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Kim Braunesreither v. Walter Keating

November 1, 2012

KIM BRAUNESREITHER,
PLAINTIFF,
v.
WALTER KEATING, JR., DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

) ORDER GRANTING IN PART AND ) DENYING IN PART DEFENDANT'S ) MOTION TO DISMISS

Defendant, Walter Keating, Jr., moves the court to dismiss Kim Braunesreither's complaint in its entirety. Docket 5. Keating argues that Braunesreither's claims for breaking and entering, burglary, and rape are not valid civil causes of action under South Dakota law. Keating also argues that Braunesreither's claims for assault, battery, and false imprisonment are barred by the applicable statutes of limitations. Braunesreither opposes the motion. For the following reasons, Keating's motion is granted in part and denied in part.

FACTUAL BACKGROUND

The pertinent facts, according to the complaint (Docket 1), are as follows:

Braunesreither is a resident of Yankton County, South Dakota. Keating is a citizen of Canada.

Braunesreither alleges that on July 15, 2009, Keating forcibly entered Braunesreither's residence without her permission. Once in the residence, Braunesreither alleges that Keating used force and threats of force to commit acts of oral and vaginal penetration upon her and without her consent. Keating also allegedly used force and threats of force to prevent Braunesreither from leaving her residence. Because of these actions, Braunesreither claims she suffers from severe anxiety, fear, and other emotional and physical pain.

Braunesreither filed her complaint in this court on February 3, 2012.

STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to review the complaint as a whole to determine whether the plaintiff has stated a claim upon which relief can be granted. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 595 (8th Cir. 2009). The facts alleged in the complaint must be considered true, and all inferences must be viewed in favor of the nonmoving party. Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004). The Supreme Court has recently held that "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). "A complaint states a plausible claim for relief if its 'factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678)).

"As a general rule, the possible existence of a statute of limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint itself establishes the defense." Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011) (internal quotations omitted).

DISCUSSION

I. Causes of Action

Keating argues that Braunesreither's claims for breaking and entering, burglary, and rape are not recognized civil causes of action under South Dakota law.

Turning first to the breaking and entering claim, neither party has provided authority on point. Likewise, the court did not find authority that recognizes the existence of the tort of breaking and entering in South Dakota. This, however, does not end the inquiry because the court finds that the language in the complaint sounds in trespass. Under South Dakota law, "[o]ne who intentionally and without a consensual or other privilege (a) enters land in possession of another or any part thereof or causes a thing or third person so to do, or (b) remains thereon is liable as a trespasser[.]" Benson v. State, 710 N.W.2d 131, 159 (S.D. 2006). The complaint states that "Keating did unlawfully and without the ...


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