Macharia v. U.S.

• Decision Date: 30 July 2002
• Docket Number: No. 99CV3274.,99CV3274.
• Citation: 238 F.Supp.2d 13
• Parties: Merina M. MACHARIA, et al. Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

238 F.Supp.2d 13

Merina M. MACHARIA, et al. Plaintiffs, v. UNITED STATES of America, Defendant.

No. 99CV3274.

United States District Court, District of Columbia.

July 30, 2002.

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Philip Michael Musolino, Musolino & Dessel, Mark Steven Zaid, Washington, DC, for Plaintiffs.

Meredith Manning, U.S. Attorney's Office, Robin M. Earnest, U.S. Attorney's Office Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

Presently pending before the Court is Defendant United States' Motion to Dismiss Plaintiffs' Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs, representing a prospective class of over five thousand Kenyan citizens and businesses, bring this action in connection with the August 7, 1998, terrorist bombing of the United States Embassy in Nairobi, Kenya (the "Embassy"). Plaintiffs allege that Defendant's negligence related to the security of the Embassy compounded Plaintiffs' injuries and losses suffered as a result of the bombing. Upon review of Defendant's motion to dismiss, memorandum of law and attached exhibits, Plaintiffs' opposition thereto, Defendant's reply, and the relevant law, the Court shall grant Defendant's motion to dismiss.

I. BACKGROUND

On August 7, 1998, a terrorist bomb exploded at the rear entrance to the American Embassy in Nairobi, Kenya, killing over two hundred people, injuring thousands more, and damaging Kenyan businesses located near the Embassy. Plaintiffs' Amended Complaint ("Cplt.") at 68. The bombing injured those inside the Embassy compound, and led to the collapse of the adjacent Ufundi Building. Id. ¶ 71. Additional injuries occurred when glass windows shattered at the nearby Co-op Bank Building. Id. It is believed that the bombing was carried out by the al Qaeda terrorist organization, led by Osama bin Laden. Id. ¶ 69.

Plaintiffs complain that the "actions and inactions by the United States of America, principally through the Department of State, created circumstances which permitted the Bombing and subsequently caused and exacerbated the loss and injury sustained by Kenyan victims." Id. at 68. Specifically, Plaintiffs allege in Count One that the Embassy was inherently dangerous and that employees of the Department of State ("DOS") knew or should have known that a terrorist attack against the Embassy was likely. Cplt. ¶¶ 82-94. Despite this knowledge, Plaintiffs argue, DOS employees failed to alert their superiors, the Embassy, and Kenyan citizens that such dangers were imminent. Id. ¶¶ 57, 91 Additionally, Plaintiffs assert that DOS employees failed to provide sufficiently trained security personnel to the Embassy and failed to take necessary security precautions to prevent such an attack. Id. ¶¶ 88-89. Plaintiffs allege further that the United States "made security and rescue related decisions based on race and national origin." Cplt. ¶ 92. Plaintiffs also allege that the United States is responsible, based on the doctrine of respondent superior, for the negligence of the independent contractor providing security services at the Embassy. Id. ¶¶ 52, 75, 88. As a result of this alleged failure to provide appropriate security, Plaintiffs claim in Count Two that the Embassy was a public and private nuisance that "deprived neighbors of the use and enjoyment of their adjoining property." Id. ¶¶ 95-98. In Count Three, Plaintiffs maintain that the United States violated international customary law, the Kenyan Constitution, and the International Covenant on Civil and Political Rights ("ICCPR") by its alleged security failures. Id. ¶¶ 99-106. Plaintiffs, in Count Four, request relief in the form of a constructive trust, to hold any assets or funds seized by the United States from Osama bin Laden and al Qaeda for the "use, benefit, and enjoyment of the plaintiffs and prospective class members." Cplt. ¶ 109. Plaintiffs allege that this Court possesses jurisdiction over the present action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., which operates as a limited waiver of the United States' sovereign immunity. Cplt. at 68.

Defendant moves to dismiss Plaintiffs' Complaint on the grounds that it is not amenable to suit in this Court based on the foreign country exception, 28 U.S.C. § 2680(k), and discretionary function exception, 28 U.S.C. § 2680(a), to the FTCA's waiver of sovereign immunity. Defendant's Memorandum of Law ("Def.Mem.") at 14, 17. Defendant contends first that Plaintiffs have failed to demonstrate that any of the alleged negligent conduct complained of occurred within the United States. Id. at 14-17. Second, Defendant argues that any actions that may have taken place within the United States clearly fall within the discretionary exception to the FTCA. Id. at 17-30. Finally, Defendant asserts that Plaintiffs fail to state a claim predicated on international and Kenyan law and fail to state a claim for a constructive trust. Id. at 2, 37-38.

II. DISCUSSION

A. Legal Standard

In reviewing a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court will not grant the motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accordingly, at this early stage in the proceedings, the Court assumes the veracity of all factual allegations set forth in Plaintiff's Complaint. See Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985). Moreover, "[t]he complaint must be `liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979). Nonetheless, the Court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997).

Before a federal court may hear a case, it must ascertain whether it has jurisdiction over the underlying subject matter of the action. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto."). Motions to dismiss for lack of jurisdiction over the subject matter of the action are proper under Federal Rule of Civil Procedure 12(b)(1). In the Rule 12(b)(1) context, the plaintiff bears the burden of proving jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-183, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). When a defendant brings a challenge to the actual complaint itself, without relying on matters outside the pleadings, the motion to dismiss is a "facial challenge" to a complaint, because a district court is not asked to review documents outside the pleadings. See Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) (materials aliunde pleadings can be considered on Rule 12(b)(1) motion); 2 James Wm. Moore et al., Moore's Federal Practice, § 12.30[4], at 39 (3rd ed. 2002) ("A facial attack questions the sufficiency of the pleading."). On a motion to dismiss a case that presents such a "facial challenge," a court must accept all of the complaint's well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor. United Trans. Union v. Gateway Western R. Co., 78 F.3d 1208 (7th Cir. 1996) (citing Rueth v. EPA, 13 F.3d 227, 229 (7th Cir.1993)).

However, in some instances, a court is required to look beyond the pleadings and to inquire into facts that are pertinent to the determination of whether it has subject matter jurisdiction. Land, 330 U.S. at 735 n. 4, 67 S.Ct. 1009. Such a "factual challenge" attacks the existence of subject matter jurisdiction by looking beyond the pleadings and places the burden on the plaintiff to prove that facts exist that establish a court's jurisdiction. See Federal Election Com. v. National Rifle Assoc., 553 F.Supp. 1331, 1343 (D.D.C. 1983) ("A `factual attack,' however, challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings such as testimony and affidavits, are considered. Moreover, a `factual attack' under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.") (internal citations omitted).

In this instance Defendant brings a factual challenge to the existence of subject matter jurisdiction and thus, Plaintiff bears the burden of presenting proof that jurisdiction properly lies with this Court.

B. The Federal Tort Claims Act

Absent an express waiver of sovereign immunity, a plaintiff may not sue the United States in federal court. See FDIC v. Meyer, 510 U.S. 471, 474, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see also United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, creates an express limited waiver of the United States' sovereign immunity, rendering the federal government and its agencies liable for certain "tort claims, in the same manner and to the same extent as a private...