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McSwain v. United States

United States District Court, D. Nevada

March 7, 2017

PAMELA MCSWAIN, Plaintiff,
v.
UNITED STATES OF AMERICA; Defendant.

          ORDER

          Gloria M. Navarro, Chief Judge United States District Judge

         Pending before the Court is the Motion for Partial Dismissal, (ECF No. 17), filed by Defendant United States of America (“Defendant”). Plaintiff Pamela McSwain (“Plaintiff”) filed a Response, (ECF No. 20), and Defendant filed a Reply, (ECF No. 25).[1] For the reasons set forth herein, Defendant's Motion for Partial Dismissal is GRANTED.

         I. BACKGROUND

         This case arises out of a personal injury incident that occurred at the McCarran International Airport on September 29, 2014. (Compl. ¶ 10, ECF No. 1). While near the security checkpoint, Plaintiff claims that she witnessed a Transportation Security Administration (“TSA”) dog barking and pulling on the leash maintained by its handler. (Id. ¶ 12). Shortly after, Plaintiff alleges she was “attacked from behind by [a] large black TSA dog which knocked both Plaintiff and [her emotional support dog] to the ground.” (Id. ¶ 13).

         Plaintiff filed her Complaint on July 13, 2015, alleging a claim of negligence against Defendant pursuant to the Federal Tort Claims Act (“FTCA”). (See Compl). Specifically, Plaintiff alleges that “Defendant breached its duty of care towards Plaintiff by failing to either properly leash its security dog or provide the handler with appropriate training for doing so.” (Id. ¶ 18) (emphasis added).[2] In the instant motion, Defendant seeks dismissal on: (1) the negligent training portion of Plaintiff's claim; (2) the prayer for declaratory relief; and (3) the prayer for a separate award of attorney's fees.

         II. LEGAL STANDARD

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Therefore, before a federal court may consider the merits of a case, it must first determine whether it has proper subject matter jurisdiction. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653-54 (9th Cir. 2002).

         Rule 12(b)(1) of the Federal Rules of Civil Procedure permits motions to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that “[t]he party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists”). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen, 511 U.S. at 377.

         A motion to dismiss under Rule 12(b)(1) may be construed in one of two ways. Thornhill Publ'g Co., Inc. v. Gen. 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. Alternatively, it may be described as ‘factual, ' meaning that it “attack[s] the existence of subject matter jurisdiction in fact.” Id.

         When a court considers a ‘facial' attack made pursuant to Rule 12(b)(1), it 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).

         “Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert his claims in a competent court.” Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam). However, where there is no way to cure the jurisdictional defect, dismissal with prejudice is proper. See id.

         III. DISCUSSION

         1. Timeliness of Defendant's Motion for Partial Dismissal

         Citing the ruling in Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983), Plaintiff argues that Defendant's Motion for Partial Dismissal is procedurally improper because it was filed after Defendant filed a responsive pleading. (Pl.'s Response 3:13-17, ECF No. 20). While the court in Augustine found that Rule 12(b)(1) motions filed after the responsive pleading were “technically untimely, ” the court also explained that the issue of subject matter jurisdiction “may be raised by the parties at any time pursuant to Fed.R.Civ.P. 12(h)(3).” Augustine, 704 F.2d at 1075. As a general rule, “[t]he defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action ...


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