United States District Court, D. Oregon
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For Plaintiff: Daniel F. Knox, William J. Ohle, and David R. Boyajian, Schwabe Williamson & Wyatt, PC, Portland, OR.
For Defendant: R. Michael Underhill and Eric Kaufman-Cohen, U.S. Department of Justice, San Francisco, CA; and S. Amanda Marshal, U.S. Attorney, and Ron Silver and Stuart Delery, Assistant U.S. Attorneys, District of Oregon, Portland, OR.
OPINION AND ORDER
Michael H. Simon, United States District Judge.
This case arises under the Court's admiralty jurisdiction. See 28 U.S.C. § 1333. Shaver Transportation Company (" Shaver" or " Plaintiff" ) seeks payment of invoices for towing services it provided to two vessels owned by the United States (" Defendant" ). Shaver moved for summary judgment, and the United States moved to dismiss for lack of subject matter jurisdiction. For the reasons that follow, the Court grants the United States' motion to dismiss and denies as moot Shaver's motion for summary judgment.
" [S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y& H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Fed.R.Civ.P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).
The United States has submitted affidavits that challenge the complaint's jurisdictional allegations. When a defendant factually challenges the plaintiff's assertion of jurisdiction, the Court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In such situations, the plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039.
The M/S Pacific Collector and the M/S Pacific Tracker are public vessels owned by the United States by and through the U.S. Department of Transportation Maritime Administration (" MARAD" ). Cahill Decl. ¶ 1. The vessels are operated by Interocean American Shipping Corporation (" Interocean" ) pursuant to ship management agreements between Interocean and MARAD. Id. ¶ 2. In early 2011, Interocean requested that Pacific Coast Maritime AG (" PCMA" ) arrange tug services for the vessels, and PCMA retained Shaver to provide those services. Corry Decl. ¶ 1. On multiple occasions, Shaver provided tug services for the M/S Pacific Collector and the M/S Pacific Tracker at the Swan Island ...