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Kim v. United States

United States District Court, E.D. California

June 15, 2017

DANIEL KIM, et al., Plaintiffs,




         Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil cases.

         Civil trials set before Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from inside or outside the Eastern District of California.


         This matter involved Defendant's March 27, 2017, motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) for lack of subject matter jurisdiction. Doc. 19. On April 10, 2017, Plaintiffs filed an opposition. Doc. 21. On April 17, 2017, Defendant filed a reply. Doc. 23. For the following reasons, Defendant's motion is granted, and Plaintiffs' complaint is DISMISSED.


         The following facts are drawn from the complaint and filings in this matter, and are accepted as true only for the purpose of this motion to dismiss. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). On August 14, 2015, Dragon Kim and Justin Lee, both fourteen years of age, were camping with Dragon's parents, Plaintiffs Daniel and Grace Kim, and Dragon's sister, Plaintiff Hannah Kim, at the Yosemite Valley Upper Pines Campground in Yosemite Valley National Park. Doc. 1 at ¶¶ 2-6, 15-16; Doc. 19-1 at 2. At approximately 5 a.m., the tent in which Dragon and Justin were sleeping was struck by a limb which fell from a California black oak (“the Subject Tree”). Doc. 1 at ¶ 16. Both boys died of crushing injuries sustained as a result. Id. at ¶ 17-18. There were no warning signs placed near the Subject Tree. Id. at 22. Plaintiffs bring claims for wrongful death and negligent infliction of emotional distress against Defendant, alleging that Defendant was negligent in maintaining the Subject Tree and the area around it, and that Defendant knew or should have known of a defect in the tree . Id. at ¶¶ 1, 20.


         A motion to dismiss under Rule 12(b)(1) challenges the subject matter jurisdiction of the Court. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A “court of the United States may not grant relief absent a constitutional or valid statutory grant of jurisdiction.” United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir. 2002). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). “When subject matter jurisdiction is challenged under [Rule] 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Tosco Corp. v. Communities for Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010). No presumption of truthfulness applies to a plaintiff's allegations when evaluating the merits of jurisdictional claims. Thornhill Pub. Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

         A Rule 12(b)(1) motion may make facial or factual attacks on the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1034, 1039 (9th Cir. 2004). A facial attack contests whether the allegations in the complaint are sufficient to invoke federal jurisdiction, while a factual challenge “disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id.; see also Thornhill Publ'g Co. v. gen Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

         When the existence of subject matter jurisdiction is at issue, a court “is not restricted to the face of the pleadings.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). A court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). In doing so, a court may “rely on affidavits or any other evidence properly before the court.” Id. When considering items outside the pleading, the court resolves “all disputes of fact in favor of the non-movant.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996).

         V. ANALYSIS

         A. The Federal Tort Claims Act

         “It is elementary that 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. A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980). Without a waiver of sovereign immunity, a federal court lacks jurisdiction where the United States is sued. Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011).

         The Federal Tort Claims Act (“FTCA”) allows the government to be sued “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). It waives the United States' sovereign immunity for tort claims caused by negligence on the part of government employees acting within the scope of their employment. Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). The FTCA, however, includes a number of exceptions to this otherwise broad waiver of sovereign immunity. Id. at 1129.

         Among the limitations on the FTCA's immunity waiver is the discretionary function exception, which bars claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved by abused.” 28 U.S.C. § 2680(a). The discretionary function exception reinstates sovereign immunity in situations where “employees are carrying out governmental or ‘regulatory' duties.” Faber v. United States, 56 F.3d 1122, 1124 (9th Cir. 1995). The exception is limited to discretionary acts, that is, acts “involv[ing] an element of judgment or choice.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). “The purpose of the discretionary function exception is to protect the ability of the ...

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