1 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Dec 14, 2020 4 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JAMES BURNELL, an individual, 10 Plaintiff, No. 2:20-CV-00271-SAB 11 v. 12 MICHAEL KUJALA and JANE DOE ORDER GRANTING 13 KUJALA, individually and the marital DEFENDANTS’ MOTION TO 14 community comprised thereof, DISMISS FOR LACK OF 15 Defendants. JURISDICTION 16 17 Before the Court is Defendants’ Motion & Memorandum to Dismiss for 18 Lack of Jurisdiction, ECF No. 5. The motion was considered without oral 19 argument. Plaintiff is represented by Doug Weinmaster, and Defendants are 20 represented by Derek Taylor and Timothy Durkin. Defendants argue that this case 21 should be dismissed without prejudice because the Court lacks subject-matter 22 jurisdiction over Plaintiff’s claims. Plaintiff opposes the motion and insists that the 23 Court does have jurisdiction over this case. He also asks that, if the Court does 24 grant the motion, the Court also equitably toll the statute of limitations on his 25 claims so that he may refile them in the proper court. Having reviewed the briefing 26 and the relevant caselaw, the Court grants Defendants’ motion and dismisses this 27 case for lack of subject-matter jurisdiction. 28 // 1 Facts and Procedural History 2 The following facts are pulled from Plaintiff’s Complaint, ECF No. 1-2, and 3 Defendants’ Statement of Jurisdictional Facts in Support of Rule 12(b)(1) and 4 (h)(3) Motion to Dismiss, ECF No. 6. 5 On August 24, 2018, Plaintiff and Defendant Michael Kujala were involved 6 in a car accident on Highway 2 in Leavenworth, Washington. Michael Kujala is a 7 law enforcement officer with the United States Forest Service (“USFS”) and was 8 on duty at the time of the accident. When the collision occurred, Officer Kujala 9 was responding to a local law enforcement request for assistance and was driving a 10 marked USFS vehicle. Officer Kujala pulled out of the Leavenworth Forest 11 Service ranger station with his emergency lights activated, crossed the westbound 12 lane and the shared turn lane, and collided with the driver’s side of Plaintiff’s 13 vehicle in the eastbound lane. Drivers in the westbound lane stopped to let Officer 14 Kujala cross, and Officer Kujala alleges he did not see Plaintiff’s car before 15 beginning his turn. Plaintiff alleges he did not see the emergency lights on Officer 16 Kujala’s vehicle and thought the vehicle was going to merge into the shared turn 17 lane. Plaintiff alleges that Officer Kujala was negligent in causing the accident and 18 Plaintiff’s personal injuries. 19 In September and October 2018, Plaintiff submitted two separate SF-95 20 forms to the U.S. Department of Agriculture Forest Service claims center in 21 Albuquerque, New Mexico. On September 20, 2018, Plaintiff himself submitted a 22 form for approximately $4,100 in body repair costs to his 2011 Volkswagen Jetta. 23 A second form was submitted by the Phillips Law Firm on Plaintiff’s behalf on 24 October 23, 2018. The second form sought personal injury damages arising out of 25 the August 2018 car accident. The parties attempted to resolve these claims, and 26 the USFS was under the impression that the claims were settled. But on June 26, 27 2020, Plaintiff filed a personal injury lawsuit against Officer Kujala and his wife in 28 Chelan County Superior Court. 1 Defense counsel contacted Plaintiff’s counsel in early July 2020 to try and 2 resolve Plaintiff’s claim and address what Defendants saw as jurisdictional issues 3 with the state court action. Plaintiff’s counsel did not respond. Defendants then 4 removed the case to federal court on August 4, 2020, pursuant to 28 U.S.C. § 1442. 5 Legal Standard 6 1. Rule 12(b)(1) Standard 7 Defendants’ motion arises under Rule 12(b)(1) and (h)(3). Federal courts 8 assume subject-matter jurisdiction is lacking unless and until the party asserting 9 jurisdiction demonstrates otherwise. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 10 375, 376 (1994). Courts have an ongoing duty to examine the existence of 11 jurisdiction in their cases, and challenges to subject-matter jurisdiction may be 12 raised at any time in the proceedings. Kontrick v. Ryan, 540 U.S. 443, 455 (2004). 13 Subject-matter jurisdiction can neither be waived nor consented to by the parties. 14 Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 15 (1982). Where subject-matter jurisdiction is found to be lacking, the claim or 16 lawsuit must be dismissed at the first instance. See Fed. R. Civ. P. 12(h)(3). 17 There are two types of Rule 12(b)(1) attacks: a facial attack and a factual 18 attack. A facial attack accepts the truth of the plaintiff’s allegations but asserts that 19 they are insufficient on their face to invoke federal jurisdiction. Safe Air for 20 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In contrast, a factual 21 attack contests the truth of the plaintiff’s factual allegations by introducing 22 evidence outside the pleadings. Safe Air for Everyone, 373 F.3d at 1039. The 23 plaintiff must support her jurisdictional allegations with competent proof under the 24 same evidentiary standard that governs in the summary judgment context. Leite v. 25 Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). Thus, the plaintiff bears the 26 burden of proving by a preponderance of the evidence that each of the 27 requirements for subject-matter jurisdiction. Id. (citing Harris v. Rand, 682 F.3d 28 846, 851 (9th Cir. 2012)). Unless the jurisdictional issue is so intertwined with the 1 substantive issues that resolution of jurisdiction goes to the merits of an action, the 2 court may resolve factual disputes itself. Leite, 749 F.3d at 1121-22 (citing Safe Air 3 for Everyone, 373 F.3d at 1039-40); Robinson v. United States, 586 F.3d 683, 685 4 (9th Cir. 2009). 5 2. The Federal Tort Claims Act and Derivative Jurisdiction 6 In the context of suits against the United States or its employees acting in 7 their official capacities, the plaintiff must establish both subject-matter jurisdiction 8 and personal jurisdiction. 28 U.S.C. § 1346(b). The United States is immune from 9 suit for damages except for where Congress has specifically waived its immunity. 10 See Lehman v. Nakshian, 453 U.S. 156, 160 (1981). The Federal Tort Claims Act 11 contains a limited waiver of sovereign immunity. 28 U.S.C. § 1346(b). It also 12 provides federal district courts with exclusive subject-matter jurisdiction over civil 13 actions against the United States for money damages for personal or property 14 damage caused by the negligent or wrongful act or omission of any federal 15 employee while she is acting within the scope of her office or employment if a 16 private person would be liable to the plaintiff under the laws of the place where the 17 challenged conduct occurred. 28 U.S.C. § 1346(b).
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1 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Dec 14, 2020 4 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JAMES BURNELL, an individual, 10 Plaintiff, No. 2:20-CV-00271-SAB 11 v. 12 MICHAEL KUJALA and JANE DOE ORDER GRANTING 13 KUJALA, individually and the marital DEFENDANTS’ MOTION TO 14 community comprised thereof, DISMISS FOR LACK OF 15 Defendants. JURISDICTION 16 17 Before the Court is Defendants’ Motion & Memorandum to Dismiss for 18 Lack of Jurisdiction, ECF No. 5. The motion was considered without oral 19 argument. Plaintiff is represented by Doug Weinmaster, and Defendants are 20 represented by Derek Taylor and Timothy Durkin. Defendants argue that this case 21 should be dismissed without prejudice because the Court lacks subject-matter 22 jurisdiction over Plaintiff’s claims. Plaintiff opposes the motion and insists that the 23 Court does have jurisdiction over this case. He also asks that, if the Court does 24 grant the motion, the Court also equitably toll the statute of limitations on his 25 claims so that he may refile them in the proper court. Having reviewed the briefing 26 and the relevant caselaw, the Court grants Defendants’ motion and dismisses this 27 case for lack of subject-matter jurisdiction. 28 // 1 Facts and Procedural History 2 The following facts are pulled from Plaintiff’s Complaint, ECF No. 1-2, and 3 Defendants’ Statement of Jurisdictional Facts in Support of Rule 12(b)(1) and 4 (h)(3) Motion to Dismiss, ECF No. 6. 5 On August 24, 2018, Plaintiff and Defendant Michael Kujala were involved 6 in a car accident on Highway 2 in Leavenworth, Washington. Michael Kujala is a 7 law enforcement officer with the United States Forest Service (“USFS”) and was 8 on duty at the time of the accident. When the collision occurred, Officer Kujala 9 was responding to a local law enforcement request for assistance and was driving a 10 marked USFS vehicle. Officer Kujala pulled out of the Leavenworth Forest 11 Service ranger station with his emergency lights activated, crossed the westbound 12 lane and the shared turn lane, and collided with the driver’s side of Plaintiff’s 13 vehicle in the eastbound lane. Drivers in the westbound lane stopped to let Officer 14 Kujala cross, and Officer Kujala alleges he did not see Plaintiff’s car before 15 beginning his turn. Plaintiff alleges he did not see the emergency lights on Officer 16 Kujala’s vehicle and thought the vehicle was going to merge into the shared turn 17 lane. Plaintiff alleges that Officer Kujala was negligent in causing the accident and 18 Plaintiff’s personal injuries. 19 In September and October 2018, Plaintiff submitted two separate SF-95 20 forms to the U.S. Department of Agriculture Forest Service claims center in 21 Albuquerque, New Mexico. On September 20, 2018, Plaintiff himself submitted a 22 form for approximately $4,100 in body repair costs to his 2011 Volkswagen Jetta. 23 A second form was submitted by the Phillips Law Firm on Plaintiff’s behalf on 24 October 23, 2018. The second form sought personal injury damages arising out of 25 the August 2018 car accident. The parties attempted to resolve these claims, and 26 the USFS was under the impression that the claims were settled. But on June 26, 27 2020, Plaintiff filed a personal injury lawsuit against Officer Kujala and his wife in 28 Chelan County Superior Court. 1 Defense counsel contacted Plaintiff’s counsel in early July 2020 to try and 2 resolve Plaintiff’s claim and address what Defendants saw as jurisdictional issues 3 with the state court action. Plaintiff’s counsel did not respond. Defendants then 4 removed the case to federal court on August 4, 2020, pursuant to 28 U.S.C. § 1442. 5 Legal Standard 6 1. Rule 12(b)(1) Standard 7 Defendants’ motion arises under Rule 12(b)(1) and (h)(3). Federal courts 8 assume subject-matter jurisdiction is lacking unless and until the party asserting 9 jurisdiction demonstrates otherwise. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 10 375, 376 (1994). Courts have an ongoing duty to examine the existence of 11 jurisdiction in their cases, and challenges to subject-matter jurisdiction may be 12 raised at any time in the proceedings. Kontrick v. Ryan, 540 U.S. 443, 455 (2004). 13 Subject-matter jurisdiction can neither be waived nor consented to by the parties. 14 Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 15 (1982). Where subject-matter jurisdiction is found to be lacking, the claim or 16 lawsuit must be dismissed at the first instance. See Fed. R. Civ. P. 12(h)(3). 17 There are two types of Rule 12(b)(1) attacks: a facial attack and a factual 18 attack. A facial attack accepts the truth of the plaintiff’s allegations but asserts that 19 they are insufficient on their face to invoke federal jurisdiction. Safe Air for 20 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In contrast, a factual 21 attack contests the truth of the plaintiff’s factual allegations by introducing 22 evidence outside the pleadings. Safe Air for Everyone, 373 F.3d at 1039. The 23 plaintiff must support her jurisdictional allegations with competent proof under the 24 same evidentiary standard that governs in the summary judgment context. Leite v. 25 Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). Thus, the plaintiff bears the 26 burden of proving by a preponderance of the evidence that each of the 27 requirements for subject-matter jurisdiction. Id. (citing Harris v. Rand, 682 F.3d 28 846, 851 (9th Cir. 2012)). Unless the jurisdictional issue is so intertwined with the 1 substantive issues that resolution of jurisdiction goes to the merits of an action, the 2 court may resolve factual disputes itself. Leite, 749 F.3d at 1121-22 (citing Safe Air 3 for Everyone, 373 F.3d at 1039-40); Robinson v. United States, 586 F.3d 683, 685 4 (9th Cir. 2009). 5 2. The Federal Tort Claims Act and Derivative Jurisdiction 6 In the context of suits against the United States or its employees acting in 7 their official capacities, the plaintiff must establish both subject-matter jurisdiction 8 and personal jurisdiction. 28 U.S.C. § 1346(b). The United States is immune from 9 suit for damages except for where Congress has specifically waived its immunity. 10 See Lehman v. Nakshian, 453 U.S. 156, 160 (1981). The Federal Tort Claims Act 11 contains a limited waiver of sovereign immunity. 28 U.S.C. § 1346(b). It also 12 provides federal district courts with exclusive subject-matter jurisdiction over civil 13 actions against the United States for money damages for personal or property 14 damage caused by the negligent or wrongful act or omission of any federal 15 employee while she is acting within the scope of her office or employment if a 16 private person would be liable to the plaintiff under the laws of the place where the 17 challenged conduct occurred. 28 U.S.C. § 1346(b). 18 By its text, the FTCA does not include a waiver of sovereign immunity for 19 suits brought in state courts. Id.; see also Rodriguez v. United States, 788 Fed. 20 Appx. 535, 536 (9th Cir. 2019) (citing Cox v. U.S. Dep’t of Agric., 800 F.3d 1031, 21 1031 (9th Cir. 2015) (per curiam)). The derivative jurisdiction doctrine provides 22 that, if a state court lacks jurisdiction over a case, a federal court does not acquire 23 jurisdiction upon removal. Minnesota v. United States, 305 U.S. 382, 389 (1939). 24 Although Congress abolished the doctrine with respect to the general removal 25 statute, the Ninth Circuit recently reaffirmed that the doctrine still applies to 26 federal officer removal. Cox, 800 F.3d at 1032 (citing In re Elko Cty. Grand Jury, 27 109 F.3d 554, 555 (9th Cir. 1997)). Thus, if the state court from which a case was 28 removed lacked jurisdiction over a case, the federal court must dismiss the case. 1 Discussion 2 According to Defendants’ Statement of Jurisdictional Facts, Defendants are 3 mounting a factual attack on Plaintiff’s case. See ECF No. 6 at ¶ B. Thus, no 4 presumptive truthfulness attaches to Plaintiff’s allegations, and the existence of 5 disputed material facts does not preclude the Court from evaluating the merits of 6 Plaintiff’s jurisdictional claims. In his response, Plaintiff introduces no evidence in 7 support of his claims that subject-matter jurisdiction existed at the Chelan County 8 Superior Court. In contrast, Defendants have produced evidence indicating that 9 jurisdiction is lacking because Officer Kujala was acting in his official capacity at 10 the time of the accident and was sued in a court that lacked jurisdiction to hear 11 claims against him. Accordingly, and for the reasons discussed below, Defendants’ 12 motion is granted. 13 First, Plaintiff argues that the motion should be denied because Officer 14 Kujala was not acting in his official capacity at the time of the accident because he 15 was turning out of a “private” driveway he uses for “personal” use. See ECF No. 16 11 at 2. However, Plaintiff introduces no evidence beyond these conclusory 17 allegations to counter Defendants’ evidence that Officer Kujala was (1) in his fully 18 marked USFS law enforcement vehicle, (2) was pulling out of the Ranger Station’s 19 driveway at the time of the accident, and (3) was responding to an emergency call 20 for assistance from local law enforcement. See ECF No. 7-1 at 9. Indeed, 21 Plaintiff’s prior certified statements contradict his version of events and support 22 Defendants’. See ECF No. 6-1 at 3. Conclusory allegations of this nature are 23 insufficient to meet Plaintiff’s burden to survive the motion to dismiss. See Savage 24 v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (noting that 25 the non-moving party on a factual motion to dismiss must furnish affidavits or 26 other evidence to establish subject-matter jurisdiction). 27 Second, Plaintiff argues that this case should not be dismissed under the 28 derivative jurisdiction doctrine because the state court did, in fact, have 1 jurisdiction. With all due respect, Plaintiff is incorrect. As discussed above, the 2 language of the FTCA specifically grants federal district courts exclusive 3 jurisdiction to hear cases under the Act. 28 U.S.C. § 1346(b)(1); see also Jerves v. 4 United States, 966 F.2d 517, 518 (9th Cir. 1992). The Chelan County Superior 5 Court where this case originated lacked subject-matter jurisdiction over these 6 claims, and this Court cannot acquire jurisdiction over the claims now after 7 removal. See Merkulov v. U.S. Park Police, 75 F. Supp. 3d 126, 129 (D.D.C. 2014) 8 (finding that the district court lacked jurisdiction over driver’s claim against U.S. 9 Park Service Police upon removal and dismissing case). Because derivative 10 jurisdiction was preserved for cases removed under 28 U.S.C. § 1442(a)(1) and 11 because the state court lacked jurisdiction to hear cases under the FTCA, the case 12 is dismissed. 13 Finally, Plaintiff argues that, if this case is dismissed, the Court should 14 preemptively toll the statute of limitations on his claims. However, the Court has 15 no power to toll the statute of limitations in case where it has no jurisdiction to act 16 at all. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 17 F.2d 1376, 1380 (9th Cir. 1988). Thus, Plaintiff’s request for equitable tolling is 18 denied. 19 Even if the Court did have authority to toll the statute of limitations on 20 Plaintiff’s claims, he has not fulfilled the grounds for such relief. Equitable tolling 21 is generally not available as a form of relief. See Quick Korner Market v. U.S. 22 Dep’t of Agric., 180 F. Supp. 3d 683, 692 (S.D. Cal. 2016). A litigant is entitled to 23 equitable tolling only if they can show (1) that they have been pursuing their rights 24 diligently and (2) that some extraordinary circumstances stood in their way and 25 prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). To count as 26 “extraordinary,” the circumstances that caused a litigant’s delay in timely filing 27 must have been out of their control; a party’s own misunderstanding of law or a 28 tactical litigation mistake is not sufficient. Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (noting that ordinary neglect is not grounds for equitable tolling). Plaintiff cannot establish either requirement for tolling. Plaintiff’s counsel mistakenly filed his complaint in the wrong court and was mistaken in believing that Officer Kujala 5|| was not covered by the FTCA. Plaintiff's counsel also made the tactical decision to rebuff the Government’s attempts to resolve the claims here or get the case filed in the correct court. Plaintiff is therefore not entitled to equitable tolling. 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Defendants’ Motion & Memorandum to Dismiss for Lack of Jurisdiction, ECF No. 5, is GRANTED. 11 2. This matter is DISMISSED without prejudice and without any tolling of| the statute of limitations. 13 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 14)| this Order, provide copies to counsel, and CLOSE the file. 15 DATED this 14th day of December 2020. 16 17 18 ‘ 9 Sfraleyld Eee Yoar 20 Stanley A. Bastian 21 Chief United States District Judge 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK