Bregan v. The John Stuart Co.
| Docket Number | 23-cv-01823-LB |
| Decision Date | 01 December 2023 |
| Parties | JAMES BREGAN, et al., Plaintiffs, v. THE JOHN STEWART COMPANY, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
ORDER GRANTING MOTIONS TO DISMISS IN PART RE: ECF NOS. 15, 17
The plaintiffs rented a home in the Presidio of San Francisco, a federal enclave administered by the Presidio Trust. In June 2021, the defendants allegedly performed a roof replacement without proper precautions, resulting in lead contamination from the home's lead paint, and then failed to properly remediate the contamination. The Bregan plaintiffs' young child tested positive for high lead levels in her blood.[1]
The plaintiffs sued five defendants in state court: Enterprise Roofing Service (the company that contracted with the Presidio Trust to perform the roof work) and a group of “landlord defendants” consisting of the Trust (the landlord in the plaintiffs' lease), The John Stewart Company (the Trust's agent in the lease), and Trust employees Mark Feickert and Van Cornwell. The plaintiffs assert eleven state-law claims sounding in tort and contract. They sued in state court. Because the Trust is a federal-government-owned corporation and Messieurs Feickert and Cornwell are federal employees, the Trust and the United States removed the case to federal court and the United States was substituted as a defendant for Messieurs Feickert and Cornwell.[2]
The federal defendants and Enterprise Roofing moved to dismiss the complaint. The federal defendants moved under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. They contend mainly that under the doctrine of derivative jurisdiction, which holds that federal courts sometimes lack jurisdiction in removed cases if the state court lacked jurisdiction, the state court lacked jurisdiction because the federal government has not waived its sovereign immunity for tort and contract claims in state courts. They contend in the alternative that (1) the claims premised on violations of state and local statutes and ordinances (such as breach of the implied warranty of habitability and the covenant of quiet enjoyment) fail because the federal government has not waived its sovereign immunity for those claims, (2) the court lacks jurisdiction over the tort claims to the extent they seek to hold the government liable for the conduct of the independent-contractor defendants, and (3) the plaintiffs are not entitled to punitive damages or a jury trial under the relevant federal statutes waiving sovereign immunity.[3]
Enterprise Roofing moved under Rule 12(b)(6) to dismiss (1) the negligent-infliction-of-emotional-distress and nuisance claims as duplicative of the negligence claim and (2) the prayer for attorney's fees and treble and punitive damages (based on state and local laws) as precluded by the federal-enclave doctrine. It also moved under Rule 12(e) for a more definite statement about whether the plaintiffs' minor daughter is a plaintiff.[4] All parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636(c).[5] The court ordered supplemental briefing on certain issues raised by this complicated context.[6] The court held a hearing on November 30 2023.
The court grants the federal defendants' motion in part. The case may proceed as removed notwithstanding the doctrine of derivative jurisdiction. The federal government has not waived its sovereign immunity for the claims that are based on violations of state and local statutes and ordinances. The plaintiffs are not entitled to a jury trial against the federal defendants or to punitive damages for their tort claims against those defendants. Finally, the court denies the motion to dismiss the tort claims predicated on the conduct of the independent-contractor defendants: (1) as to The John Stewart Company, there are no allegations of the government's vicarious as opposed to direct liability and the government may have owed non-delegable duties under the peculiar-risk doctrine; and (2) as to Enterprise Roofing, the federal defendants had direct control over Enterprise Roofing.
The court also grants Enterprise Roofing's motion in part. The negligent-infliction-of-emotional-distress and nuisance claims are duplicative of the negligence claim. The plaintiffs are not entitled to attorney's fees and under the federal-enclave doctrine, they cannot recover treble and punitive damages for economic injury (but can for personal injury). Finally, the court denies the motion for a more definite statement as moot because the plaintiffs' daughter is not a plaintiff.
A complaint must contain a short and plain statement of the grounds for the court's jurisdiction. Fed.R.Civ.P. 8(a)(1). The party asserting jurisdiction has the burden of establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).
A defendant's Rule 12(b)(1) jurisdictional attack can be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “A ‘facial' attack asserts that a complaint's allegations are themselves insufficient to invoke jurisdiction, while a ‘factual' attack asserts that the complaint's allegations, though adequate on their face to invoke jurisdiction, are untrue.” Courthouse News Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014). If the defendant mounts a factual attack, he may rely on “affidavits or any other evidence properly before the court,” in which case it “becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). In such cases, “[t]he district court obviously does not abuse its discretion by looking to this extra-pleading material in deciding the issue, even if it becomes necessary to resolve factual disputes.” Id.
Dismissal of a complaint without leave to amend should be granted only when the jurisdictional defect cannot be cured by amendment. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” to give the defendant “fair notice” of (1) what the claims are and (2) the grounds upon which they rest. Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[a] complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016).
A complaint does not need detailed factual allegations, but Twombly, 550 U.S. at 555 (cleaned up). A complaint must contain factual allegations that, when accepted as true, are sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 Fed.Appx. 231, 234 (9th Cir. 2020). “[O]nly the claim needs to be plausible, and not the facts themselves....” NorthBay, 838 Fed.Appx. at 234 (citing Iqbal, 556 U.S. at 696); see Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 886-87 (9th Cir. 2018) () (cleaned up).
Put another way, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (cleaned up).
If a court dismisses a complaint because of insufficient factual allegations, it should give leave to amend unless “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). If a court dismisses a complaint because its legal theory is not cognizable, the court should not give leave to amend. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016); see Steele-Klein v. Int'l Bhd. of Teamsters, Loc. 117, 696 Fed.Appx. 200, 202 (9th Cir. 2017) ().
The federal defendants first contend that under the doctrine of derivative jurisdiction, the court lacks jurisdiction because the state court lacked jurisdiction given that the United States has not waived its sovereign immunity for the plaintiffs' claims.[7] The federal defendants removed the case under 28 U.S.C. §§ 1442 and 2679(d)(2).[8] Section 1442 “permits removal of a civil action against ...
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