United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
before the court is the United States of America's (the
“USA”) motion to dismiss. (ECF No. 25). Plaintiff
Sonaloita Wilson (“plaintiff”) filed a response
(ECF No. 28), to which the USA replied (ECF No. 32).
before the court is the USA's motion to stay case. (ECF
No. 37). Plaintiff filed a response (ECF No. 38). No reply
has been filed, and the time to do so has passed.
brings this action pursuant to the Federal Tort Claims Act
(“FTCA”) to collect money damages for injuries
sustained in two successive automobile crashes, one of which
involved an employee acting within the scope of her
employment for the Department of the Treasury
(“DOTR”). (ECF No. 1).
complaint alleges the following relevant facts:
September 1, 2016, plaintiff was traveling in an automobile
in Las Vegas, Nevada. Id. When plaintiff stopped her
vehicle for pedestrian traffic, defendant Makia McCloud
(“McCloud”), an employee of the Internal Revenue
Service (“IRS”), crashed into the rear of
plaintiff's vehicle. Id. The vehicle driven by
McCloud was owned by the USA and/or defendant Bobby Warren
(“Warren”), another IRS employee. Id.
the crash, plaintiff was seated in her disabled vehicle in
the left of two travel lanes when defendant Liceth
Demha-Santiago (“Demha-Santiago”) crashed into
the back of plaintiff's vehicle. Id.
Demha-Santiago was allegedly driving a vehicle owned by
defendant Juan Demha (“Demha”) at the time of the
complaint asserts five claims for relief: (1) negligence
against McCloud, Demha-Santiago, and “Doe”
defendants; (2) “family purpose doctrine” against
Demha; (3) negligent hiring, supervision, and training
against the USA, Warren, and “Doe” defendants;
(4) “vicarious liability” against the USA,
Warren, and “Doe” defendants; and (5) negligent
entrustment against the USA, Warren, Demha, and
“Doe” defendants. Id.
court now considers the USA's motion to dismiss pursuant
to FRCP 12(b)(1). See Fed. R. Civ. P. 12(b)(1) (lack
of subject-matter jurisdiction).
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if
the complaint, considered in its entirety, fails to allege
facts on its face sufficient to establish subject matter
jurisdiction. In re Dynamic Random Access Memory (DRAM)
Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a 12(b)(1) motion to
dismiss, the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court to survive
the motion. McCauley v. Ford Motor Co., 264 F.3d
952, 957 (9th Cir. 2001) (citing McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). More
specifically, the plaintiff's pleadings must show
“the existence of whatever is essential to federal
jurisdiction, and, if [plaintiff] does not do so, the court,
on having the defect called to ...