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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1 2 3 UNITED STATES DI D ISTRICT COU URT 4 NORTHER DISTRICT OF CALIFO RN T ORNIA 5 6 7 8 JESS H. KRIEHN, S N 9 Plaintiff, 10 O RDER GRAN NTING MOTION TO DISM MISS W ITH LEAVE TO AMEND E D vs. 11 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., 12 Defe endant(s). 13 Plaintiff Jess Kriehn (“Kriehn”) brings this a f n action for “G General Negl ligence” aga ainst the 14 15 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 16 17 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 18 adm ministrative remedies, and pursuant to Federal Ru of Civil P d o ule Procedure 12 2(b)(6) for f failure to 19 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, 20 21 reas sons set forth below, the Court hereb GRANTS t Motion t Dismiss WITH LEAVE TO AMEND h by the to E D 22 and DENIES the Motion for Remand.1 23 I. On July 17, 2012, Pl laintiff filed a lawsuit in the Santa C n Clara County Superior Co against y ourt 24 25 GROUND BACKG the Department of Justice al D lleging “Gen neral Neglige ence” for “F Failure to En nforce Laws.” On 26 27 28 1 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. 1 Aug 16, 2012 the United States Atto gust 2, d orney’s Offic in San Jos on behalf of the U.S. DOJ, was ce se, f 2 serv copies of the summo and comp ved f ons plaint. On S September 17 2012, the U.S. DOJ re 7, emoved the 3 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 4 Unit States go ted overnment, is a defendan Defendan has move to dismiss and Plaintif has moved i nt. nt ed s ff d 5 to re emand. 6 II. MOTIO TO DISM ON MISS 7 Defenda moves to dismiss pur ant rsuant to Fed deral Rule of Civil Proce f edure 12(b)(6 for failure 6) e 8 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 9 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 11 United States District Court Northern District of California 10 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. 12 8(a) )(2), “a comp plaint must contain sufficient factual matter, acc c l cepted as true to ‘state a claim to e, 13 relie that is plau ef usible on its face.’” Ash hcroft v. Iqba 556 U.S. 662, 678 (2009) (quotin Bell Atl. al, ng 14 Corp v. Twomb 550 U.S. 544, 557 (2 rp. bly, . 2007)). 15 Plaintiff appears to misunderstan many fun f m nd ndamental co oncepts upon which he p n personally 16 wou be entitle to relief. Here, the co uld ed omplaint alle eges “Genera Negligenc for “Failu to al ce” ure 17 Enfo Laws.” No other fa are supp orce acts plied. The co omplaint mu ust―but doe not―iden es ntify which 18 laws are not bein enforced. The compl s ng laint fails to provide any facts showing that Plai y intiff is 19 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 20 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 21 gove ernment for them to cha ange their att titude toward this subject of leaving tobacco ou in the ds g ut 22 open on a silver platter for minors”).) Without a va and spec n, r m W alid cific basis fo recovery, the or 23 Com mplaint fails to state a cla upon wh relief ca be granted. aim hich an 24 Defenda also move to dismiss on the basi of lack of subject matt jurisdicti for ant es s is ter ion 25 failu to file an administrat claim. Because Def ure n tive B fendant, not Plaintiff, has invoked th Court’s he 26 subj matter ju ject urisdiction, the Court wi construe D t ill Defendant’s motion as a attacking the pleading 27 unde Rule 12(b er b)(6) for failu to state a claim upon which relie can be gra ure n ef anted. 28 2 1 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 3 Gov vernment’s sovereign im s mmunity mus be unequiv st vocally expressed in stat tutory text.” Lane v. 4 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 5 vides a limite waiver of the governm ed f ment’s immu unity from t liability. Marley v. U tort United prov 6 Stat 567 F.3d 1030, 1034 (9th Cir. 20 tes, d 4 009). Defen ndant argues that the FTC is the only possible CA 7 statu that could waive the government immunity to Plaintiff tort claim To sue the Federal ute t’s y f’s m. e 8 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 9 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 10 faile to file an administrative tort claim Defendan has provid evidence that this pre ed m. nt ded e erequisite to 11 United States District Court Northern District of California 2 filin suit under the FTCA has not been met and on that basis se ng r h n eeks dismiss with preju sal udice. 12 Because Plaintif has not ide ff entified the source of the governmen waiver o immunity the Court s e nt’s of y, 13 cann rule as matter of law on whether the governm has wa not m w ment aived immun for Plain nity ntiff’s claim. 14 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 15 Fede Governm eral ment’s waiv of immun for this la ver nity awsuit. The erefore, Plain has faile to state a ntiff ed 16 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. 17 18 19 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 20 whic they lack subject-mat jurisdicti ch k tter ion. See Ch hen-Cheng W Wang ex rel. United State v. FMC es 21 Corp 975 F.2d 1412, 1415 (9th Cir. 19 rp., d 992). Federa courts can only adjudi al n icate cases w which the 22 Con nstitution or Congress au uthorize them to adjudica m ate. Those c cases involve diversity o citizenship e of p 23 (where the parties are from different sta ates), a federa question ( al (arising unde the Consti er itution, laws s, 24 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 25 v. Guardian Life Insur. Co. of Am., 511 U.S. 375 (1994). G fe 26 Plaintiff argues that removal was improper a has mov to reman As a basi for f and ved nd. is 27 rem moval, Defend invoked 28 U.S.C. § 1442, whi ch permits r dant d removal by f federal agenc cies. A 28 part seeking re ty emoval under Section 14 must dem r 442 monstrate tha “(a) it is a ‘person’ wi at ithin the 3 1 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 2 offic cer’s directio and plai ons, intiff’s claim and (c) it can assert a ‘colorable federal defense.’” ms; t 3 Dur rham v. Lock kheed Martin Corp., 445 F.3d 1247, 1251 (9th C 2006) (ci n 5 Cir. iting Jefferso County v. on . 4 Acke 527 U.S. 423, 431 (1999); Mesa v. California 489 U.S. 121, 124-25 131-35 (19 er, a, 5, 989) (“The 5 rem moval statute itself merely serves to overcome the ‘well-plead complain rule whic would y o e ded nt’ ch 6 othe erwise preclu removal even if a fed ude deral defens were alleg se ged.”)). In re esponse to th Court’s he 7 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 8 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 9 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 11 United States District Court Northern District of California 10 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. 12 13 IV. CONCL LUSION 14 For the reasons set forth above, the Motion t Dismiss is GRANTED IN PART for failure to r fo t to s r 15 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 16 exte that it see dismissa for lack of subject mat jurisdicti ent eks al f tter ion. 17 The Mot tion for Rem mand is DENI . IED 18 Plaintiff complaint is DISMISSE WITH LE f’s t ED EAVE TO AM MEND. Plain ntiff shall hav until ve 19 20 21 22 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 23 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 24 appo ointment wit the Legal Help Center in San Fran th r ncisco, Plain may vis the San Fr ntiff sit rancisco 25 Cou urthouse or call 415/782c -9000 (ext. 8657). To m 8 make an appo ointment wit the Legal Help Center th r 26 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 27 Cou urt’s website, http://cand.uscourts.go ov/proselitiga ants, or call t phone nu the umbers listed above for 28 curr office ho rent ours, forms and policies for both Leg Help Cen a gal nters. 4 1 This Order Terminates Docket Numbers 5 & 15. 2 IT IS SO ORDERED. 3 4 Date: January 11, 2013 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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