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Brisbin v. Central Federal Lands Highway Division

United States District Court, E.D. California

March 12, 2014

JOHN C. BRISBIN, Plaintiff,
v.
CENTRAL FEDERAL LANDS HIGHWAY DIVISION, Defendant.

ORDER ON GOVERNMENT'S F.R.Civ.P. 12 MOTION TO DISMISS

LAWRENCE J. O'NEILL, District Judge.

INTRODUCTION

Defendants United States and its Central Federal Lands Highway Division (collectively "Government") seek to dismiss pro se plaintiff John C. Brisbin's ("Mr. Brisbin's") breach of contract action in that proper jurisdiction lies with the Federal Claims Court, not this Court, under the Tucker Act, 28 U.S.C. ยง 1491. Mr. Brisbin asks this Court to effectively waive jurisdictional defects and to delay to rule on the Government's motion to dismiss so he can attempt to locate counsel despite a July 5, 2013 order to advise him to seek counsel. This Court considered the Government's motion to dismiss on the record and VACATES the March 18, 2014 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES this action for lack of subject matter jurisdiction.

BACKGROUND[1]

Mr. Brisbin and the United States entered into a March 17, 2009 contract for construction and repair of the Generals Highway in Sequoia National Park. Mr. Brisbin performed under the contract which the United States breached by failing to pay Mr. Brisbin. The complaint alleges damages of $823, 548.83.

DISCUSSION

F.R.Civ.P. 12(b)(1) Motion To Dismiss Standards

F.R.Civ.P. 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. "Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326 (1986). Fundamentally, federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 341 (1994). A "court of the United States may not grant relief absent a constitutional or valid statutory grant of jurisdiction." U.S. v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir. 2002). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Limits on federal jurisdiction must neither be disregarded nor evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396 (1978). "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." Tosco Corp. v. Communities for Better Environment, 236 F.3d 495, 499 (9th Cir. 2001).

When addressing an attack on the existence of subject matter jurisdiction, a court "is not restricted to the face of the pleadings." McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988). In such a case, a court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993 , 110 S.Ct. 541 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D. Or. 2003) (a court "may consider evidence outside the pleadings to resolve factual disputes apart from the pleadings").

No presumptive truthfulness attaches to a plaintiff's allegations, and the existence of disputed material facts does not preclude evaluation of the merits of jurisdictional claims. Thornhill Pub. Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979).

Lack of subject matter jurisdiction "may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235 (2006). F.R.Civ.P. 12(h)(3) instructs: "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."

With these standards in mind, this Court turns to the Government's challenges to this action proceeding in this Court.

Sovereign Immunity

"The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769 (1941). "There cannot be a right to money damages without a waiver of sovereign immunity." United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954 (1983). "[T]he United States may not be sued without its consent and... the existence of consent is a ...


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