substitute for
a sufficient complaint would “unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions.” 556 U.S. at 678-79.
Ms. Day notes, in a footnote, that when this court has previously found takings complaints
inadequate, it determined that the proper remedy was to order a more definite statement rather than
8 dismissing the complaint. ECF No. 9 at 8 n.6 (citing Baxter Brothers v. United States, No. 19-428,
ECF No. 47 (Fed. Cl. Dec. 19, 2024)). Ms. Day does not request to amend her complaint or provide
a more definite statement as alternative relief. But even if she had, Ms. Day offers no explanation
for her decision not to amend the complaint after the government requested clarification by email
or after the government filed its motion here, other than to essentially state, You can’t make me.
ECF No. 8 at 2; ECF No. 9 at 8. In Baxter, unlike here, the plaintiffs promptly amended their
complaint once the government identified the complaint’s deficiencies in a motion to dismiss. See
Baxter, No. 19-428, ECF No. 11. The situation here is more comparable to that in Angelly v. United
States, 173 Fed. Cl. 768, 770 (2024), where the plaintiffs had the opportunity to clarify their claims
but “sat on their hands and said they would produce that required evidence another day.” The court
dismissed the case. Id. Ms. Day similarly has elected not to remedy the deficiencies in her com-
plaint despite the government’s efforts. Thus, even if Ms. Day had requested the alternative relief
of an amendment or more definite statement, that alternative relief would not have been appropri-
ate in this case.
The court here finds dismissal appropriate for a few additional reasons. The dismissal will
be without prejudice, meaning that Ms. Day may refile with a complaint that follows the court’s
rules and the Supreme Court’s requirements. The statute of limitations is not approaching; indeed,
it is not even clear whether Ms. Day’s claims are yet ripe. See ECF No. 8 at 1 n.1 (government
noting that interim trail use is not authorized until the railroad and the trail sponsor sign a trail use
agreement, which had not happened as of the complaint date). So timeliness should not impede
Ms. Day’s ability to refile. And any attorneys’ fees that may become relevant later should not
include fees for the government to have to investigate the insufficient allegations in Ms. Day’s
current complaint.
9 B. Ms. Day’s claim under the Uniform Relocation Act is not a basis to maintain the complaint
In addition to just compensation for a taking, Ms. Day’s complaint seeks reimbursement
for “costs, disbursement, and expenses” as well as attorneys’ fees under the Uniform Relocation
Act, 42 U.S.C. § 4654(c). Ms. Day argues that that request is an independent basis to maintain the
complaint. ECF No. 9 at 10. But the statutory provision does not create an independent cause of
action. Rather, it authorizes reimbursement “as a part of [a] judgment or settlement,” only when
there has been a “judgment for the plaintiff … awarding compensation for the taking of property
by a Federal agency” or a settlement of that claim. 42 U.S.C. § 4654(c); see RCFC 54(d)(1)(B),
(2)(B) (each requiring a party to file a request for costs and attorney’s fees within 30 days “after
the date of final judgment”). Under the statute and this court’s rules, a plaintiff may raise expense
claims only after a judgment in favor of the plaintiff or a settlement. See, e.g., Banks v. United
States, 171 Fed. Cl. 142 (2024) (after the parties resolved takings litigation, where the plaintiffs
accepted an offer of judgment, the plaintiffs were entitled to seek costs under the Uniform Relo-
cation Act). Here, Ms. Day has neither prevailed on her takings claim nor reached any settlement
with the government. Thus, Ms. Day cannot prevail on her request for expenses. Id.; see id. at 150-
52.
III. Conclusion
For the reasons stated above, this court grants the government’s motion to dismiss and
dismisses Ms. Day’s complaint without prejudice. The clerk of the court shall enter judgment
accordingly.
IT IS SO ORDERED.
10 s/ Molly R. Silfen MOLLY R. SILFEN Judge