The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through this action, Plaintiffs Douglas Gibson, Holly Noel Shortal, Emerald Mayann Gibson, and Aiden Forrest Gibson ("Plaintiffs") bring suit for allegations of negligence and violations of federal law relating to the death of Noelle Ann Gibson. They seek monetary damages from the United States of America and the Department of Veterans Affairs ("Defendants") for claims brought under the Federal Tort Claims Act, 28 U.S.C. § 2817 et seq. ("FTCA").
Defendants now move to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).*fn1 Defendants also move to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6). For the reasons set forth below, Defendants' Motion to Dismiss under Rule 12(b)(1) is denied, and the Motion to Dismiss under Rule 12(b)(6) is granted.*fn2
Plaintiffs, spouse and heirs of decedent Noelle Ann Gibson, bring what amounts to a wrongful death action. According to Plaintiffs, the Department of Veterans Affairs operated Hines Consolidated Mail Order Pharmacy ("HCMP") in 2007. On July 20, 2007, HCMP shipped a prescription for Hydrocodone via FedEx. On July 23, 2007, this prescription was delivered to, signed for, and received by decedent. Decedent was not the intended recipient of the medication, nor was she that recipient's agent. Nearly one month later, on August 18, 2007, the decedent ingested the Hydrocodone, overdosed, and died.
Plaintiffs brought suit against FedEx, the United States, and the Department of Veterans Affairs for negligence and "violation of Federal Law" for failing to ensure that the prescription was delivered solely to its intended recipient. FedEx filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), which was granted. The action against FedEx now terminated, the remaining defendants move to dismiss Plaintiffs' complaint under Rules 12(b)(1) and 12(b)(6).
A. Motion to Dismiss Under Rule 12(b)(1)
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 ("factual attack").
Thornhill Publishing Co. v. General Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d 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).
B. Motion to Dismiss under Rule 12(b)(6)
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). In order to "state a claim for relief that is plausible on its face," Aschroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570), plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is ...