Jiminez v. The United States of America et al

Filing 40

ORDER (1) GRANTING DEFENDANT UNTIED STATES' MOTION TO DISMISS 29 , (2) EQUITABLY TOLLING THE STATUTE OF LIMITATIONS, (3) GRANTING DEFENDANT CITY OF CHULA VISTA'S MOTION TO DISMISS WITH LEAVE TO AMEND 15 .. Signed by Judge Barry Ted Moskowitz on 12/12/2018. (sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17-cv-1205 BTM-AGS
ELIZABETH JIMINEZ,
individually, and as successor in
interest of Fernando Geovanni
Llanez, deceased; FERNANDO
LLANEZ, individually, and as
successor in interest of Fernando
Geovanni Llanez, deceased

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(1) GRANTING DEFENDANT
UNITED STATES’ MOTION TO
DISMISS [ECF No. 29]
(2) EQUITABLY TOLLING THE
STATUTE OF LIMITATIONS

Plaintiffs,

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ORDER

v.
(3) GRANTING DEFENDANT
CITY OF CHULA VISTA’S
MOTION TO DISMISS WITH
LEAVE TO AMEND [ECF No. 15]

UNITED STATES OF AMERICA;
CHULA VISTA POLICE
DEPARTMENT; CITY OF
CHULA VISTA, a public entity;
RONALDO RICARDO
GONZALEZ, an individual;
MARCUS OSORIO, an
individual; CHRIS BARONI, an
individual; ANGELA SANCHEZ,
an individual; MICHAEL
BURBANK, an individual;
JEREMY DORN, an individual;
ANTHONY CASTELLANOS; an
individual, MARK MEREDITH, an
individual; DOES 1-100,

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inclusive,
Defendants.

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I.

INTRODUCTION

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Defendant United States has moved to dismiss the First Amended

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Complaint (FAC) for lack of subject matter jurisdiction pursuant to Federal

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Rule of Civil Procedure 12(b)(1). (ECF No. 29). The United States asserts

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that Plaintiff failed to exhaust administrative remedies prior to filing,

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depriving the district court of subject matter jurisdiction over the FAC’s Third,

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Fourth, and Fifth causes of action. Upon review, the Court concludes it lacks

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subject matter jurisdiction. Accordingly, Defendant United States’ Motion to

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Dismiss is GRANTED. The Court equitably tolls the statute of limitations and

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gives Plaintiffs leave to file a new action which will be consolidated with this

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case.

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Defendant City of Chula Vista has moved to dismiss “Count Two” of

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the Third cause of action pursuant to Federal Rule of Civil Procedure

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12(b)(6). (ECF No. 15). For the reasons set forth below, Defendant Chula

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Vista’s Motion to Dismiss is GRANTED with leave to amend.

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II.

BACKGROUND

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A. Facts

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This action arises out of a fatality that occurred during a drug sting

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operation on June 14, 2016. (ECF No. 9, “FAC”). Plaintiffs are parents of

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Fernando Geovanni Llanez (“Llanez”), who Plaintiffs allege was wrongfully

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shot and killed by an undercover Department of Homeland Security agent

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during a drug sting operation. (FAC ¶¶ 3, 20). Plaintiffs name twelve

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Defendants, including six federal officers and a Federal Task Force Officer

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named Mark Meredith, who Plaintiffs allege was acting as an employee of

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the Chula Vista Police Department at the time of the incident. (FAC ¶ 12;

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ECF No. 28). The FAC avers that the sting operation was organized by the

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United States Department of Homeland Security (DHS) in coordination with

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the Drug Enforcement Agency (DEA) and Customs and Border Protection

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(CBP). (FAC ¶ 22-27). On June 14, 2016, “federal and California law

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enforcement” transported 2,000 pounds of marijuana from Tijuana and

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arranged for a buyer. (FAC ¶ 20). Llanez was allegedly hired to drop off and

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pick up the rental van that would transport the marijuana. (FAC ¶ 20).

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Llanez dropped off the empty van at a shopping center in Chula Vista

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and left the keys. (FAC ¶ 33). Several undercover law enforcement officers,

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including Agent Gonzalez and Meredith, allegedly picked up the van at 8:45

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a.m. (FAC ¶ 34). The van was loaded with the marijuana and driven to the

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arranged location for pick up. (FAC ¶¶ 35, 38). The FAC alleges that the

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following individuals and teams were present at the pick up scene: Agent

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Gonzalez, Agent Castellanos, the confidential informant, an undercover

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team “of approximately six people,” San Diego County Sheriff Deputies, a

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helicopter, and “one or more officers from the Chula Vista Police

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Department.” (FAC ¶ 36).

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Before picking up the van, Llanez was given a taser “in the event the

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delivery driver tried to injure Llanez or steal the van.” (FAC ¶ 42). The FAC

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states Llanez approached the van and met Agent Gonzalez, who then took

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the keys and ran. (FAC ¶¶ 44-46). Llanez drew the Taser and ran after

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Agent Gonzalez. (FAC ¶ 46). Agent Gonzalez shot Llanez four times, killing

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him. (FAC ¶ 47).

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Agents Baroni and Burbank picked Gonzalez up in a truck. (FAC ¶ 50).

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Gonzalez told Baroni and Burbank he believed he had been tased and had

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possibly killed Llanez. (FAC ¶¶ 50-55). The FAC alleges that “none of the

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agents in the vehicle attempted to call for medical help for . . . Llanez.” (FAC

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¶ 55).

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B. Proceedings

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Plaintiffs filed an administrative claim with the Chula Vista Police

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Department on December 14, 2016, and received a denial of the claim on

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January 5, 2017. (FAC at ¶ 64, 65; ECF No. 29 at 9). Five months later, on

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June 6, 2017, Plaintiffs filed their Federal Tort Claims Act (FTCA)

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administrative claim. (FAC at ¶ 66).

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Plaintiffs filed their original complaint, asserting claims under the FTCA

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among others. (ECF No. 1). On September 22, 2017, Plaintiffs filed their

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First Amended Complaint (“FAC”), which included the same FTCA claims.

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(ECF No. 9). On October 12, 2017, Defendant City of Chula Vista moved

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to dismiss the FAC. (ECF No. 15). Defendant United States moved to

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dismiss the FAC on February 8, 2018. (ECF No. 29). Defendant United

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States also substituted itself for individual defendants Ronaldo Gonzalez,

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Jeremy Dorn, Marcus Osorio, Chris Baroni, Angela Sanchez, Michael

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Burbank, Anthony Castellanos, and Mark Meredith. (ECF Nos. 28, 32).

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III.

A week later, on June 13, 2017,

LEGAL STANDARD

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A party may move to dismiss an action for lack of subject matter

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jurisdiction under Federal Rule of Civil Procedure 12(b)(1). “Subject matter

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jurisdiction cannot be forfeited or waived and should be considered when

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fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009). “Objections to

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subject matter jurisdiction . . . may be raised at any time.” Hendersen ex rel.

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Henderson v. Shinseki, 562 U.S. 428, 434-35 (2011). For claims brought

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under the Federal Tort Claims Act (FTCA), exhaustion of administrative

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remedies is “a prerequisite for federal court jurisdiction.” Munns v. Kerry,

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782 F.3d 402, 413 (9th Cir. 2015) (citing Johnson v. United States, 704 F.2d

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1431, 1442 (9th Cir. 1983)).

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“A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial

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attack, the challenger asserts that the allegations contained in a complaint

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are insufficient on their face to invoke federal jurisdiction.” Safe Air for

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Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal citations

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omitted). When “determin[ing] whether the allegations are sufficient as a

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legal matter to invoke the court’s jurisdiction,” the court “[a]ccept[s] the

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plaintiff’s allegations as true and draw[s] all reasonable inferences in

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plaintiff’s favor.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).

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IV.

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DISCUSSION

A. The United States’ Motion to Dismiss

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The FTCA, 28 U.S.C. §§ 1346, 2671-2680, “waives the United States’

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sovereign immunity for tort actions and vests the federal district courts with

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exclusive jurisdiction over suits arising from the negligence of government

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employees.” D.L. by & through Junio v. Vassilev, 858 F.3d 1242, 1244 (9th

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Cir. 2017) (citing Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)).

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Whether a Plaintiff may file an FTCA action in district court is governed by

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three timing requirements. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1032

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(9th Cir. 2013); 28 U.S.C. §§ 2401(b), 2675(a).

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exhaust her administrative remedies before filing an FTCA action in district

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court. 28 U.S.C. § 2675(a); D.L., 858 F.3d at 1244; Valadez-Lopez, 656 F.3d

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at 855. Second, a claimant must present her case to the appropriate federal

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agency within two years after the claim accrues. 28 U.S.C. § 2401(b); Kwai

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Fun Wong, 732 F.3d at 1032. Third, the action must commence within six

First, a claimant must

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months of the administrative agency’s final denial of the claim. 28 U.S.C. §

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2401(b); Kwai Fun Wong, 732 F.3d at 1032.

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The exhaustion requirement is jurisdictional, whereas the statute of

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limitations requirements are not. See Munn v. Kerry, 782 F.3d 402, 413 (9th

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Cir. 2015); Kwai Fun Wong, 732 F.3d at 1032, 1037. Both exhaustion and

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timing bear on Defendants’ Motions to Dismiss and whether Plaintiffs may

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proceed with their claims. The Court will examine each in turn.

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1. Exhaustion of Administrative Remedies

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Exhaustion of administrative remedies is required prior to filing an

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FTCA claim in district court. D.L., 858 F.3d at 1244; Valadez-Lopez v.

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Chertoff, 656 F.3d 851, 855 (9th Cir. 2011).

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commence proceedings in court against the United States without first filing

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her claim with an appropriate federal agency and either receiving a

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conclusive denial of the claim from the agency or waiting for six months to

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elapse without a final disposition of the claim being made.” Valadez-Lopez,

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656 F.3d at 855 (quoting Jerves, 966 F.2d at 519). The FTCA specifically

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provides:

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“A tort claimant may not

An action shall not be instituted upon a claim against
the United States for money damages . . . . unless
the claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing and
sent by certified or registered mail. The failure of an
agency to make final disposition of a claim within six
months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final
denial of the claim for purposes of this section.
28 U.S.C. § 2675(a).

The exhaustion requirement is jurisdictional and

“strictly construed in favor of the United States.” Valadez-Lopez, 656 F.3d at

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855 (quoting Jerves, 966 F.2d at 521); Brady v. United States, 211 F.3d 499,

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502 (9th Cir. 2000) (stating “because the [administrative exhaustion]

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requirement is jurisdictional, it must be strictly adhered to”). A failure to

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exhaust administrative remedies before filing an FTCA action deprives the

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district court of subject matter jurisdiction. Brady, 211 F.3d at 502-3 (affirming

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decision to grant motion to dismiss for lack of subject matter jurisdiction due

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to failure to exhaust FTCA administrative remedies).

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Subsequent receipt of a formal administrative denial does not cure a

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premature FTCA filing in district court. McNeil v. United States, 508 U.S. 106,

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112 (1993). The exhaustion requirement is a “clear statutory command.” Id.

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at 113. However, there are limited exceptions to that otherwise bright-line

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rule. See Valadez-Lopez, 656 F.3d at 856; D.L., 858 F.3d at 1244. Courts

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may give leave to amend “an existing complaint asserting non-FTCA claims

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to name the United States as a defendant and include FTCA claims once

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those claims have been administratively exhausted.” Valadez-Lopez, 656

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F.3d at 856. Courts may also give leave to amend despite a premature filing

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if a plaintiff reasonably did not know one of the named defendants was a

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federal employee and covered by the FTCA. D.L., 858 F.3d at 1244. But the

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Ninth Circuit has distinguished these cases from cases in which the claimant

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“filed an FTCA lawsuit before exhausting his or her FTCA administrative

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remedies.” Valadez-Lopez, 656 F.3d at 856 (emphasis in original).

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Here, Plaintiffs filed an FTCA lawsuit in both the original and First

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Amended Complaints. (ECF No. 1). The United States is named as a

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Defendant, and the Fourth and Fifth causes of action specifically assert

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FTCA wrongful death claims. (ECF Nos. 1, 9). The Third cause of action

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asserts a wrongful death claim under state law, but is tied to the same

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operative facts as the Fourth and Fifth. (ECF No. 1, 9). Plaintiffs admit that

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they filed their original Complaint in district court a week after filing the federal

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administrative claim, prior to denial and well short of the six-month waiting

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period. (ECF No. 34 at 9). The FAC was also filed over two months before

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December 6, 2017, the effective date of the agency’s denial. (See ECF Nos.

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9, 29-1 at 7).

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Plaintiffs blame their premature filing on the difficulties of complying

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with two different statutes of limitations. (ECF No. 34 at 9). Yet Plaintiffs

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admit that after they received an administrative denial from the City of Chula

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Vista they waited five months to file their FTCA administrative forms. (ECF

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No. 34 at 9). Plaintiffs further chose not to file a complaint naming only the

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City of Chula Vista, which would have given them the option of later

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amending the Complaint to include the United States. (See ECF Nos. 1, 9).

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Compliance with both statutes of limitations was not an impossibility, and

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Plaintiffs’ unfortunate miscalculation is not a ground for waiving

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administrative exhaustion requirements.

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Plaintiffs further assert that they complied with § 2675(a) because their

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federal administrative claim was denied before they served the United States

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with the Complaint. (ECF No. 34 at 9). Plaintiffs are mistaken. An FTCA

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claimant must have exhausted administrative remedies at the time of filing

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or removal, not at the time of service. 28 U.S.C. § 2675(a) (providing “[a]n

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action shall not be instituted . . . .”); McNeil v. United States, 508 U.S. 106,

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112 (1993) (interpreting “institute” as “synonymous with the words ‘begin’

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and ‘commence’ and concluding “Congress intended to require complete

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exhaustion . . . before invocation of the judicial process”) (emphasis added);

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D.L. by & through Junio v. Vassilev, 858 F.3d 1242, 1245 (9th Cir. 2017)

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(stating jurisdiction is “determined at the time of removal” for claims initiated

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in state court and that “the FTCA’s exhaustion requirement demands that a

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plaintiff exhaust his administrative remedies before he files an FTCA claim

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in federal court”) (emphasis added).

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received an administrative denial after they filed suit does not excuse

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Plaintiffs’ failure to exhaust administrative remedies prior to filing.

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McNeil, 508 U.S. at 112.

Moreover, the fact that Plaintiffs

See

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Because Plaintiffs failed to exhaust administrative remedies before

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filing, the Court does not have subject matter jurisdiction over the FAC.

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Accordingly, Plaintiffs must file a new complaint as to the Third, Fourth, and

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Fifth causes of action.

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2. Statute of Limitations

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As outlined above, 28 U.S.C. § 2401(b) requires that an FTCA

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complaint (1) be presented to a federal agency two years from the date the

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claim accrues; and (2) the action must commence within six months of

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receipt of the agency’s denial. The agency’s effective denial was December

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6, 2017. (ECF No. 29-1 at 7). The six month deadline passed in June, while

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Defendant United States’ Motion to Dismiss was pending before the Court.

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The Supreme Court has held that the six-month time bar under 28

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U.S.C. § 2401(b) is “nonjurisdictional and subject to equitable tolling.” U.S.

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v. Kwai Fun Wong, 135 S.Ct. 1625, 1638 (2015).

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equitable tolling bears the burden of establishing two elements: (1) that he

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has been pursuing his rights diligently, and (2) that some extraordinary

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circumstances stood in his way.” Kwai Fun Wong v. Beebee, 732 F.3d 1030,

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1052 (9th Cir. 2013) (quoting Credit Suisse (USA) LLC v. Simmonds, 566

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U.S. 221, 227 (2012)).

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reasonable person might be expected to deliver under his or her particular

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circumstances.” Id. (quoting Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir.

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2011)). “Central to the analysis is whether the plaintiff was ‘without any fault’

“[A] litigant seeking

The first showing “requires the effort that a

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in pursuing his claim.” Id. (quoting Fed. Election Comm’n v. Williams, 104

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F.3d 237, 240 (9th Cir. 1996)). As for the second prong, the litigant must

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establish that “extraordinary circumstances were the cause of his

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untimeliness and . . . ma[de] it impossible to file [the document] on time.” Id.

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(alterations in original) (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th

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Cir. 2009)). Equitable tolling is generally granted “when litigants are unable

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to file timely [documents] as a result of external circumstances beyond their

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direct control.” Id. (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir.

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2008)).

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Plaintiffs have pursued their rights diligently. In Plaintiffs’ Opposition

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to the United States’ Motion to Dismiss, dated March 18, 2018, Plaintiffs

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reminded the Court of the statutes of limitations and offered to amend the

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FAC or file a new suit to “remove all doubt as to . . . subject matter

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jurisdiction.” (ECF No. 33 at 10). Section 2410(b) did not require Plaintiffs to

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file an entirely new complaint while waiting for the Court’s ruling on the

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Motion to Dismiss. See id. at 1053. Plaintiffs pursued their claims as a

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reasonable person would under the circumstances. See id. The six month

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deadline thus came and went through no fault of Plaintiffs. See id. at 1052.

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Plaintiffs also satisfy the second prong. Delays caused by the time it

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takes for a presiding court to decide a motion can qualify as “extraordinary

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circumstances.” Id. at 1053 (concluding equitable tolling was appropriate

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because plaintiff’s failure to file FTCA claim within six months was “due

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solely” to district court’s delay in ruling on motion for leave to amend despite

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“time to spare”). Here, “[e]xternal circumstances beyond [Plaintiffs] direct

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control” — the Court’s lengthy consideration of all pending motions — made

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it impossible for Plaintiff to timely file, even after requesting leave to do so

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should the Court determine it lacked jurisdiction over Plaintiff’s FAC. See id.

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The Court therefore finds it appropriate to equitably toll the six-month

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deadline should Plaintiffs decide to file a new action. The six month statute

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of limitations is tolled from the filing of the Plaintiffs’ opposition (March 18,

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2018) to the entry of this order.

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B. City of Chula Vista’s Motion To Dismiss

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Also pending before the Court is City of Chula Vista’s (“Chula Vista”)

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Motion to Dismiss “Count Two” of Plaintiffs’ Third Cause of Action, which

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asserts a state law negligence claim against Chula Vista. (ECF No. 15).

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Chula Vista contends that the FAC’s allegations as to Chula Vista’s role in

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the federal sting operation are conclusory, and that the “vast majority” of the

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FAC’s allegations demonstrate that “the operation was organized and carried

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out solely by federal agencies.” (ECF No. 15 at 2). Chula Vista argues that

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Agent Meredith was acting in his capacity as a federal officer, and that

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nothing in the FAC establishes that Chula Vista or its agents were the

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proximate cause of Llanez’s death. (ECF No. 15 at 2). Even assuming

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Meredith was acting as an agent for Chula Vista at that time, Chula Vista

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argues the allegations as to Meredith are insufficient to plead negligence on

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the part of Chula Vista. (ECF No. 15 at 2).

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Plaintiffs argue that Meredith’s status as a “cross-sworn federal agent”

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does not absolve City of its liability for negligence. (ECF No. 23 at 7).

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Plaintiffs contend that the factual allegations are sufficient to support an

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inference of City involvement because “City very likely derives substantial

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monetary benefit from seizures associated with these types of operations”

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and that “discovery will very likely lead to direct involvement by Chula Vista

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Police dispatch and departmental involvement in the operation.” (ECF No.

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23 at 7).

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employed by and acting as an agent of Chula Vista, (FAC ¶¶ 12, 36) and

Plaintiffs point to allegations in the FAC that Meredith was

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assert that although Meredith did not actually shoot Llanez, the FAC alleges

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he was present at the scene and his negligence for “failing to protect” and

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“render timely first aid” to Llanez was the proximate cause of Llanez’s death.

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(ECF No. 23 at 6-7).

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1. The FAC Fails to Sufficiently Allege That Chula Vista Police
Officers Were Involved In the Operation.

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The FAC fails to allege facts showing that Mark Meredith was acting in

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his capacity as an employee of Chula Vista, rather than as a federal agent,

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at the time of the fatality. The FAC also fails to allege any involvement or

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misconduct by other officers in the Chula Vista Police Department. This

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pleading deficiency weighs against any finding of negligence on the part of

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the City of Chula Vista.

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Plaintiffs aver that the following statement sufficiently alleges that

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Chula Vista was involved in the operation and that Meredith was acting as

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Chula Vista’s employee at the time of the fatality:

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Defendant OFFICER MARK MEREDITH is and at all times
mentioned herein was, an Agent employed by the Defendant
CITY OF CHULA VISTA, who was acting within the course and
scope of his employment as an Officer acting as a member of the
“ROAD KILL TEAM” and employed by the CITY OF CHULA
VISTA POLICE DEPARTMENT, who was acting within the
course and scope of his employment at the time he undertook
the activities alleged herein . . .

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(FAC ¶ 12). Plaintiffs also urge the Court to consider the FAC’s allegation

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that “one or more officers from the Chula Vista Police Department” were

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present or involved in the operation. (FAC ¶ 36).

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These allegations that Meredith was acting as Chula Vista’s agent

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during the sting are too conclusory to withstand a 12(b)(6) motion to dismiss,

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particularly given the United States’ substitution for Meredith as a Defendant

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and its certification that Meredith is a “Federal Task Force Officer” who was

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acting as a federal employee at the time of the fatality. (See ECF Nos. 28,

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32). Moreover, the FAC states the sting operation was organized by the

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United States Department of Homeland Security (DHS) in coordination with

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the Drug Enforcement Agency (DEA) and Customs and Border Protection

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(CBP). (FAC ¶ 22-27). Although the FAC asserts “other Chula Vista police

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officers” were present on the scene, none of the other factual allegations

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allege how Chula Vista was involved in planning or executing the operation.

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(FAC ¶ 36). The FAC alleges that Meredith worked closely with six other

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named individuals, all of whom were federal agents, in a federal drug sting.

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(FAC ¶ 22-27). Little in the FAC gives rise to a plausible inference that

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Meredith was acting in any other capacity than as a federal agent. See Iqbal,

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556 U.S. at 679 (stating “where the well-pleaded facts do not permit the court

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to infer more than the mere possibility of misconduct, the complaint has

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alleged—but it has not shown—that the pleader is entitled to relief”) (internal

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alterations and quotations omitted). The allegations that Meredith was acting

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as an agent of Chula Vista at the time, and that other Chula Vista officers

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happened to be on the scene, are wholly conclusory and not entitled to a

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presumption of truth. Id.

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2. The FAC Fails To Allege A Facially Plausible Negligence Claim
Against Meredith

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Even if Meredith was an agent of Chula Vista, the FAC fails to plead

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facts showing Meredith’s negligence. The only factual allegations related to

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Meredith are that he was present when Llanez picked up the van, and that

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“one or more officers from the Chula Vista Police Department” were on the

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scene when Llanez was killed. (FAC ¶¶ 34, 36). The FAC does not allege

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how Meredith could have protected Llanez from Agent Gonzalez, or provide

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facts showing how Meredith could plausibly have rendered aid to Llanez to

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prevent his death.

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conclusion unsupported by facts; it therefore fails to meet the pleading

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standard. See Iqbal, 556 U.S. at 678 (providing a complaint will not suffice if

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it “tenders naked assertions devoid of further factual enhancement”) (internal

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alterations and quotations omitted).

Plaintiffs’ assertion of negligence is thus a legal

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Accordingly, the Court grants Chula Vista’s Motion to Dismiss “Count

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Two” of the FAC’s Third Cause of Action, with leave to amend to cure the

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deficiencies identified above.

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C. CONCLUSION

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For the foregoing reasons, the Court GRANTS Defendant United

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States’ motion to dismiss for lack of subject matter jurisdiction. (ECF No.

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29). The Court equitably tolls the statute of limitations from the filing of

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Plaintiffs’ Opposition on March 18, 2018 to the entry of this order. The Court

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grants Chula Vista’s motion to dismiss with leave to amend on or before

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January 30, 2019. (ECF No. 15). The Clerk shall enter judgment dismissing

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the case against the United States without prejudice to the filing of a new

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action.

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IT IS SO ORDERED.
Dated: December 12, 2018

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