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Gibson v. Fedex Corp.


October 19, 2010


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


Through this action, heirs of Decedent Noelle Ann Gibson ("Decedent"), 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 resulting in Decedent's death. They seek monetary damages from the United States of America ("Defendant") for claims brought under the Federal Tort Claims Act, 28 U.S.C. § 2817 et seq. (the "FTCA").

Because the Defendant claims sovereign immunity with regard to these claims, it moves to dismiss Plaintiffs' First Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).*fn1 Defendant also moves 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, the Court denies Defendant's Motion to Dismiss under Rule 12(b)(1), and grants their Motion to Dismiss under Rule 12(b)(6).*fn2


This is a claim for negligence and damages from the Defendant's alleged violations of the Federal Tort Claims Act. On or about August 18, 2007, Plaintiffs' Decedent, Noelle Ann Gibson, allegedly died from an overdose of Hydrocodone. Plaintiffs allege that through Defendant's negligence and statutory violations, Decedent improperly obtained possession of a Hydrocodone prescription, which allegedly led to her untimely death.

On July 20, 2007, Defendant's agent, Hines Consolidated Mail Order Pharmacy (hereinafter CMOP), shipped a prescription of Hydrocodone to Albert E. Madkins at his residential address.

Mr. Madkins was the intended recipient of the prescription.

Decedent was never Mr. Madkins' agent and Mr. Madkins is not a party in this action. Nearly one month later, on August 18, 2007, the Decedent ingested Hydrocodone, overdosed, and died.

Plaintiffs brought suit against FedEx Corp. ("FedEx"), the United States, and the Department of Veterans Affairs for negligence, violating federal law, and 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) (ECF No. 11) which was granted by this Court. (ECF No. 16.) The Department of Veteran Affairs filed a Motion to Dismiss Improper Defendant under 26 U.S.C. § 2679(d)(1) (ECF No. 24) which was granted. (ECF No. 28.) The actions against FedEx and the Department of Veteran Affairs now terminated, the remaining Defendant moves to dismiss Plaintiffs' First Amended Complaint ("FAC") under Rules 12(b)(1) and 12(b)(6). (ECF No. 29.)


A. Motion to Dismiss Under Rule 12(b)(1)

Rule 12(b)(1) permits the dismissal of a civil matter if a party can establish that the court lacks subject matter jurisdiction over the claim. Since federal courts are presumptively without jurisdiction over civil actions, the burden of establishing jurisdiction rests upon the party asserting jurisdiction.

See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (explaining that either diversity of citizenship or a federal question is required for federal court to assert subject matter jurisdiction over a case); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (the burden of establishing federal jurisdiction lies upon the party asserting jurisdiction). The "objection that a federal court lacks subject-matter jurisdiction [under] Fed. Rule Civ. Proc. 12(b)(1), may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). "Nothing is to be more jealously guarded by a court than its jurisdiction." In re Mooney, 841 F.2d. 1003, 1006 (9th Cir. 1988) (overruled on other grounds by Partington v. Gedan, 923 F.2d 686 (9th Cir. 1991)). Subject matter jurisdiction requirements can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 (2002).

In moving to dismiss for lack of subject matter jurisdiction, the challenging party may either make a "facial attack" on the allegations contained in the complaint, or take issue with subject matter jurisdiction on a factual basis ("factual attack"). 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 (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.

In 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)

A party may seek dismissal of a claim if the pleadings are insufficient because they fail to state a claim upon which relief may be granted. 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 (1957).

Although "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. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) ("[T]he pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action."). If the "plaintiffs...have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Twombly, 550 U.S. at 570.

Once the court grants a motion to dismiss, they must then decide whether to grant a plaintiff leave to amend. Rule 15(a) authorizes the court to freely grant leave to amend when there is no "undue delay, bad faith, or dilatory motive on the part of the movant." Foman v. Davis, 371 U.S. 178, 182 (1962). In fact, leave to amend is generally only denied when it is clear that the deficiencies of the complaint cannot possibly be cured by an amended version. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Balistieri v. Pacifica Police Dept., 901 F. 2d 696, 699 (9th Cir. 1990) ("A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim would entitle him to relief.") (internal citations omitted).


Plaintiffs allege negligence and violations of the FTCA, and seek monetary relief from the Defendant. The issues before the Court are (1) whether it lacks subject matter jurisdiction over the claim pursuant to Rule 12(b)(1); and (2) whether the Court should dismiss the claim under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The United States is insulated from suit by federal sovereign immunity, unless expressly waived by Congress. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (quoting Block v. North Dakota, 461 U.S. 273, 280 (1983)). The FTCA "waives the United States' sovereign immunity 'in a defined category of cases involving negligence committed by federal employees in the course of their employment.'" Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1018-19 (9th Cir. 2007) (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006)). The Act provides that government can be subject to suit "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.

Defendant argues that this Court lacks subject matter jurisdiction because the federal government has not waived its sovereign immunity. (Def.'s Mot. To Dismiss at 3.) In support of this argument, Defendant contends that Plaintiffs have not alleged any negligent act or omission by a federal employee.

(Id. at 4.) Plaintiffs' Opposition cites various provisions of the California Business and Professions Code as support that a private pharmacy would be liable in this instance, thus the government is subject to suit. (Pls.' Opp'n 4.)

The Ninth Circuit has held that "where the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill, 594 F.2d at 733-35). See also Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005).

In the case at hand, the parties dispute many of the material jurisdictional facts. Defendant asserts that Plaintiffs have not alleged sufficient facts to show that Defendant is responsible for the alleged misdelivery of the Hydrocodone prescription. (Def.'s Mem. 4-5.) Defendant's objections to Plaintiffs' claims cut to the merits of Plaintiffs' complaint and are better addressed through a Rule 12(b)(6) motion, as discussed below. Therefore, Defendant's Motion to Dismiss for lack of subject matter jurisdiction is denied without prejudice.

B. Motion to Dismiss for Failure to State a Claim

1. Negligence Cause of Action

Plaintiffs allege that Defendant, through its agent, CMOP, negligently shipped a prescription of Hydrocodone to Decedent who was not the intended recipient thereby causing Decedent's death. (FAC ¶¶ 12-15.) Wrongful death is "a statutorily created cause of action" that permits heirs to recover pecuniary losses from someone who, through a negligent or wrongful act, caused decedent's death. Jacoves v. United Merch. Corp., 9 Cal. App. 4th 88, 105 (1992). Negligence "involves the violation of a legal duty, imposed by statute, contract, or otherwise, by the defendant to the person injured," i.e., the deceased in a wrongful death action. Nally v. Grace Cmty. Church, 47 Cal. 3d 278, 292 (1988).

In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence. Twombly, 550 U.S. at 562. A plaintiff must allege: (1) the defendant had a legal duty to use due care; (2) the defendant breached such legal duty; (3) the defendant's breach was the proximate or legal cause of the resulting injury; and (4) damage to the plaintiff. Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996). The existence of a defendant's legal duty is a question of law to be determined by the court. Ky. Fried Chicken of Cal., Inc. v. Superior Court, 14 Cal. 4th 814, 819 (1997); Isaacs v. Huntington Mem'l Hosp., 38 Cal. 3d 112, 124 (1985).

When not provided by statute, the existence of such a duty "depends upon the foreseeability of the risk and a weighing of policy considerations for and against the imposition of liability." Jacoves, 9 Cal. App. 4th at 107.

Plaintiffs assert that Defendant "owed plaintiffs and plaintiffs' Decedent a duty not to engage in any conduct that would cause an injury to another. In addition, defendant owed plaintiffs and plaintiffs' decedent a duty not to deliver a controlled substance to anyone other than the intended recipient pursuant to" various sections of the California Business and Professions Code. (FAC ¶ 13) While Plaintiffs have cited in their complaint a statute as requested by this Court in its previous Order (See ECF No. 28 at 9), they do not allege which specific statute creates either a duty or a special relationship that would give rise to a duty between a pharmacy and a third party.*fn3 Plaintiffs also do not allege specific facts regarding how Defendant's actions violated an applicable statute section.

In its Opposition to Defendant's Motion to Dismiss the Complaint, Plaintiffs provide no facts to satisfy its burden under Rule 12(b)(6).*fn4 Thus, in order for such a duty to exist, Plaintiffs must allege that Defendant's actions created a foreseeable risk of harm to Decedent.

Plaintiffs do not allege any behavior on the part of Defendant that would indicate the creation of a foreseeable risk. They also fail to allege how a pharmacy, whose employees are not present at the time of the delivery, owes a duty to a third party for the misdelivery of a package containing prescription drugs. There is no factual allegation that Defendant knew or should have known that a third party would open the package and misuse its contents. Accordingly, Defendant's Motion to Dismiss is granted with leave to amend.

2. Violation of Federal Law

Plaintiffs' second claim alleges that Defendant violated 21 U.S.C. § 801 et seq., and 21 U.S.C. § 812 by failing to ensure that the Hydrocodone "was delivered solely and only to the intended patient," and by "not prohibiting the delivery of said prescription to plaintiffs' decedent." (FAC ¶¶ 20-21.)

While a complaint need not identify the statutory source of the claim raised in order to survive a motion to dismiss, the facts alleged must provide "fair notice" of the claim. Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 545). The "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 545, 555. Plaintiffs' mere conclusion that Defendant has violated a federal statute does not meet the Twombly standard.

Plaintiffs have failed to allege specific statute violations or facts regarding how Defendant's actions violated the applicable statutes. Even after accepting all well-pled accusations as true, Plaintiffs have not stated a claim upon which relief can be granted. Accordingly, Defendant's Motion to Dismiss is granted with leave to amend.


Based on the foregoing, Defendants' Motion to Dismiss (ECF No. 24) is DENIED as to Rule 12(b)(1), and is GRANTED with leave to amend as to Rule 12(b)(6). Plaintiffs may file an amended complaint not later than twenty (20) days after this Memorandum and Order is filed electronically.

If no amended complaint is filed within said twenty (20)-day period, the Court will dismiss Plaintiffs' claims without further notice and without leave to amend.


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