Khalaj v. United States
| Decision Date | 24 July 2020 |
| Docket Number | No. CV-17-04802-PHX-DJH (CDB),CV-17-04802-PHX-DJH (CDB) |
| Citation | 474 F.Supp.3d 1029 |
| Parties | David KHALAJ, et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Arizona |
David F. Gaona, Gaona Law Firm, Phoenix, AZ, for Plaintiffs.
Kristina Louise Morrison, US Attorneys Office, Phoenix, AZ, for Defendant.
Plaintiffs David Khalaj and Juliet David Youmaran, who are represented by counsel, brought this case pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1) and 2674. Defendant United States of America has filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. (Doc. 95.) Plaintiffs oppose the Motion. (Doc. 109.)
On April 23, 2020, the Court ordered the parties to submit an additional brief addressing the applicability of 28 U.S.C. § 2680(h) and the law enforcement proviso to Plaintiffs’ intentional tort claims. (Doc. 114.) Plaintiffs filed their supplemental brief (Doc. 115) on May 7, 2020, as did Defendant (Doc. 116).1
In the Complaint, Plaintiffs allege that on January 1, 2016, they were "illegally assaulted, detained and imprisoned" by United States Customs and Border Protection (CBP) Officers as they were passing through a CBP-secured area (Customs Area) in Sky Harbor Airport in Phoenix, Arizona. (Doc. 1 at 2 ¶ 5.) Plaintiffs assert claims under the FTCA, specifically, assault and battery, illegal detainment and imprisonment, and negligence. (Id. at 6-9.) Plaintiffs allege that the personal injuries and resulting damages they suffered were proximately caused by the negligence, wrongful acts and/or omissions of employees/officers of the United States of America acting through its agency, CBP. (Id. at 2 ¶ 6.)
Defendant moves to dismiss this case for lack of jurisdiction and failure to state a claim, or, in the alternative, for summary judgment. (Doc. 95 at 1.)
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, dismissal is appropriate when the court lacks subject matter jurisdiction over a claim. Fed. R. Civ. P. 12(b)(1). Subject matter jurisdiction involves the power of the Court to hear a plaintiff's claims in the first place and, therefore, imposes upon courts an affirmative obligation to ensure that they are acting within the scope of their jurisdictional power. Because federal courts are courts of limited jurisdiction, it is presumed that a cause lies outside the jurisdiction of federal courts unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The plaintiff bears the burden of establishing that jurisdiction exists. Tosco Corp. v. Communities for a Better Env't , 236 F.3d 495, 499 (9th Cir. 2001) ; Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp. , 594 F.2d 730, 733 (9th Cir. 1979).
" ‘A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may’ " attack the existence of subject matter jurisdiction as a matter of fact. Nat'l Union Fire Ins. Co. v. ESI Ergonomic Solutions, LLC , 342 F. Supp. 2d 853 (D. Ariz. 2004) (quoting Thornhill Publ'g Co. , 594 F.2d at 733 ). "When a motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Id. (). Where the jurisdictional issue is separable from the merits of the case, the Court may consider the evidence presented with respect to the jurisdictional issue, resolving factual disputes if necessary. Thornhill Publ'g Co. , 594 F.2d at 733. "When the motion is a factual attack on subject matter jurisdiction, a defendant may ‘rely on affidavits or any other evidence properly before the Court.’ " Nat'l Union Fire Ins. Co. , 342 F. Supp. 2d at 861 (citing St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir. 1989) ). In the instance of a factual challenge, no presumption of truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating the merits of jurisdictional claims. Thornhill Publ'g Co. , 594 F.2d at 733.
When a motion to dismiss is based on more than one ground, the court should consider the Rule 12(b)(1) challenge first because the other grounds will become moot if the court lacks subject matter jurisdiction. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1350 (2004 ed.)
On January 1, 2016, Plaintiffs Khalaj and Youmaran took a direct flight from Mexico to Sky Harbor Airport. (Doc. 96 at 2-3 ¶ 8.) When they deplaned, Plaintiffs proceeded to the Customs Area at approximately 4:15 p.m. (Id. at 3 ¶ 9.) Khalaj presented a CBP Declaration Form at the primary inspection area indicating there were four members in his party and held receipts identifying each party member. (Id. ¶ 10.) Plaintiffs proceeded with their children to the baggage carousel. (Id. ¶ 11.) Khalaj left his wife and children waiting for the luggage and walked to the egress point holding a bag containing cigarettes. (Id. ¶ 12.)
CBP Officers James Townsend and J. Mata were manning two stations at the egress point. (Id. ¶ 13.) Townsend observed Khalaj walk up to the egress point. (Id. ¶ 14.) When Khalaj got in line at the egress point, he did not have a Declaration, and he was told he needed a Declaration form and passport to leave. (Id. ¶ 15.) Khalaj told Townsend that he needed to leave to get something to eat and wanted to smoke a cigarette. (Doc. 110 at 3 ¶ 16.) Townsend did not allow Khalaj to exit the Customs Area. (Doc. 96 at 3 ¶ 17.) Khalaj turned around and walked back toward the baggage carousels. (Id. ¶ 18.)
A few minutes later, Khalaj went back to the egress point with the Declaration and receipts but without his luggage or children. (Id. ¶ 19.) Youmaran followed behind Khalaj. (Id. ¶ 20.) Khalaj approached and spoke with CBP Officer Mata and again attempted to leave the Customs Area. (Id. ¶ 21.) Mata explained that Khalaj had to have his children and bags with him before he could leave the Customs Area, and Khalaj informed Mata he was diabetic. (Id. at 4 ¶ 22.) Khalaj told Mata that he did not "know what the big deal is," and he was treated better in Mexico than he was being treated in the Customs Area. (Id. ¶ 23.) Khalaj also complained, "This is absolutely absurd that we have to go through so much, and I'm hungry and I need to eat something." (Id. ¶ 24.)
Mata placed a call on the radio and requested a supervisor. (Id. ¶ 25.) Supervisor Maria Sisson responded to the call at 4:20 p.m. and learned that Khalaj was diabetic, wanted food, and wanted to leave the Customs Area without his family. (Id. ¶ 26.) Sisson walked to the secondary inspection area with Plaintiffs and directed them to sit down, and Khalaj complied. (Id. ¶¶ 27-28.) During this time, Khalaj's children remained at the carousels waiting for the family's luggage. (Id. ¶ 29.)
Sisson went to talk to Mata to obtain further information because CBP does not allow passengers to leave unless they have the telephone number of the individuals on the Declaration. (Doc. 110 at 4 ¶ 30.) Chief CBP Officer Juan Osorio also arrived in the area, and Khalaj stood and approached Osorio and Sisson. (Id. ¶ 31.) CBP Officer Jose Colunga, who was manning an inspection desk near the egress point, saw Khalaj using hand gestures while speaking with Sisson. (Id. at 5 ¶ 33.) Colunga testified that he believed Khalaj was arguing with Sisson. (Doc. 96-1 at 179.)
Colunga got up and walked to where Osorio was standing. (Doc. 96 at 5 ¶ 34.) Osorio testified that he observed Khalaj making comments as to why CBP was not allowing him to leave, using vulgar language, and raising his hands while talking. (Doc. 96-1 at 24.) Plaintiffs dispute this and assert that Khalaj did not use vulgar language before he was "confronted and hit" by Osorio and Colunga. (Doc. 110 at 5 ¶ 35.) Osorio testified that he believed Khalaj was not listening to Sisson and heard Khalaj say, (Doc. 96-1 at 25.) Youmaran testified that Khalaj told Sisson, (Doc. 96-1 at 377.)
Sisson testified that during her interaction with Khalaj, she explained to Khalaj that he could not immediately leave and "the reason why we normally don't allow people to leave without their whole party." (Doc. 96-2 at 12.) Sisson left the area to try to obtain more information from Mata. (Id. at 16.) Colunga testified that he heard Khalaj yell, "Motherfuckers," and say, (Doc. 96-1 at 176.) Plaintiffs dispute this and assert that Colunga never overheard any communication between Sisson and Khalaj before Colunga and Osorio appeared on the scene. (Doc. 110 at 5 ¶ 38.) Townsend testified that from his vantage point, he heard Khalaj raise his voice and saw Khalaj use his hands in an "animated" manner, causing Townsend to believe Khalaj was getting upset. (Doc. 96-1 at 113-14.) Plaintiffs dispute this and assert that at no time did Townsend overhear any portion of the conversation between Khalaj and any other CBP officer or supervisor. (Doc. 110 at 6 ¶ 39.)
CBP Agricultural Specialist Robert Milbourn was also posted in the secondary area at that time. (Doc. 96 at 5 ¶ 40.) Milbourn wrote in a witness statement that he saw Khalaj become "very agitated" and heard Khalaj raise his voice, and Milbourn then left his station and joined Colunga, Sisson, and...
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...it is presumed that a cause lies outside the jurisdiction of federal courts unless proven otherwise." Khalaj v. United States, 474 F.Supp.3d 1029, 1032 (D. Ariz. 2020) (citing Kokkonen, 511 U.S. at 377)). "[T]he plaintiff has the burden of proving jurisdiction in order to survive the motion......