Grogan v. Beale Aero Club et al

Filing 23

ORDER signed by Judge Garland E. Burrell, Jr on 7/16/15 ORDERING that Defendants' Motion to Dismiss 11 is GRANTED. The United States is DISMISSED as a Defendant in this action, and Beale Aero Club is DISMISSED as a Defendant with prejudice. Lastly, on or before seven days after the date on which this Order is filed, Plaintiff shall file proof that Defendant Henry has been served with process or a sufficient explanation for why service was not completed within Rule 4(m)'s prescribed service period. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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No. 2:15-cv-00562-GEB-KJN

JAMES M. GROGAN,

ORDER GRANTING DEFENDANTS
UNITED STATES OF AMERICA
AND BEALE AERO CLUB’S
DISMISSAL MOTION

Plaintiff,
v.
BEALE AREO CLUB; JOHN HENRY;
UNITED STATES OF AMERICA; and
DOES 1-30,
Defendants.

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Defendants United States of America and Beale Aero Club
(collectively, “Defendants”) seek to be dismissed as defendants
in this action under Federal Rules of Civil Procedure (“Rules”)
12(b)(1) and 12(h)(3), arguing:
Plaintiff did not exhaust administrative
remedies prior to filing suit[; and that]
. . . . [t]he Court should . . . dismiss
Beale Aero Club, an instrumentality of the
United States, as a party Defendant, with
prejudice . . . . [since t]he [Federal Tort
Claims Act (‘FTCA’)] . . . provides district
courts
. . . with subject matter
jurisdiction only over actions against the
United States[;] . . . . [and] the claims
against Defendants Does 1-30 should be
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dismissed unless Plaintiff attests that these
unknown Defendants are not federal employees
or agencies whose acts or omissions would
subject the United States to liability under
the FTCA.

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(Def.’s Notice of Mot. to Dismiss 2:1-15, ECF No. 11.) Plaintiff

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opposes the motion, arguing:

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Plaintiff agrees that the administrative
remedies described by the United States must
be exhausted prior to being able to commence
a suit against the United States . . .
[Plaintiff] opposes the motion to the extent
that it seeks to dismiss any person or entity
not covered by the [FTCA]. Specifically, this
[C]ourt
must
maintain
subject
matter
jurisdiction [over] Defendant John Henry
. . . and Does 1 through 30 as the amount in
controversy in this case exceeds $75,000 and
Mr. Grogan and Mr. Henry are citizens of
different states pursuant to 28 U.S.C. §
1332(a)(1).

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. . . .

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[Further, f]or efficient use of judicial
resources, [Plaintiff] request[s] that the
Court maintain its jurisdiction over the
entirety of the [D]efendants and stay the
proceedings while the administrative process
resolves because the claims arise out of the
same operative facts.

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(Pl.’s Opp’n to Def.’s Mot. (“Opp’n”) 1:20-27, 3:24-26, ECF No.

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15.)
I.

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DISCUSSION

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Defendants argue the motion should be granted because

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Plaintiff has not exhausted applicable administrative remedies

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since he “filed suit . . . only five days after presenting his

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administrative claim to the Air Force.” (Mot. 9:4-5.) 28 U.S.C. §

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2675(a)

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instituted upon a claim against the United States . . .

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the

of

claimant

the

FTCA

shall

prescribes:

have

first
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“An

action

presented

the

shall

claim

not

be

unless
to

the

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appropriate Federal agency and his claim shall have been finally

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denied by the agency.” (emphasis added). Plaintiff concedes he is

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currently “participating in [the administrative claim] process,”

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and

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without prejudice for lack of subject matter jurisdiction due to

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the [pending] administrative proceeding.” (Opp’n 1:22, 3:22-23)

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(emphasis

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United States are dismissed.

that

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“Defendant

added).

also

properly

Plaintiff’s

argue

“Beale

Aero

Club

should

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absence of subject matter jurisdiction” (Mot. 9:18-10:1); and

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argue Does 1-30 should be dismissed “unless Plaintiff attests

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that

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agencies whose acts or omissions would subject the United States

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to liability under the FTCA.” (Notice of Mot. 2:8-15.)
“[I]f

a

suit

is

subject

be

agencies and instrumentalities in their own name due to [the]

not

of

the

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are

lack

against

jurisdiction” since “suits [may not] be brought against federal

Defendants

for

claims

dismissed

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unknown

Defendant

be

dismissed

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party

may

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these

a

States

Therefore,

Defendants
as

United

federal

‘cognizable’

under

matter

employees

[28

U.S.C.]

or

§

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1346(b) of the FTCA, the FTCA remedy is ‘exclusive’ and the

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federal agency cannot be sued ‘in its own name.’” Endicott v.

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Bureau of Alcohol, Tobacco, Firearms & Explosives, 338 F. Supp.

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2d 1183, 1185 (W.D. Wash. 2004) (quoting 28 U.S.C. § 2679(a) of

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the FTCA and F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994)). 28

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U.S.C. § 2671 of the FTCA states “the term ‘Federal agency’

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includes

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departments, independent establishments of the United States, and

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corporations primarily acting as instrumentalities or agencies of

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the United States.” “Air Force Aero Clubs are established and

the

executive

departments,

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.

.

.

the

military

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operate

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States under the control of the Air Force.”

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F.2d 93, 94 n.2 (7th Cir. 1987); see also Bruckner v. United

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States, 338 F.2d 427, 428 (9th Cir. 1964) (indicating that an Air

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Force Base Aero Club “is an instrumentality of the United States,

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organized and operated under the auspices of the Air Force to

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give authorized personnel an opportunity to fly for recreation

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and the development of aeronautical skills.”) Since Beale Aero

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Club is an instrumentality of the United States, it may not be

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sued eo nomine. See F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th

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Cir. 1998) (stating even when “claims . . . arise from the acts

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or omissions of United States agencies . . . , an agency itself

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cannot be sued under the FTCA.”) Therefore, Beale Aero Club’s

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motion to be dismissed as a defendant is granted with prejudice.

as

non-appropriated

instrumentalities

of

the

United

Walls v. U.S., 832

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However, Defendants have not shown that the portion of

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the motion seeking dismissal of the Doe Defendants is ripe for

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judicial

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denied.

decision.

Therefore,

that

portion

of

the

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Defendants also argue:

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[T]he Court must resolve the incongruity
between Plaintiff’s (1) concession that he
does not oppose dismissal of any Defendant
that is subject to the FTCA and, (2) his
request [in his Opposition to the dismissal
motion]
that
‘the
Court
maintain
its
jurisdiction
over
the
entirety
of
the
[D]efendants and stay the proceedings while
the administrative process resolves because
the claims arise out of the same operative
facts.’
These
two
positions
cannot
be
logically reconciled.
The Court has no
jurisdiction over the United States or Beale
Aero Club, and therefore cannot ‘maintain its
jurisdiction’
over
them
during
the
administrative claims process by issuing a
stay instead of dismissing them from the
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motion

is

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case.
(Reply 3:23-4:3.)

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Plaintiff has not shown that the Court has authority to

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stay proceedings which he prematurely filed against the United

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States; nor has he shown how such a stay could issue without

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“vitiat[ing]

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jurisdictional and must be strictly adhered to.” Jackson v. U.S.

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Dep't of Veterans Affairs, No. CV 08-541-DDP AGR, 2010 WL 480983,

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at *3 n.2 (C.D. Cal. Feb. 2, 2010).

the

exhaustion

requirement

.

.

.

.

[which]

is

Plaintiff has also failed to

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show justification for staying his suit against the remaining

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Defendant John Henry.
Defendant Henry has not yet appeared in this lawsuit,

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and

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Therefore, Plaintiff is notified under Rule 4(m) of the Federal

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Rules of Civil Procedure that his failure to serve Defendant

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Henry with process within 120 days of the date of removal, which

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elapsed on July 10, 2015, may result in Henry and this action

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being dismissed. To avoid dismissal, on or before seven days

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after the date on which this Order is filed, Plaintiff shall file

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proof of service for Henry or a sufficient explanation for why

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service was not completed within Rule 4(m)’s prescribed service

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period.

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it

is

unclear

whether

II.

he

has

been

served

with

process.

CONCLUSION

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For the stated reasons, the United States is dismissed

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as a Defendant in this action, and Beale Aero Club is dismissed

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as a Defendant with prejudice. Lastly, on or before seven days

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after the date on which this Order is filed, Plaintiff shall file

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proof that Defendant Henry has been served with process or a

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sufficient explanation for why service was not completed within

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Rule 4(m)’s prescribed service period.

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Dated:

July 16, 2015

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