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Doe v. Kelly

United States District Court, S.D. California

April 25, 2017

JANE DOE, et al., Plaintiffs,
JOHN F. KELLY, et al., Defendants.


          Thomas J. Whelan United States District Judge

         Pending before the Court is a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) filed by Defendants United States of America and John F. Kelly, Secretary of the Department of Homeland Security (collectively “Federal Defendants”). Plaintiffs oppose.

         The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons that follow, the Court DENIES Federal Defendants' motion to dismiss [Doc. 30].

         I. Background

         Plaintiffs Jane Doe and Jane Roe are female Border Patrol Agents, and members of the Critical Incident Investigative Team (“CIIT”) at the Chula Vista Border Patrol Station in California. (Second Am. Comp. (“SAC”) [Doc. 33] ¶ 20.) Defendant Armando Gonzalez was one of Plaintiffs two supervisors on the CIIT and, as such, had the authority to undertake or make recommendations regarding employment decisions affecting Plaintiffs. (Id. ¶ 21.)

         The CIIT office in Chula Vista had one women's restroom that doubled as a changing room for the female agents. (SAC. ¶ 24.) Plaintiffs used the restroom every work day both as a toilet and/or a changing room to change from their civilian clothing into their work uniforms. (Id.)

         On January 9, 2015, Plaintiff Doe was in the women's restroom at the CIIT office when she observed what appeared to be a hidden camera in the drain. (SAC ¶ 25.) She removed the drain cover and discovered a security camera hidden in a black sock. (Id.) Doe reported the incident to Rebecca Phenicie at the Customs and Border Patrol Office of Internal Affairs, which initiated an investigation. (Id. ¶ 27.) Gonzalez later stated that he placed the camera in the drain in order to detect possible on-the-job drug use among his female subordinates. (Id. ¶ 27.) An examination of the camera's micro S.D. card revealed images of “a female's undergarment-clad breast as she changed her shirt in the restroom, and images of part of a female's naked buttock as she prepared to sit on the toilet and again as she stood.” (Id. ¶ 29.) Another micro S.D. card recovered from Gonzalez's office contained approximately 169 video files taken from July 20, 2013 to December 23, 2014. (Id. ¶ 30.) The images were of private areas of multiple female victims, including both Plaintiffs' naked and/or undergarment-clad genitalia, pubic areas, buttocks, and/or breasts as the victims changed and/or used the toilet. (Id.)

         On March 30, 2016, Plaintiffs filed this lawsuit. On April 16, 2016, Plaintiffs filed the First Amended Complaint alleging a variety of state claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1) & 2671, et seq. (“FTCA”), and employment discrimination under federal law. (See FAC.) On December 14, 2016, this Court denied in part and granted in part Federal Defendants' motion to dismiss. (See Dismissal Order [Doc. 28].)

         On December 28, 2016, Plaintiffs filed the Second Amended Complaint. Federal Defendants now seek to dismiss Plaintiffs' tenth cause of action for violation of California Penal Code §§ 632 & 637.2, and Plaintiffs' request for punitive damages under the sixth, seventh and eight causes of action. (P&A [Doc. 30-1] 1:2-11.) Plaintiffs oppose the motion. (See Opp'n [Doc. 32].)

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(1) provides a procedural mechanism for a defendant to challenge subject-matter jurisdiction. “A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence. Where jurisdiction is intertwined with the merits, we must assume the truth of the allegations in a complaint unless controverted by undisputed facts in the record.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks, brackets, ellipsis and citations omitted).

         A facial attack challenges the complaint on its face. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). But when the moving party raises a factual challenge to jurisdiction, the court may look beyond the complaint and consider extrinsic evidence, and “need not presume the truthfulness of the plaintiff's allegations.” See Id. Once the defendant has presented a factual challenge under Rule 12(b)(1), the burden of proof shifts to the plaintiff to “furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id.

         III. Discussion

          A. The FTCA constitutes a waiver of sovereign immunity for Plaintiffs'California Penal Code ยงยง 632 ...

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