United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART FEDERAL
DEFENDANTS' MOTION TO DISMISS [DOC. 24]
J. Whelan United States District Judge
before the Court is a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1) and 12(b)(6) filed by Defendants
United States of America and John F. Kelly, Secretary of the
Department of Homeland Security (collectively, “Federal
Defendants”). Plaintiff opposes.
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 grants in part and denies in part Federal
Defendants' motion to dismiss [Doc. 24].
approximately December 2012 until December 2014, Plaintiff
Agent Anonymous worked as a member of the U.S. Border
Patrol's Critical Incident Investigative Team
(“CIIT”) in the Chula Vista, California station.
(First Amended Compl. (“FAC”) [Doc. 23]
¶ 11.) Defendant Armando Gonzalez, also a U.S. Border
Patrol agent, directly supervised Plaintiff during those two
alleges that the CIIT office had one women's restroom
that doubled as a changing room for female agents, which
Plaintiff used every work day. (FAC ¶ 12.) On
January 9, 2015, a female Border Patrol agent discovered a
video camera in a drain in the restroom. (Id. ¶
25.) Plaintiff alleges the video camera recorded private and
sensitive images of her and several other law enforcement
officers using the restroom. (Id. ¶ 18.)
after the discovery of the video camera, Gonzalez told two
Assistant Chief Border Patrol Agents, who were his
supervisors, that he hid the video camera in order to conduct
a drug investigation of his female subordinates.
(FAC ¶ 25.) Gonzalez's supervisors began an
investigation into his conduct. (Id. ¶ 26.)
Approximately three weeks later, law enforcement officers
searched Gonzalez's home and property to retrieve the
video images. (Id.) Gonzalez was eventually
arrested, charged, and pled guilty to making false statements
to a federal officer in violation of 18 U.S.C. § 1001(a)
and for video voyeurism in violation of 18 U.S.C. §
1801. (See Dismissal Order [Doc. 22] 2:24- 26,
citing Fed. Defs. RJN [Doc. 21-1] Ex. A.)
March 27, 2016, Plaintiff filed this lawsuit alleging a
variety of tort claims under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b)(1) & 2671, et seq.
(“FTCA”), and employment discrimination under
federal and state laws. (See Compl.) On December 14,
2016, this Court denied in part and granted in part Federal
Defendants' motion to dismiss the Complaint. (See
December 27, 2016, Plaintiff filed the First Amended
Complaint. (See FAC.) Federal Defendants now move to
dismiss the Fourth cause of action for negligence, the Eighth
cause of action for violation of California Civil Code §
52.1, the Ninth cause of action for violation of California
Penal Code §§ 632 & 637.2, and Defendant John
F. Kelly as secretary of the Department of Homeland Security.
(MTD [Doc. 24] 1:9-2:2.) Plaintiff opposes the
motion to dismiss the various causes of action, but does not
oppose the motion to dismiss Secretary Kelly. (See
Opp'n [Doc. 25] 2:2.)
Motion to Dismiss Under Rule 12(b)(1)
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).
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.
Motion to Dismiss ...