ORDER ON DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Doc. # 4
This is an action for damages that arises from a search of plaintiff Dennis Napier ("Plaintiff") by agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF" or "Defendant") on January 30, 2009. Plaintiff's residence and car were also searched on the same date. Plaintiff's complaint alleges a single claim for "Civil Rights Violation" and a total of ten other claims alleging various torts under California common law.
Currently before the court is Defendants' motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in the alternative, for failure to state a claim for which relief may be granted pursuant to Rule 12(b)(6). For the reasons that follow, Plaintiff's complaint will be dismissed for lack of subject matter jurisdiction.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff's complaint lacks sufficient factual information to determine when the events that give rise to Plaintiff's action occurred or what actions were taken subsequently by Plaintiff to obtain administrative review of his claims. Plaintiff's complaint is subject to dismissal on that account.
However, in order to present a more coherent factual narrative, the court will rely on facts presented in Defendant's motion to dismiss with the observation that Plaintiff has not opposed or contradicted any of the facts asserted by Defendant. On January 30, 2009, agents of ATF and officers of the Clovis Police Department stopped Plaintiff as he was driving in his truck and detained him and searched both Plaintiff and the truck. On the same day, the ATF agents and Clovis police officers conducted a warrantless search of Plaintiff's residence. Plaintiff was detained during the search. Although no items were seized, the complaint alleges Plaintiff's property was damaged or destroyed.
Defendant submits a number of documents for judicial notice. Because the motion before the court challenges the court's jurisdiction pursuant to F.R.C.P. 12(b)(1), the court grants the request for judicial notice and will consider the materials submitted. Among the materials submitted by Defendant is a copy of Plaintiff's completed Federal Tort Claim form, which is dated January 27, 2011, and a letter from the United States Department of Justice dated February 7, 2011, noting that the claim form had been received by the Department of Justice on January 31, 2011, and had been forwarded to the proper agency, ATF. The form was apparently received by ATF on February 7, 2011. ATF denied Plaintiff's administrative claim as time-barred. The complaint does not contain any allegation that a claim was filed with any California jurisdiction pursuant to the California Tort Claims Act.
Plaintiff filed the instant action in Fresno County Superior Court on January 30, 2012. The complaint was removed to this court on August 10, 2012 by the U.S. Attorney's office because the facts imply injury resulting from actions of federal employees within the scope of their employment. The motion to dismiss was filed on August 15, 2012.
Federal Rule of Civil Procedure 12(b)(1) allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction. A federal court has subject matter jurisdiction over an action that either arises under federal law or when there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a) (1998). When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. See Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). "A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 70 L.Ed. 682 (1926).
The United States District Court has exclusive jurisdiction over civil actions or claims against the United States for money damages for injury or loss of property or personal injury caused by negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a person would be held to the claimant in accordance with the law of the place where the act occurred. 28 U.S.C. § 1346. The FTCA is the exclusive remedy for injury resulting from federal employees acting within the scope of their employment. 28 U.S.C. § 2679. Accordingly, dismissal for lack of subject matter jurisdiction at this stage would effectively bar plaintiff's recovery.
The FTCA contains a requirement that the administrative claim be "submitted to the appropriate federal agency within two years of the alleged injury." 28 U.S.C. § 2401(b). This two year statute of limimitations is jurisdictional and cannot be waived. Rooney v. United States, 634 F.2d 1238, 1242 (9th Cir. 1980). FTCA claims accrue as a mater of federal law "when a plaintiff knows that he [or she] has been injured and who has inflicted the injury." Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001).
Also, the six-month limitation period for filing a tort action against the United States under the FTCA after the denial of an administrative claim is jurisdictional, therefore, remedies of equitable estoppel and equitable tolling do not apply. Marley v. United States, 567 F.3d 1030, 1035-38 (9th Cir. 2009)
"Although ordinarily the defendant bears the burden of proving an affirmative statute of limitations defense, where the statute of limitations is jurisdictional, and, 'when subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion.'" Kingman Reef Atoll Investments, L.L.C. v. U.S. 541 F.3d 1189, 1197 (9th Cir. 2008); (quoting Tosco Corp. v. Comtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir.2001)).
"In resolving a Rule 12(b)(1) motion [to dismiss] for lack of subject matter jurisdiction, unlike motions brought pursuant to Rule 12(b)(6), courts are generally free to consider relevant materials outside the pleadings. [Citations.]" Nat'l Comty. Reinvestment ...