United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
(DOC. NO. 8)
matter came before the court on June 20, 2017, for hearing of
defendant's motion to dismiss pursuant to Federal Civil
Procedure Rules 12(b)(1) and 12(b)(5) for lack of subject
matter jurisdiction and improper service of process. (Doc.
No. 8.) Plaintiff Leticia Contreras, proceeding pro se and
in forma pauperis, appeared telephonically on her
own behalf. Attorney Gale Hearst appeared on behalf of
defendant Fresno County Employees' Retirement
Association. After oral argument, the motion was taken under
submission. For the reasons stated below, defendant's
motion will be granted.
March 7, 2017, plaintiff Leticia Contreras commenced this
action against defendant Fresno County Employees'
Retirement Association (“FCERA”). (Doc. No. 1.)
The action now proceeds on plaintiffs First Amended Complaint
(“FAC”), filed on April 18, 2017. (Doc. No. 5.)
In her complaint, plaintiff alleges claims under California
Government Code §§ 31534 and 31725. (Doc. No. 1-1
was an employee of defendant FCERA who worked in the
Department of Social Services. (Doc. No. 5 at 1-2.) On
October 19, 2009, plaintiff was hit by a county vehicle while
walking through a county parking lot. (Id. at 2.)
She suffered multiple injuries that were documented by
healthcare providers, including providers at Clovis Community
Hospital. (Id. at 2.)
October 21, 2009, plaintiff returned to work, with certain
job duties modified to accommodate her work restrictions.
(Id.) On January 9, 2012, defendant FCERA placed
plaintiff on a leave of absence. (Id.)
applied for disability retirement on January 19, 2012.
(Id.) The application was denied by the Board of
Retirement on November 6, 2013. (Id.) Plaintiff
submitted an appeal of this decision on November 13, 2013.
(Id.) The appeal was denied on June 17, 2015.
(Id.) Plaintiff then filed a Petition for Writ of
Mandate with the Fresno County Superior Court, seeking to
have the decision overturned. (Id.) The petition was
denied on February 14, 2017. (Id.)
5, 2017, defendant filed the instant motion to dismiss. (Doc.
No. 8.) Plaintiff filed her opposition on May 19, 2017. (Doc.
No. 15.) Defendant did not file a reply in support of their
Federal Rule of Civil Procedure Rule 12(b)(1).
Rule of Civil Procedure 12(b)(1) allows a defendant to raise
the defense, by motion, that the court lacks jurisdiction
over the subject matter of an entire action or of specific
claims alleged in the action. Federal district courts
generally have subject matter jurisdiction over civil cases
through diversity jurisdiction, 28 U.S.C. § 1332, or
federal question jurisdiction, 28 U.S.C. § 1331. See
Peralta v. Hispanic Bus., Inc., 419 F.3d 1068 (9th Cir.
2005). In a motion to dismiss for lack of subject
jurisdiction, a defendant may either attack the allegations
of the complaint or the existence of subject matter
jurisdiction in fact. Thornhill Publ'g Co. v. Gen.
Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.
defendant argues that the allegations of the FAC are
insufficient to invoke federal subject matter jurisdiction.
(Doc. No. 8-1.) When a party brings a facial attack to
subject matter jurisdiction, that party contends that the
allegations of jurisdiction contained in the complaint are
insufficient on their face to demonstrate the existence of
jurisdiction. See Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1)
motion of this type, the plaintiff is entitled to safeguards
similar to those applicable when a Rule 12(b)(6) motion is
made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347
(11th Cir. 1994); Osborn v. United States, 918 F.2d
724, 729 n.6 (8th Cir. 1990). Accordingly, the factual
allegations of the complaint are presumed to be true, and the
motion is granted only if the plaintiff fails to allege an
element necessary for subject matter jurisdiction. Savage
v. Glendale Union High Sch. Dist., No. 205, 343 F.3d
1036, 1039 n.1 (9th Cir. 2003); Miranda v. Reno, 238
F.3d 1156, 1157 n.1 (9th Cir. 2001). Nonetheless, district
courts “may review evidence beyond the complaint
without converting the motion to dismiss into a motion for
summary judgment” when resolving a facial attack.
Safe Air for Everyone, 373 F.3d at 1039.
motion to dismiss, defendant argues that plaintiff's FAC
should be dismissed under Federal Civil Procedure Rule
12(b)(1) because the allegations of the complaint do not
support either diversity or federal question jurisdiction.
(Doc. No. 8-1.) Plaintiff opposes dismissal of the complaint.
(Doc. No. 15 at 4.)
in her FAC plaintiff alleges that she is a resident of
California and a longtime employee of FCERA. (Doc. No. 1-1 at
1.) As such, the court construes the FAC to allege that
plaintiff is a citizen of California. See Kanter v.
Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001)
(“A person's domicile is her permanent home, where
she resides with the intention to remain or to which she
intends to return”); CarMax Auto Superstores Cal.
LLC v. Hernandez, 94 F.Supp.3d 1078, 1091 n.38 (C.D.
Cal. 2015) (finding allegations of a party's extensive
and continuous period of residence and employment in a state
sufficient to establish the party's citizenship in that
state). Plaintiff brings claims against defendant FCERA, a
government entity that is also a citizen of
California.See Moor v. County of Alameda,
411 U.S. 693, 717 (1973) (noting that local governments are