Pedroza-Serrano et al v. United States of America

Filing 11

OPINION AND ORDER. DENIED 6 MOTION to dismiss as to United States of America filed by United States of America. Signed by Judge Salvador E Casellas on 6/16/2010.(LB) Modified to change document type on 6/16/2010 (su).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO GUADALBERTO PEDROZA AND KEMLEY RHODES Plaintiffs v. UNITED STATES OF AMERICA Civil No. 10-1053 (SEC)

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Defendant
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O P I N I O N AND ORDER P e n d in g before this Court is Defendant United States of America's ("Defendant") motion to dismiss (Docket # 6 & 7), and Plaintiffs Guadalberto Pedroza and Kemley R h o d e s '(" P la in tif f s " ) opposition thereto. After carefully considering the filings and the a p p lic a b le law, Defendant's motion is DENIED. F a c tu a l and Procedural Background

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O n January 27, 2010, Plaintiffs filed suit against Defendants under the Federal Tort C la im s Act ("FTCA"), 28 U.S.C. §§ 1346 and 2671, and Article 1802 of the Puerto Rico Civil C o d e , P.R. Laws Ann., tit. 31, § 5141. Docket # 1. According to Plaintiffs, their car was burned in a fire while parked in the San Juan Veterans Administration Medical Center's ("Agency") p a r k in g structure. They contend that Defendant is liable because, pursuant to the Fire D e p a r tm e n t's report, the building "did not have the appropriate equipment to extinguish the f ire ." Docket # 1, p. 2. Defendant moves for dismissal arguing that this Court lacks subject matter jurisdiction. D o c k e t # 7. In support thereof, Defendant points to the "discretionary function exception" to

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th e waiver of sovereign immunity under FTCA actions, which exempts the government from s u its "based upon the exercise or performance or the failure to exercise or perform a d isc re tio n a ry function or duty on the part of a federal agency or an employee of the Government . . . ." 28 U.S.C. § 2680. According to Defendant, the Agency is not required to follow a formal p o lic y regarding fire protection systems. Moreover, Defendant asserts that Plaintiffs fail to set f o rth any mandatory federal regulation, statute of formal policy that requires the installation of

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C IVIL NO. 10-1053 (SEC)

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f ire protection systems in the Agency's parking structure. Defendant contends that insofar as P la in tif f s ' claims are based on the performance of a discretionary government function, the G o v e rn m e n t is immune from suit. In opposition, Plaintiffs argue that Defendant acknowledged its obligation to comply w ith certain regulations since the Agency's "As Built Plans" provided by Defendant expressly s ta te that the Agency complied with the codes and regulations issued by the Fire Protection A s s o c ia tio n of the Veterans Affair Department Code, the Puerto Rico Fire Department, and the N a tio n a l Fire Protection Association. According to Plaintiffs, Defendant did not comply with th e s e regulations. They further contend that the firefighters had to extinguish the fire manually

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b e c a u s e there was no water supply, and even so, the Agency's existing water pumps did not s u p p ly enough water to extinguish a fire. Standard of Review R u le 12(b)(1) is the proper vehicle for challenging a court's subject matter jurisdiction. Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Under this rule, a wide v a rie ty of challenges to the Court's subject matter jurisdiction may be asserted, among them th o s e based on sovereign immunity, ripeness, mootness, and the existence of a federal question. Id. (citations omitted); see also Hernández-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1 st Cir.

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2 0 0 5 ) (discussing application of Rule 12(b)(1) challenge in cases where the court allegedly has d iv e rs ity jurisdiction). Justiciability is a component of a court's subject matter jurisdiction, and, a s such, must be reviewed following Rule 12(b)(1)'s standards. Sumitomo v. Quantum, 434 F. S u p p . 2d 93 (D.P.R. 2006). A court faced with a Rule 12(b)(1) motion should give it preference. D yn a m ic Image Technologies, Inc. v. U.S., 221 F. 3d 34, 37 (1 st Cir. 2000). W h e n considering a motion to dismiss under Fed. R. Civ.P. 12(b)(1), courts must " e m p h a s iz e a crucial distinction, often overlooked, between 12(b)(1) motions that attack the c o m p la in t on its face and 12(b)(1) motions that attack the existence of subject matter ju ris d ic tio n in fact, quite apart from any pleadings." Mortensen v. First Fed. Sav. & Loan Ass'n,

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5 4 9 F.2d 884, 891 (3d Cir. N.J. 1977) . That is, the court will look at the facts of the case as e ith e r a "facial or a factual challenge." Arocho v. United States, 455 F. Supp. 2d 15, 17-18

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(D .P .R . 2006) (citing Reynolds v. Nelson, et als., 2006 WL 2404364 (D. Arizona, July 17, 2 0 0 6 )). O n this front, this district has held that A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be e ith e r a facial or a factual challenge. When the moving party challenges ju ris d ic tio n based on the allegations in the complaint, the court must consider all th e allegations in the complaint as true, and will not look beyond the face of the c o m p la in t to determine jurisdiction. See Mortensen v. First Fed. Sav. & Loan A s s 'n , 549 F.2d 884, 891 (3rd Cir. 1977). On the other hand, when a court reviews a complaint under a factual challenge, the allegations have no p re s u m p ti v e truthfulness, Ritza v. International Longshoremen's and W a re h o u s e m e n 's Union, 837 F.2d 365 (9th Cir. 1988)(quoting Mortensen, 549 F .2 d at 891), and the court is not limited to the allegations in the pleadings if the " ju risd ic tio n a l issue is separable from the merits of [the] case." Roberts v. C o rro th e rs , 812 F.2d 1173, 1177 (9th Cir. 1987). Rather, the court that must w e ig h the evidence has discretion to allow affidavits, documents, and even a lim ite d evidentiary hearing to resolve disputed jurisdictional facts. See Valdez v. U n ite d States, 837 F.Supp. 1065, 1067 (E.D. Cal. 1993), aff'd, 56 F. 3d 1177 (9th C ir. 1995), Mortensen, 549 F.2d at 891. Id . at 18 (citations omitted). A plaintiff faced with a motion to dismiss for lack of subject matter jurisdiction has the b u rd e n to demonstrate that such jurisdiction exists. See Lord v. Casco Bay Weekly, Inc., 789 F . Supp. 32, 33 (D. Me. 1992); see also SURCCO V. PRASA, 157 F. Supp. 2d 160, 163 (D. P .R . 2001). Applicable Law and Analysis

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In the present case, Plaintiffs argue that Defendants are liable because the parking
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s tru c tu re did not have the "appropriate equipment" to deal with the fire. In opposition, D e f e n d a n t contends that the Agency was not required to install a fire protection system. Thus D e f e n d a n t challenges jurisdiction based on the allegations of the complaint, that is, the fact that P la in tif f allegedly fails to assert any applicable federal statute or regulation that mandates the in sta lla tio n of fire protection systems. Insofar as Defendant sets forth a facial challenge, we c a n n o t look beyond the face of the complaint to determine jurisdiction. Although Defendant c o n te n d s that the Agency decision to implement a fire protection system was discretional, m a k in g them immune from suit, this Court cannot ascertain from the face of the complaint

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w h ic h , if any, fire protection system was installed by the Agency. Moreover, the Fire D e p a rtm e n t's report and Plaintiff's allegations that the hose cabinets in each floor did not have w a te r installed. As a result, dismissal is unwarranted at this time. Conclusion B a s e d on the foregoing, Defendant's motion to dismiss is DENIED. IT IS SO ORDERED. In San Juan, Puerto Rico, this 16 th day of June, 2010. S /S a lv a d o r E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge