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McGOVERT v. U.S.

July 14, 2004.

BRUCE McGOVERT, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: MARTIN JENKINS, District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

INTRODUCTION

Before the Court is Defendant United States of America's Motion to Dismiss for lack of subject matter pursuant to Federal Rule of Civil Procedure 12(h)(3).*fn1 The government argues that Coast Guard member Bikram Ghuman was not acting within the scope of his employment when he injured Plaintiffs in a car wreck, and therefore the suit is barred by the doctrine of sovereign immunity and so this Court lacks subject matter jurisdiction. Alternatively, Defendant seeks summary judgment pursuant to the standards of Rule 56. For the following reasons, Defendant's motion is GRANTED.

  FACTUAL BACKGROUND

  On May 4, 2001, Coast Guard enlisted member Bikram Ghuman was driving his own car down Valley Ford Road in Sonoma, California. Ghuman crossed the center line of the road and caused a high-speed front-end collision with Plaintiffs. Ghuman died as a result of the collision, and Plaintiffs suffered multiple injuries for which they now seek compensation from the United States.

  According to the complaint, Ghuman was operating his vehicle "within the course and scope of his employment and as a coastguardsman and agent of the United States Coast Guard." Compl. ¶ 3. Plaintiffs argue that Ghuman worked at Coast Guard Station Bodega Bay but was required to live eighteen miles away in the Petaluma barracks, and that this situation amounted to a "requirement" to use a car to commute. Opp. at 3:16-5:13. However, Defendant argues in its motion to dismiss that Ghuman was not acting within the scope of his federal employment at the time of the accident because he was on "liberty" status and was in his own vehicle leaving his assigned place of employment.*fn2 The government therefore contends that the suit against the United States is jurisdictionally barred by the doctrine of sovereign immunity. The question of jurisdiction essentially turns on whether Ghuman can be seen as acting within the scope of his employment, which in turn is based on whether the "going and coming" rule or one of its exceptions applies to the facts of this case.

  LEGAL STANDARD

  It is well established that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. E.g., KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). Courts will not infer evidence supporting federal subject matter jurisdiction. Therefore, dismissal under Rule 12(b)(1) is appropriate where subject matter jurisdiction has not been properly pled on the face of the complaint.

  However, for Rule 12(b)(1) motions, unlike Rule 12(b)(6) motions, where the jurisdictional attack is factual, the moving party may submit affidavits or any other evidence properly before the court. Association of American Medical Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000). It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. Id. The district court does not abuse its discretion by looking to this extra-pleading material in deciding the issue Id.; see also Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

  Where the jurisdictional question is not entangled with the merits of the parties' dispute, the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). However, where jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits of the case, "the trial court should employ the standard applicable to a motion for summary judgment." Careau Group v. United Farm Workers of America, 940 F.2d 1291, 1293 (9th Cir. 1991) (quoting Augustine, 704 F.2d at 1077). In such a case, if a triable issue of material fact exists, the trial court must wait until trial to resolve the jurisdictional question. Id.

  Here, the parties disagree as to whether the Court should employ the summary judgment standard.*fn3 Plaintiffs contend that the summary judgment standard applies, and therefore the Court can not resolve the jurisdictional question if any triable issue of material fact exists as to whether Ghuman was acting within the scope of his employment. Opp. 1:21-22. Specifically, Plaintiffs argue that: 1) the jurisdictional question goes directly to the merits of the case; 2) where federal jurisdiction is based on a federal question, courts convert jurisdictional challenges into allegations of failure to state a claim; and 3) California law requires the Court to apply the summary judgment standard to resolve the jurisdictional issue. In contrast, Defendant argues alternatively that the merits are not intertwined and so the Court may resolve any fact issues at this time, or that no triable issues of fact exist and so summary judgment is appropriate on this issue at this time. Motion 2, n. 1; Reply 3:7-11.

  The Court finds that the summary judgment standard should apply in this case. Defendant relies on Hallett v. United States, 877 F. Supp. 1423 (D. Nev. 1995), where a district court found that the jurisdictional issue of scope of employment was not intertwined with liability under the FTCA. However, Hallett was a premises liability case where the court saw the question of jurisdiction to turn on whether the tortfeasors were acting within the scope of their employment, while the issue of liability concerned whether the federal government owed a duty to the plaintiffs arising out of its temporary control of the part of a building where the tortious activity took place. Id. at 1426-27. In contrast, here the issue of whether the government is liable for Ghuman's alleged negligence is directly tied to whether he was acting within the scope of his employment. Assuming he was negligent, governmental liability for the car accident turns wholly on whether or not he was acting within the course and scope of his employment as a Coast Guard member at the time of the accident.*fn4 As such, the jurisdictional issue is intertwined with the merits of the case and the Court will not make factual determinations at this time.

  In light of this conclusion, the Court will consider the declarations of Timothy Grant, William Albert, Kenneth Dean King, and David Cole attached to the parties' submissions to the extent that they indicate whether Ghuman was acting within the scope of his employment at the time of his accident, but will not resolve any factual issues at this time. If a triable issue ...


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