United States District Court, S.D. California
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
WITH PREJUDICE [DOC. 3]
James Lorenz United States District Judge.
before the Court is Defendant Department of the Navy’s
Motion to Dismiss Plaintiff City of Imperial’s
Complaint [Doc. 1] pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The Court decides the matter
on the papers submitted and without oral argument. See Civ.
L. R. 7.1(d)(1). For the reasons stated below, the Court
GRANTS WITH PREJUDICE Defendant’s Motion to Dismiss for
Lack of Subject Matter Jurisdiction.
4, 2014, a Marine Corps AV-8B Harrier jet crashed in the City
of Imperial, California. (See Compl. ¶ 6.) The City of
Imperial (“Plaintiff”) responded to the crash
scene by utilizing its Fire and Police emergency personnel,
Public Services staff, Building & Planning staff, and the
City Manager’s Office to provide emergency relief
services. (Admin. Claim [Doc. 7-3] ¶ 1.) On August 15,
2014, pursuant to 28 U.S.C. § 2675, Plaintiff submitted
an Administrative Claim to the Department of the Navy
(“Defendant”), requesting payment of $85, 079.68
for incident response costs associated with the crash. (See
Administrative Claim included three requests. First,
Plaintiff requested payment for emergency response costs,
totaling $28, 223.84. (Admin. Claim ¶ 2.) These costs
were accounted for in the supporting salary expense sheet,
identifying four categories of costs: (1) staff hours, (2)
supplies, (3) fire services, and (4) dispatcher services.
(See Serv. Invoice [Doc. 7-4] p. 2.)
Plaintiff requested payment for site security services,
totaling $56, 855.84. (Admin. Claim ¶ 3.) The claim for
site security services was provided in accordance with an
Intergovernmental Support Agreement (ISA) between the Marine
Corps and the City of Imperial. (See ISA [Doc 3-3 Ex. B].) On
August 22, 2014, the Government satisfied this request by
paying it in full. (See Payment Voucher [Doc. 3-3 Ex. D].)
The request for site security services is therefore not in
Plaintiff indicated property damage to public streets.
(Admin. Claim ¶ 5.) Specifically, the final paragraph of
Plaintiff’s Administrative Claim states “final
improvements are now being made to the public street damaged
in the crash and the property owners are in the process of
repairs. We look forward to this final resolution of the
City’s costs for this incident.” (Id.)
March 24, 2015, Defendant denied Plaintiff’s
Administrative Claim as to the emergency response costs of
$28, 223.84. (See Denial Letter [Doc. 3-3 Ex. E].) On
September 24, 2015, Plaintiff filed a Complaint against
Defendant seeking recovery of these costs under the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 2671, et seq.
and 1346(b)(1). Defendant now moves to dismiss
Plaintiff’s FTCA claim. (See MTD [Doc. 3].) Plaintiff
opposes. (See Opp’n [Doc. 7].)
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
They presumptively lack jurisdiction over civil actions and
the burden of establishing the contrary rests upon the party
asserting jurisdiction. Id. A motion to dismiss for
lack of subject matter jurisdiction may be brought by a
defendant pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure. Such a motion may be “facial” or
“factual.” See Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial
attack, the challenger asserts that the allegations contained
in a complaint are insufficient on their face to invoke
federal jurisdiction. Id. “[I]n a factual
attack, the challenger disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.” Id. In such cases, the court
may consider evidence extrinsic to the complaint and
“need not presume the truthfulness of the
plaintiff's allegations.” Id. “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.” Id. (quoting Savage v.
Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2. (9th
argues Plaintiff’s FTCA claim must be dismissed because
(1) emergency response costs are not cognizable under the
FTCA; (2) the “free public services doctrine”
bars Plaintiff’s claim; and (3) Plaintiff failed to
exhaust its administrative remedies prior to filing suit.
(See MTD.) The Court need only reach the first and third
arguments to decide this Motion.
Emergency Services Costs Under the FTCA
settled principles of sovereign immunity, the United States,
as sovereign, is immune from suit, save as it consents to be
sued . . . and the terms of its consent to be sued in any
court define that court’s jurisdiction to entertain the
suit.” United States v. Dalm, 494 U.S. 596,
608 (1990) (internal quotations omitted). In enacting the
Federal Tort Claims Act, Congress partially waived sovereign
immunity by ...