Carr v. Naval Base Kitsap Bremerton

• Court: District Court, W.D. Washington
• Decided: February 1, 2021
• Docket: 3:18-cv-06005
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RUBY L. CARR, CASE NO. 3:18-cv-06005 11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS

13 NAVAL BASE KITSAP BREMERTON, 14 Defendant. 15 THIS MATTER comes before the Court on the Defendant’s Motion to Dismiss. Dkt. 30. 16 The Court has reviewed the pleadings filed regarding the motion and the remaining file. 17 On December 4, 2018, Plaintiff, proceeding pro se, filed a motion to proceed in forma 18 pauperis and proposed complaint. Dkt. 1. On December 13, 2018, the Court denied her motion 19 to proceed in forma pauperis. Dkt. 2. On December 21, 2018, Plaintiff paid the filing fee and 20 filed her complaint asserting claims under the Federal Torts Claims Act, 28 U.S.C. § 2671 et. 21 seq., (“FTCA”) against Naval Base Kitsap Bremerton for injuries she sustained at the base 22 commissary. Dkt. 3. The case was reassigned to the undersigned on August 31, 2020. Dkt. 10. 23 24 1 On September 2, 2020, the Court ordered Plaintiff to show cause by September 11, 2020 2 why this case should not be dismissed for failure to complete service in accordance with Fed. R. 3 Civ. P. 4(m). Dkt. 11. The Court granted the Plaintiff three extensions of time to complete 4 service on the Defendant. Dkts. 13, 23, and 25. The Plaintiff filed a proof of service showing 5 that she served the U.S. Attorney’s Office for the Western District of Washington by certified

6 mail on October 26, 2020. Dkt. 26-2. 7 The Defendant now moves to dismiss the case for lack of subject matter jurisdiction 8 pursuant to Fed. R. Civ. P. 12(b)(1), lack of personal jurisdiction pursuant to Rule 12(b)(2), and 9 for insufficient service of process pursuant to Rule 12(b)(5). Dkt. 30. The Plaintiff did not 10 respond to the motion. 11 DISCUSSION 12 Motion to Dismiss under 12(b)(6). A complaint must be dismissed under Fed. R. Civ. 13 P. 12(b)(1) if, considering the factual allegations in the light most favorable to the plaintiff, the 14 action: (1) does not arise under the Constitution, laws, or treaties of the United States, or does not

15 fall within one of the other enumerated categories of Article III, Section 2, of the Constitution; 16 (2) is not a case or controversy within the meaning of the Constitution; or (3) is not one 17 described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung 18 Indus., Inc. v. Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986). A federal court is 19 presumed to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v. 20 Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated 21 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, plaintiff bears the burden of proving the 22 existence of subject matter jurisdiction. Stock West, at 1225. 23 24 1 The United States, as sovereign, is immune from suit unless it consents to be sued. See 2 United States v. Mitchell, 445 U.S. 535, 538 (1980); Cato v. United States, 70 F.3d 1103, 1107 3 (9th Cir. 1995). If a claim does not fall squarely within the strict terms of a waiver of sovereign 4 immunity, a district court is without subject matter jurisdiction. See, e.g., Mundy v. United States, 5 983 F.2d 950, 952 (9th Cir. 1993).

6 The FTCA is a limited waiver of sovereign immunity. 28 U.S.C. § 1346 (b). The FTCA 7 is the exclusive remedy for state law torts committed by federal employees within the scope of 8 their employment. 28 U.S.C. § 2679 (b)(1). “Although [FTCA] claims can arise from the acts or 9 omissions of United States agencies (28 U.S.C. § 2671), an agency itself cannot be sued under 10 the FTCA.” F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th 1998). 11 The Defendant’s motion to dismiss (Dkt. 30) should be granted. This Court lacks subject 12 matter jurisdiction over this case pursuant to Rule 12(b)(1). The Plaintiff did not respond; she 13 failed to carry her burden to demonstrate the existence of subject matter jurisdiction. Stock West, 14 at 1225. Further, the Plaintiff asserts her FTCA claims against Naval Base Kitsap Bremerton

15 and not a “federal employee[]” acting “within the scope of their employment.” 16 Motion to Dismiss under Rule 12(b)(2) and 12(b)(5). Rule 12(b)(2) allows a party to 17 move to dismiss for “lack of personal jurisdiction;” Rule 12(b)(5) allows a party to dismiss for 18 “insufficient service of process.” 19 The Defendant’s motion to dismiss under Rules 12(b)(2) and 12(b)(5) (Dkt. 30) should be 20 granted. Despite having been given several opportunities to do so, the Plaintiff has failed to 21 properly serve the Defendant and so this Court does not have personal jurisdiction over it. While 22 Plaintiff sent a copy of the complaint and summons to the United States Attorney’s Office in the 23 Western District of Washington by certified mail, she did not adequately serve the United States 24 1 because she has not sent a copy of the summons and complaint to the United States Attorney 2 General as required by Federal Rule of Civil Procedure 4(i)(1)(B). The Defendant’s Motion to 3 Dismiss (Dkt. 30) should be granted. 4 IT IS SO ORDERED. 5 The Clerk is directed to send uncertified copies of this Order to all counsel of record and

6 to any party appearing pro se at said party’s last known address. 7 Dated this 1st day of February, 2021. A 8

9 ROBERT J. BRYAN United States District Judge 10

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