Rivera v. Merchants Auto. Grp., Inc.
| Decision Date | 18 March 2022 |
| Docket Number | Case No. 3:21-cv-1472-L-BLM |
| Citation | 593 F.Supp.3d 998 |
| Parties | Miranda Korin RIVERA, Plaintiff, v. MERCHANTS AUTOMOTIVE GROUP, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
Gail Walther Richardson, Wilshire Law Firm, Los Angeles, CA, Vy T. Nguyen, Los Angeles, CA, for Plaintiff.
John H. Everett, Law Offices of John H. Everett, San Diego, CA, for Defendants Merchants Automotive Group Inc., Fox Rent A Car Inc.
Christine M. Fitzgerald, George Vincent Manahan, DOJ-USAO, San Diego, CA, for Defendant United States of America.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS [ECF NO. 6] AND DENYING PLAINTIFF'S MOTION TO REMAND [ECF NO. 13.]
M. James Lorenz, United States District Judge Pending before the Court is Defendant's Motion to Dismiss for lack of subject matter jurisdiction [ECF No. 6 ], and Plaintiff's Motion to Remand Case to State Court in this case concerning an automobile collision. [Doc. No. 13.] The Court decides the matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons stated below, the Court DENIES the Motion to Dismiss and DENIES the Motion to Remand.
On June 28, 2018, Plaintiff Miranda Korin Rivera ("Rivera") was traveling southbound along Midway Drive in the City of San Diego when the vehicle she was driving was struck by the vehicle driven by Glenn Dyer ("Dyer") when he made an unsafe lane change and caused a collision. As a result of the collision, Plaintiff sustained significant injuries. Dyer was found to be at-fault for the collision.
On May 26, 2020, Plaintiff filed a complaint in the Superior Court of California, County of San Diego, naming Glenn Dyer, Merchants Auto Group, Inc., and Fox Rent-A-Car, Inc., as Defendants. On July 18, 2021, each Defendant filed an Answer in the Superior Court.
On August 18, 2021, the United States filed a Notice of Removal, removing the case to this Court and substituting itself as a Defendant for Defendant Dyer. In the Notice, the United States certified that Dyer was acting within the scope of his employment as an employee of the United States Navy at the time of the collision, therefore, the claims arose under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 - 2680, as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988 § 5, Pub. L. No. 100-694. 102 Stat. 4563 (FTCA). (Notice at 2 [ECF No. 5.])
On August 19, 2021, the United States filed a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), claiming that the Court lacked jurisdiction because Plaintiff had not presented an administrative claim to the appropriate federal agency as required for claims brought under the FTCA. (MTD at 1-2 [ECF No. 6.])
On September 16, 2021, Plaintiff filed a Response in Opposition to the Motion to Dismiss arguing that the Notice of Removal was untimely because it was filed after the 30-day clock for removal expired. (Pl. Oppo. MTD at 3-4 [ECF No. 12.]) On the same day, Plaintiff filed a Motion to Remand, asserting among other claims that the United States is not a proper party because Dyer was not operating his vehicle in the course and scope of employment with the Navy. (Mot. Remand at 4-5 [ECF Nos. 13.])
On September 22, 2021, the United States filed its Reply to Plaintiff's Opposition to the Motion to Dismiss. [ECF No. 14.] On October 5, 2021, the United States filed its Response in Opposition to the Motion to Remand. [ECF No. 15.] On October 11, 2021, Plaintiff filed a Reply to the Opposition to the Motion to Remand. [ECF No. 16.]
The Parties filed a Joint Motion for oral argument on the United States’ Motion to Dismiss and Plaintiff's Motion to Remand on November 12, 2021. [ECF No. 19.] By Order dated December 3, 2021, the Court denied the Joint Motion for Oral Argument, and granted the Parties leave to file supplemental briefing in relation to Plaintiff's Motion to Remand. Pursuant to the Court's Order, the United States filed Supplemental Briefing on December 20, 2021 [ECF No. 25 ], and Plaintiff filed Supplemental Briefing on January 10, 2022. [ECF No. 27.]
Under Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.Pro. 12(b)(1). A Rule 12(b)(1) challenge can either challenge the face of the pleadings or the facts. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) () With a facial attack, the allegations contained in the complaint are challenged as insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). When ruling on a facial attack, the Court accepts the allegations of the complaint as true. See, e.g. , Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004).
In contrast, when deciding a factual Rule 12(b)(1) attack, a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment. Id. The Court need not presume the truthfulness of the plaintiffs’ allegations. White , 227 F.3d at 1242.
A. Discussion
"The FTCA provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment." Nurse v. United States , 226 F.3d 996, 1000 (9th Cir. 2000). The Act provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.
28 U.S.C. § 2679(d)(2) (emphasis added); Wilson v. Horton's Towing , 906 F.3d 773, 780 (9th Cir. 2018) ; see also Osborn v. Haley , 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). After certification by the Attorney General, "the employee is dismissed from the action, and the United States is substituted as defendant in place of the employee." Osborn , 549 U.S. at 230, 127 S.Ct. 881. "The United States ... must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment." Id. at 231, 127 S.Ct. 881.
Prior to filing a claim for injury or damages under the FTCA, a claimant must first file the claim with the appropriate federal agency and either receive a conclusive denial of the claim or wait for six months to elapse without a final disposition. 28 U.S.C. § 2675(a) ; Jerves v. United States , 966 F.2d 517, 519 (9th Cir. 1992) () "A district court may dismiss a complaint for failure to allege this jurisdictional prerequisite." Gillespie v. Civiletti , 629 F.2d 637, 640 (9th Cir. 1980).
A claimant should be given an opportunity to file an amended complaint to attempt to cure such pleading defects. Id. If an action is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, "such a claim shall be deemed to be timely presented under section 2401(b) of this title if (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action." 28 U.S.C. § 2679(d)(5).
Defendant contends that the Court should dismiss Plaintiff's complaint because she failed to present an administrative claim to the appropriate federal agency prior to filing her claim. (MTD at 3).
In response, Plaintiff argues that the motion to dismiss is premature because the case is subject to remand for Defendant's failure to file the notice of removal within the 30-day clock under 28 U.S.C. § 1446(b)(1). (Oppo. at 3). In addition, Plaintiff claims that the FTCA does not apply because Dyer was not operating his vehicle in the course and scope of his employment with the Navy. (Oppo. at 4). Plaintiff challenges the Scope of Employment Certification provided by the United States. (Id. )
As a preliminary matter, the Notice of Removal was timely filed under section 2679(d)(2). Plaintiff did not include a claim under the FTCA in her state court Complaint, however, for the limited purposes of removal, the scope of employment certification is deemed conclusive and the action is filed under the FTCA in federal court until or unless the Certification is found to be deficient. Osborn , 549 U.S. at 242, 127 S.Ct. 881. Actions under the FTCA may be removed at any time before trial, therefore the removal was timely. See 28 U.S.C. § 2679(d)(2).
Although Defendant contends the claim must be dismissed for Plaintiff's failure to exhaust, Plaintiff argues that the FTCA and its exhaustion requirement do not apply because Dyer was not acting within the scope of his employment at the time of the collision. The parties do not dispute that claims filed under the FTCA must be presented to the appropriate federal...
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