United States District Court, S.D. California
September 19, 2005.
PRISCILLA PARRILLA ARIZMENDEZ, Plaintiff,
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.
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,
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.