The opinion of the court was delivered by: MARTIN JENKINS, District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
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.
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
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.
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 ...