The opinion of the court was delivered by: Cathy Ann Bencivengo United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [DOC. NO. 13]
Presently before the Court is a motion to dismiss Plaintiff Daniel S. Schroder's December 9, 2010 complaint (the "Complaint") , which was filed by Defendants AUSA Stacey H. Sullivan ("AUSA Sullivan"), Special Agent Mark K. Dao ("Agent Dao") and Special Agent Samuel S. Medigovich ("Agent Medigovich") on June 7, 2011. Having considered the motion, response in opposition, and reply papers [Doc. Nos. 13-15], the motion [Doc. No. 13] is GRANTED.
This case arises out of the indictment, arrest and criminal prosecution of Plaintiff Schroeder. The complaint at issue was filed on December 9, 2010 (the "Complaint") and alleges two Bivens claims against AUSA Sullivan, Agent Dao, Agent Medigovich and other unknown federal prosecutors and agents.*fn1 As originally filed, the Complaint also alleged state law claims against the individual defendants. On June 6, 2011, the United States substituted itself as a defendant in place of the individuals with respect to those claims. As explained below, those claims are now deemed to be claims brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq.
The facts set forth herein are taken from the Complaint, and all facts pled in the Complaint are accepted as true for purposes of this procedural juncture only.
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id.
In evaluating whether the complaint states a plausible claim for relief, the Court should consider the allegations of the complaint as a whole. Twombly, 550 U.S. at 569 n.14 ("[T]he complaint warranted dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible."); see also Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011) ("The question confronting a court on a motion to dismiss is whether all the facts alleged, when viewed in the light most favorable to the plaintiffs, render the plaintiff's entitlement to relief plausible.") (citing Twombly, 550 U.S. at 569 n.14); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) ("[T]he complaint should be read as a whole."); Vila v. Inter-Am. Inv. Corp., 570 F.3d 274, 285 (D.C. Cir. 2009) (factual allegations should be "[v]iewed in their totality"); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1253 n.11 (11th Cir. 2005) ("[T]he placement of the paragraph in another count is unimportant . . . . We read the complaint as a whole.").
Finally, this review requires context-specific analysis involving the Court's "judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990).
Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
1. The United States Properly Substituted Itself as a Defendant in Place of the Individuals and No Material Issues of Fact Exist to Challenge the United States' Certification As originally filed, in addition to two Bivens claims, the Complaint also alleged state law
claims against the individual defendants. On June 6, 2011, the United States substituted itself as a defendant in place of AUSA Sullivan, Agent Dao, and Agent Medigovich. As a result, those claims are now deemed to be FTCA claims against the United States.
In this case, to effectuate the substitution of the United States, Civil Chief Tom Stahl of the United States Attorney's Office ("Stahl") certified that Defendants AUSA Sullivan, Agent Dao and Agent Medigovich were acting in the scope of their federal employment with regard to the events described in the Complaint. [Doc. No. 11; Doc. No 15 at 1-2.]*fn2 Plaintiff challenges whether Stahl had the authority to issue the certification, and if so, whether material issues of fact exist with regard to Defendants' alleged conduct being outside the scope of their employment.
First, Defendants present ample evidence that Stahl had such authority. [See Doc. No. 15 at 1-2.] Second, as explained below, there are no material issues of fact regarding Defendants' alleged ...