United States District Court, S.D. California
AUBRIE F., by and through her Guardian Ad Litem, SHELBE FOATE, Plaintiff,
UNITED STATES OF AMERICA Defendants.
ORDER ON MOTION TO DISMISS [Doc. No. 10]
Cathy Ann Bencivengo United States District Judge.
matter comes before the Court on Defendant the United States
of America's motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim. [Doc. No. 10].
The motion has been fully briefed, and the Court finds it
suitable for determination on the papers submitted and
without oral argument in accordance with Civil Local Rule
7.1(d)(1). For the following reasons, Defendant's motion
is granted and the complaint is dismissed with prejudice.
Allegations in the Complaint
Aubrie F. is a minor child born in 2015. In 2016, when the
events alleged in the complaint occurred, Aubrie's
parents served in the United States Marine Corps and lived in
Camp Pendleton. [Doc. No. 1.] In early 2016, Aubrie's
parents hired Amanda Lopez to babysit Aubrie. They had found
Lopez through the United States Department of Defense Child
Development Program (“CDP”). Id.
21, 2016, Aubrie's mother, Shelbe Foate, left Aubrie with
Lopez at 6:25 a.m. When Shelbe dropped Aubrie off, Aubrie
appeared healthy and uninjured. In the afternoon, Lopez
called Shelbe and told her that Aubrie had thrown up and was
crying and needed to be picked up. During her drive home
after picking Aubrie up from Lopez, Shelbe noticed that
Aubrie was grunting and her eyes were rolling back into her
head, so she called 911. Aubrie was then transported by
ambulance and helicopter to a hospital where she was
diagnosed with severe injuries that the hospital medical
staff diagnosed as consistent with physical abuse. Since June
21, 2016, Aubrie allegedly continues to suffer developmental
delays and is closely monitored by medical professionals.
December 19, 2018, Shelbe, on behalf of Aubrie, filed a
complaint against the United States pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C.
§1346(b). [Doc. No. 1.] The complaint asserts one claim
for negligence arising out of Lopez's alleged negligent
care of Aubrie on June 21, 2016. On June 24, 2019, the United
States moved to dismiss the complaint for lack of subject
matter jurisdiction based on sovereign immunity and for
failure to state a claim.
United States holds the privilege of sovereign immunity
unless it waives this immunity explicitly by statute.
F.A.A. v. Cooper, 566 U.S. 284, 290 (2012). If a
plaintiff's claim fails to allege facts supporting that a
statutory waiver of immunity exists in their case, then the
federal court lacks subject matter jurisdiction to hear the
claim. Mundy v. United States, 983 F.2d 950, 952
(9th Cir. 1993) (holding that federal court did not have
subject matter jurisdiction over FTCA claim when exception to
FTCA granted United States sovereign immunity).
FTCA constitutes a limited waiver of sovereign immunity for
tort claims arising out of the conduct of a government
employee. Valdez v. United States, 56 F.3d 1177,
1179 (9th Cir. 1995). Additionally, the FTCA grants district
courts “exclusive jurisdiction of civil actions on
claims against the United States…for injury or loss of
property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
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).
United States moves to dismiss the complaint under Rule
12(b)(1) for lack of subject matter jurisdiction, and under
Rule 12(b)(6) for failure to state a claim. Both grounds for
dismissal are premised on the government's argument that
Lopez was a private contractor and not a government employee,
meaning that the exception to the sovereign immunity
contained in the FTCA does not apply
12(b)(1) jurisdictional attack may be facial or factual. In a
facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction. Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual
attack, however, the challenger may rely on evidence
extrinsic to the complaint. See Id. The Ninth
Circuit has explained:
In resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary
judgment. The court need not presume the truthfulness of the
plaintiff's allegations. Once the moving party has
converted the motion to dismiss into a factual motion by
presenting affidavits or other evidence properly before the
court, the party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.
Id. (internal quotation marks omitted).
the United States makes a factual attack on jurisdiction by
presenting evidence demonstrating that Lopez was neither an
employee nor an independent contractor of the government. The
United States presents evidence that Lopez was a private
contractor, meaning that Lopez contracted directly with the
Foates for the babysitting services she provided for Aubrie.
[Doc. No. 10-6 at 1-2.] The United States Department of
Defense provides Child Development Programs (CDPs) to support
child care and development for military families. [Doc. No.
10-1 at 6.] Within the CDPs, there are several programs
available, each with a different staffing and supervisory
structure. [Doc. 10-3 at 15.] Lopez was a Family Child Care
(FCC) provider, meaning she was certified by the government
to work a minimum of 10 hours per week offering childcare