Clouser et al v. Sierra Nevada Corporation et al

Filing 27

ORDER AND OPINION granting 16 Motion to Dismiss. The United States of America is dismissed a defendant in this action. Signed by Judge John W Sedwick on 3/9/16.(LSP)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Christopher Clouser, et al.,

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Plaintiffs,
vs.
Sierra Nevada Corporation, et al.,

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Defendants.

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4:15-cv-00468 JWS
ORDER AND OPINION
[Re: Motion at Docket 16]

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I. MOTION PRESENTED

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At docket 16 defendant United States of America (“USA”) moves pursuant to

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Rule 12(b)(1) for an order dismissing the complaint of plaintiffs Christopher and Ana

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Clouser (“Plaintiffs”). Plaintiffs oppose USA’s motion at docket 21; USA replies at

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docket 24. Oral argument was not requested and would not assist the court.

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II. BACKGROUND
Christopher Clouser was seriously injured when the aircraft he was flying ran

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aground in Columbia.1 Mr. Clouser and his wife brought this action against Sierra

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Nevada Corporation (“Sierra Nevada”), the company that owned, equipped, and

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maintained the aircraft, and USA, which contracted with Sierra Nevada. Plaintiffs’ claim

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Doc. 1 at 8 ¶¶ 30-31.

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against USA arises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1)

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based on USA’s allegedly “negligent, careless and/or reckless acts or omissions.”2

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III. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an

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action for lack of subject matter jurisdiction. In order to survive a defendant’s motion to

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dismiss, the plaintiff has the burden of proving jurisdiction.3 Where the defendant

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brings a facial attack on the subject matter of the district court, the court assumes the

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factual allegations in the plaintiff’s complaint are true and draws all reasonable

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inferences in the plaintiff’s favor.4 The court does not, however, accept the truth of legal

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conclusions cast in the form of factual allegations.5

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IV. DISCUSSION
With certain specific exceptions, the FTCA waives USA’s sovereign immunity

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from suits in tort6 and gives federal district courts jurisdiction over claims against it for

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injury “caused by the negligent or wrongful act or omission of any employee of the

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Government while acting within the scope of his office or employment, under

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circumstances where the United States, if a private person, would be liable to the

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claimant in accordance with the law of the place where the act or omission occurred.”7

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An exception to this waiver exists for claims “arising in a foreign country.”8

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Doc. 1 at 16 ¶ 79.

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Tosco v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2000).

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Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).

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Id.

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Richards v. United States, 369 U.S. 1, 6 (1962).
28 U.S.C. § 1346(b)(1).
28 U.S.C. § 2680(k).

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Despite this exception, the Ninth Circuit formerly allowed FTCA actions to

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proceed under the “headquarters doctrine.” Under this doctrine, § 2680(k) did not bar

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suit where “negligent acts in the United States proximately cause[d] harm in a foreign

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country.”9 These claims “typically involve[d] allegations of negligent guidance in an

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office within the United States of employees who cause[d] damage while in a foreign

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country, or of activities which [took] place within a foreign country.”10 The Supreme

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Court struck down the headquarters doctrine, however, in Sosa v. Alvarez-Machain,

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holding that “the FTCA’s foreign country exception bars all claims based on any injury

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suffered in a foreign country, regardless of where the tortious act or omission

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occurred.”11
The injury that Mr. Clouser suffered occurred in a foreign country. Following

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Sosa, the FTCA’s foreign country exception bars Plaintiffs’ claim. This court lacks

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subject matter jurisdiction.

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V. CONCLUSION
Based on the preceding discussion, the motion to dismiss at docket 16 is
GRANTED. The United States of America is dismissed a defendant in this action.
DATED this 9th day of March 2016.

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/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE

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Cominotto v. United States, 802 F.2d 1127, 1130 (9th Cir. 1986).
Id.
542 U.S. 692, 712 (2004) (emphasis added).

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