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McMillon v. United States Department of Veterans Affairs

United States District Court, D. Nevada

September 27, 2019

ELDA McMILLON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERAN AFFAIRS, et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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.

         II. PROCEDURAL BACKGROUND

         Plaintiff 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.

         III. FACTUAL ALLEGATIONS

         Plaintiff 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.

         Plaintiff 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.

         Defendant’s 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.

         IV. LEGAL STANDARD

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

         Rule 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 (1994).

         B. Jurisdiction Under the Federal Tort Claims Act

         Absent 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 ...


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