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Donna M. Slade v. California Public Employees' Retirement Service

September 19, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff is proceeding pro se in this action previously assigned to Judge Moulds. Pending before the court is defendant California Public Employees' Retirement System's ("CALPERS") motion to dismiss, filed June 8, 2011. Plaintiff opposes the motion as untimely and for defendant's failure to serve her.*fn1 At the July 28, 2011 scheduled hearing on the motion to dismiss, at which both parties appeared, Judge Moulds recused himself from the case. The merits of the motion were not argued at that hearing; however, Judge Moulds informed the parties that the matter would be scheduled for hearing on a future date after the case was reassigned to another magistrate judge. Upon review of the motion and the documents in support and opposition, the undersigned has determined that the matter is suitable for decision without oral argument. Accordingly, the court makes the following findings and recommendations.


From 1981 through 1986, plaintiff was employed in an unspecified position at Agnews State Hospital ("ASH"). In 1986, plaintiff resigned from ASH due to a work-related injury. In 2008, plaintiff sought a refund of her retirement contributions. Plaintiff's request for a refund was denied on the ground that she received it in 1986. (Compl. at 2.)

On July 9, 2008, plaintiff filed a claim with the California Victim Compensation and Government Claims Board. The claim was summarily rejected / denied on the basis that it was untimely, violating applicable statutes of limitations and claim filing requirements. (Def.'s Mot. at 3.)

On May 3, 2011, plaintiff filed suit in this court against CALPERS for declaratory relief, breach of contract, breach of fiduciary duty, trespass, misrepresentation and violations of Title I and II of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiff seeks damages in the amount of "$366.1 Quadrillion Dollars."


On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).

First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction.

For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).

Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . 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." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn2


Defendant seeks dismissal of plaintiff's complaint on the grounds that the court lacks jurisdiction over plaintiff's complaint and the complaint is untimely.

In her opposition, plaintiff argues only that defendant's motion should be denied because it is untimely and because she was not served properly. The docket in this case reflects that defendant was served with process on May 18, 2011. Pursuant to Federal Rule of Civil Procedure 12(a), a response was due twenty-one days thereafter (that is, on or before June 8, 2011). Defendant filed the instant motion to dismiss on ...

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