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Douglas Gibson, Holly Noel Shortal, Emerald v. Memorandum and Order Fedex Corporation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 31, 2011

DOUGLAS GIBSON, HOLLY NOEL SHORTAL, EMERALD MAYANN GIBSON, AND AIDAN FORREST GIBSON, MINORS, BY AND THROUGH THEIR GUARDIAN AD LITEM, DOUGLAS GIBSON, PLAINTIFFS,
v.
MEMORANDUM AND ORDER FEDEX CORPORATION, UNITED STATES OF AMERICA, DEPARTMENT OF VETERANS AFFAIRS, DEFENDANTS.

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

The heirs of decedent Noelle Ann Gibson ("Decedent"), Plaintiffs Douglas Gibson, Holly Noel Shortal, Emerald Mayann Gibson, and Aiden Forrest Gibson ("Plaintiffs"), have brought 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").

Defendant has moved to dismiss Plaintiffs' Second Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),*fn1 and for failure to state a claim upon which relief may be granted under Rule 12(b)(6). As Defendant rightly points out in their motion, Plaintiffs' Second Amended Complaint is nearly identical to their First Amended Complaint save a few differences, none of which materially alter the nature of Plaintiff's allegations. The Second Amended Complaint also fails to precisely address the issues the Court raised in its previous Order dismissing the First Amended Complaint (ECF No. 34).

As such, Defendant's Motion to Dismiss (ECF No. 36) is GRANTED without further leave to amend. The Clerk is ordered to close the case.

IT IS SO ORDERED.


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