Darlene Post, et al. v. SOC, LLC, et al.

• Court: District Court, D. Nevada
• Decided: March 27, 2026
• Docket: 2:25-cv-00062
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 DARLENE POST, et al.,

5 Plaintiffs, Case No.: 2:25-cv-00062-GMN-NJK vs. 6

7 SOC, LLC, et al., ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION TO 8 Defendants. DISMISS (REDACTED VERSION)1

9 10 Pending before the Court is the Motion to Dismiss, (ECF No. 29), filed by Defendants 11 SOC, LLC, and SOC Nevada LLC (collectively “SOC”). Plaintiffs Estate of David Prince, 12 Darlene Post, Estate of David Post, and Kipalee Prince filed a Response, (ECF No. 37), to 13 which Defendant SOC filed a Reply, (ECF No. 44). Further pending before the Court is the 14 Motion to Seal Motion to Dismiss, (ECF No. 28), filed by Defendant SOC. Plaintiffs did not 15 file a Response. Also pending before the Court is the Motion to Seal Response, (ECF No. 36), 16 filed by Plaintiffs. Defendant SOC did not file a Response. Finally pending before the Court is 17 the Motion to Seal Reply, (ECF No. 43), filed by Defendant SOC. Plaintiff did not file a 18 Response. 19 For the reasons discussed below, the Court GRANTS, in part, and DENIES, in part, 20 SOC’s Motion to Dismiss. 21 I. BACKGROUND 22 This case arises from a fatal accident caused by an intoxicated driver that resulted in the 23 deaths of David Post and David Prince. (Compl. ¶¶ 114–24, Ex. 1 to Pet. Removal, ECF No. 1- 24

25 1 For security reasons, portions of this Order are redacted. An unredacted version of this Order is available under seal on the docket. 1 1). The accident occurred on a portion of Mercury Highway within the Nevada National 2 Security Site (“NNSS”). (Id. ¶¶ 107-24). Plaintiffs allege that the accident was caused by 3 Prince Pollard, who, while driving northbound on Mercury Highway, collided head-on with 4 Post and Prince. (Id. ¶ 119). Post and Prince were both employed as miners by Mission 5 Support and Test Services, LLC (“MSTS”), a private company that operated within the NNSS. 6 (Id. ¶¶ 41, 43). Pollard was employed by Amentum Services, Inc. (“Amentum”), which also 7 operated within the NNSS. (Id. ¶¶ 24–25). 8 The NNSS is a large area of land in the State of Nevada that is used as an outdoor 9 laboratory for nuclear testing. (Id. ¶ 14). The NNSS is comprised of two primary areas that are 10 utilized by the United States, the Department of Energy (“DOE”), and the Department of 11 Defense (“DOD”): the initial entrance and most southern area of the NNSS (“Southern Area”) 12 is utilized by the DOE, and the more secure northern area (“Northern Area”) is utilized by the 13 DOD. (Id. ¶ 17). Plaintiffs allege that Defendant SOC is responsible for controlling and 14 managing access to the Southern Area, including manning a security gate at the initial entrance 15 to the NNSS (“First Gate”), and manning several fixed post sites throughout the NNSS. (Id. ¶¶ 16 26–33). While DOD agents, employees, and private contractors were permitted to drive their 17 civilian vehicles in the Southern Area, only United States Air Force (“USAF”) vehicles are 18 permitted to enter the Northern Area. (Id. ¶ 23). 19 On the night of the accident, Plaintiffs allege the following facts: Pollard, who worked in 20 the Northern Area, was seen consuming alcohol at a bar within the Northern Area. (Id. ¶ 96). 21 He exited the Northern Area using his USAF vehicle, parked that vehicle in the Southern Area, 22 and used his civilian vehicle to exit the NNSS and drive to Terrible’s Casino in Indian Springs, 23 Nevada. (Id. ¶¶ 97–99). Several hours later, he returned to the NNSS and attempted to enter the 24 First Gate in his civilian vehicle. (Id. ¶ 102). A guard employed by Defendant SOC performed

25 a standard security check, which involved checking Pollard’s identification and performing a 1 sweep of the car to ensure there were no other occupants. (Id. ¶ 103). Plaintiffs allege that 2 Pollard was clearly intoxicated, but was nonetheless permitted to enter the Southern Area, 3 where he switched from his civilian vehicle to his USAF vehicle and began to drive northbound 4 on Mercury Highway. (Id. ¶¶ 105–109). The accident occurred shortly after. 5 Plaintiffs initially filed this action in the Eighth Judicial District Court for Clark County, 6 Nevada, asserting six claims: (1) negligence against SOC and SOC Doe Guard, (2) ostensible 7 agency/vicarious liability for negligent acts of SOC Doe Guard against SOC, (3) negligent 8 performing of undertaking against SOC and SOC Doe Guard, (4) ostensible agency/vicarious 9 liability for negligent performance of undertaking of SOC Doe Guard, (5) wrongful death under 10 Nevada Revised Statute (“NRS”) 41.085 against SOC and SOC Doe Guard, and (6) negligent 11 hiring, training, and supervision against SOC. (Id. ¶¶ 127–172). Plaintiff Darlene Post asserts a 12 claim for loss of consortium against SOC, (id. ¶¶ 173–179), and Plaintiff Kipalee Prince asserts 13 a separate claim for loss of consortium against SOC. (Id. ¶¶ 180–186). 14 Defendant SOC thereafter removed the case to this Court, (see Pet. Removal, ECF No. 15 1), and now moves to dismiss all claims asserted against it both for lack of subject matter 16 jurisdiction and for failure to state a claim. (See generally Mot. Dismiss, ECF No. 29). 17 II. LEGAL STANDARD 18 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction 19 A defendant may move to dismiss an action for lack of subject matter jurisdiction 20 pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1). A Rule 12(b)(1) motion tests 21 whether a complaint alleges grounds for federal subject matter jurisdiction. A motion to 22 dismiss for lack of subject matter jurisdiction will be granted if the complaint on its face fails to 23 allege facts sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union 24 High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Once a party has moved to dismiss for

25 lack of subject matter jurisdiction under Rule 12(b)(1), the opposing party bears the burden of 1 establishing the court’s jurisdiction. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 2 1115, 1122 (9th Cir. 2010). 3 B. Motion to Dismiss for Failure to State a Claim 4 Dismissal is appropriate under FRCP 12(b)(6) where a pleader fails to state a claim upon 5 which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 6 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on 7 which it rests, and although a court must take all factual allegations as true, legal conclusions 8 couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, FRCP 9 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements 10 of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain 11 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 12 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A 13 claim has facial plausibility when the plaintiff pleads factual content that allows the court to 14 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This 15 standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 16 If the court grants a motion to dismiss for failure to state a claim, leave to amend should 17 be granted unless it is clear that the deficiencies of the complaint cannot be cured by 18 amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant 19 to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in 20 the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the 21 movant, repeated failure to cure deficiencies by amendments previously allowed, undue 22 prejudice to the opposing party by virtue of allowance of the amendment, futility of 23 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 24 ///

25 /// 1 C. Motion to Seal 2 The public has a presumptive right to inspect and copy judicial records and documents. 3 See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). 4 Consequently, a party seeking to seal a judicial record under Federal Rule of Civil Procedure 5 26(c) “bears the burden of overcoming this strong presumption.” Id. The Ninth Circuit has 6 recognized that two different standards may apply when a request to seal a document is made in 7 connection with a motion—namely the “compelling reasons” standard or the “good cause” 8 standard. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096–97 (9th Cir. 2016). 9 The compelling reasons standard applies to any sealing request made in connection with a 10 motion that is “more than tangentially related to the merits of a case.” Id. at 1099, 1101. Under 11 the good cause standard, a party requesting sealing must show that, for “each particular 12 document” it seeks to seal, “prejudice or harm will result if no protective order is granted.” 13 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). Under the 14 compelling reasons standard, a court may seal a record only if it finds “compelling reasons” to 15 support such treatment and articulates “the factual basis for its ruling, without relying on 16 hypothesis or conjecture.” Ctr. for Auto Safety, 809 F.3d at 1096–97. Compelling reasons exist 17 when “such court files might have become a vehicle for improper purposes, such as the use of 18 records to gratify private spite, promote public scandal, circulate libelous statements, or release 19 trade secrets.” Id. at 1097 (internal quotations and citations omitted). 20 The compelling reasons must be “supported by specific factual findings,” that outweigh 21 “the general history of access and the public policies favoring disclosure, such as the public 22 interest in understanding the judicial process.” Kamakana, 447 F.3d at 1178–79 (internal 23 quotations and citations omitted). The Ninth Circuit has rejected efforts to seal documents 24 under the “compelling reasons” standard based on “conclusory statements about the contents of

25 the documents–that they are confidential” and that, in general, their disclosure would be 1 harmful to the movant. Id. at 1182. Furthermore, any “requests to seal documents must be 2 ‘narrowly tailored’ to remove from the public sphere only the material that warrants secrecy.” 3 Florence v. Cenlar Fed. Sav. & Loan, No. 2:16-cv-00587, 2017 WL 1078637, at *2 (D. Nev. 4 Mar. 20, 2017) (internal citations omitted). 5 III. DISCUSSION 6 SOC moves to dismiss all claims asserted against them for lack of subject matter 7 jurisdiction under FRCP 12(b)(1), or alternatively, for failure to state a claim under FRCP 8 12(b)(6). (Mot. Dismiss 5:26–6:5). 9 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction 10 SOC contends that this Court lacks subject matter jurisdiction over the Complaint 11 because Plaintiff’s claims are: (1) precluded by the doctrine of derivative sovereign immunity; 12 (2) non-justiciable under the political question doctrine, and (3) barred by the federal enclave 13 doctrine. (Id.). The Court addresses each of SOC’s jurisdictional arguments in turn. 14 1. Derivative Sovereign Immunity 15 SOC first argues that, as a government contractor acting within the scope of a validly 16 conferred government contract, it is entitled to derivative sovereign immunity under Yearsley v. 17 W.A. Ross Constr. Co., 309 U.S. 18 (1940), and its progeny. (Mot. Dismiss 7:11–21). SOC 18 also appears to argue that it is entitled to discretionary function immunity under the Federal 19 Tort Claims Act (“FTCA”). (Id. 7:24–9:18). Plaintiffs oppose both theories of immunity, 20 arguing that SOC is not entitled to derivative sovereign immunity because it exercised 21 discretion in designing security programs used at the NNSS, and that SOC does not come 22 within the discretionary function exception to the FTCA’s waiver of sovereign immunity 23 because it is an independent contractor rather than a federal agency or employee. (Resp. 5:9– 24 10:2, ECF No. 37).

25 As an initial matter, it is unclear whether Yearsley immunity operates as a jurisdictional 1 bar. See Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 646–47 (6th Cir. 2015) (discussing 2 circuit split on the issue of whether Yearsley immunity is jurisdictional). Neither party has 3 identified controlling Ninth Circuit precedent holding that Yearsley immunity is or is not 4 jurisdictional. If Yearsley immunity is not jurisdictional, SOC’s Motion would be analyzed 5 under FRCP 12(b)(6), and thus the Court’s review would be limited to the face of Plaintiff’s 6 Complaint. See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on other 7 grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Because SOC 8 submits several exhibits not contained within Plaintiff’s complaint, the Court would deny 9 SOC’s Motion with respect to Yearsley immunity for raising matters not properly considered 10 under FRCP 12(b)(6). See Clover v. Camp Pendleton & Quantico Housing LLC, 525 F. Supp. 11 3d 1140, 1141 (S.D. Cal. 2021). If Yearsley immunity is jurisdictional, the Court could 12 consider materials outside the pleadings. Kingman Reef Atoll Investments, LLC v. United 13 States, 541 F.3d 1189, 1195 (9th Cir. 2008) (citing Roberts v. Corrothers, 812 F.2d 1173, 1177 14 (9th Cir. 1987). As discussed below, the Court concludes that SOC’s Yearsley immunity theory 15 would be denied in either scenario. 16 The United States enjoys sovereign immunity from suit, unless it has expressly waived 17 that immunity. See United States v. Mitchell, 463 U.S. 206, 212 (1983). In Yearsley, the 18 Supreme Court recognized that, subject to some limitations, the acts of the United States’ 19 agents are also acts of the United States itself. That case involved a claim asserted against a 20 federal contractor who damaged the plaintiff’s land while carrying out the terms of its contract 21 with the government. 309 U.S. 19–20. It was undisputed that the contractor’s work “was all 22 authorized and directed by the Government of the United States,” and that the work was 23 performed pursuant to an act of Congress. Id. at 20. Because the contractor was carrying out 24 Congress’ directive under validly conferred authority, the contractor could not be liable. Id. at

25 21. 1 Assuming, arguendo, that Yearsley immunity is jurisdictional, it cannot attach to SOC 2 here because the exhibits submitted by SOC with its Motion to Dismiss make clear that SOC 3 had a considerable amount of discretion in carrying out its duties under its contract with the 4 government. The Ninth Circuit has explained that Yearsley immunity is limited to cases in 5 which the contractor had no discretion and was following government specifications 6 completely. Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 732 (9th Cir. 7 2015) (citing In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1001 (9th Cir. 2008)). In 8 Cabalce, defendants had contracted with the government to store and destroy fireworks that 9 had been seized by the federal government. 797 F.3d at 724. When some of the seized 10 fireworks accidentally exploded, killing several employees, the decedents’ representatives sued 11 the contracting defendants for negligence. Id. However, because the contracting defendants 12 had designed a destruction plan for the fireworks “without government control or supervision,” 13 the Cabalce court concluded that they were not entitled to Yearsley immunity. Id. at 732. 14 Upon review of the exhibits submitted by SOC, the Court concludes that SOC enjoyed a 15 similar degree of discretion here. First, 16 17 18 19 20 21 22 23 24

25 1 2 3 Like the contractors in Cabalce, SOC was responsible for designing an operations plan 4 “without government control or supervision.” 797 F.3d at 732. While SOC contends that these 5 procedures were subject to approval by the government, it fails to identify language in any of 6 its submitted exhibits establishing a requirement of government approval. (Reply 8:2–12, ECF 7 No. 44). 8 9 10 Under Cabalce, however, Yearsley immunity attaches only when the contractor exercises no 11 discretion of its own. See Clover, 525 F. Supp. 3d at 1143. Accordingly, regardless of whether 12 Yearsley is jurisdictional or not, SOC cannot benefit from it here. 13 Indeed, SOC itself appears to contend that it is entitled to discretionary function 14 immunity under the FTCA. (Mot. Dismiss 8:22–9:18). 28 U.S.C. § 2680 sets out exceptions to 15 the FTCA’s waiver of sovereign immunity for tort suits. § 2680(a) exempts from that waiver 16 any claim “based upon the exercise or performance or the failure to exercise or perform a 17 discretionary function or duty on the part of a federal agency or an employee of the 18 Government.” 28 U.S.C. § 2680(a). SOC’s attempt to locate its services within that exception 19 further confirms that they exercised discretion in carrying out their duties under the contract.2 20 In any case, as Plaintiffs point out, SOC is not entitled to discretionary function 21 immunity under the FTCA because § 2680(a) applies only to federal agencies or government 22 employees; here, SOC is an independent contractor. 28 U.S.C. § 2680(a). 23 /// 24

25 2 In its Reply, SOC attempts to disclaim this argument. (See Reply 4:17–18). However, it is difficult to square that disclaimer with the language of their Motion to Dismiss. (See Mot. Dismiss 8:21 (“Discretionary Function Immunity Extends to Contractors”) (emphasis removed)). 1 2. Political Question Doctrine 2 Next, SOC contends that Plaintiff’s claims are non-justiciable under the political 3 question doctrine because they “necessarily require the Court to inquire into the reasonableness 4 of sensitive national security decisions undertaken to protect nuclear weapons.” (Mot. Dismiss 5 11:13–18). In response, Plaintiffs argue that their claims require the Court to inquire into 6 SOC’s performance of contractual obligations, not the wisdom of governmental policy 7 decisions, and thus their claims are justiciable. (Resp. 10:5–15:7). 8 The political question doctrine serves to prevent federal courts from improperly 9 intruding on certain policy choices and value judgments that are constitutionally committed to 10 Congress or the executive branch. See Japan Whaling Ass’n v. American Cetacean Soc., 478 11 U.S. 221, 230 (1986). In determining whether a lawsuit raises a political question, courts must 12 undertake “a discriminating analysis of the question posed, in terms of the history of its 13 management by the political branches, of its susceptibility in the light of its nature and posture 14 of the specific case, and of the possible consequences of judicial action.” Baker v. Carr, 369 15 U.S. 186, 211–12 (1962). To make that determination, Baker requires courts to consider 16 whether each claim presents: 17 (1) a textually demonstrable constitutional commitment of the issue to a 18 coordinate political department; or 19 (2) a lack of judicially discoverable and manageable standards for resolving it; or 20 (3) the impossibility of deciding without an initial policy determination of a kind 21 clearly for nonjudicial discretion; or 22 (4) the impossibility of a court’s undertaking independent resolution without 23 expressing lack of the respect due coordinate branches of government; or 24 (5) an unusual need for unquestioning adherence to a political decision already

25 made; or 1 (6) the potentiality of embarrassment from multifarious pronouncements by 2 various departments on one question. 3 369 U.S. at 217; see Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005) (“[T]hese tests 4 are more discrete in theory than in practice, with the analyses often collapsing into one 5 another.”). 6 The core dispute between the parties here is whether, in analyzing Plaintiff’s 7 claims, the Court would have to inquire into the reasonableness of national security decisions 8 taken by the government, or merely inquire into SOC’s performance of its contractual duties. 9 (Mot. Dismiss 11:13–18); (Resp. 10:5–15:7). The dividing line recognized by cases in this 10 Circuit is whether a court must examine government decisions or decisions made by a 11 contractor in the performance of their duties. See Bixby v. KBR, Inc., 748 F. Supp. 2d 1224, 12 1238–39 (D. Or. 2010) (collecting cases contrasting findings of justiciability). Where a 13 government contractor lacked any discretion in the provision of services under the contract, 14 courts are more likely to find a plaintiff’s tort claims arising out of the provision of those 15 services non-justiciable because they essentially require inquiry into the wisdom of 16 governmental decisions. Id. Conversely, where the government contractor possessed discretion 17 in carrying out their contractual duties, courts are more likely to find similar claims justiciable 18 because they necessitate an inquiry into the reasonableness of the contractor’s performance of 19 contractual duties rather than the propriety of the government’s policy decisions. Id. at 1238 20 (collecting cases). 21 For example, in Saldana v. Occidental Petroleum Corp., the Ninth Circuit concluded 22 that the plaintiff’s claims were not justiciable because they were inextricably bound to the 23 question of whether the government’s decision to fund the Colombian National Army’s 18th 24 Brigade was proper. 774 F.3d 544, 552 (9th Cir. 2014). In Bixby, the district court found

25 claims against a government contractor who failed to advise plaintiffs of hazardous chemicals 1 at their work site justiciable because “the matter fundamentally at issue [was the] defendants’ 2 performance of [their] contractual obligations . . . rather than the advisability of any 3 governmental policy decision.” 748 F. Supp. 2d at 1239. 4 Here, the Court concludes that Plaintiffs’ claims are justiciable because they require an 5 inquiry only into the reasonableness of SOC’s performance of its duties under the contract. As 6 explained above, SOC possessed significant discretion in operating security posts at the NNSS. 7 (See Section (III)(A)(1)). The core factual question presented by Plaintiffs’ claims—whether 8 SOC and its employee Guard were negligent in admitting an allegedly intoxicated Pollard into 9 the NNSS—demands inquiry into the reasonableness of SOC procedures, not governmental 10 policy decisions. 11 In characterizing this case as inextricably intertwined with “sensitive national security 12 decisions undertaken to protect nuclear weapons,” SOC paints with too broad a brush. (Mot. 13 Dismiss 11:14–18). The government did not dictate the security procedures that SOC 14 implemented at NNSS security posts, but rather afforded them flexibility to design those 15 procedures themselves. (See PWS at 6–12, Ex. 2 to Mot. Dismiss). Mere proximity to a nuclear 16 weapons site is not sufficient to deprive courts of jurisdiction over judicially manageable tort 17 claims. Further, the cases cited by SOC in support of its argument are distinguishable. (See 18 Mot. Dismiss 13:1–14). Each of these cases involved factual situations in which the 19 government possessed a meaningful amount of control. See Carmichael v. Kellogg, Brown & 20 Root Servs., Inc., 572 F.3d 1271, 1281–83 (11th Cir. 2009) (plaintiff’s claims for negligent 21 operation of fuel tanker by contractor’s employee non-justiciable because military dictated 22 factors leading to the accident including amount of fuel carried and route of the tanker); 23 Whitaker v. Kellogg Brown & Root Servs., Inc., 444 F. Supp. 2d 1277 (M.D. Ga. 2006) (same); 24 Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal.) (plaintiff’s claims non-

25 justiciable because they required court to inquire into military strategy); Zukerbraun v. Gen. 1 Dynamics Corp., 755 F. Supp. 1134 (D. Conn. 1990) (plaintiff’s claims non-justiciable because 2 they required court to inquire into “the appropriateness of the rules of engagement and standing 3 orders”). 4 Because Plaintiffs’ claims require the Court to examine the propriety of SOC 5 procedures, this case does not involve “a textually demonstrable commitment of the issue to a 6 coordinated political department,” nor an “impossibility of deciding without an initial policy 7 determination of a kind clearly for nonjudicial discretion.” Baker, 368 U.S. at 217. 8 Accordingly, the Court declines to dismiss this case as non-justiciable under the political 9 question doctrine. 10 3. Federal Enclave Doctrine 11 SOC next contends that Plaintiffs’ claims are barred by the federal enclave doctrine. 12 (Mot. Dismiss 16:10–17:23). Article 1, Section 8, Clause 17 of the United States Constitution 13 establishes the principle that federal law applies on federal enclaves: 14 Congress shall have Power ... [t]o exercise exclusive Legislation in all Cases whatsoever, over such District[s] ... as may, by Cession of particular States, and 15 the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of 16 the Legislature of the State in which the Same shall be, for the Erection of Forts, 17 Magazines, Arsenals, dock-Yards, and other needful Buildings. 18 U.S. CONST. art. 1, § 8, cl. 17. As this clause has been interpreted, when the federal 19 government purchases state land with the consent of the state legislature, or the state legislature 20 cedes the land voluntarily, “any law existing [on that land] must derive its authority and force 21 from the United States and is for that reason federal law.” Cnty. of San Mateo v. Chevron 22 Corp., 32 F.4th 733, 749 (9th Cir. 2022) (quoting Mater v. Holley, 200 F.2d 123, 124 (5th Cir. 23 1962)) (internal quotations omitted). Thus, unless an exception applies, any conduct on a 24 federal enclave is governed by federal law. Id. However, preexisting state law not inconsistent 25 with federal policy becomes federal law and is applicable as well. Cooper v. Southern 1 California Edison Co., 170 Fed. Appx. 496, 497 (9th Cir. 2006) (citing Paul v. United States, 2 371 U.S. 245, 263–64 (1963)). 3 Thus, the first step in the Court’s inquiry is determining whether the conduct 4 underpinning Plaintiffs’ claims occurred on a federal enclave. It is not disputed between the 5 parties that the NNSS is a federal enclave, and indeed, another Judge in his District has 6 recognized that NNSS is a federal enclave. (Mot. Dismiss 16:10–17:23); (see Resp. 15:9– 7 17:18); see Estate of Graves v. Nye Cnty., No. 2:20-cv-02359-CDS-DJA, 2023 WL 4747404, at 8 *5 (D. Nev. July 24, 2023). It is also not disputed between the parties that the conduct 9 complained of here occurred within the NNSS. (See Compl. ¶¶ 96–126, Ex. 1 to Pet. Removal); 10 (Mot. Dismiss 16:10–17:23). 11 Having determined that the NNSS is a federal enclave, the Court next determines 12 whether the state law on which Plaintiffs base their claims was enacted prior to the date on 13 which the NNSS became a federal enclave. If it was, then it becomes part of the “federal law” 14 in effect within the federal enclave, and Plaintiff’s state law claims are not barred. Cooper, 170 15 Fed. Appx. at 497. If it was enacted after the NNSS became a federal enclave, Plaintiffs’ 16 claims are barred. Id. SOC argues that the NNSS became a federal enclave in 1864 when 17 Congress passed the Nevada Admission Acts, under which “the people inhabiting [Nevada] do 18 agree and declare that they forever disclaim all right and title to the unappropriated public lands 19 lying within said territory, and that the same shall be and remain at the sole and entire 20 disposition of the United States.” (Mot. Dismiss 17:2–14) (citing Nevada Admission Acts at 5, 21 Ex. 4 to Appendix of Exhibits Vol. II, ECF No. 30-4). Thus, SOC contends, because the state 22 law on which Plaintiffs base their claims did not exist prior to 1864, Plaintiffs’ claims are 23 barred. (Id. 17:15–23). 24 However, the date on which the NNSS became a federal enclave is not as clear as SOC

25 makes it out to be. Indeed, in Estate of Graves, Judge Silva declined to recognize the exact 1 date on which the NNSS became a federal enclave, stating only that, “at latest,” the NNSS 2 would have become a federal enclave after the passage of the National Nuclear Security 3 Administration Act in 2000. 2023 WL 4747404, at *5. At bottom, SOC’s argument relies on 4 the assumption that, at the time the Nevada Admission Acts were passed, the NNSS was 5 “unappropriated public land.” (Nevada Admission Acts at 5, Ex. 4 to Appendix of Exhibits 6 Vol. II). 7 Historical evidence casts doubt on the validity of this assumption. The NNSS was 8 formerly the Nevada Test Site (“NTS”), which was created in 1950 when President Harry 9 Truman “authorized a 680-square mile section of the Nellis Air Force Gunnery and Bombing 10 Range in Southern Nevada” for use as a nuclear testing site. Our History, Nevada National 11 Security Site (Mar. 19, 2026), https://nnss.gov/about-the-nnss/nnss-history/.3 Nellis Air Force 12 Base, originally named the Las Vegas Army Air Field, opened in 1941. Continuing Evolution: 13 75 Years of Nellis History, Nellis Air Force Base (Mar. 19, 2026), 14 https://www.nellis.af.mil/News/Article/664716/continuing-evolution-75-years-of-nellis- 15 history/. However, prior to 1941, the land on which Nellis Air Force Base stands was home to 16 the Las Vegas Airport, a privately owned and operated business that opened in 1929. Id. In 17 1941, the same year that the Las Vegas Army Air Field opened, the city of Las Vegas 18 purchased the airfield, and thereafter leased the airfield to the U.S. Army. Id. 19 The above is irreconcilable with SOC’s contention that the land on which the NNSS sits 20 has been a federal enclave since 1864. While the Court makes no finding regarding the precise 21 date on which the NNSS became a federal enclave, at earliest, the land on which it sits became 22 a federal enclave in 1950. Here, all of Plaintiff’s state law claims were recognized under 23 Nevada law prior to 1950. See Sherman v. Southern Pac. Co., 111 P. 416, 420 (Nev. 1910) 24

25 3 Under Federal Rule of Evidence 201, the Court may take judicial notice of “official information posted on a governmental website, the accuracy of which [is] undisputed.” Arizona Libertarian Party v. Reagan, 798 F.3d 723, 727 n. 3 (9th Cir. 2015) (citations omitted). 1 (discussing tort of negligence); Forrester v. Southern Pac. Co., 134 P. 753, 767 (Nev. 1913) 2 (discussing vicarious liability of principal for agent’s negligence); McDonough v. Mayor, etc., 3 of New York City, 6 Nev. 90, 93 (1870) (discussing tort of negligent performance of 4 undertaking); Nordyke v. Pastrell, 7 P.2d 598, 599 (Nev. 1932) (discussing action for wrongful 5 death); Peck v. Woomack, 192 P.2d 874, 882 (Nev. 1948) (discussing claim for negligent 6 hiring); Anderson v. McGill Club, 266 P. 913, 915 (Nev. 1928) (discussing claim for loss of 7 consortium). 8 Accordingly, because Plaintiffs’ claims are based on Nevada state law which existed 9 prior to 1950, that law is a part of the federal law operative on the federal enclave, and 10 Plaintiffs’ claims are not barred. The Court thus DENIES SOC’s Motion to Dismiss for lack of 11 subject matter jurisdiction. 12 B. Motion to Dismiss for Failure to State a Claim 13 The Court next turns to SOC’s Motion to Dismiss for failure to state a claim under 14 FRCP 12(b)(6). SOC moves to dismiss all of Plaintiffs’ claims, arguing that the factual 15 allegations pled fail to state a claim on which relief can be granted. (See Mot. Dismiss 17:25– 16 24:18). In response, Plaintiffs contend that they have pled sufficient factual allegations for 17 each claim, and in the alternative request leave to amend. (See Resp. 17:22–24:20). The Court 18 addresses each of Plaintiffs’ claims in turn. 19 1. Negligence 20 To prevail on a negligence claim, a plaintiff must show: (1) the existence of a duty of 21 care, (2) breach of that duty, (3) legal causation, and (4) damages. Sanchez ex rel. Sanchez v. 22 Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009). Under common law principles, no 23 duty it owed to control the dangerous conduct of another or to warn others of the dangerous 24 conduct. Id. (citing Mangeris v. Gordon, 580 P.2d 481, 483 (Nev. 1978)). However, an

25 affirmative duty to aid others arises when (1) a special relationship exists between the parties or 1 between the defendant and the identifiable victim, and (2) the harm created by the defendant’s 2 conduct is foreseeable. Id. (citing Lee v. GNLV Corp., 22 P.3d 209, 212 (Nev. 2001)). 3 SOC argues that Plaintiff has failed to plausibly allege duty, breach, and causation. 4 (Mot. Dismiss 18:17–19:25). With respect to the duty element, SOC argues that Plaintiffs have 5 failed to plead factual allegations establishing a special relationship between SOC and the 6 victims, Prince and Post. (Id. 19:10–12). In response, Plaintiffs contend that they have 7 plausibly alleged a special relationship, pointing to Prince and Post’s status as “government- 8 contractors-employees who worked within the NNSS’s secured premises.” (Resp. 19:11–14 9 (citing Compl. ¶¶ 41, 43, 47–48, Ex. 1 to Pet. Removal)). 10 Under Nevada law, the “pivotal factor” in the determination of liability arising from 11 certain relationships is “the element of control.” Scialabba v. Brandise Const. Co., Inc., 921 12 P.2d 928, 930 (Nev. 1996). As the Nevada Supreme Court explained in Scialabba, “since the 13 ability of one of the parties to provide for his own protection has been limited in some way by 14 his submission to the control of the other, a duty should be imposed upon the one possessing 15 control (and thus the power to act) to take reasonable precautions to protect the other one from 16 assaults by third parties which, at least, could reasonably have been anticipated.” Id. There, the 17 Nevada Supreme Court found that a construction contractor exercised sufficient control over an 18 apartment complex to give rise to a special relationship between the contractor and a tenant. Id. 19 at 931. 20 Here, Plaintiffs plausibly allege that SOC exercised a similar level of control over the 21 NNSS. Plaintiffs’ Complaint alleges that “SOC secured, controlled, and managed access to 22 travel” within the NNSS, and “exercised possession, control, management, and supervision 23 over the safety of the NNSS premises.” (Compl. ¶¶ 26–28, Ex. 1 to Pet. Removal). Further, 24 Plaintiffs have plausibly alleged that the harm created by SOC’s conduct was foreseeable.

25 Specifically, Plaintiffs allege that SOC had in the past addressed alcohol related issues, 1 including removing intoxicated drivers from NNSS roadways. (Id. ¶¶ 35–37). Further, as 2 Plaintiffs argue in their Response, accidents caused by intoxicated drivers are “all too 3 predictable.” (Resp. 20:23–26 (quoting Coty v. Washoe Cnty., 839 P.2d 97, 103 (Nev. 1992) (J. 4 Rose, J. Springer, dissenting))). Taking those allegations to be true, as the Court must at the 5 motion to dismiss stage, the Court finds that Plaintiffs have plausibly alleged a special 6 relationship between SOC and Prince and Post sufficient to impose a duty of reasonable care. 7 Second, Plaintiffs have plausibly alleged a breach of that duty. While SOC argues that 8 Plaintiffs only allege breach as a legal conclusion, Plaintiffs’ Complaint does allege factual 9 allegations establishing breach. (Mot. Dismiss 19:6–10). Specifically, Plaintiff alleges that 10 SOC acted unreasonably “by permitting Pollard, an individual exhibiting overt signs of 11 impairment, to access the [NNSS] and drive a motor vehicle into the NNSS.” (Compl. ¶ 129, 12 Ex. 1 to Pet. Removal). Especially given Plaintiffs’ other allegations that SOC had addressed 13 alcohol related issues in the past, (see id. ¶¶ 34–39), Plaintiffs’ Complaint plausibly alleges that 14 SOC breached its duty of reasonable care. 15 Third, Plaintiffs have plausibly alleged that SOC’s breach was both the but-for and 16 proximate cause of Post and Prince’s deaths. Proximate cause is defined as “any cause which 17 in natural (foreseeable) and continuous sequence unbroken by any efficient intervening cause, 18 produces the injury complained of and without which the result would not have occurred.” 19 Clark Cnty. School Dist. v. Payo, 403 P.3d 1270, 1279 (Nev. 2017) (quoting Goodrich & 20 Pennington Mortg. Fund, Inc. v. J.R. Woolard, Inc., 101 P.3d 792, 797 (Nev. 2004)). SOC 21 argues that Plaintiffs fail to plausibly allege proximate cause because there was a “break in 22 causation,” pointing to the fact that the accident occurred over an hour after Pollard was 23 admitted into the NNSS. (Mot. Dismiss 19:18–25). The Court disagrees. Plaintiffs have 24 alleged that Pollard was visibly intoxicated, and that the potential for harm caused by his

25 intoxication was foreseeable to SOC. (See Compl. ¶¶ 36–38). Ultimately, proximate cause is a 1 question of fact for the jury. See Foster v. Costco Wholesale Corp., 291 P.3d 150, 153 (Nev. 2 2012). At this stage in the litigation, Plaintiffs have plausibly pled that SOC’s breach was the 3 but-for and proximate cause of Post and Prince’s deaths. Accordingly, the Court DENIES 4 SOC’s Motion to Dismiss this claim. 5 2. Negligent Performance of Undertaking 6 For state claims of negligent performance of an undertaking, Nevada follows the 7 Restatement (Second) of Torts. Olvera v. Shafer, No. 2:14-cv-01298-GMN-NJK, 2015 WL 8 1960736, at *3 (D. Nev. Apr. 29, 2015) (citing Wiseman v. Hallahan, 945 P.2d 945, 947–48 9 (Nev. 1997)). The Restatement provides: 10 One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's 11 person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if 12 (a) his failure to exercise such care increases the risk of such harm, or 13 (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon 14 the undertaking. 15 Restatement (Second) of Torts § 323 (1977). SOC argues that Plaintiffs have failed to 16 plead factual allegations establishing that SOC undertook to protect Plaintiffs from the 17 harm of an intoxicated driver. (Mot. Dismiss 20:1–13). But Plaintiffs allege that “SOC’s 18 duties included . . . removing drunken drivers from NNSS roadways.” (Compl. ¶ 36, Ex. 19 1 to Pet. Removal). It is plausible that SOC’s alleged failure to exercise care in 20 undertaking those duties would increase the risk of harm to other persons within the 21 NNSS. Thus, the Court DENIES SOC’s Motion to Dismiss this claim. 22 3. Negligent Hiring, Training, Retention, and Supervision 23 Under Nevada law, to establish a claim for negligent hiring, training, retention, or 24 supervision of employees, a plaintiff must show: (1) a duty of care defendant owed the 25 plaintiff; (2) breach of that duty by hiring, training, retaining, and/or supervising an 1 employee even though defendant knew, or should have known, of the employee's 2 dangerous propensities; (3) the breach was the cause of plaintiff's injuries; and (4) 3 damages. Freeman Expositions, LLC v. Eighth Jud. Dist. Ct. in and for Cnty. of Clark, 4 520 P.3d 803, 811 (Nev. 2022). “[An] employer has a duty to use reasonable care in the 5 training, supervision, and retention of his or her employees to make sure that the 6 employees are fit for their positions.” Hall v. SSF, Inc., 930 P.2d 94, 99 (Nev. 1996). 7 Plaintiffs must specifically show “how [the] employer violated its duty.” Reece v. 8 Republic Servs., Inc., No. 2:10-cv-00114-GMN-RJJ, 2011 WL 868386, at *11 (D. Nev. 9 Mar. 10, 2011). 10 SOC argues that Plaintiffs fail to plead sufficient factual allegations to plausibly 11 state a claim for negligent hiring. (Mot. Dismiss 21:4–20). The Court agrees. While 12 Plaintiffs allege that SOC was aware of Pollard’s previous conduct issues with alcohol, 13 (see Compl. ¶¶ 85, 92–95), they fail to allege why the SOC Doe Guard who operated the 14 First Gate to the NNSS was not fit for their position or inadequately trained. (See 15 generally id.). While Plaintiffs appear to imply that SOC failed to train the Doe Guard 16 regarding Pollard and other Amentum employees, Plaintiffs do not allege with 17 specificity that SOC’s training was inadequate. (Id. ¶ 95). Accordingly, the Court 18 GRANTS SOC’s Motion to Dismiss this claim. However, because amendment would 19 not be futile, the Court grants Plaintiffs leave to amend to cure this deficiency. 20 4. Vicarious Liability for Negligent Acts of SOC Doe Guard 21 Plaintiffs assert standalone claims against SOC for vicarious liability based on both their 22 negligence claim and their negligent performance of undertaking claim. (Id. ¶¶ 134–38, 150– 23 54). As SOC argues, “[v]icarious liability is not an independent cause of action, but rather a 24 theory assigning liability.” Mitschke v. Gosal Trucking, LDS, No. 2:14-cv-01099-JCM-VCF,

25 2014 WL 5307950, at *2 (D. Nev. Oct. 16, 2014) (citing Okeke v. Biomat USA, Inc., 927 F. 1 Supp. 2d 1021, 1028 (D. Nev. 2013)). Accordingly, the Court GRANTS SOC’s Motion to 2 Dismiss this claim with prejudice. This does not foreclose an argument from Plaintiffs later in 3 the litigation that SOC is vicariously liable on any of the remaining claims. 4 5. Plaintiffs’ Claim for Wrongful Death Under NRS 41.085(2) 5 Under NRS 41.085(2), when the death of a person “is caused by the wrongful act or 6 neglect of another,” the heirs or personal representatives of a decedent may bring a claim for 7 damages against the person “who caused the death.” Nev. Rev. Stat. § 41.085(2). SOC argues 8 that this claim should be dismissed because Plaintiffs fail to allege factual allegations 9 supporting a negligent or wrongful act. (Mot. Dismiss 23:13–24:6). However, as explained 10 above, Plaintiffs have plausibly pled a claim for negligence against SOC and SOC Doe Guard, 11 the same Defendants named in Plaintiff’s wrongful death claim. (See Section (III)(B)(1)); 12 (Compl. 17:26, Ex. 1 to Pet. Removal). Accordingly, the Court DENIES SOC’s Motion to 13 Dismiss this claim. 14 6. Plaintiffs’ Claims for Loss of Consortium 15 The final claims brought by Plaintiffs are two claims for loss of consortium, one brought 16 by Darlene Post, and the other brought by Kipalee Prince. (Compl. ¶¶ 173–86, Ex. 1 to Pet. 17 Removal). SOC again argues that these claims must be dismissed because they depend on 18 Plaintiff’s claims for negligence, negligent performance of undertaking, and negligent hiring, 19 training, retention, or supervision, which SOC contend fail. (Mot. Dismiss 24:9–18). However, 20 because the Court denies SOC’s Motion to Dismiss with respect to Plaintiffs’ claims for 21 negligence and negligent performance of undertaking, Plaintiffs’ claims for loss of consortium 22 survive. Accordingly, the Court DENIES SOC’s Motion to Dismiss these claims. 23 C. The Parties’ Motions to Seal 24 The Court next turns to the three Motions to Seal filed by the parties. SOC seeks to seal

25 its Motion to Dismiss, (ECF No. 29), Appendix of Exhibits Vol. I, (ECF No. 30), and its Reply, 1 (ECF No. 44). (SOC First Mot. Seal 7:12–14, ECF No. 28); (SOC Second Mot. Seal 5:5–6, 2 ECF No. 43). Plaintiffs seek to file their Response to SOC’s Motion to Dismiss, (ECF No. 37), 3 under seal. (Plaintiffs’ Mot. Seal 1:21–27, ECF No. 36). 4 Each Motion seeks to seal the underlying filing because it contains references to 5 information deemed confidential by the National Nuclear Security Administration (“NNSA”). 6 (SOC First Mot. Seal 3:2–3); (Plaintiffs’ Mot. Seal 3:4–7); (SOC Second Mot. Seal 4:15–17). 7 SOC argues that good cause exists to seal briefing and exhibits on their Motion to Dismiss 8 because the parties stipulated to a protective order under which the parties agree to file 9 information labeled “Controlled Unclassified Information” (“CUI”) by the NNSA under seal. 10 (SOC First Mot. Seal 5:4–11); (see Stip. Regarding the Confidentiality of Documents, ECF No. 11 27). However, parties may not rely on a stipulated protective order to justify sealing documents 12 filed in the record under seal. Heath v. Tristar Products, Inc., No. 2:17-cv-02869-GMN-PAL, 13 2019 WL 12311995, at *1 (D. Nev. Apr. 17, 2019) (citing Foltz v. State Farm Mut. Auto. Ins. 14 Co., 331 F.3d 1122, 1133 (9th Cir. 2003)). 15 Because the Motions to Seal relate to SOC’s Motion to Dismiss, which is “more than 16 tangentially related to the merits of the case,” the “compelling reasons” standard applies. Ctr. 17 for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099, 1101 (9th Cir. 2016). Here, the 18 Court finds that national security interests are a compelling reason for filing the unredacted 19 versions of the briefing and exhibits on the Motion to Dismiss under seal.4 See, e.g., United 20 States ex re. Kelly v. Serco, Inc., No. 11-cv-2975-WQH-RBB, 2014 WL 12675246, at *4 (S.D. 21 Cal. Dec. 22, 2014). The Court finds that the documents contain sensitive information about 22

23 4 While the briefing on the Motion to Dismiss was all initially filed under seal, the Motion to Dismiss, (ECF No. 24 29), Exhibit 4 to Motion to Dismiss, (ECF No. 30-4), Exhibit 5 to Motion to Dismiss, (ECF No. 30-5), and Plaintiff’s Response, (ECF No. 37), contained redactions. Following an Order from this Court, the parties filed 25 unredacted version of those documents under seal. (See Order, ECF No. 46). The unredacted version of the Motion to Dismiss is filed under seal at ECF No. 48, the unredacted copies of Exhibits 4 and 5 are filed under seal at ECF No. 50, and the unredacted copy of Plaintiff’s Response is filed at ECF No. 52. 1 security procedures at the NNSS, including the makeup and design of badges used by 2 contractors working within the NNSS. (See, e.g., SGO-3 DOE Security Badge Information, Ex. 3 4 to Appendix of Exhibits Vol. I, ECF No. 30-4). 4 Accordingly, the Court GRANTS SOC’s Motion to Seal the Motion to Dismiss and 5 Appendix of Exhibits Vol. I, Plaintiffs’ Motion to Seal Response to Motion to Dismiss, and 6 SOC’s Motion to Seal Reply. However, under Local Rule IA 10-5, the Court orders that the 7 redacted versions of these documents be filed publicly on the docket.5 8 IV. CONCLUSION 9 IT IS HEREBY ORDERED that SOC’s Motion to Dismiss, (ECF No. 29), is 10 GRANTED, in part, and DENIED, in part. Plaintiffs’ claim for negligent hiring, training, 11 retention, or supervision is dismissed without prejudice and with leave to amend. 12 IT IS FURTHER ORDERED that SOC’s Motion to Seal Motion to Dismiss, (ECF No. 13 28), is GRANTED. The Clerk of Court is kindly directed to file the redacted versions of 14 SOC’s Motion to Dismiss, (ECF No. 29), and Exhibits 4 and 5, (ECF Nos. 30-4, 30-5), publicly 15 on the docket. 16 IT IS FURTHER ORDERED that SOC must file a redacted version of its Reply, (ECF 17 No. 44), publicly on the docket no later than seven days from the entry of this Order. 18 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Seal Response to Motion to 19 Dismiss, (ECF No. 36), is GRANTED. 20 /// 21 /// 22 /// 23 /// 24

25 5 The redacted versions of the Motion to Dismiss, (ECF No. 28), and Exhibits 4 and 5, (ECF Nos. 30-4, 30-5), were filed under seal but never filed publicly on the docket. The redacted version of Plaintiff’s Response, (ECF No. 51), was filed publicly. Finally, no redacted version of SOC’s Reply was ever filed. 1 IT IS FURTHER ORDERED that SOC’s Motion to Seal Reply, (ECF No. 43), is 2 || GRANTED. 3 DATED this 27 day of March, 2026. 4 5 Gloria M. atro, District Judge 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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