1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 GREGORY GAMBEL, Case No. 22-cv-04647-RMI
9 Plaintiff, ORDER RE: MOTION TO DISMISS 10 v. FIRST AMENDED COMPLAINT
11 UNITED STATES OF AMERICA, et al., Re: Dkt. No. 23 12 Defendants.
13 14 Plaintiff CG, a minor, has filed suit through his father, Gregory Gambel, against the United 15 States, the Presidio Trust (a federal corporation established under the Presidio Trust Act1 16 (hereafter, collectively referred to as the “Federal Defendants”), and Off the Grid Services, LLC 17 (hereafter, “Off the Grid”), a private company incorporated in Delaware. See First Amend. Compl. 18 (“FAC”) (dkt. 18) at 2. Now pending before the court is the Federal Defendants’ motion to dismiss 19 (dkt. 23). Plaintiff has responded (dkt. 26), and the Federal Defendants have replied (dkt. 28). 20 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the court finds the 21 matter suitable for disposition without oral argument. For the reasons stated herein, the Federal 22 Defendants’ motion is granted. 23 BACKGROUND 24 While on holiday in San Francisco in August of 2019, Plaintiff and his family attended a 25 public event on premises owned and operated by Federal Defendants. See FAC (dkt. 18) at 4. 26
27 1 See generally 16 U.S.C. § 460bb – 460bb-5 (establishing the Golden Gate National Recreation Area; 1 Specifically, Plaintiff alleges that Defendant Off The Grid paid Federal Defendants for the purpose 2 of hosting, producing, and/or organizing an event called, “Off the Grid: Presidio Picnic.” Id. at 5. 3 Plaintiff alleges that Federal Defendants placed and/or furnished a number of “Share Chairs” at the 4 premises of the picnic and invited the public, including children, to use the chairs. Id. According 5 to Plaintiff, the website of Defendant Presidio Trust shows that the “Share Chairs”2 are for use by 6 everyone – even reportedly showing “a person sitting on the back of such chair.” See FAC (dkt. 7 18) at 5. Plaintiff further alleges that “[n]o warnings were provided[,] including not to play or sit 8 on the back of the Share Chair or that one could be injured by doing so.” Id. On August 18, 2019, 9 while “utilizing” one of these “Share Chairs,” Plaintiff fell and was injured. Id. Notably, the FAC 10 does not explain how Plaintiff was “utilizing” the Share Chair when he fell and suffered his elbow 11 injury – instead, the FAC only generally states that the Presidio Trust’s website showed someone 12 sitting on the back of a Share Chair and that no warnings had been given to avoid playing or 13 sitting on the backs of these chairs. See generally id. 14 Federal Defendants submit that “[d]uring the 2019 time period at issue in this lawsuit, the 15 Presidio Trust had issued a temporary special use permit to Off the Grid Services, LLC for non- 16 exclusive use of certain exterior areas within the Main Post – mostly around the perimeter of the 17 Main Parade ground – for Presidio Picnics, a weekly event that featured local food trucks and 18 vendors.” See Fed. Defs.’ Mot. (23) at 8. As for the “Share Chairs,” the Federal Defendants submit 19 that they were introduced to the Presidio’s parade grounds in 2016 as part of a decision that “was 20 not mandated by the Presidio Trust’s enacting legislation, governing regulations, or land use 21 policies,” rather, “the Presidio Trust made the decision based on public feedback and lessons from 22 other parks on how to make the space more welcoming to visitors.” Id. Further, “[t]he Presidio 23 Trust contracted with Gehl Studios, Inc., a design firm focused on public spaces, to design the 24 chairs and contracted with another company, RMI, to manufacture the chairs.” Id. Thus, the chairs 25 – being generally available for the public’s use at certain times of year – were specifically 26
27 2 A “Share Chair” appears to be large moveable plastic object in the shape of a lawn chair. See: 1 designed for the Presidio’s Main Parade grounds; and, these chairs “were not removed during 2 Presidio Picnics and remained available on the Main Parade ground for attendees’ and [] the 3 public’s use.” Id. 4 LEGAL STANDARDS 5 Federal Defendants’ dismissal motion argues that the court lacks subject matter jurisdiction 6 over Plaintiff’s claims against them for a number of reasons (i.e., dismissal under Fed. R. Civ. P. 7 12(b)(1)), and also that Plaintiff’s FAC fails to state a claim upon which relief may be granted 8 (i.e., dismissal under Fed. R. Civ. P. 12(b)(6)). 9 Starting with the jurisdictional arguments, the court will note that federal courts are courts 10 of limited jurisdiction – the general character of which is delineated by Article III, §2, of the 11 Constitution; moreover, “lower federal-court jurisdiction is further limited to those subjects 12 encompassed within a statutory grant of jurisdiction,” thus, generally speaking, “the district courts 13 may not exercise jurisdiction absent a statutory basis.” See Home Depot U.S.A., Inc. v. Jackson, 14 139 S. Ct. 1743, 1746 (2019) (quoting Insurance Corp. of Ireland v. Compagnie des Bauxites de 15 Guinee, 456 U. S. 694, 701(1982); and, Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 16 546, 552 (2005)). In light of that, jurisdiction is a fundamental question that must be addressed 17 prior to any consideration of the merits of a case. See Steel Co. v. Citizens for a Better Env’t, 523 18 U.S. 83, 93-94 (1998) (universally rejecting the approach taken by numerous lower courts in 19 assuming jurisdiction for the purpose of deciding the merits). For that reason, Rule 12(b)(1) 20 authorizes parties to seek pre-answer dismissal if the court lacks subject matter jurisdiction; and 21 Rule 12(h)(3) requires a court to sua sponte dismiss an action if it “determines at any time that it 22 lacks subject matter jurisdiction.” (emphasis added). 23 A Rule 12(b)(1) jurisdictional attack may be facial or factual: through a facial challenge, 24 the movant contends that the allegations contained in a complaint, on their face, are insufficient to 25 invoke federal jurisdiction; on the other hand, through a factual challenge, the challenger disputes 26 the truth of the allegations that, by themselves, would otherwise trigger federal jurisdiction. See 27 Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (2004) (citing White v. Lee, 227 F.3d 1214, 1 beyond the complaint without converting the motion to dismiss into a motion for summary 2 judgment. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) 3 (citing White, 227 F.3d at 1242). In the course of that component of the review, courts do not need 4 to presume the truthfulness of the plaintiff’s allegations. White, 227 F.3d at 1242. “Once the 5 moving party has converted the motion to dismiss into a factual motion by presenting affidavits or 6 other evidence properly brought before the court, the party opposing the motion must furnish 7 affidavits or other evidence necessary to satisfy its burden of establishing subject matter 8 jurisdiction.” Safe Air For Everyone, 373 F.3d at 1039 (quoting Savage, 343 F.3d at 1039, n.2) 9 (internal quotation marks omitted). 10 It should also be noted that “[i]t is elementary that the United States, as sovereign, is 11 immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any 12 court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 13 538 (1980) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)) (internal quotations 14 omitted). Waivers of sovereign immunity must be “unequivocally expressed in the statutory text[,] 15 . . . strictly construed in favor of the United States, and not enlarged beyond what the language of 16 the statute requires.” United States v. Idaho, 508 U.S. 1, 6-7 (1993) (internal citations and 17 quotations omitted); see also Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011). A suit 18 against a federal agency or officer which seeks relief against the sovereign is, in effect, a suit 19 against the sovereign. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88 20 (1949). For that reason, the principles of sovereign immunity continue to apply whenever a federal 21 agency is sued. Id. 22 Sovereign immunity, therefore, is also jurisdictional bar – that is to say, unless a statutory 23 waiver exists, courts lack jurisdiction to entertain a suit against the United States or its agencies. 24 Sherwood, 312 U.S. at 586. Put another way, an assertion of sovereign immunity is essentially a 25 motion to dismiss for lack of subject-matter jurisdiction, to which the same legal standards apply. 26 See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (“The question whether [of] 27 whether the United States has waived its sovereign immunity against suits for damages is, in the 1 prove an explicit waiver of sovereign immunity. Dunn & Black, P.S. v. United States, 492 F.3d 2 1084, 1088 (9th Cir. 2007); see also McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 3 178, 189 (1936) (holding that because the plaintiff sought relief, “it follows that he must carry 4 throughout the litigation the burden of showing that he is properly in court”). 5 As to Federal Defendants’ arguments pursuant to Rule 12(b)(6), in reviewing the 6 sufficiency of a complaint before the presentation of any evidence either by affidavit or 7 admissions, the court’s task is limited – the issue is not whether a plaintiff will ultimately prevail, 8 instead the issue is whether a plaintiff is even entitled to offer evidence to support the claims. See 9 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Gilligan v. Jamco Development Corp., 108 10 F.3d 246, 249 (9th Cir. 1997). Dismissal is proper when an operative complaint either fails to 11 advance “a cognizable legal theory,” or fails to present “sufficient facts alleged under a cognizable 12 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also 13 Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). 14 In evaluating such motions, courts must: (1) construe the operative complaint in the light 15 most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) 16 determine whether plaintiff can prove any set of facts to support a claim that would merit relief. 17 See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). However, courts are not 18 required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, 19 or unreasonable inferences.” In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 20 2008) (citation omitted). Courts “need not assume the truth of legal conclusions cast in the form of 21 factual allegations,” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir. 1986), and 22 therefore courts must not “assume that the [plaintiff] can prove facts that [he or she] has not 23 alleged or that the defendants have violated . . . laws in ways that have not been alleged.” See 24 Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 25 U.S. 519, 526 (1983). 26 To survive dismissal under the standards associated with Rule 12(b)(6), while complaints 27 do not necessarily need to be overflowing with detail, they do need to contain enough relevant 1 so “requires more than labels and conclusions, and a formulaic recitation of the elements of a 2 cause of action . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations 3 omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 4 enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 5 557). Under these standards, courts follow a “two-prong approach” for addressing a motion to 6 dismiss: (1) first, the tenet that a court must accept as true all of the allegations contained in a 7 complaint does not apply to legal conclusions, threadbare recitals of the elements of a cause of 8 action, or conclusory statements; and, (2) only a complaint that states a plausible claim for relief 9 survives a motion to dismiss. Plausibility is a context-specific task that requires the reviewing 10 court to draw on its judicial experience and common sense; however, where the well-pleaded facts 11 do not permit the court to infer more than the mere possibility of misconduct, the complaint may 12 have alleged, but it has failed to “show,” “that the pleader is entitled to relief” as required by Fed. 13 Rule Civ. Proc. 8(a)(2). See generally Iqbal, 556 U.S. at 678-79. 14 In light of these principles, a court considering a Rule 12(b)(6) motion to dismiss can 15 choose to begin by identifying allegations that, because they are no more than conclusions, are not 16 entitled to the assumption of truth. Id. at 679. While legal conclusions can provide the framework 17 of a complaint, they must be supported by well-pleaded factual allegations. Id. When a complaint 18 does in fact contain well-pleaded and factual allegations, courts will assume their veracity and 19 then determine whether they plausibly give rise to an entitlement to relief. Id. In short, for a 20 complaint to survive a Rule 12(b)(6) motion to dismiss, the non-conclusory factual content, and 21 reasonable inferences from that content, must plausibly suggest a claim entitling the plaintiff to 22 relief. See Moss v. United States Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009). 23 As to the nature of dismissals in general, leave to amend should be granted unless it is 24 clear that amendment would be futile because further amendments cannot remedy the defects in 25 the complaint. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008); see also 26 Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005); California 27 ex rel. California Department of Toxic Substances Control v. Neville Chemical Co., 358 F.3d 661, 1 futile.”) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 2 DISCUSSION 3 “The FTCA [Federal Tort Claims Act] waives the United States’ sovereign immunity for 4 claims seeking money damages for injury or loss of property, or personal injury or death caused 5 by the negligent or wrongful act or omission of any employee of the Government while acting 6 within the scope of his office or employment, under circumstances where the United States, if a 7 private person, would be liable to the claimant in accordance with the law of the place where the 8 act or omission occurred.” Nanouk v. United States, 974 F.3d 941, 944 (9th Cir. 2020) (citing 28 9 U.S.C. § 1346(b)(1) (internal quotation marks omitted)). The FTCA’s broad waiver of sovereign 10 immunity is subject to certain exceptions, including the discretionary function exception asserted 11 by Federal Defendants in this case; that exception preserves the United States’ immunity from suit 12 as to any claim “based upon the exercise or performance or the failure to exercise or perform a 13 discretionary function or duty on the part of a federal agency or an employee of the Government, 14 whether or not the discretion involved be abused.” Nanouk, 974 F.3d at 944 (citing 28 U.S.C. § 15 2680(a)). The government bears the burden of establishing that the exception applies. Nanouk, 974 16 F.3d at 944 (citing Chadd v. United States, 794 F.3d 1104, 1108 (9th Cir. 2015)). 17 Courts employ a two-step inquiry to determine whether the discretionary function 18 exception is applicable. Nanouk, 974 F.3d at 944-45. Under the first step, courts inquire into 19 whether the act or omission on which the plaintiff’s claim is based was discretionary in nature – 20 essentially, whether it “involve[d] an element of judgment or choice.” Id. at 945 (quoting 21 Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If the act did not involve an element of 22 judgment or choice, the analysis ends there and the plaintiff’s claim may proceed because, “if the 23 employee’s conduct cannot appropriately be the product of judgment or choice, then there is no 24 discretion in the conduct for the discretionary function exception to protect.” Berkovitz, 486 U.S. 25 at 536. If the employee’s conduct did involve an element of judgment or choice, the inquiry 26 proceeds to the second step which asks whether the discretionary decision challenged by the 27 plaintiff “is of the kind that the discretionary function exception was designed to shield.” Nanouk, 1 understanding that “Congress sought to preclude courts from second guessing discretionary 2 judgments ‘grounded in social, economic, and political policy.’” Nanouk, 974 F.3d at 945 (quoting 3 United States v. Varig Airlines, 467 U.S. 797, 814 (1984)) Thus, the government would prevail at 4 step two if it can show that the decision challenged by the plaintiff is “susceptible to policy 5 analysis.” Nanouk, 974 F.3d at 945 (quoting United States v. Gaubert, 499 U.S. 315, 325). Here, 6 Federal Defendants argue that the court lacks subject matter jurisdiction over Plaintiff’s claim 7 against them because the discretionary function exception applies to preclude Plaintiff’s FTCA 8 claim. See Fed. Defs.’ Mot. (dkt. 23) at 11-16. 9 Improperly Named Defendants 10 As a preliminary matter, Federal Defendants argue that the Presidio Trust should 11 independently be dismissed because Plaintiff’s FTCA claim may only be brought against the 12 United States. See id. at 11. In that Plaintiff has invoked jurisdiction under 28 U.S.C. § 1346(b) 13 (see FAC (dkt. 18) at ¶ 1), which provides federal district courts jurisdiction in civil actions on 14 claims against the United States – Federal Defendants contend that “Plaintiff’s continued inclusion 15 of the Presidio Trust as a defendant in the FAC ignores the ‘well-established’ rule ‘that the 16 [FTCA] only authorizes lawsuits against the United States.’” Defs.’ Mot. (dkt. 18) at 11 (quoting 17 McAllister v. United States, No. 11-cv-03858, 2013 WL 2551990, at *2-3, *2 n.1 (N.D. Cal. June 18 10, 2013) (collecting cases and dismissing federal agencies and individual defendants under Rule 19 12(b)(1)). Thus, Federal Defendants contend that the Presidio Trust should thus be dismissed from 20 this case as a threshold matter. Id. (citing Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th 21 Cir. 1998) (affirming dismissal of an agency and an individual since “the United States is the only 22 proper party defendant in an FTCA action”)). 23 Plaintiff disagrees and suggests that the Presidio Trust has waived sovereign immunity for 24 suits under the FTCA because a portion of its legal claims policy reportedly states that from time 25 to time, it is in the best interest of the Presidio Trust to pursue and settle legal claims brought by, 26 or against, the Trust. See Pl.’s Opp. (dkt. 26) at 20. Plaintiff suggests that this statement, in 27 conjunction with the regulatory mechanism set forth at 36 C.F.R. Part 1009 (“Administrative 1 denial or payment of administrative claims, constitutes a waiver of sovereign immunity. 2 However, Plaintiff misses the point because, as stated above, “the district courts may not 3 exercise jurisdiction absent a statutory basis.” Home Depot, 139 S. Ct. at 1746 (emphasis added). 4 As to the provisions of Part 1009 of Title 36 of the Code of Federal Regulations, the existence of a 5 regulatory framework for exhausting an administrative remedy cannot be seriously contended to 6 constitute an ipso facto waiver of sovereign immunity in FTCA cases when the administrative 7 exhaustion is, itself, a prerequisite to bringing suit under the FTCA. See McNeil v. United States, 8 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they 9 have exhausted their administrative remedies.”). More importantly, the legal claims “policy 10 statement” issued by the Presidio Trust’s Board, and relied upon by Plaintiff, is neither of the 11 import that Plaintiff asserts (as it pertains to the regulations governing the Presidio Trust’s 12 administrative consideration of claims) (see generally Fed. Defs.’ Reply (dkt. 28) at 6), nor is it – 13 as Plaintiff suggests – an indication that “Defendant Presidio Trust has unambiguously waived [] 14 sovereign immunity as a federal agency for claims brought under the FTCA (see Pl.’s Opp. (dkt. 15 26) at 22). This suggestion misapprehends the concept of sovereign immunity at a fundamental 16 level because individual officers, agencies, and departments of the United States are not even able 17 to waive sovereign immunity, or to withdraw or modify waivers – “just as only Congress can 18 waive an agency’s sovereign immunity, so too only Congress can withdraw or modify a waiver of 19 immunity . . . because a waiver of the federal government’s sovereign immunity must be 20 unequivocally expressed in statutory text and will not be implied [and] [a]n agency cannot waive 21 the federal government’s sovereign immunity when Congress hasn’t.” See Gonzalez v. Blue Cross 22 Blue Shield Ass’n, 62 F.4th 891, 899 (5th Cir. 2023) (emphasis in original) (internal quotations 23 and citations omitted); see also Plaskett v. Wormuth, 18 F.4th 1072, 1086 (9th Cir. 2021) (“It is 24 well settled that only Congress enjoys the power to waive the United States’ sovereign 25 immunity.”); Lynch v. United States, 292 U.S. 571, 581 (1934) (“Although consent to sue was thus 26 given when the policy issued, Congress retained power to withdraw the consent at any time.”); 27 Becker Steel Co. of Am. v. Cummings, 296 U.S. 74, 80 (1935) (“Only compelling language in the 1 against the government granted in recognition of an obligation imposed by the Constitution.”); see 2 also United States v. Mitchell, 463 U.S. 206, 215-16 (1983) (“[N]o contracting officer or other 3 official is empowered to consent to suit against the United States. The same is true for claims 4 founded upon executive regulations.”). 5 Thus, there is no statutory basis under which a plaintiff can venture to name the Presidio 6 Trust as an independent defendant in a FTCA action. Under the FTCA, a claim against the United 7 States is the “exclusive” remedy for plaintiffs seeking to recover damages from the “negligent or 8 wrongful act or omission of any employee of the Government . . . acting within the scope of his 9 office or employment.” See 28 U.S.C. § 2679(b)(1). It is therefore clear that “the United States is 10 the only proper party defendant in an FTCA action . . .” See Kennedy, 145 F.3d at 1078; F.D.I.C. 11 v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (the FTCA “only allows claims against the United 12 States”); see also McAllister v. United States, 2013 U.S. Dist. LEXIS 82067, *4-9 (N.D. Cal. June 13 7, 2013) (collecting cases, finding that the United States is the only proper defendant under the 14 FTCA, and dismissing action against all defendants except the United States). Accordingly, given 15 that Plaintiff’s FAC only pleads a single cause of action, under the FTCA, and given that “the 16 United States is the only proper party defendant in an FTCA action,” Kennedy, 145 F.3d at 1078, 17 the Presidio Trust and all the individual Doe Defendants (to the extent which Plaintiff considers 18 these unidentified individuals to be federal employees, agents, or officers) are DISMISSED from 19 this action. 20 The Discretionary Function Exception 21 As to the resolution of Plaintiff’s FTCA claim against the only remaining Federal 22 Defendant – the United States argues that the claim must be dismissed under the discretionary 23 function exception “because there is no statute, regulation, or rule that requires the government to 24 take specific action with respect to the provision of public seating on the Main Parade ground[,] 25 [a]nd the decision concerning whether and how to provide such seating involves policy 26 considerations that courts lack jurisdiction to review [in this context].” See Fed. Defs.’ Mot. (dkt. 27 23) at 11. The government therefore contends that “[t]he discretionary function exception to the 1 or performance or the failure to exercise or perform a discretionary function or duty on the part of 2 a federal agency or an employee of the Government, whether or not the discretion involved was 3 abused.’” Id. at 11-12 (citing 28 U.S.C. 2680(a)). As to the two-prong test set forth above, the 4 government argues that the first prong (i.e., whether the act or omission on which the plaintiff’s 5 claim is based was discretionary in nature) “is satisfied when no ‘federal statute, regulation, or 6 policy specifically prescribes a course of action for an employee to follow.’” Id. at 12 (quoting 7 Gaubert, 499 U.S. at 322). The United States adds that if the policies that inform the conduct at 8 issue allow the exercise of discretion, then the government’s alleged acts or failures to act are 9 presumed to be discretionary. Id. (citing Lam v. United States, 979 F.3d 665, 674 (9th Cir. 2020)). 10 If the first prong is satisfied, it must then be determined whether the challenged judgment (i.e., to 11 provide chairs for public use) is of the kind that the discretionary function exception was designed 12 to shield – that is, whether the nature of the actions taken are susceptible to policy analysis – 13 because the exception is designed to “‘prevent judicial second-guessing of legislative and 14 administrative decisions grounded in social, economic, and political policy.’” Id. (quoting 15 Gaubert, 499 U.S. at 323). 16 As the government points out, Plaintiff’s FAC simply contends that the defendants 17 negligently “owned, operated, entrusted, rented, leased, furnished, supplied, designed, constructed, 18 repaired, modified, serviced, managed, controlled, supervised, maintained, inspected, occupied, 19 used, and/or possessed” the Main Parade ground in the Presidio. Id. (citing FAC (dkt. 18) at ¶ 16). 20 Plaintiff’s only assertions of any action or omission by the government in the FAC, appear to be: 21 (1) the government’s decision to place Share Chairs at the Main Parade ground for public use (see 22 FAC (dkt. 18) at ¶ 22); (2) the “configuration” of which chairs Plaintiff claims (in conclusory and 23 oblique fashion) “constitute[] a wide departure from common standards of chair construction” (see 24 id. at ¶¶ 26-28); and, (3) the government’s failure to warn the public “not to play or sit on the back 25 of the Share Chair or that one could be injured by doing so” (see id. ¶ 23). It is therefore 26 contended that “[t]his challenged conduct involves a significant element of judgment or choice 27 that is susceptible to policy analysis, and thus falls within the discretionary function exception.” 1 Plaintiff suggest that the United States is liable under applicable California law – 2 specifically, under “general California tort law,” and under California Government Code §§ 815 3 and 846. See Pl.’s Opp. (dkt. 26) at 6. Plaintiff also contends that the discretionary function 4 exception to the FTCA’s waiver of sovereign immunity does not apply in this case. See id. at 14- 5 19. The gist of Plaintiff’s argument is that the United States should not “be allowed to 6 administratively immunize itself from tort liability under applicable state law as a matter of 7 ‘policy.’” Id. at 15 (citing Bear Medicine v. United States, 241 F.3d 1208, 1215 (9th Cir. 2001)). 8 Plaintiff’s arguments in this regard seek to use a series of quotes from Bear Medicine to gobble-up 9 the entirety of the discretionary function exception to the FTCA’s waiver of sovereign immunity. 10 To place Bear Medicine into its proper context, a brief summary is necessary. In the course of 11 certain contracted-for logging operations on the Blackfeet Indian Reservation in Montana, a 12 member of the tribe was fatally injured when a tree fell on him; thereafter, his estate filed an 13 action under the FTCA against the United States. Bear Medicine, 241 F.3d at 1211. In holding that 14 the discretionary function exception did not apply in that case, the court explained that “the 15 Government has the burden of proving the discretionary function exception applies . . . [t]here 16 must be reasonable support in the record for a court to find, without imposing its own conjecture, 17 that a decision was policy-based or susceptible to policy analysis.” Id. at 1216. The court in that 18 case found the record to contain contrary indications given the fact that “[t]he BIA was required to 19 ensure that Lone Bear [Logging] complied with the contract provisions, which included OSHA 20 and internal regulations. It was also required to routinely inspect Lone Bear’s operations. It is the 21 only organization on the reservation with the appropriate safety expertise and it has virtually 22 complete control of the timbering operations on Indian lands. Its failure to require safety measures 23 or training was not a policy judgment that Congress intended to protect from FTCA liability.” Id. 24 at 1217. Thus, Bear Medicine can be fairly interpreted to stand for the proposition that due to the 25 fact that the government had failed to discharge its own obligations under its logging contract with 26 Lone Bear Logging (to wit – to routinely inspect Lone Bear’s operations such as to ensure 27 compliance with OSHA and internal safety regulations), and because owing to that failure, a fatal 1 intended to protect from FTCA liability.” Id. at 1217. 2 Relying on Bear Medicine, Plaintiff seeks to establish the broad proposition that “‘once the 3 Government has undertaken responsibility for the safety of a project, the execution of that 4 responsibility is not subject to the discretionary function exception.’” See Pl.’s Opp. (dkt. 26) at 5 16-17 (quoting Bear Medicine, 241 F.3d at 1215). Further, Plaintiff appears to ask the court to 6 assume that anytime the government does anything, it automatically undertakes a responsibility 7 for the safety of all aspects surrounding that undertaking. See id. However, Plaintiff overlooks the 8 fact that the government’s contracted-for inspection and supervisory obligations under the Lone 9 Bear Logging contract (which it failed to discharge) were the lynchpin of the Bear Medicine 10 court’s conclusion to the effect that the failure to discharge those contracted-for obligations were 11 not a policy decision, or at least that they were not the type of policy judgment that Congress 12 intended to protect from FTCA liability. The instant case contains none of those elements – there 13 was no contract, and therefore there was no contracted-for obligation to routinely inspect or 14 supervise any aspect of the deployment, or the public’s use, of the chairs in question. There was 15 simply a policy decision to provide chairs for the public’s use on the Presidio’s parade grounds 16 within the Golden Gate National Recreation Area. Accordingly, Plaintiff’s reliance on Bear 17 Medicine, for the purpose of imputing to the government the sorts of duties and obligations the 18 government had undertaken under the Lone Bear Logging contract, is misplaced. 19 It goes without saying that public spaces in general – and national parks and national 20 recreation areas in particular – are not exactly the most sterilized and sheltered of places; indeed, 21 many such places are attended with various conditions and circumstances that can been deemed 22 objectively hazardous and that should be negotiated with care. As an aside, however, the court 23 will, at this point, note Plaintiff’s conception of that notion:
24 By way of example, let’s take the Defendant’s argument to its logical conclusion using a similar scenario. Imagine the Government decides 25 to implement seating in another part of the Presidio. That decision may arguably be subject to a policy analysis. However, if in the 26 implementation of that decision the Government places the seating on the edge of a cliff in Land’s End such that it creates an unreasonable 27 risk of people falling onto the rocks below, that simply cannot be said It plainly follows that once the Government makes the decision to 1 provide seating, it then assumes the responsibility for the safe implementation of that decision. 2 See Pl.’s Opp. (dkt. 26) at 17-18. 3 A counterpoint to Plaintiff’s clifftop example appears in Valdez v. United States where, “[o]n July 4 25, 1991, Felix Valdez plummeted ninety feet down the face of the Ella Falls waterfall in Kings 5 Canyon National Park[,] [and] was rendered a quadriplegic.” 56 F.3d 1177, 1178 (9th Cir. 1995). 6 More specifically, while hiking along the Sunset Trail, and upon reaching the summit, Mr. Valzez 7 and his companions attempted to descend down the right side of the falls, he then lost his footing, 8 fell backward into a stream, and tumbled to the base of the falls. Id. Following the denial of his 9 administrative claim with the Department of the Interior seeking $60,000,000 in compensatory 10 damages, he filed suit under the FTCA “for the creation of known dangerous conditions by: (1) 11 negligently designing and maintaining a trail in a way that appeared to lead the trail onto the rock 12 bed of the waterfall; (2) having inadequate and/or insufficient warning signs; (3) failing to have 13 guard rails or to otherwise make the area safe; (4) failing to erect barriers to keep people from 14 attempting to cross the stream; and (5) failing to properly warn the public of potential hazards 15 through educational materials, brochures, signs, pamphlets and the like.” Id. 16 In affirming the district court’s finding that the discretionary function exception to the 17 FTCA’s waiver of sovereign immunity applied to bar Mr. Valdez’s lawsuit, the appellate court 18 disagreed with Mr. Valdez’s contention that the challenged conduct was not discretionary by 19 holding that the National Park Service’s decisions regarding warnings, trail maintenance, and trail 20 closures are clearly policy-based, “requiring them to balance access with safety, and take into 21 account conservation and resources in designing area plans and making individual trail 22 determinations.” Id. at 1180. The court added that “[b]ecause the [National Park Service] cannot 23 apprise the public of every potential danger posed by every feature of the Park, a degree of 24 judgment is required in order to determine which hazards require an explicit warning and which 25 hazards speak for themselves.” Id. As to the public policy considerations, the Valdez court added 26 that only “‘where the challenged governmental activity involves safety considerations under an 27 established policy, rather than the balancing of competing policy considerations, the rationale for 1 at 1180 (emphasis added) (quoting Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 2 1990), quoting ARA Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir. 1987)). As in 3 Valdez, “[s]uch is not the case here[,] [because] the challenged conduct clearly implicates a choice 4 between the competing policy considerations of maximizing access to and preservation of natural 5 resources versus the need to minimize potential safety hazards.” Id.3 6 In other words, the Presidio’s decision to provide Share Chairs for the public’s use on its 7 grounds did not involve any contractual duty to routinely inspect, supervise, or oversee the safe 8 use of the Share Chairs (Bear Medicine), nor was it attended with any safety considerations under 9 previously established policy (Summers and ARA Leisure Services4) – “[i]nstead, the Presidio 10 11 3 Childers v. United States, 40 F.3d 973, 973 (9th Cir. 1994) resulted in the same conclusion. Childers involved the death of David Childers, age 11, in a winter hiking accident in Yellowstone National Park – an 12 accident which resulted in a lawsuit filed by his mother and father as representatives of his estate. Id. After citing testimony and evidence that the National Park Service knew how dangerous the Lower Trail was in 13 winter, the Childers asserted that the failure to warn of known dangers was not a discretionary balancing of public policy concerns. Id. at 975. However, the appellate court found that this case was unlike the situations 14 involved in Summers, 905 F.2d at 1213-17, Boyd v. United States ex rel. U.S. Army, Corps of Engineers, 881 F.2d 895 (10th Cir. 3989), and Smith v. United States, 546 F.2d 872, 877 (10th Cir. 1976), “where the courts 15 found no evidence the decisions were based on public policy concerns.” Childers, 40 F.3d at 973. Instead, the Childers court found the situation to be more analogous to Kiehn v. United States, 984 F.2d 1100 (10th 16 Cir. 1993) (holding the Government immune from suit because the decision to post warning signs about the danger of scaling cliffs at Dinosaur National Monument is part of an overall park plan left to the discretion 17 of the National Park Service), and Johnson v. United States, 949 F.2d 332 (10th Cir. 1991) (dismissing action for lack of subject matter jurisdiction because the National Park Service’s determinations about warning sign 18 placement were discretionary acts). Childers explained that in those cases, “the Tenth Circuit found the exception applied because the particular decisions not to post warning signs were part of an overall [National 19 Park Service] plan based on a number of public policy factors.” Childers, 40 F.3d at 976. Specifically, the Childers court found that the decisions made in that case “reflected its determination of how best to manage 20 the park in winter[;] [u]nable to maintain all the trails in the park, cognizant that posting warning signs would inadvertently attract visitors to unmaintained trails, and unable to post signs throughout the park, [the 21 National Park Service] could only decide to close large portions of the park, or to keep the park open, provide visitors with information on the hazards, and take steps to discourage visitors from going to hazardous areas.” 22 Id. At bottom, the court in Childers found that park rangers used their discretion to balance, within the constraints of the resources available to them, a statutory mandate to provide access with the goal of public 23 safety, and that such a decision “was precisely the kind the discretionary function exception was intended to immunize from suit.” Id. 24 4 See ARA Leisure Services v. United States, 831 F.2d at 195 (In a case where a tour bus company, that was 25 sued by its passengers when one of its buses went off the road, brought an action against the United States, the court explained that “[w]e do not agree, however, that the failure to maintain Thoroughfare Pass in a safe 26 condition was a decision grounded in social, economic, or political policies . . . there is no clear link between Park Service road policies and the condition of Thoroughfare Pass, which had eroded from an original width 27 of twenty-eight feet to a width of 14.6 feet at the accident site and which had edges so soft as to be dangerous. In fact, there is evidence in the record that Park Service standards explicitly required that park roads conform 1 Trust made the [discretionary] decision based on public feedback and lessons from other parks on 2 how to make the space more welcoming to visitors.” See Fed. Defs.’ Mot. (dkt. 23) at 8 (citing 3 Rayes Decl., Ex. 3, (dkt. 23-4)). Because, “[i]n deciding to add the chairs, the Presidio Trust also 4 had to account for the character and landscape of the Presidio, as well as management of its 5 resources” (see id.), the court finds that the Presidio’s discretionary decision to provide Share 6 Chairs on its grounds falls well within the parameters described by Valdez, and that the 7 discretionary function exception to the FTCA’s waiver of sovereign immunity does indeed apply. 8 Plaintiff’s State Law Arguments 9 Plaintiff contends that Federal Defendants are liable under applicable California tort law 10 (general California tort law, California Government Code § 815, and California Civil Code § 11 8465) because 28 U.S.C. § 2674 states that a claim can only be asserted against the United States 12 if, in the same manner and to the same extent, a private individual would be liable under the 13 circumstances. Pl.’s Opp. (dkt. 26) at 6. Plaintiff adds that, pursuant to, 28 U.S.C. 1346(b), 14 liability must be determined in accordance with the law of the place where the act or omission 15 occurred – to wit, California. Id. Consequently, Plaintiff delves into the analysis of a number of 16 state court cases focused on chairs, negligence in general, and negligence with respect to chairs in 17 particular. See id. at 6-14. 18 The government responds that “[e]ven if the discretionary function exception did not bar 19 Plaintiff’s claim, the Court still lacks subject matter jurisdiction under California’s recreational use 20 statute, Cal. Civ. Code § 846(a), as applied here pursuant to the FTCA’s private person provision, 21 28 U.S.C. § 2674.” Fed. Defs.’ Reply (dkt. 28) at 9. The government notes that it has moved for 22 dismissal, inter alia, on immunity grounds, including under Cal Civ. Code § 846(a) (California’s 23 recreational use statute), which applies to “[a]n owner of any estate or any other interest in real 24
26 5 Initially, it should be noted that Plaintiff repeatedly cites, perhaps mistakenly, to Cal. Gov. Code § 846 (see Pl.’s Opp. (dkt. 26) at 2, 5, 6, 8, 20), and Federal Defendants correctly note (Fed. Defs.’ Reply (dkt. 28) at 9, 27 n.1) that California Government Code section 846 pertains to “injury caused by the failure to make an arrest or by failure to retain an arrested person in custody” and is inapplicable here. It is likely that in each of those 1 property,” as it relates to the FTCA’s private person provision. Fed. Defs.’ Reply Br. (dkt. 28) at 9 2 (citing Fed. Defs.’ Mot. (dkt. 23) at 16-17. While Plaintiff states that the question of what 3 constitutes “a recreational use” is a fact question that must be determined in light of the totality of 4 the circumstances (see Pl.’s Opp. (dkt. 26) at 8), the FAC does allege that Plaintiff and his family 5 were visiting the national park site while on vacation with his family, during which, they attended 6 an event which “provided food, entertainment, music, and seating for the public.” See FAC (dkt. 7 18) at ¶¶ 18,19. As the government points out, “[a]t a minimum, this constitutes ‘sightseeing’ or 8 ‘viewing or enjoying historical, archaeological, scenic, natural, or scientific sites,’ which are 9 recognized recreational purposes under the statute.” Fed. Defs.’ Reply Br. (dkt. 28) at 9 (citing 10 Cal. Civ. Code § 846(b)). Thus, contrary to Plaintiff’s suggestions (see Pl.’s Opp. (dkt. 26) at 8), 11 the court finds that there is no disputed factual issue as to why Plaintiff entered the property of the 12 Presidio – while on vacation with his family (see FAC (dkt. 18) at ¶ 19) and staying at the Lodge 13 at the Presidio (id. at ¶¶ 19, 20), during the Off the Grid: Presidio Picnic event (id. at ¶¶ 17, 18, 14 21), Plaintiff “utilized” a Share Chair in the national park (id. at ¶¶ 25) and was injured. As the 15 government points out (Fed. Defs.’ Reply Br. (dkt. 28) at 9), and as it applies to the FTCA’s 16 private person provision (see 28 U.S.C. § 2674), the pertinent allegations in the FAC are entirely 17 consistent with the activities listed in Cal. Civ. Code § 846(b), which include, “sightseeing,” 18 “picnicking,” and, “viewing or enjoying historical, archaeological, scenic, natural, or scientific 19 sites.” In arguing otherwise, Plaintiff’s reliance on Ornelas v. Randolph, 4 Cal. 4th 1095, 1102 20 (1993), is misplaced for the reasons stated by the government (see Fed. Defs.’ Reply (dkt. 28) at 9- 21 10). 22 While Plaintiff repeatedly states that the government had actual or constructive knowledge 23 of “the peril posed” by the Share Chairs (see Pl.’s Opp (dkt. 26) at 9, 17-18; see also FAC (dkt. 24 18) at ¶¶ 16, 23, 25, 26, 27, 28), these statements are unavailing for a number of reasons. First, 25 Plaintiff’s FAC (even after amendment) never managed to describe exactly what Plaintiff was 26 doing on the chair, or how he was doing it, when he was injured. Second, Plaintiff’s FAC never 27 described (in light of whatever it was that Plaintiff was doing when he was injured) how the chair 1 therefore, has also not described how Plaintiff’s unspecified manner of “utilizing” the Share Chair, 2 and the unspecified perils associated with the chair’s design, would have, or should have, been 3 foreseeable to the government. As such, Plaintiffs statements about “the peril posed” by the Share 4 Chairs, and about the government’s supposed knowledge about those perils, are conclusory and 5 argumentative statements, rather than plausible factual allegations. Thus, as to the statutory 6 exception for “[w]illful or malicious” conduct on which Plaintiff relies (under Cal. Civ. Code § 7 846(d)(1)) (see Pl.’s Opp. (dkt. 18) at 9-14), the court agrees with the government in that Plaintiff 8 “cites no factual allegations in the FAC from which the Court may plausibly infer willful or 9 malicious conduct to support such a theory.” See Fed. Defs.’ Reply (dkt. 28) at 10. Nor can the 10 court “plausibly infer actual or constructive knowledge of a peril giving rise to willful misconduct 11 from such an argument.” Id. at 11. Given the argumentative and conclusory nature of Plaintiff’s 12 pleading, it is of no import that the chairs “were brightly colored,” or that they were in Plaintiff’s 13 opinion, “built from a material that was designed to be attractive to children such as minor 14 Plaintiff,” or that in Plaintiff’s opinion, “resembled a children’s play structure.” See Pl.’s Opp (dkt. 15 26) at 18. In sum, the combination of all the statements contained in Plaintiff’s FAC (dkt. 18) and 16 those contained in his Response (dkt. 26) to the government’s motion to dismiss amount to little 17 more than legal conclusions, threadbare recitals of the elements of a cause of action, conclusory 18 statements, and irrelevant statements. And, the single statement (see infra at p. 20) which goes 19 beyond that, still falls short of the plausibility threshold described in Iqbal, 556 U.S. at 678-79. 20 The sum of all of these statements still would not permit the court to infer even the mere 21 possibility of misconduct, let alone “show,” “that the [Plaintiff] is entitled to relief” as required by 22 Fed. R. Civ. P. 8(a)(2). 23 Plaintiff’s Vicarious Liability Argument 24 Without having pleaded any such claim (see generally FAC (dkt. 18)), Plaintiff’s Response 25 to the government’s motion to dismiss contends that the Federal Defendants are vicariously liable 26 for Gehl Studio’s design of the Share Chairs under Cal. Gov. Code § 815.4. See Pl.’s Opp. (dkt. 27 26) at 13-14. Because Plaintiff has failed to plead this theory of liability – raising it for the first 1 time in a brief in response to a motion to dismiss – the court is not even required to consider it.6 2 However, to foreclose the idea that leave to amend could potentially cure this defect, and also 3 because the theory is so patently inapposite, the court will explain its inapplicability. 4 Putting aside the fact that Plaintiff’s vicarious liability argument has been waived, 5 Plaintiff’s theory relies on Cal. Gov. Code § 815.4 – which provides that a public entity is liable 6 for injury proximately caused by a tortious act or omission of an independent contractor of the 7 public entity. Unfortunately for Plaintiff, however, the FTCA’s private person provision states that 8 the government’s liability under the FTCA is determined “in the same manner and to the same 9 extent as a private individual under like circumstances . . .” See 28 U.S.C. § 2674 (emphasis 10 added); see also 28 U.S.C. § 1346(b)(1) (“. . . under circumstances where the United States, if a 11 private person, would be liable”) (emphasis added); see e.g., Mace v. United States, 2015 U.S. 12 Dist. LEXIS 168423, *1-3 (N.D. Cal. Dec. 15, 2015) (“The plaintiff’s third claim . . . is for 13 “dangerous condition of public property” under California Government Code § 835 . . . [T]he 14 United States contends that it enjoys sovereign immunity to the § 835 claim. The FTCA, the 15 United States says, waives the federal government’s sovereign immunity and thus subjects it to 16 suit in a variety of tort cases — but only “if a private person” could be liable on the given theory. 17 Under § 835, only public entities can be liable. The plaintiff’s dangerous-condition claim thus falls 18 outside the immunity waiver of the FTCA and this court has no power to entertain that claim.”). 19 Therefore, because Cal Gov. Code § 815.4 only addresses public entity liability, it cannot be relied 20 upon under § 2674 and § 1346 to liken the United States to a private individual. Accordingly, even 21 if granted leave to amend such as to cure the failure to plead this theory of vicarious liability in the 22 FAC, the claim could still not be saved because of its categorical inapplicability. Thus, for the 23
24 6 See e.g, Milo & Gabby, LLC v. Amazon.com, Inc., 2015 U.S. Dist. LEXIS 92890, *32 (W.D. Wash. July 25 16, 2015) (“Finally, the Court addresses Plaintiffs’ arguments with respect to vicarious liability under the Lanham Act . . . which have been raised for the first time in response to Defendant’s summary judgment 26 motion. Plaintiffs have never raised these theories of liability in their Complaint, nor have they alleged any facts in their Complaint providing notice to Defendant that they intended to advance such theories. 27 Accordingly, the Court will not consider Plaintiffs’ arguments.”); see also McNeely v. Cty. of Sacramento, 344 Fed. Appx. 317, 319 (9th Cir. 2009) (holding that a section 1983 plaintiff waived his potential municipal 1 reasons stated herein, the United States is DISMISSED as a party on sovereign immunity 2 grounds. 3 Failure to State a Claim 4 Notwithstanding the foregoing, when stripped of its conclusory and argumentative content, 5 Plaintiff’s FAC (even after amendment) fails to state any claim against any party. Initially, the 6 court will note that without the now-dismissed Federal Defendants, there remains a single cause of 7 action (a Federal Tort Claims Act claim) against a non-governmental privately-incorporated 8 company, Off the Grid Services, LLC. As previously mentioned, under the FTCA, the only proper 9 defendant is the United States (see Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995)), 10 thus, Plaintiff cannot maintain an FTCA action against Off the Grid; and, given that the FTCA 11 claim was the only claim pleaded, Off the Grid was not a properly named Defendant in this single 12 count FTCA action to begin with. Second, none of the allegations in the FAC impute any 13 wrongful conduct to Off the Grid. See generally FAC (dkt. 18). Third, while the FAC repeatedly 14 makes broad assertions of negligence, it is – even after amendment – still devoid of factual 15 allegations that might actually state a negligence claim. As the government points out, in order to 16 state his claim of negligence, Plaintiff must sufficiently plead the elements of the claim, which are 17 duty, a breach of duty, causation, and damages. See Fed. Defs.’ Mot. (dkt. 23) at 19 (citing Conroy 18 v. Regents of Univ. of California, 45 Cal. 4th 1244, 1250 (2009); and, 28 U.S.C. § 1346). 19 Plaintiff’s FAC – as stated above, has done little more than string together threadbare recitals of 20 the elements of a negligence claim, stating a number of legal conclusions, rendering a host of 21 conclusory and argumentative statements, and advancing a number of irrelevant statements (e.g., 22 the brightness of the color of the chairs, the attractiveness of their material, the newness of their 23 design, and the fact that their design was “modern,” and “innovative”). Indeed, as mentioned 24 above, the FAC never describes what exactly Plaintiff was doing on (or with) the Share Chair 25 when he was injured – instead, the FAC only states that Plaintiff “was utilizing” one of the chairs 26 (without elaborating at all as to how he was utilizing it), “when it suddenly and unexpectedly 27 shifted positions, causing Plaintiff to fall and strike the ground, injuring his person.” See FAC 1 happened here. The entirety of the rest of the FAC can be said to be either background 2 || information, or threadbare recitals of the elements of a negligence claim, or legal conclusions, or 3 || conclusory statements, or irrelevant statements. Even if this case was boiled down to a simple 4 || negligence claim with a properly-named defendant, the FAC still cannot be said to have satisfied 5 || Rule 8(a)(2)’s basic standard requiring Plaintiff to provide the grounds showing his entitlement to 6 || relief. Thus, even if the United States were deemed to have not satisfied the discretionary function 7 exception to the FTCA’s sovereign immunity waiver, the FAC would still nevertheless have to be 8 || dismissed for failure to state a claim. 9 CONCLUSION 10 For the reasons stated herein, the Presidio Trust and the United States are DISMISSED 11 from this action on sovereign immunity grounds. What remains is a single FTCA claim and a 12 single party, Off the Grid, LLC, a private company against whom no allegations of wrongdoing 13 have been pleaded, and that cannot be named as a defendant in an FTCA case. Accordingly, 14 || Plaintiff's FAC is DISMISSED with prejudice because granting leave to amend would be futile. 3 15 IT IS SO ORDERED. a 16 Dated: February 21, 2024 Mt Za — 18 ROBERT M. ILLMAN 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28