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Kim v. United States

United States District Court, E.D. California

November 7, 2017

DANIEL KIM, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS (ECF. 34)

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.

         I. INTRODUCTION

         This 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.

         II. FACTUAL BACKGROUND

         The 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.

         Defendant 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, 24-25.

         III. STANDARD OF DECISION

         A 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).

         A Rule 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).

         When 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).

         IV. ANALYSIS

         A. The Federal Tort Claims Act and the Discretionary Function Exception

         “It 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).

         The 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.

         Among 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).

         The 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 directive.”).

         If 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.

         When it 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 ...


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