United States District Court, D. Nevada
MARY KIM PICCININI, and GEORGE ELDRIDGE & SON, INC., Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
the Court is the Defendant United States of America's
(“Defendant”) partial motion to dismiss (ECF No.
9) made pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). Plaintiffs Mary Kim Piccinini and George
Eldridge & Son, Inc., (collectively
“Plaintiffs”) have opposed (ECF No. 14), and
Defendant has replied (ECF No. 17).
case is brought under the Federal Tort Claims Act
(“FTCA”) and arises from a prescribed burn
initiated by the United States Forest Service on public land
in White Pine County, Nevada, in 2012, that expanded into
areas outside the prescribed burn area causing damage to
Plaintiffs' properties (See ECF No. 1).
Plaintiffs brought suit against Defendant asserting claims
for: (1) negligence; (2) nuisance; (3) trespass; (4) strict
liability; and (5) res ipsa loquitur (Id. at 5-7).
Plaintiffs also seek punitive damages and attorney's fees
(Id. at 7).
Motion to Dismiss under Fed.R.Civ.P. 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) may be made on the basis that the
complaint fails to allege grounds for federal subject matter
jurisdiction as required by Fed.R.Civ.P. 8(a). Meliezer
v. Resolution Trust Co., 952 F.2d 879, 881 (5th Cir.
1992); Thornhill Publ'g Co. v. General Tel. &
Elecs., 594 F.2d 730, 733 (9th Cir. 1979). Although the
defendant is the moving party on a motion to dismiss, it is
the plaintiff who, as the party seeking to invoke the
court's jurisdiction, bears the burden of establishing
subject matter jurisdiction. Hexom v. Oregon Dept. of
Transp., 177 F.3d 1134, 1135 (9th Cir. 1999). The court
in effect presumes that it lacks jurisdiction until the
plaintiff proves otherwise. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994); United
States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000).
nature of the burden of proof varies, however, depending on
whether the motion is a facial or factual attack on the
complaint. When considering a Rule 12(b)(1) motion attacking
a complaint on its face, the plaintiff must affirmatively
allege the existence of federal jurisdiction because the
court will not infer it from the allegations. TOSCO v.
Communities for a Better Env't, 236 F.3d 495, 499
(9th Cir. 2001), citing Smith v. McCullough, 270
U.S. 456, 459 (1926). Also, with a facial attack, the court
must presume that the plaintiff's allegations are true.
Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir.
2000). In contrast, no presumption of truth attaches to the
plaintiff's allegations with a factual attack. White
v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
federal court presumptively lacks subject matter jurisdiction
“unless the contrary affirmatively appears.”
Stock West, Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
Federal subject matter jurisdiction must exist at the time
the action is commenced. Morongo Band of Mission Indians
v. California State Bd. of Equalization, 858 F.2d 1376,
1380 (9th Cir. 1988), cert. denied, 488 U.S. 1006
Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)
considering a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6), the court must accept as true
all material allegations in the complaint as well as all
reasonable inferences that may be drawn from such
allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150
(9th Cir. 2000). The allegations of the complaint also must
be construed in the light most favorable to the nonmoving
party. Shwarz v. United States, 234 F.3d 428, 435
(9th Cir. 2000). The purpose of a motion to dismiss under
Rule 12(b)(6) is to test the legal sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). The court can grant the motion only if it is
certain that the plaintiff will not be entitled to relief
under any set of facts that could be proven under the
allegations of the complaint. Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 338 (9th Cir. 1996).
moves to dismiss Plaintiffs' claims for negligence,
nuisance, strict liability, res ipsa loquitur, and the
request for punitive damages and attorney's fees
(See ECF No. 9).
Strict Liability and Request for Punitive Damages and
Plaintiffs do not oppose dismissal of their strict liability
claim or their request for punitive damages and
attorney's fees. (See ECF No. 14 at 2).
Accordingly, Defendant's motion to dismiss the strict
liability claim and prayer for punitive damages and
attorney's fees is granted. The portion of
Plaintiffs' complaint alleging strict ...