Terrell v. Defense Advanced Research Projects Agency et al

Filing 29

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS by Judge Paul S. Grewal granting 11 (psglc2, COURT STAFF) (Filed on 1/29/2014) (Additional attachment(s) added on 1/29/2014: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN JOSE DIVISION

11

GREGORY M. TERRELL,

12

Plaintiff,
v.

13
14

NAVAL MEDICAL RESEARCH CENTER,
et al.,

15

Defendants.

16

)
)
)
)
)
)
)
)
)
)

Case No. 5:13-cv-04616-PSG
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
(Re: Docket No. 11)

Defendants move to dismiss Plaintiff Gregory Terrell’s complaint for lack of subject matter

17
18

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Terrell did not file an opposition or appear at the

19

hearing held yesterday. After considering the arguments, the court GRANTS Defendants’ motion

20

without leave to amend. Judgment will follow.

21
22

The Supreme Court in Feres v. United States held that “the Government is not liable under
the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the

23
24
25

course of activity incident to service.” 1 The Ninth Circuit evaluates four non-dispositive factors
under the totality of the circumstances to determine “whether a particular suit should be barred by

26
27
28

1

340 U.S. 135, 146 (1950).

1
Case No. 5:13-cv-04616-PSG
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

1

the Feres doctrine:
1) the place where the negligent act occurred;
2) the duty status of the plaintiff when the negligent act occurred;
3) the benefits accruing to the plaintiff because of his status as a service member; and
4) the nature of the plaintiff's activities at the time the negligent act occurred.” 2

2
3
4
5
6

After reviewing Defendants’ papers the court finds that these factors warrant dismissal of
this case. First, the negligent activity allegedly occurred at the Marine Corps Recruit Depot in San
Diego when Terrell developed pneumonia. 3 Second, Terrell alleges he was on active duty when he

7
8
9

United States District Court
For the Northern District of California

10

developed pneumonia and remained on active duty during treatment. 4 Third, Terrell has benefitted
from medical treatment provided incident to his military service. 5 Finally, the pneumonia
underlying Terrell’s claims arose during his basic training. 6

11
12

The court further finds that the United States is the only proper defendant under the FTCA. 7
Under the FTCA, agencies cannot be sued. 8 Personal capacity suits against federal employees are

13
14
15
2

16

Costo v. United States, 248 F.3d 863, 867 (9th Cir. 2001) (citing Dreier v. United States,
106 F.3d 844, 848 (9th Cir. 1996)).

17

3

Docket No. 1 at 4.

18

4

Id.

19

5

Id.

20

6

Id.

21

7

22
23
24
25
26
27
28

See McAllister v. United States, Case No. 3:11-cv-03858-MEJ, 2013 WL 2551990, at *2
(N.D. Cal. June 10, 2013) (agreeing with the government that “it is well-established that the FCTA
only authorizes lawsuits against” the United States and noting that the “FTCA,
28 U.S.C. §§ 1346(b), 2671-80, waives the sovereign immunity of the United States for certain
torts committed by federal employees.”) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994)
(noting the United States has waived its sovereign immunity and rendered itself liable for claims
“[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or
personal injury or death [4] caused by the negligent or wrongful act or omission of any employee
of the Government [5] while acting within the scope of his office or employment, [6] under
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.”)).
8

See 28 U.S.C. § 2679(a); Kennedy v. United States Postal Service, 145 F.3d 1077, 1078
(9th Cir. 1998) (the United States, not an agency like the Postal Service, is the only proper party
defendant in an FTCA action).
2
Case No. 5:13-cv-04616-PSG
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS