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Piccinini v. United States

United States District Court, D. Nevada

April 30, 2018

MARY KIM PICCININI, and GEORGE ELDRIDGE & SON, INC., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

         Before 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).

         I. BACKGROUND

         This 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).

         II. LEGAL STANDARDS

         A. Motion to Dismiss under Fed.R.Civ.P. 12(b)(1)

         A 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.[1] 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).

         The 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).

         A 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 (1989).

         B. Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)

         In 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).

         III. DISCUSSION

         Defendant 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).

         A. Strict Liability and Request for Punitive Damages and Attorney's Fees

         First, 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 ...


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