United States District Court, D. Nevada
before the court is defendant in intervention Federico
Rodriguez's (“Rodriguez” or
“plaintiff”) motion for judgment on the pleadings
as to plaintiff in intervention Sussex Insurance
Company's (“Sussex” or “insurance
carrier”) first amended complaint in intervention. (ECF
No. 74). Sussex filed a response (ECF No. 81), to which
Rodriguez replied (ECF No. 82).
before the court is Sussex's motion to perfect and
enforce lien. (ECF No. 85). Rodriguez filed a response (ECF
No. 90), to which Sussex replied (ECF No. 95).
a personal injury action under the Federal Tort Claims Act,
28 U.S.C. § 2671 et seq. (the
“FTCA”), arising out of events that occurred at
Nellis Air Force Base (the “base”) located in Las
Vegas, Nevada, on August 16, 2011.
a truck driver, was on the base to pick up a load that was to
be transported. (ECF No. 3). The base is equipped with active
vehicle barriers (“AVB”) designed to protect the
base from dangerous vehicles unlawfully entering the
facility. (ECF No. 3). Rodriguez alleges that despite the
fact that he was lawfully permitted to be on the base, the
base unwarrantedly deployed an AVB, causing him injury. (ECF
employer Fontana Transport, Inc. (“Fontana”) had
worker's compensation insurance covering his injuries.
(ECF No. 18). Plaintiff in intervention Sussex is the
subrogee. (ECF No. 1). Sussex paid benefits to Rodriguez
pursuant to the workers' compensation insurance policy
and California law. (ECF No. 11).
January 4, 2016, Rodriguez filed a complaint against the
government under the Federal Torts Claims Act
(“FTCA”) seeking damages for the negligent acts
of the government. (ECF No. 3). On May 12, 2016, Sussex filed
a complaint in intervention against the government alleging
two claims for relief: (1) negligence; and (2) subrogation.
(ECF No. 18). On December 14, 2016 the court dismissed with
prejudice Sussex's complaint for lack of subject matter
jurisdiction under Rule 12(b)(1), because Sussex failed to
exhaust its administrative remedies as required under the
FTCA. (ECF No. 39). Sussex was granted leave to amend its
complaint in intervention. Id.
December 28, 2016, Sussex filed an amended complaint in
intervention naming Rodriguez as the defendant in
intervention. (ECF No. 42). The amended complaint alleges
Sussex is entitled to subrogation of workers'
compensation benefits paid under the workers'
compensation policy issued to its insured, Fontana, for
expenses incurred by its employee, Rodriguez. Id.
Additionally, Sussex seeks to enforce its lien rights under
the California Labor Code against any recovery by Rodriguez
from the government. (ECF No. 85).
instant motion, Rodriguez requests a judgment on the
pleadings. (ECF No. 74). Rodriguez claims Sussex cannot, as a
matter of law, bring an action directly against Rodriguez,
the plaintiff in the original suit. Id. Thus,
Sussex's complaint in intervention should be dismissed
with prejudice. Id. Rodriguez further alleges
Sussex's claims for subrogation and/or lien claims were
eliminated when it failed to timely file a FTCA claim,
resulting in the dismissal, with prejudice, of its direct
action against the government. Id. On similar
grounds, Rodriguez argues Sussex's motion to perfect and
enforce lien (ECF No. 85) should be denied as well. (ECF No.
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). Motions for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c) are
“functionally identical” to motions to dismiss
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Dworkin v. Hustler Magazine
Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
reviewing a motion for judgment on the pleadings pursuant to
Rule 12(c), the court “must accept all factual
allegations in the complaint as true and construe them in the
light most favorable to the non-moving party.”
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
on the pleadings is proper ‘when, taking all the
allegations in the non-moving party's pleadings as true,
the moving party is entitled to judgment as a matter of
law.'” Ventress v. Japan Airlines, 486
F.3d 1111, 1114 (9th Cir. 2007) (citation omitted). The
allegations of the nonmoving party must be accepted as true
while any allegations made by the moving party that have been
denied or contradicted are assumed to be false. MacDonald
v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir.