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Ocampo v. United States

United States District Court, S.D. California

July 12, 2019

KAREN OCAMPO, as personal representative of SALOMON RODRIGUEZ, Plaintiff,



         Pending before the Court is Defendant National Steel and Shipbuilding Company's (“NASSCO”) motion to dismiss Defendant United State's second cross-claim for breach of express maritime contract. The United States opposes the motion and Plaintiff takes no position. After a thorough review of the parties' submissions and for the reasons discussed below, the Court GRANTS Defendant NASSCO's motion to dismiss.


         On January 27, 2015, Damaris Manzanero Vazquez, appearing as the personal representative of Salomon Rodriguez, filed a complaint against United States of America and NASSCO. On November 23, 2015, Anakaren Lopez, appearing as the personal representative of Salomon Rodriguez, filed a First Amended Complaint and, filed a Second Amended Complaint on March 14, 2017. On November 6, 2017, Plaintiff filed a Third Amended Complaint (“TAC”) which replaced Anakaren Lopez with Karen Ocampo as the personal representative for Salomon Rodriguez. Plaintiff seeks damages for negligence and alleges Defendants' negligence caused Salomon Rodriguez to fall off the unguarded side of an elevator platform approximately 98 feet down an elevator trunk while working aboard the USS Boxer in navigable waters at Pier 13, Naval Station, San Diego, California. TAC ¶¶ 11 - 21. Plaintiff asserts, as the decedent's personal representative, she is entitled to recover on behalf of Mr. Rodriguez's minor son. Id. ¶ 27.

         The United States filed an answer and cross claim against NASSCO asserting claims for negligence and contribution, and breach of express maritime contract. NASSCO filed an answer to the FAC and an answer to the crossclaim.

         NASSCO filed a motion for summary judgment or, in the alternative, partial summary judgment which this Court denied by order filed September 24, 2018. NASSCO filed the pending motion to dismiss on March 22, 2019. Plaintiff filed its statement of no position on the motion on March 27, 2019. The United States filed an opposition on April 29, 2019 and NASSCO filed a reply on May 6, 2019. NASSCO and the United States appeared before this Court for a hearing on the motion to dismiss on May 21, 2019. After hearing oral argument, the Court took the matter under submission.


         NASSCO seeks to dismiss the United States' cross-claim for breach of express maritime contract under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A defendant may seek to dismiss a complaint for lack of jurisdiction over the subject matter pursuant to Rule 12(b)(1). The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). When considering a Rule12(b)(1) motion to dismiss, the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In such circumstances, “[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. (quoting Thornhill Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733 (9th Cir. 1979)). The party seeking to invoke jurisdiction has the burden of establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).


         NASSCO argues the Contract Disputes Act of 1978 (“CDA”) prohibits this Court from hearing the United States' breach of contract claim. Specifically, NASSCO argues the CDA prohibits any party to a government contract from bringing contract-related claims before exhausting administrative remedies and the United States failed to exhaust the administrative remedies prior to filing its cross-claim. NASSCO further argues the United States cannot comply with the jurisdictional requirements of exhausting administrative remedies because its purported claim is not ripe, in that the United States cannot submit a claim without a sum certain and cannot identify a sum certain until the conclusion of the negligence action.

         In opposition, the United States initially contends the motion is untimely. The United States also argues once Plaintiff filed suit and placed the contract into litigation, the Department of Justice (“DOJ”) gained complete control of the litigation pursuant to 28 U.S.C. section 516 and, thereby, divested the contracting officer (“CO”) of authority to act under on the contract under the CDA. The United States contends section 516 divests the CO from hearing and deciding contract claims that are related to claims before the Court and maintains Plaintiff asserts the accident occurred as a direct and proximate result of NASSCO's multiple failures to perform its contractual obligations. Additionally, the United States maintains NASSCO put the contract at issue by attaching it to its unsuccessful motion for summary judgment and listing it as a trial exhibit, the Court looked to the contract as part of its order denying the motion for summary judgment, and the trial in this matter will focus on NASSCO's breaches of contract, the same claims the CO would review. The United States maintains this issue is one of first impression and it is the facts of this case that lead to this result.

         The United States further contends if NASSCO argues that the exclusive forum for deciding issues related to government contacts lies with the United States Court of Appeals for the Federal Circuit, it is mistaken, because 41 U.S.C. section 7107 carves out an exception for contract claims falling under the Suits in Admiralty Act and/or the Public Vessels Act and section 7102 provides that appeals arising under maritime law are governed by the Admiralty Act or the Public Vessels Act.

         In reply, NASSCO argues the motion is not untimely because the question of subject matter jurisdiction can be brought at any time. NASSCO maintains the United States does not challenge that its breach of contract claim is governed by the CDA nor that it failed to comply with the CDA by bringing its cross-claim.

         NASSCO also argues the three cases relied on by the United States to create this argument are inapposite and the United States' reliance on them is misleading, and the argument that the CDA can be eviscerated by a third party simply naming the United States and raising a government contract in a tort action is nonsensical. Additionally, NASSCO argues the United States' attempts to assert that this Court has jurisdiction over the case under 41 U.S.C. section 7102 is a red herring because a district court can obtain ...

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