United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO
DISMISS (ECF. 34)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.
matter involves Defendant's motion to dismiss pursuant to
Federal Rule of Civil Procedure (“Rule”) 12(b)(1)
for lack of subject matter jurisdiction. Doc. 34. Plaintiffs
filed an initial complaint in this case on November 2, 2016.
On June 16, 2017, the Court granted Defendant's March 27,
2017, motion to dismiss Plaintiffs' initial complaint.
Doc. 28. Plaintiffs filed a first amended complaint
(“FAC”) on July 14, 2017. Doc. 29. On August 27,
2017, Defendant filed a motion to dismiss the FAC. Doc. 34.
On September 11, 2017, Plaintiffs filed an opposition. Doc.
35. On September 15, 2017, Defendant filed a reply. Doc. 36.
For the following reasons, Defendant's motion is granted,
and Plaintiffs' complaint is DISMISSED.
following facts are drawn from the FAC 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 minors, 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, Site 29, in Yosemite Valley National Park.
Doc. 29 at ¶¶ 3-5, 18-20. At approximately 4:59
a.m., the tent in which Dragon and Justin were sleeping was
struck by a limb falling from a California black oak
(“the Subject Tree”). Id. at ¶ 20.
Both boys died of crushing injuries sustained in the
incident. Id. at ¶¶ 21-22.
was aware of the existence of defects in the Subject Tree.
Id. at ¶ 24. There were no reports of high
winds or precipitation at the time of the incident, and no
warning signs or barriers placed near the Subject Tree.
Id. at ¶¶ 23, 26. Plaintiffs bring three
claims pursuant to the Federal Tort Claims Act
(“FTCA”), which 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). Plaintiffs'
first claim is for wrongful death, the second is for
negligent infliction of emotional distress, and the third for
fraudulent concealment. Id. at ¶¶ 1,
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 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).
addressing the existence of subject matter jurisdiction, 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 extrinsic
evidence 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 and the Discretionary
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).
FTCA 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 government to proceed with decisionmaking in
carrying out its unique and vital functions without
‘second-guessing' by the courts as to the
appropriateness of its policy choices.” H.R. Rep. No.
1015, 101st Cong. 2nd Sess. 134 (1991).
two-part Berkovitz test is used to determine if a
claim is subject to the discretionary function exception.
Terbush, 516 F.3d at 1129. In the first step, the
court determines whether the government's “actions
involve an ‘element of judgment or choice.'”
Terbush, 516 F.3d at 1129 (quoting United States
v. Gaubert, 499 U.S. 315, 322 (1991)). “This
inquiry looks at the ‘nature of the conduct, rather
than the status of the actor' and the discretionary
element is not met where ‘a federal statute,
regulation, or policy specifically prescribes a course of
action for an employee to follow.'”
Terbush, 516 F.3d at 1129 (quoting
Berkovitz, 486 U.S. at 536). There can be no
discretion if a statute or policy mandates a course of action
and an employee “has no rightful option but to adhere
to the directive.” Berkovitz, 486 U.S. at 536;
Navarette v. United States, 500 F.3d 914, 916 (9th
Cir. 2010) (“An agency lacks discretion where a statute
or policy directs mandatory and specific action, and an
employee has no lawful action other than to comply with the
conduct satisfies the first step and involves an element of
choice or judgment, a court must next consider “whether
that judgment is of the kind that the discretionary function
exception was designed to shield.” Berkovitz,
486 U.S. at 536. “[O]nly governmental actions and
decisions based on considerations of public policy” are
protected. Id. at 537. “The decision need not
be actually grounded in policy considerations, but must be,
by its nature, susceptible to a policy analysis.”
Miller v. United States, 163 F.3d 591, 593 (9th Cir.
1998). “When established governmental policy, as
expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to exercise discretion,
it must be presumed that the agent's acts are grounded in
policy when exercising that discretion.”
Gaubert, 499 U.S. at 324.
invokes the discretionary function exception, the government
“bears the burden of proving the applicability of one
of the exceptions to the FTCA's general waiver of
immunity” because such an exception “is analogous
to an affirmative defense” to correctly place the
burden on the party which benefits from the defense.”
Prescott v. United States, 973 F.2d 696, 702 (9th
Cir. 1992). “Although the plaintiff bears the initial
burden of proving subject matter jurisdiction under the FTCA,
‘the United States bears the ultimate ...