Kriehn v. U.S.Department of Justice

Filing 25

ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 5 Motion to Dismiss; denying 15 Motion to Remand. Plaintiff's complaint is dismissed with leave to amend. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/11/2013)

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UNITED STATES DI
D
ISTRICT COU
URT

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NORTHER DISTRICT OF CALIFO
RN
T
ORNIA

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7
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JESS H. KRIEHN,
S
N

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Plaintiff,

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O RDER GRAN
NTING MOTION TO DISM
MISS
W ITH LEAVE TO AMEND
E
D

vs.

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United States District Court
Northern District of California

C
Case No.: 12
2-CV-04853 YGR

U.S. DEPARTME OF JUST
ENT
TICE et al.,

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Defe
endant(s).

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Plaintiff Jess Kriehn (“Kriehn”) brings this a
f
n
action for “G
General Negl
ligence” aga
ainst the

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Dep
partment of Justice (“U.S DOJ”) for its alleged “
J
S.
“Failure To E
Enforce Law
ws.”
The U.S. DOJ has filed a Motion to Dismiss pursuant to Federal Ru of Civil P
n
s
o
ule
Procedure

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12(b
b)(1) for lack of subject matter jurisd
k
diction on th grounds th Plaintiff Kriehn faile to exhaust
he
hat
ed
t

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adm
ministrative remedies, and pursuant to Federal Ru of Civil P
d
o
ule
Procedure 12
2(b)(6) for f
failure to

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state a claim for relief. Plain has file a motion f partial or full remand
e
r
ntiff
ed
for
r
d.
Having carefully con
c
nsidered the papers subm
mitted and th pleadings in this actio for the
he
on,

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reas
sons set forth below, the Court hereb GRANTS t Motion t Dismiss WITH LEAVE TO AMEND
h
by
the
to
E
D

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and DENIES the Motion for Remand.1

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I.

On July 17, 2012, Pl
laintiff filed a lawsuit in the Santa C
n
Clara County Superior Co against
y
ourt

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GROUND
BACKG

the Department of Justice al
D
lleging “Gen
neral Neglige
ence” for “F
Failure to En
nforce Laws.” On

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Pur
rsuant to Fede Rule of Civil Procedu 78(b) and Civil Local R 7-1(b), th Court finds this motion
eral
C
ure
Rule
he
appr
ropriate for de
ecision withou oral argum
ut
ment. Accordi
ingly, the Cou VACATES the hearing s for
urt
S
set
Janu
uary 29, 2013.

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Aug 16, 2012 the United States Atto
gust
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d
orney’s Offic in San Jos on behalf of the U.S. DOJ, was
ce
se,
f

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serv copies of the summo and comp
ved
f
ons
plaint. On S
September 17 2012, the U.S. DOJ re
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emoved the

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actio pursuant to 28 U.S.C. §§ 1346 an 1442, on t basis tha the U.S. D
on
nd
the
at
DOJ, an agen of the
ncy

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Unit States go
ted
overnment, is a defendan Defendan has move to dismiss and Plaintif has moved
i
nt.
nt
ed
s
ff
d

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to re
emand.

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II.

MOTIO TO DISM
ON
MISS

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Defenda moves to dismiss pur
ant
rsuant to Fed
deral Rule of Civil Proce
f
edure 12(b)(6 for failure
6)
e

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to st a claim upon which relief can be granted. A motion to d
tate
u
e
dismiss unde Rule 12(b
er
b)(6) tests the
e

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lega sufficiency of the claim alleged in the complai
al
y
m
int. Ileto v. Glock, Inc., 349 F.3d 11
191, 11991200 (9th Cir. 2003). While Rule 8(a) of the Federa Rules of C
0
2
e
o
al
Civil Procedu requires only “a
ure

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United States District Court
Northern District of California

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shor and plain statement of the claim sh
rt
s
f
howing that the pleader is entitled to relief,” Fed R. Civ. P.
o
d.

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8(a)
)(2), “a comp
plaint must contain sufficient factual matter, acc
c
l
cepted as true to ‘state a claim to
e,

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relie that is plau
ef
usible on its face.’” Ash
hcroft v. Iqba 556 U.S. 662, 678 (2009) (quotin Bell Atl.
al,
ng

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Corp v. Twomb 550 U.S. 544, 557 (2
rp.
bly,
.
2007)).

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Plaintiff appears to misunderstan many fun
f
m
nd
ndamental co
oncepts upon which he p
n
personally

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wou be entitle to relief. Here, the co
uld
ed
omplaint alle
eges “Genera Negligenc for “Failu to
al
ce”
ure

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Enfo Laws.” No other fa are supp
orce
acts
plied. The co
omplaint mu
ust―but doe not―iden
es
ntify which

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laws are not bein enforced. The compl
s
ng
laint fails to provide any facts showing that Plai
y
intiff is

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entit to the $1.3 million in relief that he seeks. P
tled
i
Plaintiff’s mo
otion to rema indicate that the
and
es

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laws is related to youth ac
suit
d
ccess to toba
acco product (See Dkt No. 15 at 3 (“I am redr
ts.
t.
ressing my

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gove
ernment for them to cha
ange their att
titude toward this subject of leaving tobacco ou in the
ds
g
ut

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open on a silver platter for minors”).) Without a va and spec
n,
r
m
W
alid
cific basis fo recovery, the
or

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Com
mplaint fails to state a cla upon wh relief ca be granted.
aim
hich
an

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Defenda also move to dismiss on the basi of lack of subject matt jurisdicti for
ant
es
s
is
ter
ion

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failu to file an administrat claim. Because Def
ure
n
tive
B
fendant, not Plaintiff, has invoked th Court’s
he

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subj matter ju
ject
urisdiction, the Court wi construe D
t
ill
Defendant’s motion as a
attacking the pleading

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unde Rule 12(b
er
b)(6) for failu to state a claim upon which relie can be gra
ure
n
ef
anted.

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2

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Absent waiver, sover
w
reign immun shields th Federal G
nity
the
Government and its agen
t
ncies and
emp
ployees from suit. FDIC v. Meyer, 510 U.S. 471 , 475 (1994) “A waiver of the Fede
C
).
r
eral

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Gov
vernment’s sovereign im
s
mmunity mus be unequiv
st
vocally expressed in stat
tutory text.” Lane v.

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Pena, 518 U.S. 187, 192 (19
996). One su statute i the Federa Tort Claim Act (“FTC
uch
is
al
ms
CA”), which
h

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vides a limite waiver of the governm
ed
f
ment’s immu
unity from t liability. Marley v. U
tort
United
prov

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Stat 567 F.3d 1030, 1034 (9th Cir. 20
tes,
d
4
009). Defen
ndant argues that the FTC is the only possible
CA

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statu that could waive the government immunity to Plaintiff tort claim To sue the Federal
ute
t’s
y
f’s
m.
e

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Gov
vernment und the FTCA the claim must be pre
der
A,
m
esented in w
writing to the appropriate agency. 28
e
e
8

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U.S.C. § 2401(b Defendan argues tha the FTCA does not wa immuni here beca
b).
nt
at
A
aive
ity
ause Plaintif
ff

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faile to file an administrative tort claim Defendan has provid evidence that this pre
ed
m.
nt
ded
e
erequisite to

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United States District Court
Northern District of California

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filin suit under the FTCA has not been met and on that basis se
ng
r
h
n
eeks dismiss with preju
sal
udice.

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Because Plaintif has not ide
ff
entified the source of the governmen waiver o immunity the Court
s
e
nt’s
of
y,

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cann rule as matter of law on whether the governm has wa
not
m
w
ment
aived immun for Plain
nity
ntiff’s claim.

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Thus Pla
aintiff has no only failed to identify the statutory basis for h claim, but also for the
ot
d
y
his
t
e

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Fede Governm
eral
ment’s waiv of immun for this la
ver
nity
awsuit. The
erefore, Plain has faile to state a
ntiff
ed

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claim upon whic relief can be granted.
m
ch
n
Based on the foregoi analysis, the Court G RANTS Def
n
ing
,
fendant’s Mo
otion to Dism
miss.

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III.

MOTIO TO REM
ON
MAND
Federal courts are co
c
ourts of limit jurisdicti
ted
ion. They h
have no powe to conside claims for
er
er
r

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whic they lack subject-mat jurisdicti
ch
k
tter
ion. See Ch
hen-Cheng W
Wang ex rel. United State v. FMC
es

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Corp 975 F.2d 1412, 1415 (9th Cir. 19
rp.,
d
992). Federa courts can only adjudi
al
n
icate cases w
which the

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Con
nstitution or Congress au
uthorize them to adjudica
m
ate. Those c
cases involve diversity o citizenship
e
of
p

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(where the parties are from different sta
ates), a federa question (
al
(arising unde the Consti
er
itution, laws
s,

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or tr
reaties of the United Stat
e
tes), or cases to which th United St
s
he
tates is a par
rty. See, e.g., Kokkonen

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v. Guardian Life Insur. Co. of Am., 511 U.S. 375 (1994).
G
fe

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Plaintiff argues that removal was improper a has mov to reman As a basi for
f
and
ved
nd.
is

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rem
moval, Defend invoked 28 U.S.C. § 1442, whi ch permits r
dant
d
removal by f
federal agenc
cies. A

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part seeking re
ty
emoval under Section 14 must dem
r
442
monstrate tha “(a) it is a ‘person’ wi
at
ithin the

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mea
aning of the statute; (b) there is a cau nexus be
s
usal
etween its ac
ctions, taken pursuant to a federal
n
o

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offic
cer’s directio and plai
ons,
intiff’s claim and (c) it can assert a ‘colorable federal defense.’”
ms;
t

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Dur
rham v. Lock
kheed Martin Corp., 445 F.3d 1247, 1251 (9th C 2006) (ci
n
5
Cir.
iting Jefferso County v.
on
.

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Acke 527 U.S. 423, 431 (1999); Mesa v. California 489 U.S. 121, 124-25 131-35 (19
er,
a,
5,
989) (“The

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rem
moval statute itself merely serves to overcome the ‘well-plead complain rule whic would
y
o
e
ded
nt’
ch

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othe
erwise preclu removal even if a fed
ude
deral defens were alleg
se
ged.”)). In re
esponse to th Court’s
he

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Ord to Show Cause re: La of Subjec Matter Jur
der
C
ack
ct
risdiction, D
Defendant U. DOJ clari
.S.
ified that the
e

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basi for its rem
is
moval was to assert the fe
ederal defens of soverei immunit the FTCA is the only
se
ign
ty;
A

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poss
sible statute that could waive the gov
w
vernment’s i
immunity, P
Plaintiff faile to file an
ed
adm
ministrative to claim, an therefore, the FTCA d
ort
nd
does not wai immunity here. This is a
ive
y
s

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United States District Court
Northern District of California

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colo
orable federa defense. Removal to assert a fede ral defense w proper.
al
R
a
was
Based on the foregoi analysis, the Court DENIES the M
n
ing
,
Motion to Re
emand.

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IV.

CONCL
LUSION

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For the reasons set forth above, the Motion t Dismiss is GRANTED IN PART for failure to
r
fo
t
to
s
r

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state a claim upo which rel can be granted. The Motion to D
e
on
lief
e
Dismiss is DENIED IN PA , to the
ART

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exte that it see dismissa for lack of subject mat jurisdicti
ent
eks
al
f
tter
ion.

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The Mot
tion for Rem
mand is DENI .
IED

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Plaintiff complaint is DISMISSE WITH LE
f’s
t
ED
EAVE TO AM
MEND. Plain
ntiff shall hav until
ve

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Feb
bruary 15, 2013 to file an amended complaint.
a
c
In light of this Order the Court will interpre a failure to file an Ame
o
r,
w
et
o
ended Comp
plaint as an
aban
ndonment of this matter and will sua sponte ente a Judgmen of Dismis
f
a
er
nt
ssal.
Plaintiff is encourag to visit th Legal Hel Center in the San Fran
f
ged
he
lp
ncisco or Sa Jose
an

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cour
rthouses for limited-scop help from an attorney There is n fee for thi service. T make an
pe
m
y.
no
is
To

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appo
ointment wit the Legal Help Center in San Fran
th
r
ncisco, Plain may vis the San Fr
ntiff
sit
rancisco

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Cou
urthouse or call 415/782c
-9000 (ext. 8657). To m
8
make an appo
ointment wit the Legal Help Center
th
r

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in San Jose, Plai
intiff may vi the San Jose Courtho
isit
J
ouse or call 4
408/297-148 Please v the
80.
visit

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Cou
urt’s website, http://cand.uscourts.go
ov/proselitiga
ants, or call t phone nu
the
umbers listed above for

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curr office ho
rent
ours, forms and policies for both Leg Help Cen
a
gal
nters.

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This Order Terminates Docket Numbers 5 & 15.

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IT IS SO ORDERED.

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Date: January 11, 2013

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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