United States District Court, S.D. California
October 3, 2005.
LINDA EILENE DENNY, Plaintiff,
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
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, 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
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.
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
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
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.