PICCININI et al v. United States of America

Filing 18

ORDER - Defendant's motion to dismiss (ECF No. 9 ) is DENIED as to Plaintiffs' First and Second Claims for relief. The motion to dismiss is GRANTED as to Plaintiffs' Fourth Claim for relief. It is further ordered th at Defendant's motion to dismiss Plaintiffs' Fifth Claim for Relief for Res Ipsa Loquitur as a substantive claim is GRANTED. This will not preclude Plaintiffs from raising, to the extent it is supported by the evidence, the doctrine of Res Ipsa Loquitur as a procedural rule of evidence. It is further ordered that Plaintiffs' prayer for punitive damages and attorney's fees is DENIED. Signed by Judge Howard D. McKibben on 4/30/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARY KIM PICCININI,and
GEORGE ELDRIDGE & SON, INC.,

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Plaintiffs,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
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_________________________________ )
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3:17-cv-00584-HDM-WGC
ORDER

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Before the Court is the Defendant United States of America’s
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(“Defendant”) partial motion to dismiss (ECF No. 9) made pursuant
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to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
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Plaintiffs Mary Kim Piccinini and George Eldridge & Son, Inc.,
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(collectively “Plaintiffs”) have opposed (ECF No. 14), and
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Defendant has replied (ECF No. 17).
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I.

BACKGROUND

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This case is brought under the Federal Tort Claims Act
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(“FTCA”) and arises from a prescribed burn initiated by the United
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States Forest Service on public land in White Pine County, Nevada,
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in 2012, that expanded into areas outside the prescribed burn area
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causing damage to Plaintiffs’ properties (See ECF No. 1).

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Plaintiffs brought suit against Defendant asserting claims for: (1)

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negligence; (2) nuisance; (3) trespass; (4) strict liability; and

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(5) res ipsa loquitur (Id. at 5-7).

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damages and attorney’s fees (Id. at 7).

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II.

Plaintiffs also seek punitive

LEGAL STANDARDS

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A.

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A motion to dismiss for lack of subject matter jurisdiction

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Motion to Dismiss under Fed.R.Civ.P. 12(b)(1)

under Fed.R.Civ.P. 12(b)(1) may be made on the basis that the

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complaint fails to allege grounds for federal subject matter

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jurisdiction as required by Fed.R.Civ.P. 8(a).

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Resolution Trust Co., 952 F.2d 879, 881 (5th Cir. 1992); Thornhill

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Publ’g Co. v. General Tel. & Elecs., 594 F.2d 730, 733 (9th Cir.

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1979).

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dismiss, it is the plaintiff who, as the party seeking to invoke

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the court’s jurisdiction, bears the burden of establishing subject

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matter jurisdiction.1

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1134, 1135 (9th Cir. 1999).

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lacks jurisdiction until the plaintiff proves otherwise.

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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);

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States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000).

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Meliezer v.

Although the defendant is the moving party on a motion to

Hexom v. Oregon Dept. of Transp., 177 F.3d
The court in effect presumes that it
Kokkonen
United

The nature of the burden of proof varies, however, depending

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on whether the motion is a facial or factual attack on the

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complaint.

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complaint on its face, the plaintiff must affirmatively allege the

When considering a Rule 12(b)(1) motion attacking a

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With respect to a threshold motion to dismiss for lack of subject matter
jurisdiction, if the plaintiff can show any arguable basis in law for the claim
made, he may survive a Fed.R.Civ.P. 12 (b)(1) motion. Musson Theatrical, Inc. v.
Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996).

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existence of federal jurisdiction because the court will not infer

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it from the allegations.

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236 F.3d 495, 499 (9th Cir. 2001), citing Smith v. McCullough, 270

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U.S. 456, 459 (1926).

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presume that the plaintiff’s allegations are true.

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Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2000).

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presumption of truth attaches to the plaintiff’s allegations with a

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factual attack.

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TOSCO v. Communities for a Better Env’t,

Also, with a facial attack, the court must
Miranda v.

In contrast, no

White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

A federal court presumptively lacks subject matter

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jurisdiction “unless the contrary affirmatively appears.”

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West, Inc. v. Confederated Tribes of the Colville Reservation, 873

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F.2d 1221, 1225 (9th Cir. 1989).

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jurisdiction must exist at the time the action is commenced.

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Morongo Band of Mission Indians v. California State Bd. of

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Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988), cert. denied,

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488 U.S. 1006 (1989).

Stock

Federal subject matter

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B.

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In considering a motion to dismiss for failure to state a

Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)

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claim under Fed.R.Civ.P. 12(b)(6), the court must accept as true

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all material allegations in the complaint as well as all reasonable

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inferences that may be drawn from such allegations.

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Stroh, 205 F.3d 1146, 1150 (9th Cir. 2000).

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complaint also must be construed in the light most favorable to the

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nonmoving party.

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Cir. 2000).

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is to test the legal sufficiency of the complaint.

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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motion only if it is certain that the plaintiff will not be

LSO, Ltd. v.

The allegations of the

Shwarz v. United States, 234 F.3d 428, 435 (9th

The purpose of a motion to dismiss under Rule 12(b)(6)

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Navarro v.

The court can grant the

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entitled to relief under any set of facts that could be proven

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under the allegations of the complaint.

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Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996).

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III. DISCUSSION

Cahill v. Liberty Mut.

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Defendant moves to dismiss Plaintiffs’ claims for negligence,

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nuisance, strict liability, res ipsa loquitur, and the request for

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punitive damages and attorney’s fees (See ECF No. 9).

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A.

Strict Liability and Request for Punitive Damages and
Attorney’s Fees

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First, Plaintiffs do not oppose dismissal of their strict
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liability claim or their request for punitive damages and
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attorney’s fees.

(See ECF No. 14 at 2).

Accordingly, Defendant’s

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motion to dismiss the strict liability claim and prayer for
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punitive damages and attorney’s fees is granted.

The portion of

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Plaintiffs’ complaint alleging strict liability shall be dismissed
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and the prayer for punitive damages and attorney’s fees is denied.
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B.

Res Ipsa Loquitur

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Defendant argues that Plaintiffs cannot present an independent
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claim for res ipsa loquitur because res ipsa loquitur is a theory
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of liability rather than a separate cause of action (ECF No. 9 at
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3).

The Court agrees.

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“Res ipsa loquitur is an exception to the general negligence
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rule, and it permits a party to infer negligence, as opposed to
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affirmatively proving it, when certain elements are met.”

See

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Woosley v. State Farm Ins. Co., 18 P.3d 317, 321 (Nev. 2001).
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“[R]es ipsa loquitur is a theory of liability or a method of
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establishing liability for negligence; it is not a separate cause
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of action.”

See Zander v. Tropicana Entertainment, Inc., 2014 WL

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794212, at *2 (D. Nev. Feb. 16, 2014) (dismissing res ipsa loquitur

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claim with prejudice).

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rule of evidence, not a substantive rule of law.”

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Ass’n, Inc. v. Gaffney, 64 Nev. 225, 234 (Nev. 1947).

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loquitur doctrine in an FTCA case is determined by Federal law and

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federal law under Zander prohibits consideration of res ipsa

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loquitur as a separate cause of action.

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res ipsa loquitur claim, as a substantive claim, is dismissed.

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C.

The res ipsa loquitur doctrine is “merely a
Las Vegas Hosp.
The res ipsa

Accordingly, Plaintiffs’

Negligence and Nuisance: Exhaustion of Administrative
Remedies

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Defendant next argues that Plaintiffs failed to
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administratively exhaust their claims for negligence and nuisance
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and therefore the Court lacks subject matter jurisdiction over
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those claims (ECF No. 9 at 4-10).
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The FTCA allows suits against the United States for certain
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torts committed by government employees acting within the scope of
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their employment.

28 U.S.C. § 1346(b).

A plaintiff cannot

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initiate such action against the United States unless the claimant
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has first presented the claim to the appropriate Federal agency.
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28 U.S.C. § 2675(a).

The requirement of exhaustion of

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administrative remedies is jurisdictional in nature and may not be
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waived.

Jerves v. United States, 966 F.2d 517, 519 (9th Cir.

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1992).
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The purpose of the exhaustion requirement is to encourage
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administrative settlement of claims and avoid unnecessary
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litigation.

Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.

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1985).

A claimant “need only file a brief notice or statement with

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the relevant federal agency containing a general description of the
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time, place, cause and general nature of the injury and the amount

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of compensation demanded.”

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(9th Cir. 2002)(citing Warren v. U.S. Dep’t of Interior Bureau of

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Land Mgmt., 724 F.2d 776, 779 (9th Cir. 1984); Avery v. U.S., 680

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F.2d 608, 610 (9th Cir. 1982)). Further, “a plaintiff’s

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administrative claims are sufficient even if a separate basis of

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liability arising out of the same incident is pled in federal

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court.”

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to provide [the agency] with a preview of the details of his

Goodman v. U.S., 298 F.3d 1048, 1055

Goodman, 298 F.3d at 1055.

A plaintiff is “not required

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federal complaint, nor required to describe in more than minimal

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detail the factual predicate for his claim.”

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Id. at 1056.

In this case, the Court finds that Defendant has been provided

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sufficient notice of Plaintiffs’ negligence and nuisance claims

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within the meaning of § 2675(a).

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detail is the provision of enough facts for the government to begin

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an investigation.

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administrative claims make clear that they are based upon a fire

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that “burned beyond boundaries of controlled burn, engulfing

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[private property]” and an “expansion of fire to other [private]

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areas outside the ‘prescribed’ area” causing their private property

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to be destroyed.

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allegations presented by Plaintiffs would place a reasonable person

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on notice of the potential for negligence or nuisance claims

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relating to a uncontrolled prescribed burn damaging private

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property.

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general description of the time, place, cause and general nature of

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the injury and the amount of compensation demanded.

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10-1, 10-2).

All that is necessary in terms of

Shipek, 752 F.2d at 1355.

Here, Plaintiffs’

(See ECF Nos. 10-1 at 4; 10-2 at 2).

The factual

Further, the administrative claims adequately provide a

(See ECF Nos.

Accordingly, Defendant’s motion to dismiss
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Plaintiffs’ negligence and nuisance claims for lack of subject

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matter jurisdiction is denied.

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IV.

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CONCLUSION
For the reasons stated above, it is hereby ordered that

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Defendant’s motion to dismiss (ECF No. 9) is DENIED as to

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Plaintiffs’ First and Second Claims for relief.

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dismiss is GRANTED as to Plaintiffs’ Fourth Claim for relief.

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It is further ordered that Defendant’s motion to dismiss

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Plaintiffs’ Fifth Claim for Relief for Res Ipsa Loquitur as a

The motion to

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substantive claim is GRANTED.

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from raising, to the extent it is supported by the evidence, the

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doctrine of Res Ipsa Loquitur as a procedural rule of evidence.

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It is further ordered that Plaintiffs’ prayer for punitive

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This will not preclude Plaintiffs

damages and attorney’s fees is DENIED.

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IT IS SO ORDERED.

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DATED: This 30th day of April, 2018.

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____________________________
UNITED STATES DISTRICT JUDGE

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