Hall v. Mabus

Filing 9

ORDER denying without prejudice Defendant's 4 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Court grants Plaintiff's request for jurisdictional discovery. Plaintiff shall have until 10/23/2017 to conduct discovery on the juri sdictional issues raised in the Govt's motion to dismiss. Once Plaintiff has had the opportunity to conduct limited jurisdictional discovery, the USA may renew its motion to dismiss, which must be filed by 11/6/2017. If the USA declines to renew its motion, it shall file an answer by that same date. The Clerk is ordered to substitute the United States for the Secretary of the Navy as Defendant. Signed by Judge Cynthia Bashant on 7/31/2017. (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No. 16-cv-02395-BAS-RBB 11 12 MARIA HALL, ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Plaintiff, 13 14 v. 15 16 UNITED STATES OF AMERICA, [ECF No. 4] Defendant. 17 18 19 Plaintiff Maria Hall commenced this lawsuit against Defendant United States 20 pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).1 Plaintiff 21 alleges that Navy commissary personnel employed by the Government negligently 22 shelved jars of coconut oil at the Commissary at Marine Corps Air Station Miramar 23 Although the caption of Plaintiff’s Complaint identifies “Ray Mabus, Secretary, 24 Department of the Navy” as the defendant, the body of the Complaint identifies the defendant as the United States. (See Compl. ¶¶ 1, 5, 7.) The Ninth Circuit has held “that even if an improper 25 defendant is indicated in the caption, [the court] may consider a complaint to have named the proper 26 defendant ‘if the allegations made in the body of the complaint make it plain that the party is intended as a defendant.’” Barsten v. Dep’t of Interior, 896 F.2d 422, 423 (9th Cir. 1991) (quoting 27 Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983)). The allegations in the body of Plaintiff’s Complaint make it clear that the United States is the intended 28 defendant. Therefore, the Court will consider the Complaint to have named the United States as the proper defendant under the FTCA. See id. 1 –1– 16cv2395 1 (“Miramar Commissary”), causing Plaintiff to sustain a head injury while shopping. 2 (Compl. ¶ 1, ECF No. 1.) 3 Presently before the Court is the Government’s motion to dismiss Plaintiff’s 4 action for lack of subject matter jurisdiction. (ECF No. 4.) The Government argues 5 that dismissal is proper because the FTCA’s independent contractor exception 6 provides the Government has not waived its sovereign immunity for Plaintiff’s 7 action. (Id.) Plaintiff opposes. (ECF No. 7.) 8 The Court finds this motion suitable for determination on the papers submitted 9 and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the 10 reasons that follow, the Court denies the Government’s motion to dismiss for lack of 11 subject matter jurisdiction. 12 13 I. BACKGROUND 14 A. 15 Plaintiff Maria Hall is a resident of California and a civilian spouse of a retired Plaintiff’s Claim 16 veteran. (Compl. ¶ 8.) On September 22, 2014, while grocery shopping in the 17 Miramar Commissary, Plaintiff attempted to procure a glass jar of solid coconut oil 18 from the top of a shelf. (Id.) Plaintiff alleges the jars of coconut oil were stacked three 19 high. (Id.; see also Redcrow Decl. Ex. 1.) When Plaintiff tried to secure the topmost 20 jar, a falling jar of coconut oil struck Plaintiff in the eye. (Compl. ¶¶ 8–9.) Balboa 21 Naval Hospital diagnosed Plaintiff with hematoma to the right eye, post-concussion 22 syndrome, cervical spasm, and headache. (Id. ¶¶ 10–11.) Plaintiff claims that her pain 23 remains a problem, though physical therapy and pain management care have 24 provided her some relief. (Id. ¶¶ 10, 12, 15.) Further, she allegedly has been unable 25 to return to her full employment as a hairdresser following the injury. (Id. ¶¶ 13–14.) 26 On August 25, 2015, Plaintiff filed a claim for her injuries and wage losses 27 with the Department of the Navy and provided supporting medical documentation of 28 her injuries and treatment. (Compl. ¶ 21.) In a letter dated March 24, 2016, the Navy –2– 16cv2395 1 rejected Plaintiff’s claim for injuries pursuant to the FTCA and instructed her to file 2 her claim in federal district court. (Id. ¶ 22.) 3 Plaintiff filed this suit on September 23, 2016, pursuant to the FTCA, alleging 4 that “Commissary personnel employed by the [Government] were negligent in 5 performance of their duties,” specifically in “stack[ing] the glass jars of solidified 6 coconut oil three high, one atop another, on the uppermost shelf of the grocery aisle.” 7 (Compl. ¶ 17.) Plaintiff asserts the alleged negligence caused her to sustain injuries 8 when “she attempted to secure the top-most jar . . . above her head.” (Id.) 9 10 B. Commissary Staffing Procedure 11 The Government and Plaintiff provide declarations and evidence regarding the 12 staffing procedure and employee duties at the Miramar Commissary. The Defense 13 Commissary Agency (“DeCA”) is responsible for operating commissaries on 14 military bases, including the Miramar Commissary. (Prince Decl. ¶¶ 1, 5, ECF No. 15 7.) DeCA contracts with independent contractors to run daily operations at the 16 commissaries, “including shelf stocking, custodial and Receiving/Storage/Holding 17 Area . . . services for commissaries.” (Id. ¶¶ 1, 6.) 18 On March 26, 2014, DeCA awarded Job Options, Inc., a contractor, contract 19 number HDEC08-14-C-0016 to staff and operate the Miramar Commissary 20 (“Commissary Contract”). (Prince Decl. ¶¶ 7–8, Ex. A.) The Commissary Contract 21 allocates supervision and control of Job Options’s employees to Job Options. 22 (Commissary Contract § 52.237-4501(b–c).) 23 Further, on September 11, 2014, the parties attached the Performance Work 24 Statement for Shelf Stocking, Receiving/Storage/Holding Area and Custodial 25 Operations at the Miramar Commissary (“PWS”) to the Commissary Contract. (See 26 PWS, Redcrow Decl. Ex. 2, ECF No. 7-3.) In part, the PWS specifies Job Options’s 27 responsibilities related to shelf stocking (id. § 1.1.1), and allocates responsibility for 28 –3– 16cv2395 1 shelving items such as glass jars of coconut oil to Job Options, (see id. §§ 4.3– 2; see also Prince Decl. ¶ 13, Ex. E). 3 The PWS also elaborates on the Commissary Contract’s definition of the 4 relationship between the Government and Job Options, stating: “The Government 5 will employ Quality Assurance Evaluators (“QAE”) to surveil and document 6 Contractor performance.” (PWS § 1.1.2.) In addition, the PWS contemplates the 7 presence of a Store Director—an “onsite supervisor . . . responsible for overall 8 commissary operations”—who “act[s] as an authorized representative of the 9 Government.” (Id.) 10 11 II. LEGAL STANDARD 12 Under Rule 12 of the Federal Rules of Civil Procedure, a party may move to 13 dismiss a claim based on a lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 14 “Federal courts are courts of limited jurisdiction” and “possess only that power 15 authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of 16 Am., 511 U.S. 375, 377 (1994). Accordingly, “[a] federal court is presumed to lack 17 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock W., 18 Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). “[T]he burden of 19 establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 20 U.S. at 377. 21 A challenge to subject matter jurisdiction under Rule 12(b)(1) can be either 22 facial or factual. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial 23 attack, the challenger asserts that the allegations in the complaint are insufficient to 24 invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 25 (9th Cir. 2004). Here, the court limits its review to the allegations in the complaint. 26 Id. 27 In a factual attack, however, the challenger provides evidence that an alleged 28 fact in the complaint is false, thereby resulting in a lack of subject matter jurisdiction. –4– 16cv2395 1 See Meyer, 373 F.3d at 1039. Therefore, in a factual attack, the allegations in the 2 complaint are not presumed to be true, and “the district court is not restricted to the 3 face of the pleadings, but may review any evidence, such as affidavits and testimony, 4 to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. 5 United States, 850 F.2d 558, 560 (9th Cir. 1988). “In response to a factual attack, [the 6 non-moving party] must present ‘affidavits or any other evidence necessary to satisfy 7 [its] burden of establishing that the court, in fact, possesses subject matter 8 jurisdiction.’” Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016) (quoting 9 Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009)). 10 However, “because jurisdictional fact-finding by the court deprives litigants of the 11 protections otherwise afforded by Rule 56,” the court’s ability to dismiss claims 12 based on a lack of subject matter jurisdiction is limited. Sun Valley Gasoline, Inc. v. 13 Ernst Enter., Inc., 711 F.2d 138, 139 (9th Cir. 1983). Accordingly, “[j]urisdictional 14 dismissals in cases premised on federal-question jurisdiction are exceptional[.]” Id. 15 at 140. 16 17 III. DISCUSSION 18 A. The Government’s Sovereign Immunity Is Abrogated If the 19 Government Exercised Substantial Control and Supervision over 20 Job Options’s Employees’ Daily Operations. 21 The Government makes a factual attack on the existence of subject matter 22 jurisdiction and requests that the Court dismiss Plaintiff’s claim. Specifically, the 23 Government argues that it retains sovereign immunity under the FTCA’s independent 24 contractor exception and therefore cannot be held liable for Job Options’s employees’ 25 allegedly negligent conduct. 26 “It is elementary that the United States, as sovereign, is immune from suit save 27 as it consents to be sued, and the terms of its consent to be sued in any court define 28 that court’s jurisdiction to entertain the suit.” Tobar v. United States, 639 F.3d 1191, –5– 16cv2395 1 1195 (9th Cir. 2011) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)). 2 Accordingly, “[t]he waiver of sovereign immunity is a prerequisite to federal-court 3 jurisdiction.” Id. 4 The FTCA is a limited waiver of the Government’s sovereign immunity. 28 5 U.S.C. § 1346(b). The FTCA allows the United States to be sued in federal district 6 court for certain “negligent or wrongful act[s] or omission[s]” perpetrated by “any 7 employee of the Government while acting within the scope of his or her employment 8 . . . in accordance with the law of the place where the act or omission occurred.” Id. 9 The FTCA “defines Government employees to include officers and employees of 10 ‘any federal agency’ but excludes ‘any contractor with the United States.’” United 11 States v. Orleans, 425 U.S. 807, 813–14 (1971) (quoting 28 U.S.C. § 2671). 12 Accordingly, “[t]he FTCA provides that the government cannot be held vicariously 13 liable for the negligence of an employee of an independent contractor.” Yanez v. 14 United States, 63 F.3d 870, 872 (9th Cir. 1995) (citing 28 U.S.C. § 2671; Logue v. 15 United States, 412 U.S. 521 (1973)). “Courts are not free ‘to abrogate the 16 [independent contractor] exemption’ for the negligent acts of contractors regardless 17 of whether there is a good reason for so doing.” Autery v. United States, 424 F.3d 18 944, 957 (9th Cir. 2005) (alteration in the original) (quoting Hines v. United States, 19 60 F.3d 1442, 1447 (9th Cir. 1995)). 20 Thus, the Government may only be sued for the actions of its contractor “if the 21 contractor [wa]s acting as an agent of the government, i.e. ‘if the government ha[d] 22 the authority “to control the detailed physical performance of the contractor” and 23 supervise its “day-to-day operations.” ’ ” Valadez-Lopez v. Chertoff, 656 F.3d 851, 24 858 (9th Cir. 2011) (quoting Letnes v. United States, 820 F.2d 1517, 1518 (9th Cir. 25 1987)). In this circuit, the Government’s mere ability to control is not determinative; 26 rather, it is the Government’s degree of actual control over the contractor that 27 determines whether the Government may be held liable for the contractor’s 28 negligence under the FTCA. See Fekrat v. United States, No. CV 13-00594 MMM –6– 16cv2395 1 (PJWx), 2013 WL 12130585, at *4 n.39 (C.D. Cal. Aug. 6, 2013) (summarizing 2 Ninth Circuit case law requiring the Government to exercise actual control over 3 contractors to be liable under the FTCA, rather than solely retaining the right to 4 control contractors). Consequently, the Court must determine whether Plaintiff 5 provides sufficient evidence showing that the Government actually controlled and 6 supervised Job Options’s employees’ daily operations, such that the Government 7 may be held liable for Job Options’s employees’ allegedly negligent shelving of 8 coconut oil jars at the Miramar Commissary. 9 10 B. Jurisdictional Discovery Is Appropriate Because a More 11 Satisfactory Showing of the Jurisdictional Facts Is Necessary to 12 Determine the Court’s Subject Matter Jurisdiction over Plaintiff’s 13 FTCA Claim. 14 Because the outcome of the Government’s motion to dismiss relies on the 15 evidence presented by Plaintiff, the Court first addresses Plaintiff’s request to 16 conduct jurisdictional discovery.2 (Opp’n at 4:21–4:24.) Specifically, Plaintiff 17 requests the opportunity to conduct jurisdictional discovery by reviewing the QAEs’ 18 inspection records related to the incident and investigating the alleged relationship 19 20 21 22 23 24 25 26 27 28 2 As an alternative to her request for jurisdictional discovery, Plaintiff asserts that the Court retains subject matter jurisdiction over her action because she has a direct premises liability claim against the Government. (Opp’n at 6:9–8:22.) In the event that the Court finds Plaintiff’s Complaint does not establish jurisdiction, Plaintiff requests leave to file a First Amended Complaint that alleges this alternative theory. (Id. at 8:17–8:20.) Because the Court ultimately denies the Government’s motion and grants Plaintiff’s request for jurisdictional discovery on her original negligence claim, the Court does not address Plaintiff’s arguments regarding her premises liability theory. If Plaintiff wishes to amend her Complaint to allege facts supporting this theory, she must do so in accordance with Federal Rule of Civil Procedure 15(a). –7– 16cv2395 1 between the Government and Job Options.3 (Id.) Plaintiff supports her request on 2 grounds that she was “blindsided” when the Government introduced to her the 3 existence of its relationship with Job Options the night before the Government filed 4 its motion to dismiss. (Id.) Plaintiff claims—and the Government does not contest— 5 that she had no notice regarding the relationship between the Government and Job 6 Options before the Government’s motion to dismiss. (See Redcrow Decl. ¶¶ 2–5; see 7 generally Reply.) 8 “A district court is vested with broad discretion to permit or deny discovery.” 9 Laub v. United States Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). 10 “Discovery may appropriately be granted where pertinent facts bearing on the 11 question of jurisdiction are controverted or where a more satisfactory showing of the 12 facts is necessary.” Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 13 n.1 (9th Cir. 1977). However, a request for discovery is properly denied where it is 14 “based on little more than a hunch that it might yield jurisdictionally relevant facts.” 15 Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). Accordingly, “[a]lthough 16 a refusal to grant discovery to establish jurisdiction is [permissible] when ‘it is clear 17 that further discovery would not demonstrate facts sufficient to constitute a basis for 18 jurisdiction,’ discovery should be granted when . . . the jurisdictional facts are 19 contested or more facts are needed.’” Laub, 342 F.3d at 1093 (quoting Wells Fargo 20 & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)). 21 “It is well-established that ‘[t]he burden is on the party seeking to conduct 22 additional discovery to put forth sufficient facts to show that the evidence sought 23 3 Though Plaintiff requests jurisdictional discovery to review inspection reports, the Court 24 cautions that the presence of inspections alone fails to establish the Government’s actual control over Job Options’s employees such that the independent contractor exception is abrogated. See 25 Letnes v. United States, 820 F.2d 1517, 1519 (9th Cir. 1987) (noting that “[t]he [Supreme] Court 26 has indicated that detailed regulations and inspections are no longer evidence of an employee relationship” (citing Orleans, 425 U.S. at 815; Logue, 412 U.S. at 529–30); see also Rodriguez v. 27 United States ex rel. Nellis Air Force Base, No. 2:13-cv-00566-GMN-VCF, 2014 WL 5364111, *at 2 (D. Nev. Oct. 20, 2014) (finding commissary managers’ protocol of “[i]nspecting the premises 28 and notifying the parties who are responsible for cleaning up a dangerous condition [wa]s not equivalent to substantial supervision over the day-to-day operations”). –8– 16cv2395 1 exists.” Gager v. United States, 149 F.3d 918, 922 (9th Cir. 1998) (quoting Conkle 2 v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995)). However, “[a] plaintiff who seeks 3 jurisdictional discovery needn’t first make a prima facie showing that jurisdiction 4 actually exists.” NuboNau, Inc. v. NB Labs, Ltd., No. 10-cv-2631-LAB-BGS, 2011 5 WL 5237566, at *3 (S.D. Cal. Oct. 31, 2011). “Such a showing is necessary to survive 6 a motion to dismiss, and ‘[i]t would . . . be counter intuitive to require a plaintiff, 7 prior to conducting discovery, to meet the same burden that would be required in 8 order to defeat a motion to dismiss.’” Id. (emphasis in original) (quoting Orchid 9 Biosciences, Inc. v. St. Louis Univ., 198 F.R.D. 670, 673 (S.D. Cal. 2001)). 10 In Laub v. United States Department of the Interior, the Ninth Circuit found 11 the district court improperly denied jurisdictional discovery when the plaintiffs 12 supported their request with documents suggesting their claim was “arguable.” See 13 342 F.3d at 1092–93. There, the plaintiffs requested discovery after the 14 Government’s reply brief “asserted for the first time” that its land and water 15 acquisitions were independent of a government water management program and not 16 subject to an injunction. See id. at 1083, 1092–93. The Ninth Circuit found that 17 “public documents offered by [the] [p]laintiffs suggest[ed] that there [wa]s at least 18 an arguable claim that the federal government play[ed] a significant enough role in 19 the [water management] program” to render the Government’s actions subject to 20 federal requirements. Id. at 1093. Though noting that the offered documents might 21 “be insufficient in themselves to establish jurisdiction,” the court found that allowing 22 discovery “would create a ‘reasonable probability’ that the outcome of the factual 23 motion to dismiss would be different.” Id. Thus, the district court erred in denying 24 jurisdictional discovery “[b]ecause additional discovery would be useful to establish 25 federal subject matter jurisdiction, and because the extent of federal involvement in 26 the challenged transactions [wa]s contested.” Id. 27 Here, jurisdictional discovery is appropriate because more facts regarding the 28 Government’s actual control and supervision over Job Options’s employees are –9– 16cv2395 1 necessary to determine whether the Court has subject matter jurisdiction over 2 Plaintiff’s negligence claim under the FTCA. The parties only provide evidence 3 establishing a contractual relationship between Job Options and the Government. 4 (See generally Commissary Contract; Prince Decl.; PWS; Redcrow Decl.) This 5 evidence gives the Court insufficient insight into whether the Government actually 6 controlled and supervised Job Options’s employees so as to render them de facto 7 government employees on the date in question.4 8 However, similar to the plaintiffs’ presentation of public documents in Laub, 9 Plaintiff’s presentation of the full PWS—though insufficient to establish jurisdiction 10 on its own—suggests that the Government may have had some degree of actual 11 supervision and control over Job Options’s employees. See PWS § 1.1.2 (providing 12 an onsite supervisor who is a representative of the Government “is responsible for 13 overall commissary operations”); see also Autery, 424 F.3d at 957 (“Contractual 14 provisions directing detailed performance generally do not abrogate the contractor 15 exception.”). Thus, the Court finds that Plaintiff’s evidence shows at least an arguable 16 FTCA claim “for damages resulting from torts committed by [Miramar Commissary] 17 personnel employed by [the Government],” as alleged in Plaintiff’s Complaint. 18 (Compl. ¶ 1.) 19 Moreover, the Court finds that Plaintiff has not yet had a meaningful 20 opportunity to develop evidence related to this jurisdictional issue. At this point in 21 the proceedings, Plaintiff has not had the right to conduct discovery. See Fed. R. Civ. 22 P. 16(c), 26(f). Further, the Government did not disclose its relationship with Job 23 4 The Government provides the declaration of a DeCA Contracting Officer, who not only 24 discusses the Commissary Contract, but also states that “[n]o federal employee provided substantial supervision over the physical performance and day-to-day operations of shelving groceries such as 25 glass jars of coconut oil at the [Miramar] Commissary on September 22, 2014.” (Prince Decl. ¶ 26 14.) The declaration adequately demonstrates that she has personal knowledge of DeCA’s contract procedures. (Id. ¶¶ 1, 5–7.) It does not, however, establish that the Contracting Officer has personal 27 knowledge of the events that took place at the Miramar Commissary on the date in question. (See id. ¶¶ 1–14.) The Officer’s mere assertion that she does is inadequate. See, e.g., Boyd v. City of 28 Oakland, 458 F. Supp. 2d 1015, 1023 (N.D. Cal. 2006). Thus, her statement regarding the incident on September 22, 2014, is inadmissible. See, e.g., id. at 1023–24. – 10 – 16cv2395 1 Options when it generated its incident report or when it denied Plaintiff’s 2 administrative claim under the FTCA. (Redcrow Decl. ¶¶ 3–5.) Additionally, though 3 the Court granted the parties’ joint motion for an extension of time to file an 4 opposition and reply (ECF Nos. 5, 6), this extension only afforded Plaintiff additional 5 days, rather than months, to conduct an informal inquiry. C.f. Sopcak v. N. Mountain 6 Helicopter Serv., 52 F3d 817, 819 (9th Cir. 1995) (finding ruling on jurisdiction 7 without allowing additional discovery was not an abuse of discretion when the 8 plaintiffs failed to conduct discovery in the five months between raising the 9 jurisdictional issue and the dismissal); Berardinelli v. Castle & Cooke Inc., 587 F.2d 10 37, 38 (9th Cir. 1978) (finding the plaintiff’s argument that he lacked the opportunity 11 to develop jurisdictional evidence unconvincing when the plaintiff “made no effort 12 to undertake discovery” in the seven months between filing the complaint and the 13 hearing). 14 Given that Plaintiff has not yet had a meaningful opportunity to conduct 15 jurisdictional discovery and because Plaintiff’s evidence shows that more facts are 16 needed regarding the Government’s actual control over Job Option’s employees, the 17 Court finds that granting Plaintiff’s request for jurisdictional discovery is appropriate. 18 Thus, like other district courts reviewing motions to dismiss FTCA claims, the Court 19 will deny without prejudice the Government’s motion to dismiss to allow Plaintiff to 20 conduct limited jurisdictional discovery on whether the Government actually 21 exercised substantial supervision and control over Job Options’s day-to-day 22 operations and physical performance. See, e.g., Nino v. United States, No. 12-cv23 0469-WQH-BGS, 2015 WL 5032644, at *2 (S.D. Cal. Aug. 25, 2015) (denying a 24 motion to dismiss an FTCA claim for lack of subject matter jurisdiction after 25 “grant[ing] the parties ninety days of jurisdictional discovery in order to address 26 factual issues relevant to jurisdiction in light of the foreign country exception to the 27 FTCA”); Guerrero v. United States, No. CV-12-00370-TUC-RCC, 2012 WL 28 12842348, at *4 (D. Ariz. Dec. 19, 2012) (denying defendant’s motion to dismiss – 11 – 16cv2395 1 plaintiff’s FTCA claim for lack of subject matter jurisdiction to allow plaintiff 2 “limited . . . discovery on [a] specific jurisdictional issue”). 3 4 IV. CONCLUSION 5 For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE the 6 Government’s motion to dismiss Plaintiff’s suit for lack of subject matter jurisdiction 7 (ECF No. 4). The Court grants Plaintiff’s request for jurisdictional discovery. 8 Plaintiff shall have until October 23, 2017, to conduct discovery on the jurisdictional 9 issues raised in the Government’s motion to dismiss. Plaintiff’s discovery shall be 10 limited to the existence and extent of the Government’s control over Job Options’s 11 employees’ physical performance and supervision of their day-to-day operations and 12 shall be “proportional to the needs of the case.” See Fed. R. Civ. P. 26(b)(1) (listing 13 factors for determining proportionality). Any requests, joint motions, or disputes 14 regarding the jurisdictional discovery will be submitted to the magistrate judge. 15 Once Plaintiff has had the opportunity to conduct limited jurisdictional 16 discovery, the United States may renew its motion to dismiss, which must be filed no 17 later than November 6, 2017. If the United States declines to renew its motion, it 18 shall file an answer by this same date. See Fed. R. Civ. P. 12(a)(4) (providing the 19 court may set a different time for the filing of a responsive pleading after a Rule 12 20 motion has been denied). 21 Finally, the Court ORDERS the Clerk of the Court to substitute the United 22 States for the Secretary of the Navy as Defendant on the docket. 23 IT IS SO ORDERED. 24 25 DATED: July 31, 2017 26 27 28 – 12 – 16cv2395

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