United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
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). For the reasons
set forth herein, Defendant's Motion for Partial
Dismissal is GRANTED.
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).
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). 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
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).
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.
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.
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).
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.
Timeliness of Defendant's Motion for Partial
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 ...