Patricia Anderson v. Federal Aviation Administration, et al

NOTICE OF MOTION AND MOTION to Dismiss partial dismissal and Motion to Strike; Memorandum of Points and Authorities

C.D. Cal.June 9, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SANDRA R. BROWN Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section DONALD W. YOO (Cal. Bar No. 227679) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-3994 Facsimile: (213) 894-7819 E-mail: donald.yoo@usdoj.gov Attorneys for Defendant UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION PATRICIA ANDERSON, an individual, Plaintiff, v. UNITED STATES OF AMERICA; and DOES 1 through 10, inclusive, Defendants. No. CV16-7837-GW (JCx) DEFENDANT UNITED STATES OF AMERICA’S NOTICE OF MOTION AND MOTION FOR PARTIAL DISMISSAL AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES [Fed. R. Civ. P. 12(b)(1) & 39(a)(2)] Hearing Date: July 24, 2017 Hearing Time: 8:30 a.m. Ctrm: 9D, 9th Floor Honorable George H. Wu Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 1 of 8 Page ID #:126 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION FOR PARTIAL DISMISSAL AND MOTION TO STRIKE PLEASE TAKE NOTICE that, on Monday, July 24, 2017 at 8:30 am, or as soon thereafter as it may be heard, Defendant United States of America will, and hereby does, move this Court for an order: (1) dismissing the First Amended Complaint’s (“FAC”) second cause of action for negligent hiring, training, retention, and supervision under Fed. R. Civ. P. 12(b)(1); and (2) striking the FAC’s request for a jury trial pursuant to Fed. R. Civ. P. 39(a)(2). This motion will be made before the Honorable George H. Wu, United States District Court Judge, located in Courtroom 9D at the United States Courthouse, 350 West 1st Street, Los Angeles, California, 90012. Defendant brings this motion on the ground that Plaintiff Patricia Anderson’s second cause of action for negligent hiring, training, retention, and supervision is barred by the Federal Tort Claims Act’s (“FTCA”) discretionary-function exception, 28 U.S.C. § 2680(a). Moreover, Plaintiff’s request for a jury trial is barred because a plaintiff has no right to a jury trial under the FTCA. 28 U.S.C. § 2402. This motion is made upon this Notice, the attached Memorandum of Points and Authorities, and all pleadings, records, and other documents on file with the Court in this action, and upon such oral argument as may be presented at the hearing of this motion. This motion is made following the conference of counsel pursuant to C.D. Local Rule 7-3 which was held on June 2, 2017. Dated: June 9, 2017 Respectfully submitted, SANDRA R. BROWN Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ Donald W. Yoo DONALD W. YOO Assistant United States Attorney Attorneys for Defendant United States of America Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 2 of 8 Page ID #:127 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Patricia Anderson (“Plaintiff”) brings this action against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., asserting two causes of action for negligence (first cause of action), and negligent hiring, training, retention, and supervision (second cause of action), in connection with an accident involving a vehicle operated by a federal employee. Plaintiff also requests a jury trial in this action. Plaintiff’s second cause of action should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) as claims based upon the hiring, training and supervision and retention of federal employees are generally barred by the FTCA’s discretionary function exception. 28 U.S.C. § 2680(a). In addition, the FAC’s request for a jury trial should be stricken pursuant to Fed. R. Civ. P. 39(a)(2) as Plaintiff has no right to a jury trial under the FTCA. 28 U.S.C. § 2402. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On October 20, 2016, Plaintiff filed a complaint alleging negligence and negligent hiring, training, retention, and supervision against Defendants Federal Aviation Administration (“FAA”)and John Christophe Tompkins (“Tompkins”) under the FTCA. (Docket No. 1.) On February 9, 2017, the Court issued an Order to Show Cause why the case should not be dismissed for lack of prosecution based upon Plaintiff’s failure to serve the summons and complaint within 90 days after filing the complaint. (Docket No. 17.) On March 7, 2017, Plaintiff filed a First Amended Complaint (“FAC”) asserting the same causes of action but naming the United States of America as the sole Defendant in place of the previously named defendants, FAA and Tompkins. (Docket No. 21.) / / / / / / / / / Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 3 of 8 Page ID #:128 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. LEGAL STANDARDS A. Legal Standards Under Rule 12(b)(1). A motion to dismiss under Fed. R. Civ. Proc. 12(b)(1) challenges the court’s subject matter jurisdiction over the asserted claims. It is the plaintiff’s burden to prove jurisdiction at the time the action is commenced. Tosco Corp. v. Communities for Better Environment, 236 F.3d 495, 499 (9th Cir. 2001); Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). A court considering a 12(b)(1) motion to dismiss is not limited to the pleadings, McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), but may rely on extrinsic evidence to resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). Once a challenge has been raised to the court’s subject matter jurisdiction, the party opposing dismissal must “present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” Id.; Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). B. Legal Standards Under Rule 39(a)(2). Rule 39(a)(2) provides that “[w]hen a jury trial has been demanded under Rule 38 . . . trial on all issues so demanded must be by jury unless . . . the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial.” See Moore v. Chase, Inc., No. CV14-1178, 2015 WL 2235135, at *2 fn. 2 (E.D. Cal. May 11, 2015) (“[A] motion to strike a demand for jury trial is properly brought under Rule 39(a)(2)); Gonzalez v. Target Corp., No. CV13-1615, 2014 WL 2548726, at *2 (E.D. Cal. June 5, 2014) (“[A] motion to strike a demand for jury trial is properly brought under Rule 39(a)(2) [citation], and the court construes defendant’s motion as such.”). Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 4 of 8 Page ID #:129 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. ARGUMENT A. Plaintiff’s Claim for Negligent Hiring, Training, Retention, and Supervision Must be Dismissed Because the United States is Immune Under the Discretionary Function Exception. Under the discretionary-function exception, the FTCA’s waiver of sovereign immunity cannot apply to claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The discretionary-function exception prevents “judicial ‘second- guessing’ of legislative and administrative decisions grounded in social, economic, and political policy,” and the exception applies not only to decisions at the “policy or planning level,” but also to “[d]ay to day management” decisions involving choice or judgment. United States v. Gaubert, 499 U.S. 315, 323, 325 (1991). Applying the discretionary-function exception involves two steps. First, a court must determine whether the “challenged conduct involves an element of judgment or choice.” Id. at 323. Where there is no “federal statute, regulation, or policy [that] specifically prescribes a course of action,” then this requirement is satisfied. Id. Second, the court must determine whether the challenged conduct, “by its nature, [is] susceptible to a policy analysis.” Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000). This requirement focuses “not on the agent’s subjective intent” or whether his conduct “was actually [] grounded in policy considerations,” but rather on “the nature of the actions taken and on whether they are susceptible to policy analysis.” Id. (second emphasis added); Gaubert, 499 U.S. at 325. Here, Plaintiff fails to identify any statute, regulation, or other specific, mandatory directive that the FAA allegedly failed to follow in hiring, retaining, training, or supervising Tompkins. Instead, Plaintiff vaguely alleges that the government was negligent and reckless with regard to the hiring, retention, training, and supervision of Tompkins because he was unfit to safely operate the subject vehicle. (FAC ¶¶ 26-30.) Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 5 of 8 Page ID #:130 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This deficiency alone merits dismissal of Plaintiff’s hiring, retention, training, and supervision claim. See, e.g., Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (affirming dismissal under the discretionary function exception because the complaint contained only conclusory assertions that the defendant had adopted a relevant mandatory policy, and the plaintiff failed to “state the terms of this alleged policy, or describe any documents, promulgations, or orders embodying it”) (citing Kennewick Irrig. Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989)); Prescott v. United States, 973 F.2d 696, 702 & n.4 (9th Cir. 1992) (“a plaintiff must advance a claim that is facially outside the discretionary function exception in order to survive a motion to dismiss.”) (citing Carlyle v. U.S. Dep’t of the Army, 674 F.2d 554, 556 (6th Cir. 1982) (“Only after a plaintiff has successfully invoked jurisdiction by a pleading that facially alleges matters not excepted by [the FTCA] does the burden fall on the government to prove the applicability of a specific provision of [the FTCA].”)). In the absence of a specific and mandatory policy or regulation that applies to the challenged conduct, the court must then determine whether the conduct was the type the discretionary function exception was designed to protect. See Gaubert v. United States, 499 U.S. 315, 322 (1991). Here, the Ninth Circuit has consistently held that decisions related to the hiring, training, supervision, and retention of federal employees implicates numerous policy considerations and involve the types of judgment that the discretionary function exception was designed to shield.1 “In sum, because supervisory decisions are 1 See, e.g., Holy See, 557 F.3d at 1084 (“the decision of whether and how to retain and supervise an employee, as well as whether to warn about his dangerous proclivities, are the type of discretionary judgments that the exclusion was designed to protect.”); Kelly v. United States, 241 F.3d 755, 763 (9th Cir. 2001) (decisions relating to the training of employees is protected by the discretionary function exception);Vickers v. United States, 228 F.3d 944, 950 (9th Cir. 2000) (“This court and others have held that decisions relating to the hiring, training, and supervision of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield.”); Gager v. United States, 149 F.3d 918, 921-22 (9th Cir. 1998) (decisions regarding training and supervision of Postal Service employees was “precisely the kind the discretionary function exception was intended to immunize from suit”); Parker v. United States, 500 Fed.Appx. 630, 632 (9th Cir. 2012) (an agency’s “supervision of its staff is clearly a discretionary function, entails consideration of policies and competing Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 6 of 8 Page ID #:131 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 susceptible of policy analysis, and are thus of the type to which Congress intended that the discretionary function exception apply, the discretionary function exception bars plaintiffs’ negligent supervision claim.” Ard v. F.D.I.C., 770 F.Supp.2d 1029, 1039 (C.D. Cal. 2011); Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) (“allegedly negligent and reckless employment, supervision and training” of government employees “fall squarely within the discretionary function exception”). Moreover, the discretionary function exception applies whether or not the agency was negligent in how it exercised its discretion. See 28 U.S.C. § 2680(a) (exception applies “whether or not the discretion involved be abused”); Kennewick Irrig. Dist. v. United States, 880 F.2d at 1028 (“is simply irrelevant to the discretionary function inquiry. Indeed, if the presence of negligence were allowed to defeat the discretionary function exception, the exception would provide a meager shield indeed against tort liability.”). Because Plaintiff’s second cause of action for negligent hiring, training, retention, and supervision are based on the averred “failure to exercise or perform a discretionary function or duty,” this claim must be dismissed for lack of subject-matter jurisdiction. B. Plaintiff’s Claims Are Not Triable By Jury. The FAC also includes a demand by jury “as to all Causes of Action.” (FAC, p. 11.) The FTCA, however, “specifically provides that in tort actions against the United States, trials shall be to the court without a jury.” In re Consolidated United States Atmospheric Testing Litig., 820 F.2d 982, 992 (9th Cir. 1987) (citing 28 U.S.C. § 2402); see also Brocklesby v. United States, 767 F.2d 1288, 1292 (9th Cir. 1985) (plaintiffs “had no right to a jury trial” on claims governed by the FTCA). Plaintiff’s jury demand should therefore be stricken. / / / / / / / / / administrative and investigatory priorities, and is therefore immunized from liability under the FTCA”). Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 7 of 8 Page ID #:132 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION For the reasons set forth above, Defendant respectfully requests that: (1) Plaintiff’s second cause of action be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction; and (2) Plaintiff’s request for a jury trial be stricken. Dated: June 9, 2017 Respectfully submitted, SANDRA R. BROWN Acting United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ Donald W. Yoo DONALD W. YOO Assistant United States Attorney Attorneys for Defendant United States of America Case 2:16-cv-07837-GW-JC Document 31 Filed 06/09/17 Page 8 of 8 Page ID #:133