United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO
DISMISS (DOC. 19)
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE.
PRELIMINARY STATEMENT TO PARTIES AND
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
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.
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
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.
STANDARD OF DECISION
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).
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).
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).
The Federal Tort Claims Act
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).
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.
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 ...