Whitehorn v. F.C.C., CV-S-02-0522PMP RJJ.

• Decision Date: 29 October 2002
• Docket Number: No. CV-S-02-0522PMP RJJ.,CV-S-02-0522PMP RJJ.
• Citation: 235 F.Supp.2d 1092
• Parties: Jack R. WHITEHORN, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, an Agency of the United States Government; and Does I Through XX, Inclusive; and Roes I Through XX, Inclusive, Defendants.
• Court: U.S. District Court — District of Nevada

235 F.Supp.2d 1092

Jack R. WHITEHORN, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, an Agency of the United States Government; and Does I Through XX, Inclusive; and Roes I Through XX, Inclusive, Defendants.

No. CV-S-02-0522PMP RJJ.

United States District Court, D. Nevada.

October 29, 2002.

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Jack R. Whitehorn, Las Vegas, NV, pro se.

Daniel D. Hollingsworth, U.S. Atty. Office, Las Vegas, NV, for defendant.

ORDER

PRO, District Judge.

Presently before this Court is a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment (Doc. # 5) filed by Defendant Federal Communications Commission ("FCC") on August 15, 2002. Plaintiff Jack R. Whitehorn ("Whitehorn") filed an Opposition (Doc. # 7) on August 30, 2002. Defendant FCC filed a Reply (Doc. # 8) on September 13, 2002.

I. BACKGROUND

Plaintiff Whitehorn claims he was formerly the rightful and sole owner of WFDR, Inc., the licensee of two radio stations. (Compl., Ex., Federal Communications Commission Complaint [hereinafter "FCC Compl."] at 5.) Whitehorn further alleges that, without Whitehorn's knowledge or approval, WFDR's President initiated Chapter 11 bankruptcy proceedings for the company. (FCC Compl. at 4.)

Several facts are undisputed. On March 16, 1981, the United States Bankruptcy Court, Northern District of Georgia, overruled Whitehorn's objections to the sale of WFDR, Inc. (FCC Compl. at 5; Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss, or in the Alternative, Mot. for Summ. J. [hereinafter "Def.'s Reply"] at 2.) On August 14, 1981, the FCC, acting pursuant to an approved reorganization plan, granted transfer of WFDR, Inc. and the two FCC licenses to another company. (FCC Compl. at 7; Def.'s Reply at 2.) On May 11, 2001, Whitehorn filed a complaint with the FCC. (FCC Compl.; Def.'s Mot. to Dismiss, or in the Alternative, Mot. for Summ. J. [hereinafter "Def.'s Mot."] at 3.) Through a letter dated October 12, 2001, the FCC announced its final decision to deny Whitehorn's claim for personal injury due to the transfer of WFDR, Inc.'s two licenses. (Pl.'s Opp'n to Def.'s Mot. to Dismiss, or in the Alternative, Mot. for Summ. J. [hereinafter "Pl.'s Opp'n"] at 4; Def.'s Reply at 3.)

On April 10, 2002, Whitehorn filed his present Complaint with this Court alleging violations of the Federal Torts Claims Act ("FTCA"), 42 U.S.C. § 1983; and 42 U.S.C. § 1985. (Compl. ¶ 2.) Whitehorn seeks compensatory damages, attorney's fees, litigation costs and any other relief this Court "may deem proper and just." (FCC Compl. at 25-26.)

II. LEGAL STANDARD

A. Standard for Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) may be described in one of two ways. Thornhill Publishing Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979) It may be described as facial, meaning that it attacks the sufficiency of the allegations to support subject matter jurisdiction. Id. Or it may be described as factual, meaning that it "attack[s] the existence of subject matter jurisdiction in fact." Id. Unless subject matter jurisdiction is affirmatively pled, the court will presume that it lacks subject matter jurisdiction. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989) (citing California ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir.1979)).

When considering a "facial" attack made pursuant to Rule 12(b)(1), a court must consider the allegations of the complaint to be true and construe them in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989).

Unlike a "facial" attack, a "factual" attack made pursuant to Rule 12(b)(1) may be accompanied by extrinsic evidence. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989); Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987). The opposing party must then "present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." St. Clair, 880 F.2d at 201. When considering a factual attack on subject matter jurisdiction, "the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) (citing Thornhill Publishing Co., Inc., 594 F.2d at 733). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing Co., Inc., 594 F.2d at 733 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir.1977)).

However, "[t]he relatively expansive standards of a 12(b)(1) motion are not appropriate for determining jurisdiction ... where issues of jurisdiction and substance are intertwined. A court may not resolve genuinely disputed facts where `the question of jurisdiction is dependent on the resolution of factual issues going to the merits.'" Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987) (quoting Augustine, 704 F.2d at 1077). In such a case, "the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Augustine, 704 F.2d at 1077 (citing Thornhill, 594 F.2d at 733-35). "In ruling on a jurisdictional motion involving factual issues which also go to the merits, the trial court should employ the standard applicable to a motion for summary judgment, as a resolution of the jurisdictional facts is akin to a decision on the merits." Id. (citing Thornhill, 594 F.2d at 733-34).

B. Standard for Federal Rule of Civil Procedure 12(b)(6)

In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). However, the court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in plaintiff's complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994). There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (citation omitted). "`The issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence in support of the claims.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Consequently, the court should not grant a motion to dismiss "for failure to state a claim 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); see also Hicks v. Small, 69 F.3d 967, 969 (9th Cir.1995).

The liberal rules of notice pleading set forth in the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts supporting his claim. See Fed.R.Civ.P. 8; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). All the Rules require is "`a short and plain statement'" that adequately "`give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512-13, 122 S.Ct. at 998 (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99). Therefore, a plaintiff merely must plead sufficiently to "establish a basis for judgment against the defendant." Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1481 (9th Cir.1997) (citations omitted). Further, a claim is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, even if the complaint asserts the wrong legal theory or asks for improper relief. See United States v. Howell, 318 F.2d 162, 166 (9th Cir.1963).

III. DISCUSSION

Defendant FCC has moved to dismiss Whitehorn's Complaint on several grounds. For the reasons stated below, this Court will grant FCC's Motion to Dismiss.¹

A. FTCA Claim

According to the Government, the United States is the only proper defendant in a suit brought pursuant to the FTCA. The Government contends that, because Whitehorn named the FCC rather than the United States, Whitehorn's FTCA claim should be dismissed. The Government also asserts that, because Whitehorn allegedly failed to provide actual notice of his FTCA claim to the United States Attorney and the United States Attorney General within the statutorily mandated period, Whitehorn cannot amend his Complaint so as to properly name the United States. (Def.'s Mot. at 8-9.) In addition, the Government maintains that Whitehorn's claim is barred because he did not comply with the FTCA requirement that he file his claim with the relevant administrative agency within two years of the claim's accrual. (Def.'s Mot. at 10-11.)

Whitehorn argues that, by naming the Federal Communications Commission, an agency of the United States Government, as a defendant, he did in fact name the United States. Whitehorn also contends that he complied with the timely filing requirements of the FTCA.

The United States is the only proper defendant in a suit brought pursuant to the FTCA. FDIC v. Craft, 157 F.3d 697, 706 (9th Cir.1998); Kennedy v. United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir.1998). "A claim against [a federal agency] in its own name is not a claim against the United States." Ken...