Mitchell v. United States

Decision Date12 September 2011
Docket NumberCiv. No. 11-00088 HG-KSC
PartiesMartin Mitchell, Plaintiff, v. United States of America; Pacific Fleet Submarine Memorial Association, also known as or doing business as USS Bowfin Submarine Museum and Park, Defendants.
CourtU.S. District Court — District of Hawaii
ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA'S MOTION TO
DISMISS WITH LEAVE TO AMEND

On February 4, 2011, Plaintiff Martin Mitchell filed a Complaint alleging that he was injured while attempting to sit on a gun turret that was on display at the USS Bowfin Submarine Museum and Park. Plaintiff claims that the United States of America and the Pacific Fleet Submarine Memorial Association, which operates the USS Bowfin Submarine Museum and Park, are liable for negligently failing to properly guard the gun turret, post warning signs, or otherwise take action to correct an unreasonable risk of harm presented by the turret. On May 3, 2011, Defendant United States of America filed a Motion to Dismiss. The Motion to Dismiss is GRANTED WITH LEAVE TO AMEND.

PROCEDURAL HISTORY

On February 4, 2011, Plaintiff Martin Mitchell filed a Complaint. (Doc. 1).

On March 29, 2011, Defendant Pacific Fleet Submarine Memorial Association, also known as or doing business as USS Bowfin Submarine Museum and Park, filed an Answer. (Doc. 7).

On May 3, 2011, Defendant United States of America filed a Motion to Dismiss. (Doc. 9).

On May 13, 2011, Defendant Pacific Fleet Submarine Memorial Association, also known as or doing business as USS Bowfin Submarine Museum and Park, filed a Statement of No Opposition to Defendant United States of America's Motion to Dismiss. (Doc. 12).

On May 20, 2011, Plaintiff filed an Opposition. (Doc. 13).

On June 6, 2011, Defendant United States of America filed a Reply. (Doc. 16).

Pursuant to Local Rule of Civil Procedure 7.2(d), the Court elected to decide the Motion without a hearing. (Doc. 14).

BACKGROUND

Plaintiff Martin Mitchell alleges that on February 24, 2009, he was severely injured while attempting to sit on a gun turret at the USS Bowfin Submarine Museum and Park (hereinafter "Bowfin Museum"). (Complaint at ¶ 12 (Doc. 1)). Mitchell claims that he paid a fee to enter the grounds of the Bowfin Museum, where the gunturret was on display. (Id. at ¶ 13). He alleges that the gun turret was open and accessible to the public. (Id. at ¶¶ 13, 15).

According to Mitchell, the Bowfin Museum is located within the Pearl Harbor Arizona War Memorial (presently known as the World War II Valor in the Pacific National Monument), on premises belonging to Defendant United States of America ("United States" or "Government"). (Id. at ¶ 17). Defendant Pacific Fleet Submarine Memorial Association manages, operates, and maintains the Bowfin Museum, where the gun turret is located. (Id. at ¶ 16).

Mitchell claims that the Defendants are liable for negligently failing to maintain, inspect, guard, post warning signs, barricade, or otherwise correct an unreasonable risk of harm presented by the gun turret.

STANDARD
I. Subject Matter Jurisdiction

A case is properly dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) when the court lacks the constitutional or statutory power to adjudicate the case.

A court may consider extrinsic evidence in a 12(b)(1) motion to dismiss including:

affidavits or any other evidence properly before the court . . . . It then 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 matterjurisdiction.

Ass'n of American Medical Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (further citations omitted)).

When the motion to dismiss is a factual attack on subject matter jurisdiction, no presumptive truthfulness attaches to plaintiff's allegations. The existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Thornhill Pub. Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (C.A. Wash. 1979); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), cert. denied, 2005 WL 282138 (May 2, 2005).

The party seeking to invoke the jurisdiction of the Court has the burden of establishing that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986); Thornhill, 594 F.2d at 733. "[A] Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency," whereupon the plaintiff must "present affidavits or any other evidence necessary to satisfy its burden." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (holding that in a factual attack on subject matter jurisdiction, the Court may accept and evaluate evidence to determine whether jurisdiction exists).

If subject matter jurisdiction is challenged based onsovereign immunity, "[t]he party who sues the United States bears the burden of pointing to . . . an unequivocal waiver of immunity." Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983).

II. Failure to State a Claim

The Court may dismiss a complaint as a matter of law pursuant to Rule 12(b)(6) where it fails "to state a claim upon which relief can be granted." Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." When considering a Rule 12(b)(6) motion to dismiss, the Court must presume all allegations of material fact to be true and draw all reasonable inferences in favor of the non-moving party. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Id. at 699. The Court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

In Bell Atl. Corp. v. Twombly, the United States Supreme Court addressed the pleading standards under the Federal Rules of Civil Procedure in the anti-trust context. 550 U.S. 544 (2007). The Supreme Court stated that Rule 8 of the Federal Rules of Civil Procedure "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action," and that "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555.

More recently, in Ashcroft v. Iqbal, the Supreme Court clarified that the principles announced in Twombly are applicable in all civil cases. 129 S.Ct. 1937 (2009). The Court stated that "the pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation." Id. at 1949 (citing Twombly, 550 U.S. at 555). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. (quoting Twombly, 550 U.S. at 570). 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. Id. (citing Twombly, 550 U.S. at 556). 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. (quoting Twombly, 550 U.S. at 556). 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. (quoting Twombly, 550 U.S. at 557).

ANALYSIS

Defendant United States Moves to Dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The Government argues that it is entitled to sovereign immunity from liability for Plaintiff's tort claim because it arises from conduct by non-government employees. The Government entered into a lease with the Pacific Fleet Submarine Memorial Association, which operates the Bowfin Museum where the gun turret is located. The Government states that it is not liable for injuries sustained by Plaintiff at the Bowfin Museum because the property was under the control of the Pacific Fleet Submarine Memorial Association pursuant to the lease.

I. Federal Torts Claims Act Waiver of Sovereign Immunity

Courts lack subject matter jurisdiction over suits against the United States unless Congress has waived the Government's sovereign immunity. Thompson v. United States, 592 F.2d 1104, 1107 (9th cir. 1979). The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq., waives the United States' sovereign immunity from liability for the torts of its employees. The waiver extends to claims:

. . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while actingwithin the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). The FTCA provides that the United States shall be liable "in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674.

A. Control Over Leased Land

Plaintiff alleges that the Government is liable for negligently failing to guard against a hazardous condition on government-owned land. The Government argues that it is entitled to sovereign immunity from liability for this claim because it leases the land to the Pacific Fleet...

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