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Endurance Reinsurance Corporation of America v. United States

February 2, 2010

ENDURANCE REINSURANCE CORPORATION OF AMERICA, A CORPORATION ADMINISTERED BY FIRSTCOMP INSURANCE, PLAINTIFF,
v.
UNITED STATES OF AMERICA; UNITED STATES POSTAL SERVICE; AND DOES 1-10 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff Endurance Reinsurance Corporation of America ("Plaintiff") seeks monetary relief from the United States of America and United States Postal Service ("Defendants") for claims arising under the Federal Torts Claims Act, 28 U.S.C. § 1346(b), et seq. ("FTCA").

Presently before the Court is a Motion by Defendants to Dismiss all claims against them for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).*fn1 For the reasons set forth below, Defendants' Motion to Dismiss is granted without leave to amend.*fn2

BACKGROUND*fn3

Plaintiff Endurance Reinsurance Corporation of America is a corporation authorized to write workers' compensation insurance in California. Plaintiff insured Dowell Trucking company against liability to its employees for compensation benefits under the Workers' Compensation Law of California.

On November 24, 2006, Mr. John Bassett*fn4, employed by Dowell Trucking Company, suffered an injury while in the course of his employment. This injury was allegedly the result of a defective or missing handrail at a postal facility located at 3131 Arch Airport Road, Stockton, California.

The insured party, Mr. Bassett, suffered injuries to his head, ribs, and rotator cuff. As a result of these injuries, Plaintiff "provide(d) benefits to Mr. Basset under a(n) insurance contract for workers' compensation benefits."

Mr. Bassett elected not to make a claim under the Federal Tort Claims Act and did not file a Complaint against the United States Government.

Plaintiff now files suits stating that it is "a true third party seeking recovery of benefits provided to Mr. Basset caused by the negligence of the Unites States Government/ United States Post Office," who owned, operated, and maintained the postal facility.

STANDARD

Federal Courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). Lack of subject matter jurisdiction is never waived and may be raised by either party or the court at any time. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). Lack of subject matter jurisdiction may be raised by the district court sua sponte: "Nothing is to be more jealously guarded by a court than its jurisdiction." In re Mooney, 841 F.2d. 1003, 1006 (9th Cir. 1988).

In moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12 (b)(1), the challenging party may either make a facial attack on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis. Thornhill Publ'g Co. v. Gen. Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977).

If the motion constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).

If the Court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Generally, leave to amend should be denied only if it is clear that the deficiencies of the complaint cannot be cured by amendment. ...


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