ORDER DENYING MOTION TO DISMISS, SEVERING CLAIM AGAINST THE UNITED STATES, AND TRANSFERRING TO COURT OF FEDERAL CLAIMS Re: ECF No. 14
JON S. TIGAR, District Judge.
Before the Court is Defendant United States Department of Agriculture's ("USDA") Motion to Dismiss for Lack of Jurisdiction. ECF No. 14. Because this Court lacks subject matter jurisdiction over Plaintiffs' claims against USDA, but the claims could have been brought in the Court of Federal Claims, the Court will deny the motion, sever the claim against USDA, and transfer the claim to the Court of Federal Claims for further proceedings.
Plaintiffs allege they purchased an aircraft from Defendants on November 14, 2011. Compl. ¶ 1. When they tried to register the aircraft, Plaintiffs were informed by the Federal Aviation Administration ("FAA") that "the registration of said aircraft was cancelled on December 04, 2009 at the request of Defendant(s) as being totally destroyed or scrapped." Id . ¶ 2. Plaintiffs allege Defendants intentionally misrepresented the condition of the aircraft by falsely claiming the airframe had only 2, 900 hours of use, and by failing to disclose that the aircraft was de-registered by the FAA. Id.
In addition, Plaintiffs allege Defendants "knowingly and willfully removed major component's[sic] from the aircraft, before delivering the said aircraft to the Plaintiff(s) on January 30, 2012." Id . ¶ 3. The removed components allegedly included two radios, a black box, a rudder trim tab position transmitter, and a light dimmer. Id.
Finally, Plaintiffs allege that Defendants gave them "a current registration of an aircraft that was in good standing with the FAA, that did not march or belong to the aircraft that that Plaintiff(s) purchased from the Defendant(s), to intentionally mislead the Plaintiff(s) into believing they were receiving the current registration for the aircraft they purchased, that only needed some minor repairs." Id . ¶ 4.
Plaintiffs demand restitution "for the total cost for re-registering and obtaining the aircraft airworthiness certificate" and for "the replacement of all the missing component's[sic], " as well as reimbursement "for their expenses incurred including but not limited to, the cost paid to store the said aircraft, hotel accommodations, travel to and from California, to attend to said aircraft, court, etc., until this matter is settled and or ruled on by the courts." Id. at "Demand Restitution" ¶¶ 1-2.
Attached to the Complaint is a "Purchaser's Receipt and Authority to Release Property" listing in the "From:" field: "GSA, FAS, 9QSCC / Sales Office / 450 Golden Gate Ave 4th Floor West." Id . Ex. A002 ("Receipt"). The Receipt indicates the seller received $16, 300 from Lachana Williams of Tallahassee, Florida at auction. Receipt § 6. The "Owning Agency or Reporting Office" is listed as "USDA FOrset Service / Pacific Southwest Region." Id . § 7. The Property Description lists the item purchased as a 1967 Rockwell Commander 680 FL(P), tail number N911KC, a fixed wing aircraft with twin Lycoming Model 10720 engines. Id . § 9. The receipt states the right engine had thirty hours use since overhaul, the left, 1, 390, and the airframe, 2, 900. Id . The description also states: "Repairs required including but not limited to: plane has not been flown in over five years; right engine has metal in oil." Id . The description continues with "Bidders are strongly..." before skipping to the next page, which page Plaintifs did not include in their Complaint. However, Plaintiffs submitted with their opposition brief as Exhibit A034 a GSA Auctions webpage printout containing the same description; that description continues: "... encouraged to inspect prior to bidding." ECF No. 15, Ex. A034, p. 1. The webpage also states the auction closed on November 14, 2011, that the condition of the plane was not warranted, and that the seller would make the aircraft available for inspection the week of October 31, 2011 by appointment only (at which the seller would make the aircraft's records available as well). Id.
Also attached to the Compaint is an "Aircraft Bill of Sale" granting to Lachana Williams a Rockwell Aerocommander 680 with United States Registration Number N911KC, serial number 1696-36, on November 14, 2011. Compl., Ex. A001. The Bill of Sale lists the seller as General Services Administration ("GSA") c/o USDA and Kern County Fire Department, signed by Shirley Tarkington, whose title is listed as "Sales Contracting Officer, 9QSCC." Id . The make, model, tail number, and serial number on the aircraft in the registration card attached as Exhibit A010 to the Complaint is different. That card lists the aircraft as a Rockwell International 690A with tail number N490KC and serial number 11300; the card was issued to Kern County in Bakersfield, California in July 2009, and expires in October 2014.
The Complaint also attaches: a letter from the Kern County Fire Department dated November 16, 2009 in which Kern County notified the Civil Aviation Directory that it did not wish to register the aircraft Plaintiffs purchased at auction two years later because "[t]he aircraft [had] been non-operational for three years and has been partially stripped, " Ex. A003; a deregistration form for the subject aircraft dated December 4, 2009 indicating the aircraft was "totally destroyed or scrapped" at the request of the registrant, Kern County Fire Department, Ex. A006; and a letter from the FAA indicating the same, Ex. A003. Attached to the original complaint but omitted from the Amended Complaint was a bid from Megahertz Avionics, Inc. in Bakersfield, California to refurbish the missing equipment in the "AeroCommander N911KC" totaling $48, 230. ECF No. 1, p. 10. Plaintiffs submitted with their original complaint, but omitted from the Amended Complaint, a "Notice of Action Taken on Claim" dated September 5, 2012, from the Kern County Counsel indicating that Plaintiffs submitted a claim to the Kern County Board of Supervisors on August 10, 2012, which the Board rejected "on its merits." ECF No. 1, p. 8. The Notice contains a warning: "Subject to certain exceptions, you have only six (6) months from the date this notice was deposited in the mail to file a court action on this claim. You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately." Id . (citing Gov. Code § 945.6).
II. LEGAL STANDARD
"A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). In resolving a facial attack, courts assume that the allegations are true, and draw all reasonable inferences in the plaintiff's favor. Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004) (citations omitted). "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. The court need not presume the truthfulness of the plaintiff's allegations. Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Safe Air , 373 F.3d at 1039 (citations omitted).
Defendant USDA moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the grounds that Plaintiffs' Complaint (1) fails to demonstrate compliance with the Contract Disputes Act, 41 U.S.C. § 7101, et seq. , and (2) fails to establish ...