McSwain v. United States of America

Filing 48

ORDER that 17 Motion for Partial Dismissal is GRANTED. Plaintiff's negligent training claim is DISMISSED without prejudice. Plaintiff's requests for declaratory relief and attorneys fees are DISMISSED with prejudice. FURTHER ORDERED that 18 and 21 Plaintiff's unopposed Motions to Extend Time are GRANTED. Signed by Chief Judge Gloria M. Navarro on 3/7/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PAMELA MCSWAIN,
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Plaintiff,

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vs.

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UNITED STATES OF AMERICA;
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Defendant.

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Case No.: 2:15-cv-01321-GMN-GWF
ORDER

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Pending before the Court is the Motion for Partial Dismissal, (ECF No. 17), filed by

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Defendant United States of America (“Defendant”). Plaintiff Pamela McSwain (“Plaintiff”)

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filed a Response, (ECF No. 20), and Defendant filed a Reply, (ECF No. 25).1 For the reasons

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set forth herein, Defendant’s Motion for Partial Dismissal is GRANTED.

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I.

BACKGROUND
This case arises out of a personal injury incident that occurred at the McCarran

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International Airport on September 29, 2014. (Compl. ¶ 10, ECF No. 1). While near the

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security checkpoint, Plaintiff claims that she witnessed a Transportation Security

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Administration (“TSA”) dog barking and pulling on the leash maintained by its handler. (Id. ¶

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12). Shortly after, Plaintiff alleges she was “attacked from behind by [a] large black TSA dog

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which knocked both Plaintiff and [her emotional support dog] to the ground.” (Id. ¶ 13).
Plaintiff filed her Complaint on July 13, 2015, alleging a claim of negligence against

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Defendant pursuant to the Federal Tort Claims Act (“FTCA”). (See Compl). Specifically,

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Plaintiff alleges that “Defendant breached its duty of care towards Plaintiff by failing to either

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Plaintiff filed two motions to extend time to respond to Defendant’s Motion for Partial Dismissal. (ECF Nos.
18, 21). Defendant filed non-oppositions to these motions. (ECF Nos. 19, 22). For good cause appearing, the
Court grants these motions and considers Plaintiff’s response timely.
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properly leash its security dog or provide the handler with appropriate training for doing so.”

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(Id. ¶ 18) (emphasis added).2 In the instant motion, Defendant seeks dismissal on: (1) the

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negligent training portion of Plaintiff’s claim; (2) the prayer for declaratory relief; and (3) the

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prayer for a separate award of attorney’s fees.

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II.

LEGAL STANDARD

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“Federal courts are courts of limited jurisdiction. They possess only that power

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authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

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375, 377 (1994). Therefore, before a federal court may consider the merits of a case, it must

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first determine whether it has proper subject matter jurisdiction. Scott v. Pasadena Unified Sch.

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Dist., 306 F.3d 646, 653–54 (9th Cir. 2002).

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Rule 12(b)(1) of the Federal Rules of Civil Procedure permits motions to dismiss for

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lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When subject matter jurisdiction is

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challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v.

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Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that “[t]he party seeking to invoke the

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court’s jurisdiction bears the burden of establishing that jurisdiction exists”). Accordingly, the

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court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in

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response to the motion to dismiss. Kokkonen, 511 U.S. at 377.

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A motion to dismiss under Rule 12(b)(1) may be construed in one of two ways.

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Thornhill Publ’g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It

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may be described as ‘facial,’ meaning that it attacks the sufficiency of the allegations to support

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subject matter jurisdiction. Id. Alternatively, it may be described as ‘factual,’ meaning that it

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“attack[s] the existence of subject matter jurisdiction in fact.” Id.

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While the Complaint lists only a single cause of action for “negligence,” Plaintiff in effect advances two
alternate negligence theories to support her case. The Court therefore evaluates the “negligent training” assertion
as a distinct claim for purposes of this motion to dismiss.
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When a court considers a ‘facial’ attack made pursuant to Rule 12(b)(1), it must consider

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the allegations of the complaint to be true and construe them in the light most favorable to the

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plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
“Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed

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without prejudice so that a plaintiff may reassert his claims in a competent court.” Frigard v.

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United States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam). However, where there is no way

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to cure the jurisdictional defect, dismissal with prejudice is proper. See id.

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III.

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DISCUSSION
1. Timeliness of Defendant’s Motion for Partial Dismissal

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Citing the ruling in Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983), Plaintiff

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argues that Defendant’s Motion for Partial Dismissal is procedurally improper because it was

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filed after Defendant filed a responsive pleading. (Pl.’s Response 3:13–17, ECF No. 20). While

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the court in Augustine found that Rule 12(b)(1) motions filed after the responsive pleading were

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“technically untimely,” the court also explained that the issue of subject matter jurisdiction

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“may be raised by the parties at any time pursuant to Fed. R. Civ. P. 12(h)(3).” Augustine, 704

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F.2d at 1075. As a general rule, “[t]he defense of lack of subject matter jurisdiction cannot be

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waived, and the court is under a continuing duty to dismiss an action whenever it appears that

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the court lacks jurisdiction.” Id. at 1077. The Court therefore finds that the Defendant’s motion

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is properly brought before the Court. See Fed. R. Civ. P. 12(h)(3).

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2. Negligent Training Claim

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Plaintiff raises her negligence claim pursuant to the FTCA, 28 U.S.C. § 2671, et seq.

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The FTCA provides a limited waiver of the sovereign immunity of the United States for torts

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committed by federal employees acting within the scope of their employment. See Valdez v.

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United States, 56 F.3d 1177, 1179 (9th Cir. 1995). Under the FTCA, the United States may be

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held civilly liable for the torts of its employees “in the same manner and to the same extent as a

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private individual under like circumstances.” Nurse v. United States, 226 F.3d 996, 1000 (9th

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Cir. 2000). However, the FTCA’s waiver of immunity is limited by a number of statutory

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exceptions. See 28 U.S.C. § 2680. If a plaintiff’s cause of action falls within one or more of

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these exceptions, then federal courts lack subject matter jurisdiction to hear the claim. See

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Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975).
Defendant argues that Plaintiff’s negligent training claim is jurisdictionally barred by the

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discretionary function exception of the FTCA. (Def.’s Mot. to Dismiss 3:26–27, ECF No. 17).

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To survive a motion to dismiss under this exception, a claim must “allege facts which would

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support a finding that the challenged actions are not the kind of conduct that can be said to be

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grounded in the policy of the regulatory regime.” United States v. Gaubert, 499 U.S. 315, 325

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(1991). The Ninth Circuit has repeatedly found that decisions relating to training, hiring, and

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supervision “fall squarely within the discretionary function exception.” Nurse, 226 F.3d at

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1001; see also Vickers, 228 F.3d at 950; Gager v. United States, 149 F.3d 918, 920–22 (9th Cir.

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1998).

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In her Response, Plaintiff concedes that “the nature and extent of training provided to

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the TSA agent is not challengeable under the FTCA.” (Pl.’s Response 4:13–15). However,

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Plaintiff asserts that “[w]hether the discretionary function bars Plaintiff from receiving

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compensation for certain challenged actions committed by government employees is best

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decided at trial when the complete facts will be presented following robust discovery in this

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case.” (Id. 1:22–2:1). This argument is insufficient to overcome deficiencies in the Complaint

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itself. See Gaubert, 499 U.S. at 325. Here, Plaintiff’s sole basis for her negligent training claim

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is the broad assertion that Defendant failed to “provide the handler with appropriate training.”

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(See Compl. ¶ 18). As the Complaint avers no additional facts to suggest that the claim falls

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outside of the discretionary function exception, the Court dismisses Plaintiff’s negligent

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training claim without prejudice.

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3. Declaratory Relief and Attorney’s Fees

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Plaintiff also seeks both declaratory relief and attorney’s fees. Pursuant to the FTCA,

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“[t]he only relief provided for in the [FTCA] is ‘money damages’.” Westbay Steel, Inc. v.

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United States, 970 F.2d 648, 651 (9th Cir. 1992); see also 28 U.S.C. § 1346(b). Plaintiff

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concedes that “the FTCA does not permit declaratory relief” and “there is no independent basis

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under the FTCA for an award of attorney’s fees separate and distinguishable from any

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monetary compensation the Court may award.” (Pl.’s Response 4:23–25). The Court therefore

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strikes Plaintiff’s request for declaratory relief and attorney’s fees.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion for Partial Dismissal, (ECF No.

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IT IS FURTHER ORDERED that Plaintiff’s negligent training claim is DISMISSED
without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s requests for declaratory relief and
attorney’s fees are DISMISSED with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s unopposed Motions to Extend time, (ECF
Nos. 18, 21), are GRANTED.
DATED this _____ day of March, 2017.
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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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