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City of Imperial v. Department of Navy

United States District Court, S.D. California

June 22, 2016



          Hon M. James Lorenz United States District Judge.

         Pending 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.

         I. Background

         On June 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 Admin. Claim.)

         Plaintiff’s 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.)

         Second, 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 dispute.

         Third, 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.)

         On 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].)

         II. Legal Standard

         Federal 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 Cir. 2003)).

         III. Discussion

         Defendant 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.

         A. Emergency Services Costs Under the FTCA

         “Under 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 ...

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