The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Fern L. Hudson ("Plaintiff") seeks monetary relief from the United States of America ("Defendant") for claims arising under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), et seq. ("FTCA").
Presently before the Court is a Motion by Defendant to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, Defendant's Motion to Dismiss is granted.*fn1
On June 14, 2008, Mrs. Fern Hudson, an 80-year-old woman, suffered an injury while grocery shopping at the McClellan Commissary at McClellan Air Force Base. Plaintiff alleges that while standing at the checkout counter, a "bagger" or other employee was moving an electric shopping cart. The cart struck Plaintiff causing her right femoral shaft to shatter and throwing her body to the floor where she struck her head.
Plaintiff asserts that she timely filed an administrative claim and upon denial, subsequently, filed suit in this Court pursuant to FTCA procedure.
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, 377 (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).
Defendant argues that Plaintiff's action should be dismissed for lack of subject matter jurisdiction because it does not satisfy the FTCA's jurisdictional requirement that her injuries be caused by a government employee. Plaintiff counters that the Defendant should be liable for the bagger's negligent actions.
"The Federal Tort Claims Act waives the United States' sovereign immunity for actions in tort." Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992). Under the FTCA, the federal government waives ...