United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO
ROGER T. BENITEZ, United States District Judge
this Court is the Motion to Dismiss Plaintiffs' Complaint
filed by Defendant United States of America (hereinafter,
"the government"). (Docket No. 6.) The Motion is
fully briefed. The Court finds the Motion suitable for
determination on the papers without oral argument, pursuant
to Civil Local Rule 7.1, d. 1. For the reasons set for below,
the government's Motion is GRANTED.
January 2015, decedent Andreina Tortolero
("Tortolero") coordinated with the Federal Bureau
of Investigation ("FBI") and the Drug Enforcement
Administration ("DEA") to participate in undercover
drug negotiations with drug dealers in Mexico. The "FBI
and DEA had [Tortolero] set up [an] agreement to deliver 10
kg of. .. methamphetamine" to the dealers in Mexico.
(Docket No. 1, Compl. at 3.) "On or about the day of the
proposed drug deal, the DEA and/or FBI sent [Tortolero] to
Mexico with the understanding that she was to deliver [the
drugs]." (Id.) Tortolero waited for the
delivery of the drugs, but the drugs never arrived because
the DEA and FBI never intended to provide the drugs.
Tortolero was subsequently strangled and killed by Mexican
drug cartel members.
September 19, 2016, Plaintiffs Eztor Placencia, Eztor
Placencia, Jr., and Gabriella Torolero Mejias
(Tortolero's husband, son, and mother, respectively)
filed this action asserting claims against the government
under the Federal Tort Claims Act ("FTCA") for
wrongful death and related emotional distress. (Docket No.
1.) The government responded by filing the instant motion to
dismiss for lack of subject matter jurisdiction on the
grounds that it was immune from suit under the foreign
country exception to the FTCA. (Docket No. 6.)
Federal Rule of Civil Procedure 12(b)(1), a party may seek
dismissal of an action for lack of subject matter
jurisdiction. The party opposing a motion to dismiss brought
under Rule 12(b)(1) bears the burden of proving that the case
is properly in federal court. See In re Ford Motor
Co./Citibank (S. Dakota), N.A., 264 F.3d 952, 957 (9th
Cir. 2001) ("The party asserting federal jurisdiction
bears the burden of proving the case is properly in federal
court.") (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). Dismissal is
appropriate if the complaint, considered in its entirety, on
its face fails to allege facts that are sufficient to
establish subject matter jurisdiction. In re Dynamic
Random Access Memory (DRAM) Antitrust Litig., 546 F.3d
981, 985 (9th Cir. 2008) (citing Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1990)).
Rule 12(b)(1) jurisdictional attack may be facial or
factual." Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004) (citing White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation
omitted in original)). In a facial attack, the moving party
contends that the complaint's allegations are
insufficient on their face to invoke federal jurisdiction.
Id. In contrast, the moving party in a factual
attack disputes the truth of the allegations that, by
themselves, would otherwise establish federal jurisdiction.
Id. A district court considering a factual attack
need not presume the truthfulness of a plaintiffs
allegations, id. (citing White, 227 F.3d at
1242), and may review evidence beyond the complaint without
converting the motion into a motion for summary judgment.
Id. (citing Savage v. Glendale Union High
Sch, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003)).
the government invokes its sovereign immunity in a Rule
12(b)(1) motion to dismiss, a district court must examine
whether it has subject matter jurisdiction. Singh v.
United States, No. 16-CV-01919 NC, 2017 WL 635476, at *2
(N.D. Cal. Feb. 16, 2017) ("Whether the government
waived sovereign immunity is a question of the Court's
subject matter jurisdiction.") (citing Cato v.
United States, 70 F.3d 1103, 1107 (9th Cir. 1995)).
Because the government relies on extrinsic evidence to
support is motion to dismiss, the Court treats the
government's motion as a factual 12(b)(1) attack and
considers all admissible evidence in the
record. Righthaven LLC v. Newman, 838
F.Supp.2d 1071, 1074 (D. Nev. 2011) ("Attacks on
jurisdiction pursuant to Rule 12(b)(1) can be either facial,
confining the inquiry to the allegations in the complaint, or
factual, permitting the court to look beyond the
complaint.") (citing Savage v. Glendale Union High
Sch, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003)).
Complaint describes a tragic and disturbing chain of events
resulting in the death of Tortolero at the hands of drug
dealers. However, because it is undisputed that decedent died
in a foreign country (Mexico), Defendants argues that
Plaintiffs' claims are barred under the foreign country
exception to the FTCA, 28 U.S.C. § 2680(k).
Plaintiffs' opposition contends the foreign country
exception does not apply to Plaintiffs' claims because
the majority of the government's actions or omissions
occurred in the United States. In addition, Plaintiffs'
opposition requests leave from the Court to file an amended
complaint to assert additional claims under the Alien Tort
Statute ("ATS") and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
In its reply, the government opposes Plaintiffs' request
for leave to amend on futility grounds. The Court considers
the government's motion to dismiss and Plaintiffs'
request for leave to amend in turn.
The Government's Motion to Dismiss
FTCA generally waives the United States' sovereign
immunity from suits in tort, 'rendering] the Government
liable in tort as a private individual would be under like
circumstances."' S.H. by Holt v. United
States, 853 F.3d 1056, 1059 (9th Cir. 2017) (quoting
Richards v. United States, 369 U.S. 1, 6 (1962));
see also 28 U.S.C. § 2674. However, this waiver
is subject to certain exceptions. See generally 28
U.S.C. § 2680. Under the foreign country exception, upon
which the government relies, "the FTCA's waiver of
immunity does not apply to '[a]ny claim arising in a
foreign country.'" S.H. at 1059 (quoting 28
U.S.C. § 2680(k)).
Supreme Court in Sosa v. Alvarez-Machain, held that
the foreign country exception "bars all claims based on
any injury suffered in a foreign country." 542 U.S. 692,
712 (2004). Other federal courts have applied the FTCA's
foreign country exception to claims that are necessarily
derivative of injuries sustained in a foreign country.
See Gross v. United States,771 F.3d 10, 13 (D.C.
Cir. 2014) (holding that foreign country exception applied
because wife's economic injuries in the United States
were derivative of harm suffered by husband abroad); see
also Harbury v. Hayden,522 F.3d 413, 423 (D.C. Cir.
2008) (district court lacked jurisdiction over a plaintiffs
claims for emotional or economic injuries occurring in the
United States because those injuries were derivative of harm
suffered by plaintiffs spouse in a foreign country). The
Court finds the reasoning in these courts' decisions
persuasive. It is clear that the FTCA's foreign country
exception would preclude a claimant who was actually injured
(or a ...