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Tobar v. United States

January 15, 2008

OSWALDO ENRIQUE TOBAR, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed by the United States. (Doc. # 10).

Background

On May 4, 2007, Plaintiffs*fn1 filed a Complaint against the United States in the Southern District of Texas. (Doc. # 1). The Complaint alleges that Plaintiffs are residents of Ecuador. Complaint, p. 2. The Complaint alleges that on October 5, 2005, in international waters off the coast of Ecuador, the United States Coast Guard Law Enforcement Detachment ("Coast Guard"), which is owned and operated by the United States, unlawfully and negligently "stopped, searched, arrested, detained and imprisoned the Plaintiffs, seized the boat [and] destroyed the cargo and fish owned by Plaintiffs." Id. The Complaint alleges that this incident arose out of suspicion that Plaintiffs were possessing and smuggling drugs. Id. The Complaint alleges that the Coast Guard acted carelessly, recklessly, negligently, or intentionally during the incident, and caused injury to Plaintiffs and their vessel. Id. at 3.

The Complaint alleges that this action "arises in part" under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2661, et seq., the Suits in Admiralty Act ("SAA"), 46 U.S.C. §§ 30901-30918, and the Public Vessels Act ("PVA"), 46 U.S.C. §§ 31101-31113. The Complaint also alleges that the Coast Guard's conduct violated "international law," "treaty obligations with Ecuador," and Plaintiffs' rights as protected by the United States Constitution. Complaint, p. 3-4.

On May 4, 2007, the case was transferred from the Southern District of Texas to the Southern District of California. (Doc. # 1).

On August 31, 2007, the United States filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction ("Motion to Dismiss"), pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. # 10). The United States moves the Court to dismiss this action with prejudice for lack of subject matter jurisdiction on grounds that there has been no waiver of its sovereign immunity under the FTCA, SAA or PVA, and Plaintiffs have failed to establish any other basis for subject matter jurisdiction.

On September 5, 2007, Plaintiffs filed a Motion to Compel Discovery (Doc. # 16), which asserted the need for additional discovery in order to oppose the Motion to Dismiss. On November 7, 2007, United States Magistrate Judge McCurine issued an Order Denying the Motion to Compel, concluding that discovery was not necessary for Plaintiffs to oppose facts set out in the Motion to Dismiss. (Doc. # 24).

On November 13, 2007, Plaintiffs filed a Response in Opposition to the Motion to Dismiss. (Doc. # 25). Plaintiffs oppose the Motion to Dismiss on grounds that sovereign immunity has been waived pursuant to the SAA, that the Complaint alleges violations of Plaintiffs' rights as protected by the United States Constitution and international law, and that Plaintiffs are entitled to discovery.

On November 26, 2007, the United States filed a Reply to the Motion to Dismiss. (Doc. # 26).

Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal on grounds that the court lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(b)(1). The burden is on the plaintiff to establish that the court has subject matter jurisdiction over an action. Assoc. of Medical Colleges v. United States, 217 F.3d 770, 778-779 (9th Cir. 2000). In resolving an attack on a court's jurisdiction, the court may go outside the pleadings and consider evidence beyond the complaint relating to jurisdiction without converting the motion to dismiss into a motion for summary judgment. Safe Air For Everyone v. Doyle, 373 F.3d 1035, 1039 (9th Cir. 2004).

Discussion

I. Plaintiff's Discovery ...


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