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DENNY v. U.S.

United States District Court, S.D. California


October 3, 2005.

LINDA EILENE DENNY, Plaintiff,
v.
UNITED STATES OF AMERICA, DOES 1 THROUGH 25, INCLUSIVE, Defendants.

The opinion of the court was delivered by: JEFFREY MILLER, District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Background

Plaintiff is an individual engaged in the operation of a goat dairy. In November 1997, Plaintiff signed a promissory note borrowing $79,990 from the Farm Service Agency ("FSA"), United States Department of Agriculture. Pursuant to the promissory note, if Plaintiff was not advanced the entire amount at loan closing, sums would be advanced to her upon her request and approval by the government. On March 19, 1998, Plaintiff requested that the FSA send her a check for $20,000, to be delivered in ten days. According to the allegations in Plaintiff's complaint, it is the custom and practice of the FSA to deliver checks within ten days of a request. The check was not delivered until April 21, 1998, approximately five weeks after Plaintiff's request.

  Plaintiff, proceeding in pro per, filed a lawsuit on March 20, 2000 (Case No. 00cv0572), claiming damages of $824,000, for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, and negligent performance of an undertaking to render service. Plaintiff claims this suit was filed on December 12, 2001, but that is actually the date Plaintiff filed a first amended complaint. Judge Napoleon A. Jones dismissed the case on July 17, 2002. Judge Jones found that Plaintiff lacked standing based upon her failure to list her claim in her bankruptcy schedules, and granted the Government's motion to dismiss, with prejudice.

  The United States Court of Appeals for the Ninth Circuit affirmed Judge Jones' dismissal on alternative grounds. The Ninth Circuit held that the district court lacked subject matter jurisdiction over the contract claims because Plaintiff's claim exceeded $10,000 and could therefore only be heard in the Court of Federal Claims. See McKeel v. Islamic Republic of Iran, 722 F.2d 582, 590 (9th Cir. 1983); 28 U.S.C. § 1491(a)(1); 28 U.S.C. § 1346(a)(2). Additionally, the Ninth Circuit held that the district court lacked subject matter jurisdiction over the tort claims because Plaintiff did not comply with the administrative claims procedures under the FTCA. 28 U.S.C. §§ 2671, et seq. Judge Jones dismissed Plaintiff's action pursuant to the Ninth Circuit's order on March 22, 2004.

  Plaintiff filed Standard Form 95 Tort Claim, pursuant to the Federal Tort Claims Act ("FTCA"), to exhaust her administrative remedies in August 2000. The claim was denied in a letter dated July 2, 2001. Plaintiff filed another claim with the FSA on September 13, 2002, which was denied on August 12, 2004.

  On February 11, 2005, Plaintiff filed essentially the same complaint as she did in 2000, and the matter was referred to this Court. On June 13, 2005, Defendant filed a motion to dismiss Plaintiff's complaint for lack of standing and for lack of subject matter jurisdiction. Plaintiff did not file an opposition to this motion.

  Failure to Oppose

  Pursuant to Civil Local Rule 7.1.f.3.c, if an opposing party fails to file papers opposing a motion 14 calendar days before a noticed hearing, such a failure may constitute a consent to the granting of the motion. Defendant gave notice on June 13, 2005, that it would move this Court for a dismissal on August 12, 2005. Pursuant to Civil Local Rule 7.1.e.2, Plaintiff had until July 29, 2005, to file papers opposing the motion. Plaintiff failed to do so. Lack of Subject Matter Jurisdiction Over Contract Claims

  Defendant argues that, pursuant to the Tucker Act, this Court lacks subject matter jurisdiction over Plaintiff's contract claims because she seeks $824,000 in damages. The Tucker Act gives the Court of Federal Claims exclusive jurisdiction to hear contract claims against the government that are in excess of $10,000. 28 U.S.C. § 1491(a)(1); 28 U.S.C. § 1346(a)(2). Indeed, Plaintiff's contract claims in her previous suit were dismissed on this basis. Denny v. Whitlock, et al., No. 00CV0572, slip op. at 1 (S.D.Cal. Mar. 22, 2004). Nothing has changed since Plaintiff's first action that warrants a different result. Plaintiff is still seeking relief in the amount of $824,000; therefore, this Court lacks subject matter jurisdiction over the contract claims.

  Lack of Subject Matter Jurisdiction Over Tort Claims

  Defendant argues that this Court lacks jurisdiction to hear Plaintiff's tort claims of breach of fiduciary duty and negligent performance of an undertaking to perform services because these claims are based on the underlying contract and, therefore, also arise under the Tucker Act. See Woodbury v. United States, 313 F.2d 291, 296 (9th Cir. 1963) ("[W]here . . . the action is essentially for breach of a contractual undertaking, and the liability, if any, depends wholly upon the government's alleged promise, the action must be under the Tucker Act, and cannot be under the Federal Tort Claims Act.").

  Plaintiff admits in her complaint that her causes of action against Defendant for breach of fiduciary duty and negligence are based on Defendant's failure to provide funds in a timely manner as allegedly required by contract. Because Plaintiff's tort claims are dependent on promises made in the contract, the action arises under the Tucker Act. Accordingly, this Court lacks subject matter jurisdiction over the tort claims.

  Judicial Estoppel

  Defendant argues that Plaintiff is judicially estopped from bringing her claim because she failed to list the claim in her schedule of assets as part of her bankruptcy proceeding. Judicial estoppel protects the integrity of the judicial system by preventing a party from asserting one position and then seeking an advantage by later asserting a clearly inconsistent position. See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). The principle has been applied in the bankruptcy context to stop a debtor from raising a cause of action that was not previously disclosed in her schedule of assets. Id. at 785. Here, the FSA allegedly failed to deliver the check to Plaintiff in March 1998. Plaintiff filed for bankruptcy in September 1998, but did not list her cause of action against the government as a potential asset. Plaintiff's re-opening of her bankruptcy case in 2002 does not solve the problem. It would further undermine the debtor's incentive to provide the bankruptcy court with full disclosure if a debtor could amend her schedule of assets after filing a lawsuit. See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1288 (11th Cir. 2002). Therefore, Plaintiff lacks standing to bring this claim.

  Transfer to Court of Federal Claims Is Not in the Interest of Justice

  In her complaint, Plaintiff authorizes the transfer of her case to the Court of Federal Claims pursuant to 28 U.S.C. § 1631. Section 1631 allows a court to transfer an action over which it lacks jurisdiction to a court where the action could have properly been filed if it is in the interests of justice. Plaintiff did not file an opposition to Defendant's motion to dismiss her complaint. Although Plaintiff is proceeding in pro per, she is still subject to the local rules. If Plaintiff does not have any interest in prosecuting this case, the Court will not do so for her.

  For all the above reasons, Defendant's motion to dismiss is GRANTED and Plaintiff's complaint is DISMISSED WITH PREJUDICE.

  IT IS SO ORDERED.

20051003

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