Frasure v. U.S.
| Citation | 256 F.Supp.2d 1180 |
| Decision Date | 28 March 2003 |
| Docket Number | No. CV-N-00-0484-LRH(VPC).,CV-N-00-0484-LRH(VPC). |
| Parties | Justin K. FRASURE Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Nevada |
Amy L. Parks, White & Meany, Geoffrey White, White & Meany, Reno, for Frasure, Justin K, Plaintiff.
Timothy B. Walthall, U.S. DOJ—Civil Division, Washington, DC, for United States Of America, Defendant.
Before the Court are Defendant's Motion to Dismiss or in the alternative for Summary Judgment (Docket # 26), Motion for Summary Judgment (Docket # 27), and Motion to Reconsider (Docket # 28) the Court's Order of June 7, 2002. The Court addresses each of the Defendant's motions in turn.
Plaintiff Justin K. Frasure was born on August 31, 1980. (Complaint, ¶ 8). In 1986, Plaintiff developed a kidney problem arising from a nephritic syndrome of the focal and segmental glomerulosclerosis. (Id., ¶ 10). Because of this disease, Plaintiff underwent a kidney transplant in July 1992. (Id.) Plaintiffs physical condition subsequently improved to the point that he was able to play outside, which he often did on abandoned industrial land located near his home in Sparks, Nevada. (Id., ¶ 12). On occasion between 1992 and 1994, Plaintiff and his friends would dig in the dirt on this site and uncover yellowish crystals, at least one of which he kept at home. (Id., ¶ 13).
Plaintiff later learned that the land on which he played is the former Monite Explosives Factory Site or "Monite Site", which became the focus of a Superfund cleanup between 1995 and 1997, because of high levels of trinitroluene ("TNT"), dinitrotoluene ("DNT"), and other hazardous substances in the soil. (Id., 14). The Monite Site was used for the manufacture, packaging and dismantling of explosives over many decades. (Id., ¶ 29). Defendant has always owned the Monite Site, but its ownership status was clarified in the 1970's. (Id., ¶¶ 33-35).
In February 1994, Plaintiffs transplanted kidney failed. (Id., ¶ 15). Near death, Plaintiff was admitted to the UCSF Medical Center at least four times because of the failure of his bone marrow, aplastic anemia, pancytopenia, gastro-intestinal bleeding, severe mucocutaneous lesions in his mouth, the inability to swallow, fevers, rashes, and the loss of his hair. (Id., ¶ 16). Plaintiff asserts that, because of these conditions, he is forever unable to receive a transplanted kidney to replace the failed transplanted kidney and must regularly undergo dialysis. (Id., ¶¶ 16 & 19). Today, Plaintiffs physical health is severely compromised. He suffers constant pain and is prone to illness. He is unable to work or enjoy the life of a person who has undergone a successful kidney transplant. (Id., ¶ 20). At least one specialist has linked Plaintiffs life threatening illness to his exposure to hazardous levels of TNT and DNT to the Monite Site. (Id., ¶ 21).
As a result of his injuries, Plaintiff brought the instant action under the Federal Tort Claims Act alleging negligence. Plaintiff asserts that Defendant was on notice, at least by 1992, if not earlier, of hazardous materials being uncovered and subsequently disposed of by Plaintiff, including a drum of explosives in crystalline form. (Id., ¶ 43).
Plaintiff alleges that Defendant acted negligently in adequately fencing a portion of the property and for failing to post adequate signs or notices to alert the public of the presence of hazardous substances. (Id., ¶¶ 44, 47-49). Plaintiff further alleges that Defendant negligently delayed testing the soil, expanding the fenced area and later informing the public of the risks associated with the Monite Site. (Id., ¶¶ 56-66).
Defendant United States of America filed a Motion to Dismiss pursuant to Fed. R.Civ.P. 12(b)(1) on June 15, 2001. (Docket # 18). (Plaintiff timely filed an Opposition on July 9, 2001), (# 20) and (Defendants filed a Reply on July 23, 2001).(# 21). This case was reassigned to the undersigned Judge on January 17, 2002.(# 22). The Court denied the Defendant's Motion to Dismiss in its Order of July 7, 2002 (Docket #24). Defendant subsequently filed the present Motion to Reconsider (Docket # 28) predicated on the Court using an erroneous legal standard.
For the following reasons, the Defendant's Motion to Reconsider will be denied.
A motion to reconsider must provide a court with valid grounds for reconsideration by: (1) showing some valid reason why the court should reconsider its prior decision, and (2) setting forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision. All Hawaii Tours Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648-19 (D.Haw.1987), rev'd on other grounds, 855 F.2d 860 (1988).
"Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. IJ, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Defendant has moved the Court to reconsider Defendant's Motion to Dismiss on the grounds that the Court applied the incorrect legal standard. Defendant points out that the Court cited a number of cases in its standard of review, which address motions to dismiss under Rule 12(b)(6). The Defendant sought dismissal under Rule 12(b)(1), a motion to dismiss for lack of subject matter jurisdiction.
Even under the 12(b)(1) standard, however, it is clear that the Defendant's Motion would not succeed. Therefore, the Defendant's Motion to Reconsider will be denied. However, for clarification purposes, the Court will discuss the Rule 12(b)(1) standard and its application to this case.
A 12(b)(1) motion can be made in one of two ways. The motion can challenge the sufficiency of the pleadings to support subject matter jurisdiction (a facial challenge), or it can challenge the actual existence of jurisdiction (a factual attack) by way of a "speaking motion." In the latter case, the judge may consider outside evidence and resolve factual disputes. Berardinelli v. Castle & Cooke, Inc., 587 F.2d 37, 39 (9th Cir.1978); See also, Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). ( that unlike a motion to dismiss for failure to state a claim, under Fed.R.Civ.P. 12(b)(6), a court can hear outside evidence regarding a motion to dismiss for lack of subject matter jurisdiction.).
If the 12(b)(1) is a facial challenge, the pleadings are taken as true for the purposes of the motion. See Jetform Corp. v. Unisys Corp., 11 F.Supp.2d 788, 789 (D.Va.1998) (). However, if the movant challenges the existence of subject matter jurisdiction, the pleadings are treated as evidence on the issue.
Indeed, in this type of 12(b)(1) motion, the requirement is not unlike that for summary judgment, where the non-moving party cannot rest on the allegations in the complaint, but must present evidence to defeat the motion. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990); Trentacosta v. Frontier Pacific Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir.1987) (quoting Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1363 at 653-54 (1969)); Tolan v. United States, 176 F.R.D. 507, 510 (D.Pa.1998) ().
The Defendant's Motion to Dismiss challenged the existence of subject matter jurisdiction, not simply the adequacy of the complaint's allegations. Under this analysis, there is no presumption of truthfulness of the Plaintiffs allegations, and the burden is on the Plaintiff to establish the Court's jurisdiction. See Thornhill Publishing Co., 594 F.2d at 733 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977)).
As discussed in the Court's Order of July 7, 2002, the Defendant's Motion to Dismiss is premised on the Defendant's argument that the Court lacks subject matter jurisdiction in this case. Specifically, the Defendant argues that Plaintiff has failed to comply with the applicable statute of limitations under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80.
Title 28 of the United States Code, section 2401(b) embodies the FTCA's statute of limitations and reads:
[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues ....
The Court takes judicial notice that Plaintiff filed its first administrative claim on December 31, 1998. (Complaint, ¶ 4(a)).
How a claim "accrues" is governed by federal law. 28 U.S.C. § 2401(b). Federal law prescribes that a cause of action generally "accrues" at the time of injury or damage. United States v. Kubrick, 444 U.S. Ill, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). When it takes some time for the injury to become apparent, as here, federal courts apply the so-called discovery rule to determine accrual. A claim accrues either when the plaintiff knows, or could have exercised due diligence to know, the existence of the injury and its cause. Id. at 123, 100 S.Ct. 352. The standard is an objective one, with the cause of action accruing when a "reasonable person" would have discovered both the injury and the cause. In re Swine Flu Products Liability Litigation, 764 F.2d 637, 639 (9th Cir.1985).
In the Ninth Circuit, the issue as to when a claim accrues turns upon the particular...
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