City of Imperial v. Department of the Navy et al
Filing
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ORDER granting 3 Defendant's Motion to Dismiss with Prejudice. Signed by Judge M. James Lorenz on 6/22/2016. (sjt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CITY OF IMPERIAL,
Case No.: 3:15-cv-02140-L-KSC
Plaintiff,
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v.
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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS WITH
PREJUDICE [Doc. 3]
DEPARTMENT OF THE NAVY,
Defendant.
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Pending before the Court is Defendant Department of the Navy’s Motion to
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Dismiss Plaintiff City of Imperial’s Complaint [Doc. 1] pursuant to Federal Rules of
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Civil Procedure 12(b)(1) and 12(b)(6). The Court decides the matter on the papers
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submitted and without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons stated
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below, the Court GRANTS WITH PREJUDICE Defendant’s Motion to Dismiss for
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Lack of Subject Matter Jurisdiction.
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3:15-cv-02140-L-KSC
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I.
BACKGROUND
On June 4, 2014, a Marine Corps AV-8B Harrier jet crashed in the City of
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Imperial, California. (See Compl. ¶ 6.) The City of Imperial (“Plaintiff”) responded to the
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crash scene by utilizing its Fire and Police emergency personnel, Public Services staff,
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Building & Planning staff, and the City Manager’s Office to provide emergency relief
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services. (Admin. Claim [Doc. 7-3] ¶ 1.) On August 15, 2014, pursuant to 28 U.S.C. §
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2675, Plaintiff submitted an Administrative Claim to the Department of the Navy
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(“Defendant”), requesting payment of $85,079.68 for incident response costs associated
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with the crash. (See Admin. Claim.)
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Plaintiff’s Administrative Claim included three requests. First, Plaintiff requested
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payment for emergency response costs, totaling $28,223.84. (Admin. Claim ¶ 2.) These
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costs were accounted for in the supporting salary expense sheet, identifying four
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categories of costs: (1) staff hours, (2) supplies, (3) fire services, and (4) dispatcher
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services. (See Serv. Invoice [Doc. 7-4] p. 2.)
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Second, Plaintiff requested payment for site security services, totaling $56,855.84.
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(Admin. Claim ¶ 3.) The claim for site security services was provided in accordance with
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an Intergovernmental Support Agreement (ISA) between the Marine Corps and the City
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of Imperial. (See ISA [Doc 3-3 Ex. B].) On August 22, 2014, the Government satisfied
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this request by paying it in full. (See Payment Voucher [Doc. 3-3 Ex. D].) The request for
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site security services is therefore not in dispute.
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Third, Plaintiff indicated property damage to public streets. (Admin. Claim ¶ 5.)
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Specifically, the final paragraph of Plaintiff’s Administrative Claim states “final
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improvements are now being made to the public street damaged in the crash and the
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property owners are in the process of repairs. We look forward to this final resolution of
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the City’s costs for this incident.” (Id.)
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On March 24, 2015, Defendant denied Plaintiff’s Administrative Claim as to the
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emergency response costs of $28,223.84. (See Denial Letter [Doc. 3-3 Ex. E].) On
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September 24, 2015, Plaintiff filed a Complaint against Defendant seeking recovery of
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these costs under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671, et seq. and
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1346(b)(1). Defendant now moves to dismiss Plaintiff’s FTCA claim. (See MTD [Doc.
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3].) Plaintiff opposes. (See Opp’n [Doc. 7].)
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II.
LEGAL STANDARD
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Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins.
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Co. of Am., 511 U.S. 375, 377 (1994). They presumptively lack jurisdiction over civil
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actions and the burden of establishing the contrary rests upon the party asserting
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jurisdiction. Id. A motion to dismiss for lack of subject matter jurisdiction may be
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brought by a defendant pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
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Such a motion may be “facial” or “factual.” See Safe Air for Everyone v. Meyer, 373 F.3d
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1035, 1039 (9th Cir. 2004). In a facial attack, the challenger asserts that the allegations
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contained in a complaint are insufficient on their face to invoke federal jurisdiction. Id.
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“[I]n a factual attack, the challenger disputes the truth of the allegations that, by
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themselves, would otherwise invoke federal jurisdiction.” Id. In such cases, the court may
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consider evidence extrinsic to the complaint and “need not presume the truthfulness of
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the plaintiff's allegations.” Id. “Once the moving party has converted the motion to
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dismiss into a factual motion by presenting affidavits or other evidence properly brought
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before the court, the party opposing the motion must furnish affidavits or other evidence
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necessary to satisfy its burden of establishing subject matter jurisdiction.” Id. (quoting
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Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2. (9th Cir. 2003)).
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III.
DISCUSSION
Defendant argues Plaintiff’s FTCA claim must be dismissed because (1)
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emergency response costs are not cognizable under the FTCA; (2) the “free public
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services doctrine” bars Plaintiff’s claim; and (3) Plaintiff failed to exhaust its
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administrative remedies prior to filing suit. (See MTD.) The Court need only reach the
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first and third arguments to decide this Motion.
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A.
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“Under settled principles of sovereign immunity, the United States, as sovereign, is
Emergency Services Costs Under the FTCA
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immune from suit, save as it consents to be sued . . . and the terms of its consent to be
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sued in any court define that court’s jurisdiction to entertain the suit.” United States v.
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Dalm, 494 U.S. 596, 608 (1990) (internal quotations omitted). In enacting the Federal
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Tort Claims Act, Congress partially waived sovereign immunity by consenting to be sued
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for some tort claims. Thus, under the FTCA, a court has jurisdiction to hear a claim
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provided that claim is
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[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.
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F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994) (citing 28 U.S.C. § 1346(b)). All six
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elements must exist for a court to have jurisdiction. Id. Thus, the FTCA does not confer
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jurisdiction over claims unless they allege property damage, personal injury, or death. See
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Oregon v. United States, 308 F.2d 568, 569 (9th Cir. 1962). Here, it is undisputed that the
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complaint does not allege personal injury or death. Rather, the complaint seeks recovery
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only for loss of property and for expenses incurred in the process of providing emergency
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response services. Defendant argues that the latter category of expenses are not
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cognizable under the FTCA because they do not constitute a loss of property. (See MTD.)
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California v. United States, 307 F.2d 941 (9th Cir. 1962), is instructive on this
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issue. In California, a fire originated on federal land and spread to State owned land as a
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result of U.S. Forest Service employees’ allegedly negligent performance in combatting
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it. Id. at 942. As a result, the State incurred emergency response expenses in responding
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to the fire. Id. The State then filed a claim under the FTCA seeking to recover these
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expenses. The district court dismissed the claim for lack of subject matter jurisdiction.
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The Ninth Circuit affirmed, reasoning that firefighting expenses do not constitute
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damages for “injury or loss of property” under the FTCA. Id. at 943-44; see also Oregon,
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308 F.2d at 569 (same); Idaho ex rel. Trombley v. U.S. Dep’t of Army, Corps of Eng’rs,
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666 F.2d 444, 446 (9th Cir. 1982) (same).
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Here, Plaintiff’s Administrative Claim requests reimbursement for emergency
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response costs resulting from dispatch services, staff expenses, supplies and equipment,
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communications and planning meetings, and time spent with residents and media.
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(Admin. Claim ¶ 2.) The Court finds that these are not cognizable as loss of property
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damages under the FTCA because, like the firefighting costs at issue in California,
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Oregon, and Idaho, they are expenses resulting from the provision of emergency services
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rather than the repair or replacement of tangible facilities. Accordingly, this Court lacks
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jurisdiction to consider them.
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B.
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Because the Court has found Plaintiff’s emergency response costs are not
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cognizable under the FTCA, the following inquiry is restricted to whether the alleged
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property damage to public streets mentioned in the final paragraph of the Administrative
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Claim was properly exhausted. (See Admin. Claim ¶ 5.) Defendant argues Plaintiff failed
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to exhaust administrative remedies for any property damage claim. (Reply 5:5–10:5.)
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Under the FTCA, a district court is only vested with subject matter jurisdiction if a
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plaintiff has exhausted her administrative remedies. See McNeil v. United States, 508
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U.S. 106 (1993). Accordingly, filing an administrative claim as required by 28 U.S.C. §
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2675(a) is a jurisdictional prerequisite to suing the federal government in tort. Brady v.
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United States, 211 F.3d 499, 502 (9th Cir. 2000). An administrative claim must provide:
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“(1) a written statement sufficiently describing the injury to enable the agency to begin its
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own investigation, and (2) a sum certain damages claim.” Blair v. I.R.S., 304 F.3d 861,
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863-64 (9th Cir. 2002) (internal citations and quotation marks omitted).
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FTCA Administrative Exhaustion
Defendant argues Plaintiff’s Administrative Claim did not include a sum certain
for any property damage. (MTD 9:17–14:2.) In support of its argument, Defendant cites
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to Blair. In Blair, the plaintiff’s administrative claim included a request for medical
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expenses that were “still being incurred.” Blair, 304 F.3d at 868–9. The Ninth Circuit
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held the district court lacked jurisdiction under the FTCA to adjudicate the medical
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expenses claim, reasoning that a sum is indeterminate, and thus not certain, when the
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component costs of the sum are still being incurred. Id.; see also Caton v. United States,
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495 F.2d 635, 638 (9th Cir. 1974) (holding action subject to dismissal for lack of
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jurisdiction because the administrative claim for personal injury “unknown at this time”
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failed to meet sum certain requirement).
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Here, the only reference to property damage in the Administrative Claim states
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“[t]he final improvements are now being made to the public street damaged in the crash
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and the property owners are in the process of repairs. We look forward to this final
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resolution of the City’s costs for this incident.” (Admin. Claim ¶ 5.) This language
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unquestionably does not specify a sum certain amount of property damage incurred.
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Rather, it simply states that a public street was damaged, is now undergoing repairs, and
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suggests Plaintiff intended to submit a claim for the resulting damages once they were
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determined. However, the record before the Court indicates that Plaintiff failed to follow
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up and submit a sum certain request for the property damage once the value of the
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property damage was determined. Under Blair, this is fatal to their FTCA claim.
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Plaintiff attempts to remedy this defect by arguing that the Administrative Claim’s
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request for $28,223.84 for Emergency Response Costs contained a sum certain request
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for property damage. (Opp’n 7:2–9:12) (referencing Admin. Claim). This argument is
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problematic in that neither the Administrative Claim nor its supporting documents
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included a sum certain amount for any property damage. (See Admin. Claim; Admin.
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Claim Supporting Docs [Doc. 7-4 Ex. B].) Rather, the $28,223.84 amount was fully
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accounted for as emergency responses costs in the expense sheet and Plaintiff cannot
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simply subsume property damage into that figure now. (See Serv. Invoice.)
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Accordingly, the Court finds Plaintiff failed to exhaust their administrative
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remedies as required by the FTCA. Because Plaintiff failed to exhaust its administrative
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remedies prior to filing suit as required by the FTCA, this jurisdictional defect cannot be
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remedied by amendment. Therefore, the Court rejects Plaintiff’s request for leave to
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amend as amendment would be futile. See Oki Semiconductor Co. v. Wells Fargo Bank,
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N.A., 298 F.3d 768, 772 (9th Cir. 2002) (stating dismissal without leave to amend is
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appropriate only where a complaint cannot be saved by further amendment).
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IV.
CONCLUSION AND ORDER
For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED WITH
PREJUDICE.
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IT IS SO ORDERED
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Dated: June 22, 2016
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