1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shirlean Fant Rand, No. CV-21-01220-PHX-DLR
10 Plaintiff, ORDER
11 v.
12 United States of America, Donald J Trump, and Unknown Parties, 13 Defendants. 14 15 16 Pending before the Court are Defendants’ motion to dismiss and motion to strike 17 amended complaint and Plaintiff Shirlean Fant Rand’s motion for entry of default, all of 18 which are fully briefed.1 (Docs. 16-22, 31-33.) The Court grants the motion to dismiss 19 and denies the motion to strike and motion for entry of default. 20 I. Background2 21 Ms. Rand’s brother, Alan Scott, Jr., was incarcerated in a Michigan prison operated 22 by the State of Michigan. While there, the COVID-19 pandemic began. Ms. Rand takes 23 issue with the federal government’s response to the pandemic and how it—and especially 24 former President Donald Trump—talked about it. As it happens, Mr. Scott contracted 25 COVID-19 during his stay in prison, succumbed to it, and died. Ms. Rand received an 26 early morning voicemail notifying her of her brother’s death in December 2020. She
27 1 Oral argument is denied because the motions are adequately briefed and oral argument will not help the Court resolve the issues presented. See Fed. R. Civ. P. 78(b); 28 LRCiv. 7.2(f). 2 This background comes entirely from the amended complaint at Docket #13. 1 brought this lawsuit against former President Donald Trump (in his personal and official 2 capacities) and the United States, raising wrongful death claims and a personal claim of 3 negligent infliction of emotional distress. 4 II. Motion for entry of default 5 Ms. Rand seeks entry of default against all defendants. But Defendants’ motions to 6 dismiss and strike pend before the Court. Because Defendants have appeared and 7 responded to the amended complaint with a motion to dismiss, Ms. Rand’s motion for entry 8 of default is denied. 9 III. Motion to strike 10 Defendants moved to dismiss Ms. Rand’s amended complaint on February 11, 2022. 11 (Doc. 16.) Days later, Ms. Rand filed a second amended complaint and a response to the 12 motion to dismiss. (Docs. 17, 18.) Ms. Rand’s filing of a second amended complaint has 13 caused a stir because Ms. Rand did not obtain leave of the Court before filing it. After 14 amending a complaint for the first time, “a party may amend its pleading only with the 15 opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a). Ms. Rand 16 did not meet either requirement for amending her complaint a second time. 17 In response to Defendants’ motion to strike, Ms. Rand makes clear, however, that 18 by filing the second amended complaint, she was attempting to comply with paragraph 3 19 of the Court’s standard order discouraging motions to dismiss. (Docs. 4, 20.) That 20 paragraph states: 21 if Defendant files a motion under Rule 12(b)(6) or 12(c) notwithstanding Plaintiff’s belief that further amendment of 22 the complaint can cure the alleged defect(s), Plaintiff must submit, no later than the time Plaintiff files a response to the 23 motion, a proposed amended complaint that complies with LRCiv 15.1(a) and contains all further allegations Plaintiff 24 could make. In the event a motion to dismiss or for judgment on the pleadings is granted in any part, no leave to amend the 25 complaint will be granted beyond what is offered in the proposed amended complaint. 26 27 (Doc. 4 at 2.) The Court therefore construes Ms. Rand’s second amended complaint as a 28 proposed second amended complaint consistent with paragraph 3 of the scheduling order. 1 As such, the amended complaint filed at Docket #13 remains operative, but the Court will 2 consider the proposed second amended complaint at Docket #17 when determining 3 whether leave to amend should be granted. With this understanding, the motion to strike 4 is denied. 5 IV. Motion to dismiss 6 Defendants move to dismiss the amended complaint for lack of subject-matter 7 jurisdiction, arguing that Ms. Rand lacks standing to bring a wrongful death action, among 8 other things. (Doc. 16.) A federal court must dismiss claims over which it lacks subject- 9 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 10 A. Standing 11 One element of subject-matter jurisdiction is Article III’s “Cases” and 12 “Controversies” requirement, of which standing is an “essential and unchanging part. 13 Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). State law determines who has 14 standing to bring a wrongful death claim. Defendants urge the Court to apply Washington, 15 DC law, and Ms. Rand urges the Court to apply Michigan law. Under either law, a plaintiff 16 must be the personal representative of the deceased person to bring a wrongful death suit. 17 D.C. Code § 16-2701; Mich. Comp. Laws § 600.2922(2). Contrary to Defendants’ 18 argument, Ms. Rand indeed alleges that she is the personal representative of Mr. Scott’s 19 estate. (Doc. 13 ¶ 2.) The Court detects no standing deficiency. 20 B. Presidential immunity 21 The President of the United States is absolutely immune from suits for damages for 22 conduct that is part of his official duties. See Forrester v. White, 484 U.S. 219, 225 (1988); 23 Nixon v. Fitzgerald, 457 U.S. 731, 756-58 (1982). It is undisputed that any policies 24 implemented by the United States government and the Trump administration in response 25 to the COVID-19 pandemic constituted conduct that was part of the former President’s 26 official duties. Consequently, Ms. Rand may not sue former President Trump in his 27 individual capacity based on the facts she alleges. Masjedi v. United States, No. CV 21- 28 2719-FMO (KS), 2021 WL 1269108, at *5 (C.D. Cal. Apr. 6, 2021). 1 C. The Federal Tort Claims Act (“FTCA”) 2 The FTCA operates as a limited waiver of the sovereign immunity enjoyed by the 3 United States, and it is a plaintiff’s burden to establish that the FTCA applies. Prescott v. 4 United States, 973 F.2d 696, 701 (9th Cir. 1992). As a threshold matter, this means a 5 plaintiff “must show that ‘a private individual under like circumstances would be liable 6 under state law.’” C.M. v. United States, No. CV-19-05217-PHX-SRB, 2020 WL 7 1698191, at *2 (D. Ariz. Mar. 30, 2020) (quoting United States v. Muniz, 374 U.S. 150, 8 153 (1963)). “‘Like circumstances’ are not ‘identical circumstances.’” Xue Lu v. Powell, 9 621 F.3d 944, 947 (9th Cir. 2010). Because the federal government “could never be exactly 10 like a private actor,” the Court must find the “most reasonable analogy,” if any. Dugard v. 11 United States, 835 F.3d 915, 919 (9th Cir. 2016). On this issue, Ms. Rand bears the burden 12 of persuasion. 13 Ms. Rand proffers two claims under the FTCA. Both fail. Her first, Michigan’s 14 “good Samaritan” law, fails because it does not create a duty to exercise due care unless a 15 person rendered services or undertook some act to care for the injured person. Burgess v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shirlean Fant Rand, No. CV-21-01220-PHX-DLR
10 Plaintiff, ORDER
11 v.
12 United States of America, Donald J Trump, and Unknown Parties, 13 Defendants. 14 15 16 Pending before the Court are Defendants’ motion to dismiss and motion to strike 17 amended complaint and Plaintiff Shirlean Fant Rand’s motion for entry of default, all of 18 which are fully briefed.1 (Docs. 16-22, 31-33.) The Court grants the motion to dismiss 19 and denies the motion to strike and motion for entry of default. 20 I. Background2 21 Ms. Rand’s brother, Alan Scott, Jr., was incarcerated in a Michigan prison operated 22 by the State of Michigan. While there, the COVID-19 pandemic began. Ms. Rand takes 23 issue with the federal government’s response to the pandemic and how it—and especially 24 former President Donald Trump—talked about it. As it happens, Mr. Scott contracted 25 COVID-19 during his stay in prison, succumbed to it, and died. Ms. Rand received an 26 early morning voicemail notifying her of her brother’s death in December 2020. She
27 1 Oral argument is denied because the motions are adequately briefed and oral argument will not help the Court resolve the issues presented. See Fed. R. Civ. P. 78(b); 28 LRCiv. 7.2(f). 2 This background comes entirely from the amended complaint at Docket #13. 1 brought this lawsuit against former President Donald Trump (in his personal and official 2 capacities) and the United States, raising wrongful death claims and a personal claim of 3 negligent infliction of emotional distress. 4 II. Motion for entry of default 5 Ms. Rand seeks entry of default against all defendants. But Defendants’ motions to 6 dismiss and strike pend before the Court. Because Defendants have appeared and 7 responded to the amended complaint with a motion to dismiss, Ms. Rand’s motion for entry 8 of default is denied. 9 III. Motion to strike 10 Defendants moved to dismiss Ms. Rand’s amended complaint on February 11, 2022. 11 (Doc. 16.) Days later, Ms. Rand filed a second amended complaint and a response to the 12 motion to dismiss. (Docs. 17, 18.) Ms. Rand’s filing of a second amended complaint has 13 caused a stir because Ms. Rand did not obtain leave of the Court before filing it. After 14 amending a complaint for the first time, “a party may amend its pleading only with the 15 opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a). Ms. Rand 16 did not meet either requirement for amending her complaint a second time. 17 In response to Defendants’ motion to strike, Ms. Rand makes clear, however, that 18 by filing the second amended complaint, she was attempting to comply with paragraph 3 19 of the Court’s standard order discouraging motions to dismiss. (Docs. 4, 20.) That 20 paragraph states: 21 if Defendant files a motion under Rule 12(b)(6) or 12(c) notwithstanding Plaintiff’s belief that further amendment of 22 the complaint can cure the alleged defect(s), Plaintiff must submit, no later than the time Plaintiff files a response to the 23 motion, a proposed amended complaint that complies with LRCiv 15.1(a) and contains all further allegations Plaintiff 24 could make. In the event a motion to dismiss or for judgment on the pleadings is granted in any part, no leave to amend the 25 complaint will be granted beyond what is offered in the proposed amended complaint. 26 27 (Doc. 4 at 2.) The Court therefore construes Ms. Rand’s second amended complaint as a 28 proposed second amended complaint consistent with paragraph 3 of the scheduling order. 1 As such, the amended complaint filed at Docket #13 remains operative, but the Court will 2 consider the proposed second amended complaint at Docket #17 when determining 3 whether leave to amend should be granted. With this understanding, the motion to strike 4 is denied. 5 IV. Motion to dismiss 6 Defendants move to dismiss the amended complaint for lack of subject-matter 7 jurisdiction, arguing that Ms. Rand lacks standing to bring a wrongful death action, among 8 other things. (Doc. 16.) A federal court must dismiss claims over which it lacks subject- 9 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 10 A. Standing 11 One element of subject-matter jurisdiction is Article III’s “Cases” and 12 “Controversies” requirement, of which standing is an “essential and unchanging part. 13 Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). State law determines who has 14 standing to bring a wrongful death claim. Defendants urge the Court to apply Washington, 15 DC law, and Ms. Rand urges the Court to apply Michigan law. Under either law, a plaintiff 16 must be the personal representative of the deceased person to bring a wrongful death suit. 17 D.C. Code § 16-2701; Mich. Comp. Laws § 600.2922(2). Contrary to Defendants’ 18 argument, Ms. Rand indeed alleges that she is the personal representative of Mr. Scott’s 19 estate. (Doc. 13 ¶ 2.) The Court detects no standing deficiency. 20 B. Presidential immunity 21 The President of the United States is absolutely immune from suits for damages for 22 conduct that is part of his official duties. See Forrester v. White, 484 U.S. 219, 225 (1988); 23 Nixon v. Fitzgerald, 457 U.S. 731, 756-58 (1982). It is undisputed that any policies 24 implemented by the United States government and the Trump administration in response 25 to the COVID-19 pandemic constituted conduct that was part of the former President’s 26 official duties. Consequently, Ms. Rand may not sue former President Trump in his 27 individual capacity based on the facts she alleges. Masjedi v. United States, No. CV 21- 28 2719-FMO (KS), 2021 WL 1269108, at *5 (C.D. Cal. Apr. 6, 2021). 1 C. The Federal Tort Claims Act (“FTCA”) 2 The FTCA operates as a limited waiver of the sovereign immunity enjoyed by the 3 United States, and it is a plaintiff’s burden to establish that the FTCA applies. Prescott v. 4 United States, 973 F.2d 696, 701 (9th Cir. 1992). As a threshold matter, this means a 5 plaintiff “must show that ‘a private individual under like circumstances would be liable 6 under state law.’” C.M. v. United States, No. CV-19-05217-PHX-SRB, 2020 WL 7 1698191, at *2 (D. Ariz. Mar. 30, 2020) (quoting United States v. Muniz, 374 U.S. 150, 8 153 (1963)). “‘Like circumstances’ are not ‘identical circumstances.’” Xue Lu v. Powell, 9 621 F.3d 944, 947 (9th Cir. 2010). Because the federal government “could never be exactly 10 like a private actor,” the Court must find the “most reasonable analogy,” if any. Dugard v. 11 United States, 835 F.3d 915, 919 (9th Cir. 2016). On this issue, Ms. Rand bears the burden 12 of persuasion. 13 Ms. Rand proffers two claims under the FTCA. Both fail. Her first, Michigan’s 14 “good Samaritan” law, fails because it does not create a duty to exercise due care unless a 15 person rendered services or undertook some act to care for the injured person. Burgess v. 16 United States, 375 F. Supp. 3d 796, 817-18 (E.D. Mich. 2019) (quoting Myers v. United 17 States, 17 F.3d 890, 901 (6th Cir. 1994)). Ms. Rand does not allege that any federal 18 employee took any such actions here, so no duty arises. Her second, negligent infliction 19 of emotional distress, also fails because she did not allege that she was “actually . . . present 20 at the time of the accident or at least suffer shock fairly contemporaneously with the 21 accident.”3 Tschirhart v. Pamar Enters., Inc., No. 327125, 2016 WL 3541827, at *3 (Mich. 22 Ct. App. June 28, 2016) (quoting Wargelin v. Sisters of Mercy Health Corp., 385 N.W.2d 23 732, 735 (Mich. Ct. App. 1986)). The claims advanced under the FTCA fail. 24 V. Leave to amend 25 Ms. Rand seeks leave to amend. Leave to amend should be freely granted “when 26 justice so requires.” Fed. R. Civ. P. 15(a). The Court considers four factors when 27 3 The negligent infliction of emotional distress claim would fail under DC law as 28 well, which requires that the plaintiff be within the physical zone of danger. Jane W. v. Pres. & Dirs. of Georgetown Coll., 863 A.2d 821, 826 (D.C. 2004). 1 || determining whether leave to amend is appropriate: bad faith, undue delay, prejudice to the || opposing party, and futility. AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 3|| 946, 951 (9th Cir. 2006). Futility alone justifies denying a motion for leave to amend. 4|| Bonin v. Calderon, 59 F.3d 815, 845 (1995). A motion to amend is futile if the amended 5 || portion fails to state a plausible claim for relief. Chabrowski ex rel. ARTBE Enters., LLC v. Litwin, No. CV-16-03766-PHX-DLR, 2017 WL 2841212, at *2 (D. Ariz. Jan. 19, 2017). 7 The same deficiencies noted above are reprised in the proposed second amended 8 || complaint. Therefore, leave to amend would be futile. 9 IT IS ORDERED as follows: 10 1. Defendants’ motion to strike (Doc. 19) is DENIED. 11 2. Plaintiff's motion for entry of default (Doc. 31) is DENIED. 12 3. Defendants’ motion to dismiss (Doc. 16) is GRANTED. The Clerk of the Court 13 shall enter judgment accordingly and terminate the case. 14 Dated this 11th day of August, 2022. 15 16 17 {Z, 18 _- Ch 19 Upited States Dictric Judge 20 21 22 23 24 25 26 27 28
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