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Nino v. United States

United States District Court, S.D. California

March 6, 2015

MAYRA PAREDES NINO, Individually and as Wife of Decedent Jose Alfredo Yanez Reyes; J.A.Y.P; J.R.Y.P., Minors by MAYRA PAREDES NINO, their Guardian ad Litem. Plaintiffs,
v.
UNITED STATES OF AMERICA, and DOES 1 through 25, inclusive, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the Motion to Dismiss Plaintiffs' Second Amended Complaint (ECF No. 43) and the Ex Parte Application Requesting Permission to Submit Evidence in Defendant's Reply Brief Responding to Plaintiffs' Opposition Evidence (ECF No. 50) filed by Defendant United States of America.

I. Background

On February 27, 2013, Plaintiffs Mayra Paredes Nino ("Nino"), individually and as wife of Decedent Jose Alfredo Yanez Reyes ("Yanez"); and JY and RY, minors by Plaintiff Nino, their Guardian ad Litem, initiated this action by filing the Complaint. (ECF No. 1). On August 26, 2013, Defendant United States of America filed a motion to dismiss. (ECF No. 9). On September 26, 2013, with the motion to dismiss pending, Plaintiffs and the United States filed a joint motion to amend the Complaint. (ECF No. 13). On October 4, 2013, Plaintiffs filed the First Amended Complaint ("FAC"). (ECF No. 17). On November 15, 2013, Defendants United States, Department of Homeland Security ("DHS"), United States Customs and Border Protection ("CBP"), and United States Border Patrol ("Border Patrol") (collectively "Government Defendants") filed a motion to dismiss pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. (ECF No. 27).

On March 13, 2014, the Court granted the Government Defendants' motion to dismiss. (ECF No. 32). The Court dismissed Plaintiffs' second, third, fourth, fifth, sixth, and seventh claims for relief-all brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (" Bivens claims")-to the extent they were brought against the Government Defendants or federal employee Defendants in their official capacities. Id. at 8-9. The Court found that these claims were barred by sovereign immunity because the FAC "fails to show an unequivocal waiver of immunity.'" Id. at 9 (citing Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987)). The Court also dismissed Plaintiffs' first claim for relief against the Government Defendants for violation of the law of nations on sovereign immunity grounds.

On April 14, 2014, Plaintiffs filed the Second Amended Complaint ("SAC"), which is the operative pleading. (ECF No. 33). The SAC names the United States as a Defendant and asserts the following claims for relief: (1) violation of the law of nations under the Alien Tort Statute ("ATS"); (2) wrongful death under the Federal Tort Claims Act ("FTCA") and California Code of Civil Procedure section 377.60-62; and (3) emotional distress under the FTCA and California Common Law. On April 28, 2014, Defendant United States filed a motion to dismiss the SAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 34).

On October 6, 2014, the Court issued an Order granting in part and denying in part Defendant's motion to dismiss. (ECF No. 37). The Court denied Defendant's motion to the extent Defendant sought dismissal for lack of subject matter jurisdiction based on the Federal Tort Claims Act's ("FTCA") foreign country exception.[1] The Court found that the foreign country exception contentions had "not been properly raised in the present motion to dismiss" and that Defendant "raises no contentions specific to the SAC, the operative pleading." Id. at 14.

On December 16, 2014, Defendant filed the Motion to Dismiss Plaintiffs' Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 43). On January 3, 2015, Plaintiffs filed an opposition, wherein Plaintiffs requested a continuance and opportunity to counter evidence submitted by Defendant. (ECF No. 44). On January 11, 2015, Defendants filed a reply. (ECF No. 46).

On January 16, 2015, the Court issued an Order, stating that "Plaintiffs shall have until Monday, February 2, 2015 to file any evidence in opposition to Defendant's Motion to Dismiss. Defendant shall have until Monday, February 9, 2015 to file a reply limited to legal argument." (ECF No. 47 at 3). On February 2, 2015, Plaintiffs filed a supplemental opposition. (ECF No. 48). On February 9, 2015, Defendant filed a reply with evidence (ECF No. 49), accompanied by the Ex Parte Application Requesting Permission to Submit Evidence in Defendant's Reply Brief Responding to Plaintiffs' Opposition Evidence (ECF No. 50). On February 27, 2015, the Court heard oral argument on the Motion to Dismiss Plaintiffs' Second Amended Complaint. (ECF No. 52).

II. Contentions of the Parties

Defendant moves to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1). First, Defendant moves to dismiss Plaintiffs' second claim for wrongful death pursuant to the foreign country exception to the FTCA, on the ground that Yanez died on Mexican soil. Second, Defendant moves to dismiss Plaintiffs' third claim for emotional distress pursuant to the foreign country exception to the FTCA, on the ground that Plaintiffs personally witnessed Yanez's death while standing on Mexican soil. Finally, Defendant moves to dismiss claims asserted by Plaintiff Nino on the ground that Plaintiff Nino lacks standing to sue on behalf of Yanez's estate. Defendant contends that Plaintiff Nino is not Yanez's wife, heir, personal representative, or successor in interest.

Plaintiffs contend that this motion is barred by collateral estoppel because the Court ruled on October 7, 2014 that the SAC states valid claims for relief. Plaintiffs contend that Yanez's death occurred on United States soil. Plaintiffs contend that the foreign country exception to the FTCA does not apply to this case because Defendant trained its officers on United States soil. Plaintiffs contend that Plaintiff Nino may assert claims as the guardian ad litem to Yanez's children and as a "qualified domestic partner [of Yanez] under Mexican law." (ECF No. 44 at 9). Plaintiffs request leave to amend to clarify facts alleged in the SAC in the event that the Court rules in Defendant's favor.

III. Discussion

A. Plaintiff Nino's ...


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