United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Defendant United States Department of Veteran
Affairs’ (“Defendant”) Motion to Dismiss
(ECF No. 8). For the reasons stated below, the Court grants
the motion and grants McMillon (“Plaintiff”)
leave to file an amended complaint.
filed the operative complaint in this action in the Eighth
Judicial District Court of Clark County, Nevada on November
14, 2018. ECF No. 1-1 at 3. Defendant filed a Petition for
Removal in this Court on December 21, 2018 pursuant to 28
U.S.C. § 1442(a)(1). ECF No. 1. The action was stayed on
January 2, 2019, ECF No. 3, and the Stay was lifted on
February 6, 2019, ECF No. 7. On February 15, 2019, Defendant
filed the instant Motion to Dismiss. ECF No. 8. Plaintiff
responded on February 28, 2019, ECF No. 11, and Defendant
replied on March 7, 2019, ECF No. 13. A hearing was held on
the motion on July 31, 2019, ECF No. 17, and pursuant to the
Court’s order at that hearing, Plaintiff filed an
Affidavit on August 7, 2019, ECF No. 18.
alleges in the state court complaint that on November 18,
2016, Plaintiff fell due to a “dangerous
condition” on Defendant’s property and suffered
severe bodily injuries and damages in excess of $15, 000. ECF
No. 1-1 at 2-3. Plaintiff brought two claims against
Defendant including “negligence/premises
liability” and “negligent hiring/supervision,
” and three claims against Doe Defendants including
“negligence/premises liability” and
“negligent hiring/supervision” against Doe
Defendant Owner, and “negligence/premises
liability” against Doe Defendant Maintenance/Cleaning
Janitorial Company. Id. at 3-8.
asserts that on or around December 23, 2017 and April 27,
2018, Plaintiff’s counsel sent a form SF-95 to the
Department of Veterans’ Affairs (“VA”) and
received confirmation that the VA received the letter
“or representation combined with form SF-95” on
May 1, 2018. ECF No. 11 at 2.
Motion to Dismiss asserts dismissal is warranted because this
Court lacks subject matter jurisdiction over
Plaintiff’s claims under the Federal Tort Claims Act
(“FTCA”), and that the complaint fails to set
forth facts upon which relief can be granted. ECF No. 8 at 1.
Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1)
12(b)(1) authorizes a challenge based on lack of subject
matter jurisdiction. A Rule 12(b)(1) jurisdictional attack
may be facial or factual. See White v. Lee, 227 F.3d
1214, 1242 (9th Cir. 2000). In a facial attack, the
challenger asserts that the allegations contained in a
complaint are insufficient on their face to invoke federal
jurisdiction. See Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1038 (9th Cir. 2004). In a factual attack, the
challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke federal jurisdiction.
Id. The burden of establishing the subject matter
jurisdiction rests upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377
Jurisdiction Under the Federal Tort Claims Act
a waiver, sovereign immunity shields the Federal Government
and its agencies from lawsuits against them. FDIC v.
Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity is
jurisdictional in nature. “Indeed the terms of [the
United States'] consent to be sued in any court define
that court's jurisdiction to entertain the suit.”
Id. at 475. The Federal Tort Claims Act contains a
limited waiver of sovereign immunity, rendering the United
States liable to the same extent as a private party for
certain torts committed by federal employees. 28 U.S.C.
1346(b). The Act gives federal courts exclusive jurisdiction
over claims against the United States for “injury or
loss of property, or personal injury or death caused by the