United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, Jr., Chief District Judge.
On August 2, 2013, Plaintiff Security National Insurance Company ("Plaintiff"), as subrogee of All Power, Inc. ("All Power"), brought a negligence action against the United States of America ("Defendant") and Does 1 through 10 ("Doe Defendants") seeking reimbursement of workers' compensation benefits. Compl., Aug. 2, 2013, ECF No. 1. Defendant filed a Motion to Dismiss ("Motion"), which Plaintiff timely opposed. Mot., Oct. 28, 2013, ECF No. 10. For the following reasons, the Court GRANTS Defendant's motion to dismiss with prejudice.
Plaintiff, as subrogee of All Power, filed a Complaint against Defendant and Doe Defendants for negligence arising from injuries sustained by four All Power employees who were constructing a perimeter masonry wall at an electrical substation at Beale Air Force Base. At approximately 8:30 a.m. on October 17, 2011, one of the All Power employees, Robyn Holloway, was bending rebar to place in a masonry wall when electricity arced from the substation to the rebar, traveled through his body and out his lower leg and ankle. As a result, Robyn Holloway was electrocuted and rendered unconscious. The three other All Power employees, Sterling Holloway, Blake Wolfwinkel and Cheyanne Sinkola, tried to put out the flames and assist Robyn Holloway. Robyn Holloway sustained burns over a significant portion of his body. Sterling Holloway, Blake Wolfwinkel and Cheyanne Sinkola claim injuries as a result of witnessing Robyn Holloway's injuries and/or being forced to put out the flames engulfing him. Plaintiff alleges that the United States was negligent in its duty to properly supervise and direct workers working in the immediate vicinity of the electrical substation.
All Power reported the injuries sustained by its four employees to Plaintiff. Plaintiff paid indemnity and medical benefits to or on behalf of the four employees and alleges that it will continue to pay these benefits. Plaintiff brings this action pursuant to California Labor Code § 3853 to recover the benefits that Plaintiff paid and will likely continue to pay as a result of the above incident.
Defendant now moves to dismiss Plaintiff's Complaint with prejudice for lack of subject matter jurisdiction on the grounds that Plaintiff failed to exhaust its tort claims by not presenting an administrative claim to the United States Air Force as required by the Federal Tort Claims Act ("FTCA"). Mot., Oct. 28, 2013, ECF No. 10. Defendant also moves to dismiss the Doe Defendants. Id.
Federal courts are courts of limited jurisdiction, and are presumptively without jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). The burden of establishing the contrary rests upon the party asserting jurisdiction. Id . Because subject matter jurisdiction involves a court's power to hear a case, it can never be forfeited or waived. United States v. Cotton , 535 U.S. 625, 630 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at any point during the litigation, through a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Arbaugh v. Y&H Corp. , 546 U.S. 500, 506 (2006); see also Int'l Union of Operating Eng'rs v. Cnty. of Plumas , 559 F.3d 1041, 1043-44 (9th Cir. 2009). Lack of subject matter jurisdiction may also be raised by the district court sua sponte. Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583 (1999). Indeed, "courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party." Id .; see Fed.R.Civ.P. 12(h)(3) (requiring the court to dismiss the action if subject matter jurisdiction is lacking).
There are two types of motions to dismiss for lack of subject matter jurisdiction: a facial attack and a factual attack. Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp. , 594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the allegations of jurisdiction contained in the nonmoving party's complaint, or may challenge the existence of subject matter jurisdiction in fact, despite the formal sufficiency of the pleadings. Id.
In the case of a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations." Thornill, 594 F.2d at 733 (internal citation omitted). The party opposing the motion has the burden of proving that subject matter jurisdiction does exist, and must present any necessary evidence to satisfy this burden. St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir. 1989). If the plaintiff's allegations of jurisdictional facts are challenged by the adversary in the appropriate manner, the plaintiff cannot rest on the mere assertion that factual issues may exist. Trentacosta v. Frontier P. Aircraft Ind., Inc. , 813 F.2d 1553, 1558 (9th Cir. 1987) (quoting Exch. Nat'l Bank of Chi. v. Touche Ross & Co. , 544 F.2d 1126, 1131 (2d Cir. 1976)). Furthermore, the district court may review any evidence necessary, including affidavits and testimony, in order to determine whether subject matter jurisdiction exists. McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988); Thornhill , 594 F.2d at 733. If the nonmoving party fails to meet its burden and the court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3).
A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment...." Foman v. Davis , 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc. , 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party... carries the greatest weight." Id . (citing DCD Programs, Ltd. v. Leighton , 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc. , 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc. , 411 F.3d 1006, 1013 (9th Cir. 2005)); Ascon Props., Inc. v. Mobil Oil Co. , 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted where the amendment of the complaint... constitutes an exercise in futility...")).
A. Subject Matter Jurisdiction
Defendant moved to dismiss Plaintiff's Complaint with prejudice pursuant to Rule 12(b)(1). According to Defendant, Plaintiff's failure to exhaust its tort claims by not presenting an administrative claim to the United States Air Force, as required under the Federal Tort Claims Act ("FTCA"), deprives the Court of jurisdiction. Although the FTCA waives the sovereign immunity of the United States for actions in tort, it requires "that before [a party] can file an action against the United States in district court, [it] must seek an administrative resolution of [its] claim." Jerves v. United States , 966 F.2d 517, 518 (9th Cir. 1992). The Ninth Circuit "[has] repeatedly held that the exhaustion requirement is jurisdictional in nature and must be interpreted strictly." Vacek v. U.S. Postal Serv. , 447 F.3d 1248, 1250 (9th Cir. 2006). Courts may not "proceed in the absence of fulfillment of the conditions merely because dismissal would visit a harsh result upon the plaintiff." Id . "With regard to the exhaustion requirement, the Supreme Court ...