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 ...