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ARIZMENDEZ v. U.S.

United States District Court, S.D. California


September 19, 2005.

PRISCILLA PARRILLA ARIZMENDEZ, Plaintiff,
v.
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, and DOES 1 through 50, Defendants.

The opinion of the court was delivered by: ROGER BENITEZ, District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL WITH LEAVE TO AMEND
Now before the Court is the federal Defendants' Motion for Partial Dismissal. The Court finds that a hearing is not necessary to decide this motion. Having reviewed the pleadings and the briefs of both parties, the Court Grants the Motion for Partial Dismissal, with leave to amend.

Plaintiff filed this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., against the United States of America and the Department of the Army. She asserts four claims for relief: (1) negligence; (2) fraudulent misrepresentation; (3) negligent misrepresentation; and (4) sexual abuse of a minor. Defendants move to dismiss claims two, three, and four, arguing the claims are barred by 28 U.S.C. § 2860(h).

  This Court agrees. Section 2860(h) specifies the types of claims which may not be pursued under the FTCA, stating the FTCA shall not apply to, "Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. . . ." Claims two, three, and four are claims for misrepresentation and assault and battery which are barred from relief under § 2860(h). Therefore, claims two, three, and four, against the United States of America are hereby, dismissed. Plaintiff also named the Department of the Army as a Defendant. However, the Department of the Army is not a proper or permissible defendant in a FTCA action against the federal government. Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995). Therefore, the Complaint against the Department of the Army is dismissed in its entirety. The only remaining claim, then, is the first claim for relief based upon negligence against the United States.

  In her opposition, Plaintiff seeks leave to amend her Complaint, should the motion to dismiss be granted. Plaintiff's request for leave is granted.

  CONCLUSION

  Defendant Department of the Army is dismissed as an improper defendant, with prejudice. Claims two, three, and four, against the United States are dismissed as barred by 28 U.S.C. § 2680(h), with prejudice. Plaintiff is hereby granted leave to amend her Complaint and shall do so, if at all, no later than October 17, 2005.

  IT IS SO ORDERED.

20050919

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