Okert v. United States of America

Filing 43

ORDER DENYING 27 DEFENDANT'S MOTION TO DISMISS. Signed by Judge Mary K. Dimke. (TNC, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Aug 28, 2024
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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RUSSELL OKERT and SHAINA
OKERT,

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Plaintiffs,
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No. 1:23-CV-03037-MKD
ORDER DENYING
DEFENDANT’S MOTION TO
DISMISS

v.
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ECF No. 27
UNITED STATES OF AMERICA,

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Defendant.
Before the Court is Defendant’s Motion to Dismiss for Lack of Subject

13 Matter Jurisdiction. ECF No. 27. On June 24, 2024, the Court held a motion
14 hearing. ECF No. 36. Hollie Connelly and Samuel Daheim appeared on behalf of
15 Plaintiffs. John Drake appeared on behalf of Defendant.
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Defendant moves to dismiss the Complaint, arguing that certain facts

17 preclude the Court from exercising subject matter jurisdiction under the Federal
18 Tort Claims Act (FTCA). ECF No. 27. The Court has reviewed the briefing,
19 heard from counsel, and is fully informed. For the reasons set forth below, the
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ORDER - 1

1 Court denies Defendant’s Motion to Dismiss, with leave to renew these arguments
2 in a motion for summary judgment.
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BACKGROUND
Plaintiff Russell Okert learned of a group motorcycle ride through social

5 media. ECF No. 29-2 at 21-23. The group planned to depart from Auburn, drive
6 to Leavenworth for lunch, and then return to Auburn. ECF No. 29-15 at 2. Okert
7 had purchased a 1999 Honda VF750 motorcycle from a friend two months earlier.
8 ECF No. 29-2 at 8-9. Okert learned to ride this motorcycle through friends and
9 family; he was not licensed to drive a motorcycle and had not taken any
10 motorcycle safety courses or motorcycle-permit tests. Id. at 10-12, 14-16, 18-20.
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On October 4, 2020, Okert set out on the group ride on his Honda VF750.

12 ECF No. 29-1 at 4; ECF No. 29-5 at 2. The group took Forest Service Road 7320
13 (“FSR 7320,” also known as Old Blewett Highway) during the return portion of
14 their trip. ECF No. 27 at 33; ECF No. 28 at 2 ¶ 4; ECF No. 29-1 at 4; ECF No. 2915 2 at 31-32; ECF No. 29-5 at 2; ECF No. 29-16 at 3. While on FSR 7320, Okert hit
16 a pothole and was thrown off the motorcycle. ECF No. 32-4 at 10-14; ECF
17 No. 32-5 at 5-7.
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On March 13, 2023, Plaintiffs filed this action, alleging, pursuant to the

19 FTCA, state-law tort claims against Defendant United States for negligence and
20 loss of consortium resulting from Defendant’s alleged failure to maintain FSR
ORDER - 2

1 7320. ECF No. 1 at 3-4. Defendant filed the Motion to Dismiss on April 11, 2024.
2 ECF No. 27. At that time the motion was filed, the parties had been engaged in
3 discovery for approximately 300 days. See ECF No. 17 (initial scheduling order
4 dated June 23, 2023).
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LEGAL STANDARD
A challenge to a federal court’s subject matter jurisdiction may be raised at

7 any point. See Fed. R. Civ. P. 12(b)(1), 12(h)(3). Challenges to subject matter
8 jurisdiction “may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d
9 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
10 2000)). “In a facial attack, the challenger asserts that the allegations contained in a
11 complaint are insufficient on their face to invoke federal jurisdiction.” Id. “By
12 contrast, in a factual attack, the challenger disputes the truth of the allegations that,
13 by themselves, would otherwise invoke federal jurisdiction.” Id. “[T]he district
14 court may review evidence beyond the complaint without converting the motion to
15 dismiss into a motion for summary judgment.” Id. Moreover, the court is not
16 required to accept the plaintiff’s allegations as true. Id. (citing White, 227 F.3d at
17 1242). Rather, “the plaintiff must support her jurisdictional allegations with
18 ‘competent proof,’ . . . under the same evidentiary standard that governs in the
19 summary judgment context.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.
20 2014) (quoting Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010)) (other citations
ORDER - 3

1 omitted). “The plaintiff bears the burden of proving by a preponderance of the
2 evidence that each of the requirements for subject-matter jurisdiction has been
3 met.” Id. (citing Harris v. Rand, 682 F.3d 846, 850-51 (9th Cir. 2012)).
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“[I]f the existence of jurisdiction turns on disputed factual issues, the district

5 court may resolve those factual disputes itself” unless “the issue of subject-matter
6 jurisdiction is intertwined with an element of the merits of the plaintiff’s claim.”
7 Id. at 1121-22, 1122 n.3 (citations omitted). Such intertwinement exists if the
8 “jurisdictional motion involv[es] factual issues which also go to the merits” of the
9 substantive claims. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.
10 1983) (citing Thornhill Publ’g Co. v. Gen. Tel. Corp., 594 F.2d 730, 733-34 (9th
11 Cir. 1979)); see also Safe Air, 373 F.3d at 1039 (citing Sun Valley Gas., Inc. v.
12 Ernst Enters., 711 F.2d 138, 139 (9th Cir. 1983)). Upon a finding of
13 intertwinement, “a court should employ the standard applicable to a motion for
14 summary judgment because ‘resolution of [those] jurisdictional facts is akin to a
15 decision on the merits.’” Young v. United States, 769 F.3d 1047, 1052 (9th Cir.
16 2014) (quoting Augustine, 704 F.2d at 1077) (alteration in Young). “[T]he moving
17 party ‘should prevail only if the material jurisdictional facts are not in dispute and
18 the moving party is entitled to prevail as a matter of law.’” Id. (quoting Augustine,
19 704 F.2d at 1077).
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ORDER - 4

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DISCUSSION
A. Intertwinement
Defendant presents a factual challenge to subject matter jurisdiction,

4 contending that this case does not qualify for jurisdiction under the FTCA because
5 Defendant would not be liable for Plaintiffs’ claims under Washington’s
6 recreational use immunity statute. ECF No. 27 at 1-2. If Plaintiffs’ claims do not
7 fall within the FTCA, Defendant argues that the claims are barred by sovereign
8 immunity. Id. at 13-14.
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The Court must first determine whether the current challenge to subject

10 matter jurisdiction is intertwined with the merits of Plaintiffs’ claim. See Safe Air,
11 373 F.3d at 1039-40. If the issues are not intertwined, the Court may resolve
12 factual disputes itself as necessary to determine its subject matter jurisdiction. See
13 Leite, 749 F.3d at 1121-22, 1122 n.3. But if the issues are intertwined, the Court
14 may only grant Defendant’s motion if the material jurisdictional facts are not in
15 dispute and Defendant is entitled to prevail as a matter of law. See Young, 769
16 F.3d at 1052.
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1. Federal Tort Claims Act

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“An action can be brought by a party against the United States only to the

19 extent that the Federal Government waives its sovereign immunity.” Blackburn v.
20 United States, 100 F.3d 1426, 1429 (9th Cir. 1996) (citing Valdez v. United States,
ORDER - 5

1 56 F.3d 1177, 1179 (9th Cir. 1995)). “If sovereign immunity has not been waived,
2 the court must dismiss the case for lack of subject matter jurisdiction.” Esquivel v.
3 United States, 21 F.4th 565, 572-73 (9th Cir. 2021) (citing FDIC v. Meyer, 510
4 U.S. 471, 475 (1994)).
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The FTCA is a limited waiver of the United States’ sovereign immunity.

6 Blackburn, 100 F.3d at 1429; see also Meyer, 510 U.S. at 477. FTCA jurisdiction
7 applies to claims meeting the following six elements:
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[1] [brought] against the United States, [2] for money
damages, . . . [3] for injury or loss of property, or
personal injury or death [4] caused by the negligent or
wrongful act or omission of any employee of the
Government [5] while acting within the scope of his
office or employment, [6] under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.

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13 Meyer, 510 U.S. at 477 (quoting 28 U.S.C. § 1346(b)) (most alterations in Meyer).
14 The instant motion concerns a factual challenge to the sixth FTCA element. ECF
15 No. 27 at 2, 15-16.
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2. Washington’s Recreational Use Immunity Statute

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Defendant asserts that the sixth FTCA element cannot be satisfied in this

18 case, because where Defendant is entitled to recreational use immunity, it would
19 not be liable to Plaintiffs under Washington law. ECF No. 27 at 13-14.
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ORDER - 6

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“Recreational use immunity is an affirmative defense, so the landowner

2 bears the burden of proving entitlement to that immunity.” Schwartz v. King Cnty.,
3 516 P.3d 360, 364 (Wash. 2022) (citing Camicia v. Howard S. Wright Const. Co.,
4 317 P.3d 987, 991 (Wash. 2014)). Pursuant to RCW 4.24.210(1), a public or
5 private landowner who opens their land to the public “for the purposes of outdoor
6 recreation . . . without charging a fee of any kind therefor, shall not be liable for
7 unintentional injuries to such users.” RCW 4.24.210(4)(a) provides an exception
8 to this immunity: a landowner may still be held liable “for injuries sustained to
9 users by reason of a known dangerous artificial latent condition for which warning
10 signs have not been conspicuously posted.” This means a plaintiff must show the
11 condition is (1) known, (2) dangerous, (3) artificial, and (4) latent to establish that
12 the immunity exception applies to the defendant. Schwartz, 516 P.3d at 364 (“‘All
13 four terms (known, dangerous, artificial, latent) modify “condition,” not one
14 another,’ and so all must be present for the exception to apply.”) (quoting Jewels v.
15 City of Bellingham, 353 P.3d 204, 210 (Wash. 2015), abrogated on other grounds
16 by Schwartz, 516 P.3d at 366). Conversely, a landowner only needs to show that
17 the condition lacks one of these four elements to prove that the statutory exception
18 does not apply. Id.
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3. Analysis

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To determine whether there is subject matter jurisdiction under the FTCA,

3 the Court must determine whether Plaintiffs’ claims involve circumstances under
4 which the United States, if a private person, would be liable to Plaintiffs in
5 accordance with Washington law. See Meyer, 510 U.S. at 477. To do so, the
6 Court must determine whether Defendant opened FSR 7320 to the public for
7 recreational purposes without charging a fee, pursuant to RCW 4.24.210(1); and if
8 so, whether the pothole Okert struck was a known, dangerous, artificial, and latent
9 condition for which no warning signs were conspicuously posted, pursuant to
10 RCW 4.24.210(4)(a).
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The parties only dispute the “dangerous,” “artificial,” and “latent” elements

12 of RCW 4.24.210(4)(a); they do not dispute that Defendant opened FSR 7320 to
13 the public for recreational purposes without charging a fee or that the pothole was
14 a known condition. See ECF No. 27 at 15-16; ECF No. 31 at 14-15; ECF No. 33 at
15 1. Therefore, a finding that the pothole was not dangerous, not artificial, or not
16 latent will have two results: (1) Defendant must prevail on the merits of Plaintiffs’
17 substantive tort claim, based on the affirmative defense of recreational use
18 immunity, and (2) the Court must dismiss the case for lack of subject matter
19 jurisdiction under the FTCA. This constitutes intertwinement, as the jurisdictional
20 motion involves factual issues that are also dispositive of the merits of the
ORDER - 8

1 substantive claims.1 See Augustine, 704 F.2d at 1077; see also Krohn v. U.S. Dep’t
2 of the Interior, No. 18-CV-219, 2018 WL 6332835, at *2-3 (E.D. Wash. Dec. 4,
3 2018) (finding intertwinement where the United States challenged FTCA
4 jurisdiction on the basis of RCW 4.24.210 immunity).
Defendant argues that, “[b]ecause the challenge is jurisdictional in nature

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6 and implicates the United States’ sovereign immunity, the preferred procedure is to
7 resolve it now, before the case proceeds any further.” ECF No. 27 at 28 (citations
8 omitted). Defendant also argues that “[j]urisdictional dismissals are routinely
9 granted in FTCA cases when, as here, the plaintiff fails to establish that the claim
10 falls within [the FTCA’s] waiver of sovereign immunity.” ECF No. 33 at 2
11 (citation omitted). Defendant’s arguments about what is “preferred” or “routinely”
12 done do not appear to comport with the legal standard for assessing
13 intertwinement, as set forth in longstanding Ninth Circuit case law. See, e.g., Safe
14 Air, 373 F.3d at 1039-40; Young, 769 F.3d at 1052; Mecinas v. Hobbs, 30 F.4th
15 890, 896 (9th Cir. 2022).
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Defendant contends that a determination that it is entitled to recreational use

19 immunity “will have no bearing on the underlying merits issue” of its liability for
20 negligence. ECF No. 27 at 28-29. This contention, without more, is unpersuasive.
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Given the intertwinement of the jurisdictional and substantive issues, the

2 Court may only grant Defendant’s motion if the material jurisdictional facts are not
3 in dispute and Defendant is entitled to prevail as a matter of law. See Young, 769
4 F.3d at 1052. In other words, the Court must apply the summary judgment
5 standard of Fed. R. Civ. P. 56 and may not resolve disputes of material
6 jurisdictional facts on its own.
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B. Summary Judgment Analysis
A district court must grant summary judgment “if the movant shows that

9 there is no genuine dispute as to any material fact and the movant is entitled to
10 judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,
11 477 U.S. 317, 322-23 (1986); Barnes v. Chase Home Fin., LLC, 934 F.3d 901, 906
12 (9th Cir. 2019). The court “must view the evidence in the light most favorable to
13 the nonmoving party and draw all reasonable inference in the nonmoving party’s
14 favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Credibility
15 determinations, the weighing of the evidence, and the drawing of legitimate
16 inferences from the facts are jury functions, not those of a judge . . . .” Anderson v.
17 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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The motion to dismiss is denied, with leave to renew as a motion for

19 summary judgment. First, Defendant primarily briefed and argued the matter
20 under the legal standard for a factual challenge to subject matter jurisdiction
ORDER - 10

1 without intertwinement, which allows a court to resolve any factual disputes
2 material to the existence of jurisdiction. See, e.g., ECF No. 27 at 27-29 (requesting
3 that the Court hold an evidentiary hearing to resolve any disputes of material
4 jurisdictional facts); ECF No. 33 at 9-10 (contending that the testimony of one
5 witness “has higher indicia of reliability than the testimony of Plaintiff[s’] family
6 members”). The Court is disinclined to rule on dispositive issues which the parties
7 have not had a full opportunity to brief under the applicable legal standard.2
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Second, there are apparent disputes of fact that make it inappropriate for the

9 Court to determine whether Defendant is entitled to recreational use immunity as a
10 matter of law. For example, both parties’ arguments that the pothole was or was
11 not latent rely entirely on testimony that certain witnesses did or did not see the
12 pothole Okert struck as they approached it.3 See ECF No. 31 at 19 (citing
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Similarly, because the motion was not filed as a motion for summary judgment,

15 the Court does not have the benefit of briefing that comports with the procedural
16 requirements for a summary judgment motion. See LCivR 56(c).
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In determining whether a condition was latent for the purposes of recreational use

18 immunity, “[t]he dispositive question is whether the condition is readily apparent
19 to the general class of recreational users, not whether one user might fail to
20 discover it.” Ravenscroft v. Wash. Water Power Co., 969 P.2d 75, 82 (Wash.
ORDER - 11

1 Schwartz, 516 P.3d at 365 and referencing ECF No. 32-3 at 7; ECF No. 32-4 at 7,
2 12, 14-16; ECF No. 32-5 at 8); ECF No. 27 at 20-23 (citing ECF No. 29-1 at 4;
3 ECF No. 29-9 at 8-22). Defendant acknowledges the conflicting testimony but
4 argues that the Court should resolve these disputes by weighing the evidence and
5 witness credibility. See ECF No. 33 at 6-9. A court could weigh evidence and
6 assess witness credibility in addressing a factual challenge to subject matter
7 jurisdiction without intertwinement. See Leite, 749 F.3d at 1121-22. But where
8 there is intertwinement, the Court must apply the standard applicable to summary
9 judgment motions, under which the Court may not resolve disputes of fact by
10 weighing the evidence or making credibility determinations. See Anderson, 477
11 U.S. at 255.
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Finally, Plaintiffs have requested time to complete discovery so that they

13 may further develop the factual basis for their arguments that the pothole was
14 latent, artificial, and dangerous. ECF No. 31 at 8; see also ECF No. 36. “Before
15 summary judgment may be entered, all parties must be given notice of the motion
16 and an opportunity to respond. . . . The opportunity to respond must include time
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18 1998) (citing Chamberlain v. Dep’t of Transp., 901 P.2d 344, 348 (Wash. Ct. App.
19 1995)). “What a particular user sees or does not see is immaterial.” Widman v.
20 Johnson, 912 P.2d 1095, 1098 (Wash. Ct. App. 1996) (citation omitted).
ORDER - 12

1 for discovery necessary to develop facts justifying opposition to the motion.”
2 Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir. 1985) (citing
3 Portland Retail Druggists Ass’n v. Kaiser Found. Health Plan, 662 F.2d 641, 645
4 (9th Cir. 1981); Fed. R. Civ. P. 56). Plaintiffs effectively state that there was
5 insufficient time for discovery necessary to develop facts justifying their
6 opposition by May 2, 2024, the date their response was due. See ECF Nos. 27, 31;
7 LCivR 7(c)(2)(B)(i). Plaintiffs bear a significant burden in arguing that the
8 exception to recreational use immunity applies here: Plaintiffs must prove all four
9 elements of the exception, while Defendant may prevail by proving a lack of any
10 single element. See Schwartz, 516 P.3d at 364. By the close of discovery, the
11 parties may have acquired sufficient information to resolve any factual disputes
12 precluding summary judgment. The Court grants Plaintiffs’ request for leave to
13 conduct further discovery, to be completed by the discovery deadline.
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CONCLUSION
For the reasons explained above, the Court denies Defendant’s motion, with

16 leave to renew, if appropriate, as a motion for summary judgment.
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Accordingly, IT IS HEREBY ORDERED:

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1.

Defendant’s Motion to Dismiss, ECF No. 27, is DENIED.

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2.

In light of this ruling, the Court directs the parties to meet and confer

20 regarding the feasibility of the dates and deadlines in the Second Bench Trial
ORDER - 13

1 Scheduling Order, ECF No. 22. By no later than September 6, 2024, the parties
2 shall file a joint status report indicating whether the parties are requesting any
3 adjustments to the current case schedule and, if so, proposing new dates for an
4 amended scheduling order.
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IT IS SO ORDERED. The District Court Executive is directed to file this

6 Order and provide copies to the parties.
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DATED August 28, 2024.

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s/Mary K. Dimke
MARY K. DIMKE
UNITED STATES DISTRICT JUDGE

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