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Placencia v. United States

United States District Court, S.D. California

July 13, 2017

EZTOR PLACENCIA, et al., Plaintiffs,
United States of America, et al., Defendants.


          HON. ROGER T. BENITEZ, United States District Judge

         Before 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.


         In 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.

         On 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.)


         Under 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)).

         "A 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)).

         When 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.[2] 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)).


         The 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.

         A. The Government's Motion to Dismiss

         "The 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)).

         The 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 ...

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