Napier v. United States of America

Filing 13

ORDER On Defendant's Motion To Dismiss For Lack Of Subject Matter Jurisdiction (Doc. 4 ), signed by District Judge Anthony W. Ishii on 2/13/2013. CASE CLOSED. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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____________________________________)
DENNIS NAPIER,

1: 12 - CV - 01266 AWI DLB
ORDER ON DEFENDANT’S
MOTION TO DISMISS FOR
LACK OF SUBJECT MATTER
JURISDICTION
Doc. # 4

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This is an action for damages that arises from a search of plaintiff Dennis Napier

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(“Plaintiff”) by agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF” or

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“Defendant”) on January 30, 2009. Plaintiff’s residence and car were also searched on the same

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date. Plaintiff’s complaint alleges a single claim for “Civil Rights Violation” and a total of ten

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other claims alleging various torts under California common law.

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Currently before the court is Defendants’ motion to dismiss Plaintiff’s complaint for lack

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of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure

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or, in the alternative, for failure to state a claim for which relief may be granted pursuant to Rule

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12(b)(6). For the reasons that follow, Plaintiff’s complaint will be dismissed for lack of subject

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matter jurisdiction.

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff’s complaint lacks sufficient factual information to determine when the events

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that give rise to Plaintiff’s action occurred or what actions were taken subsequently by Plaintiff to

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obtain administrative review of his claims. Plaintiff’s complaint is subject to dismissal on that

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account.

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However, in order to present a more coherent factual narrative, the court will rely on facts

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presented in Defendant’s motion to dismiss with the observation that Plaintiff has not opposed or

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contradicted any of the facts asserted by Defendant. On January 30, 2009, agents of ATF and

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officers of the Clovis Police Department stopped Plaintiff as he was driving in his truck and

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detained him and searched both Plaintiff and the truck. On the same day, the ATF agents and

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Clovis police officers conducted a warrantless search of Plaintiff’s residence. Plaintiff was

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detained during the search. Although no items were seized, the complaint alleges Plaintiff’s

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property was damaged or destroyed.

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Defendant submits a number of documents for judicial notice. Because the motion

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before the court challenges the court’s jurisdiction pursuant to F.R.C.P. 12(b)(1), the court

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grants the request for judicial notice and will consider the materials submitted. Among the

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materials submitted by Defendant is a copy of Plaintiff’s completed Federal Tort Claim form,

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which is dated January 27, 2011, and a letter from the United States Department of Justice

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dated February 7, 2011, noting that the claim form had been received by the Department of

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Justice on January 31, 2011, and had been forwarded to the proper agency, ATF. The form

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was apparently received by ATF on February 7, 2011. ATF denied Plaintiff’s administrative

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claim as time-barred. The complaint does not contain any allegation that a claim was filed

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with any California jurisdiction pursuant to the California Tort Claims Act.

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Plaintiff filed the instant action in Fresno County Superior Court on January 30, 2012.

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The complaint was removed to this court on August 10, 2012 by the U.S. Attorney’s office

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because the facts imply injury resulting from actions of federal employees within the scope of

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their employment. The motion to dismiss was filed on August 15, 2012.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 12(b)(1) allows litigants to seek the dismissal of an

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action from federal court for lack of subject matter jurisdiction. A federal court has subject
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matter jurisdiction over an action that either arises under federal law or when there is

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complete diversity of citizenship between the parties and the amount in controversy exceeds

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$75,000. See 28 U.S.C. §§ 1331, 1332(a) (1998). When subject matter jurisdiction is challenged

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under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in

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order to survive the motion. See Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225

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(9th Cir.1989). "A plaintiff suing in a federal court must show in his pleading, affirmatively and

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distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so,

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the court, on having the defect called to its attention or on discovering the same, must dismiss the

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case, unless the defect be corrected by amendment." Smith v. McCullough, 270 U.S. 456, 459,

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46 S.Ct. 338, 70 L.Ed. 682 (1926).
The United States District Court has exclusive jurisdiction over civil actions or claims

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against the United States for money damages for injury or loss of property or personal injury

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caused by negligent or wrongful act or omission of any employee of the Government while acting

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within the scope of his office or employment, under circumstances where the United States, if a

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person would be held to the claimant in accordance with the law of the place where the act

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occurred. 28 U.S.C. § 1346. The FTCA is the exclusive remedy for injury resulting from federal

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employees acting within the scope of their employment. 28 U.S.C. § 2679. Accordingly,

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dismissal for lack of subject matter jurisdiction at this stage would effectively bar plaintiff’s

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recovery.

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The FTCA contains a requirement that the administrative claim be “submitted to the

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appropriate federal agency within two years of the alleged injury.” 28 U.S.C. § 2401(b). This two

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year statute of limimitations is jurisdictional and cannot be waived. Rooney v. United States, 634

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F.2d 1238, 1242 (9th Cir. 1980). FTCA claims accrue as a mater of federal law “when a plaintiff

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knows that he [or she] has been injured and who has inflicted the injury.” Winter v. United

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States, 244 F.3d 1088, 1090 (9th Cir. 2001).

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Also, the six-month limitation period for filing a tort action against the United States

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under the FTCA after the denial of an administrative claim is jurisdictional, therefore, remedies

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of equitable estoppel and equitable tolling do not apply. Marley v. United States, 567 F.3d 1030,
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1035-38 (9th Cir. 2009)
“Although ordinarily the defendant bears the burden of proving an affirmative statute of

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limitations defense, where the statute of limitations is jurisdictional, and, ‘when subject matter

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jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden

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of proving jurisdiction in order to survive the motion.’” Kingman Reef Atoll Investments, L.L.C.

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v. U.S. 541 F.3d 1189, 1197 (9th Cir. 2008); (quoting Tosco Corp. v. Comtys. for a Better Env't,

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236 F.3d 495, 499 (9th Cir.2001)).

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“In resolving a Rule 12(b)(1) motion [to dismiss] for lack of subject matter

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jurisdiction, unlike motions brought pursuant to Rule 12(b)(6), courts are generally free to

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consider relevant materials outside the pleadings. [Citations.]” Nat’l Comty. Reinvestment

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Coalition v. Nat’l Credit Union Admin., 290 F.Supp.2d 124, 131 (D.C. 2003).

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DISCUSSION

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As an initial matter, the court notes this action is captioned as being against a single

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defendant, United States of America; however, it appears from the body of the complaint that

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Plaintiff may have intended to sue the City of Clovis as well. The court also notes that the only

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summons that was issued by the Fresno County Superior Court in the removed documents was

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directed to the federal Defendant. On that basis, the court will proceed on the assumption that the

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complaint was never served on the City of Clovis and that no summons was ever issued as to the

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City of Clovis. In the event that the court’s assumption is erroneous, either party may move for

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correction. To the extent it is possible that Plaintiff may have been under the impression that he

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could sue the City of Clovis through an agency of the federal government, Plaintiff is hereby

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notified that each party to a lawsuit must be served with all pleadings pertaining to the lawsuit

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pursuant to Rule 5 of the Federal Rules of Civil Procedure. If a complaint and summons were not

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served on the City of Clovis, then the City of Clovis is not currently a defendant in this action.

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The primary basis for Defendant’s motion to dismiss is the contention that Plaintiff’s

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claims are time-barred. Giving Plaintiff’s complaint the broadest possible interpretation, the

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court finds there are two categories of claims for purposes of a statute of limitations defense; a

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civil rights claim and torts claim under the Federal Tort Claims Act (“FTCA”). All claims
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arise from the same event. That event – the search of Plaintiff’s person, vehicle and

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residence – occurred on the single date of January 30, 2009. Plaintiff was present and had

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knowledge that the ATF was seizing his property. Thus, the basis for the determination of

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limitations period begins with events occurring on January 30, 2009.

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I. Civil Rights Claim

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Although Plaintiff’s claims for relief are numbered, the third claim alleged in

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Plaintiff’s complaint alleges Defendant’s violation of “a federal right.” Given the factual context

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of this case, the court will assume for purposes of this discussion that Plaintiff’s third claim for

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relief alleges a violation of his right against unreasonable search and seizure under the Fourth

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Amendment pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Where

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time limitations to bring a federal action are not addressed under the authorizing statute or by

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case law, courts borrow the limitations period that is applicable to the type of action that is

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imposed by the state in which the suit is brought. See Wilson v. Garcia, 471 U.S. 261, 268

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(1985) (courts borrow most appropriate statute of limitations); Cholla Ready Mix, Inc. v.

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Civish, 382 F.3d 969, 974 (9th Cir. 2004). Because neither 42 U.S.C. § 1983 nor Bivins

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contain any specific statute of limitations, federal courts borrow state statutes of limitations for

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personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Torres v. City of

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Santa Ana, 108 F.3d 224, 226 (9th Cir. 1997). The Ninth Circuit has consistently held that the

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limitations period for an action pursuant to section 1983 or Bivins is contained in California’s

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general personal injury statute. McDougal v. County of Imperial, 942 F.3d 668, 672 (9th

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Cir. 1991). California’s general personal injury statute is set forth at California Code of Civil

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Procedure, section 335.1 and provides a limitations period of 2 years. See Thompson v. City

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of Shasta Lake, 314 F.Supp.2d 1017, 1023-1024 (E.D. Cal. 2004 (discussing applicability of

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California’s general residual statute of limitations to actions pursuant to section 1983).

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Pursuant to Wilson, California’s two-year limitations period applies to claims asserted

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pursuant to Bivins.

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Civil rights claims pursuant to section 1983 or under Bivins do not require
administrative exhaustion for jurisdiction to be available in federal court. Thus, Plaintiff’s civil
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rights claim is time-barred if it was not filed within two years of the date of accrual.

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There is no contention that Plaintiff’s civil rights accrued any later than January 30, 2009.

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Given that Plaintiff’s Bivins claim must have filed not later that two years from that date, it is

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beyond question that his claim was time-barred because it was not filed until nearly three years

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after the date of accrual. The Court therefore lacks jurisdiction over Plaintiff’s Bivins claim and

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will grant Defendants’ motion to dismiss both with prejudice.

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II. Tort Claims

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The Federal Tort Claim Act (“FTCA”) permits suits against the United States for
injuries caused within a government employee’s scope of employment. See 28 U.S.C. §

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1346(b)(1). “A tort claim against the United States shall be forever barred unless it is

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presented in writing to the appropriate Federal agency within two years after such claim

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accrues or unless action is begun within six months after the date of mailing, by certified or

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registered mail, of notice of final denial of the claim by the agency to which it was presented.”

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28 U.S.C. § 2401(b). As Defendants point out, a claim is “presented” for purposes of the

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FTCA when it is actually received by the appropriate agency. 28 C.F.R. § 14.2(a). As such, the

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claim in this action was due not later than January 30, 2011. Even if the court assumes that

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Department of Justice was the appropriate agency for purposes of presentment of Plaintiff’s tort

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claim1 the claim was one day late when it was received on January 31, 2011.

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The facts of this case do not hint at any plausible basis for equitable tolling of the

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statute of limitations or for late discovery of Plaintiff’s injuries. As noted above, everything

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that comprises Plaintiff’s claims for relief occurred and were complete on January 30, 2009.

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Plaintiff effectively “sat on his rights” until the very end of the statutory limitations period and

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cannot now complain that his cause was betrayed by mail delivery that was slower than

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anticipated. The court finds Plaintiff’s tort claims against ATF are time-barred. The court

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therefore lacks subject matter jurisdiction and dismissal is warranted.

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Defendant contends that the appropriate agency was the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. The claim was not received by ATF until February 7, 2011.
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III. Leave to Amend
“If a complaint is dismissed for failure to state a claim, leave to amend should be

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granted unless the court determines that the allegation of other facts consistent with the

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challenged pleading could not possibly cure the deficiency.” Schreiber Distributing Co. v.

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Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986). In this case, Plaintiff’s

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claims for violation of his civil rights and his tort claims against the United States (or ATF)

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are time-barred and there is no plausible way that amendment of the pleadings could cure this

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deficiency. The court also notes that Plaintiff’s opposition to Defendant’s motion to dismiss is

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presented as a motion for extension of time to amend. While the aim of Plaintiff’s opposition

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is vague, it is clear that the opportunity to amend is at the center. Because the court has

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determined that further amendment of the complaint cannot overcome the statutory time

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limitations barring Plaintiff’s claims, Plaintiff’s opposition/motion to amend will be denied.

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THEREFORE, it hereby ORDERED that Defendants’ motion to dismiss Plaintiff’s

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complaint is hereby GRANTED. Plaintiff’s complaint is hereby DISMISSED in its entirety

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with prejudice. Plaintiff’s request for extension of time to file an amended complaint, Docket

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Number 7, is hereby DENIED as moot. The Clerk of the Court is directed to CLOSE the CASE.

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IT IS SO ORDERED.

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Dated:
0m8i78

February 13, 2013
SENIOR DISTRICT JUDGE

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