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Greico v. United States

United States District Court, D. Oregon

April 1, 2015

KARLY GREICO, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER RE: DEFENDANT'S MOTION TO DISMISS

ROBERT H. WHALEY, Senior District Judge.

Before the Court is Defendant's Motion to Dismiss for Lack of Jurisdiction. ECF No. 10. Plaintiffs are represented by attorney David M. Moule and Defendant United States of America ("the Government") is represented by Assistant United States Attorneys Natalie K. Wright and Ronald K. Silver. After initially scheduling oral argument, the Court has reconsidered and decided the motion without oral argument. The hearing set for April 16, 2015, is stricken.

BACKGROUND

On June 10, 2014, Plaintiffs Karly Greico, as the personal representative for the estate of James Harrison Georgeson, and Kaiden Haight initiated this action by filing a complaint in the United State District Court for the District of Oregon, Medford Division. ECF No. 1. Ms. Greico brings suit under the Federal Tort Claims Act ("FTCA") for the alleged wrongful death of Mr. Georgeson and Ms. Haight also brings suit under the FTCA for personal injuries arising out of the same set of events. Id. On November 10, 2014, the Government filed the instant Motion to Dismiss for Lack of Jurisdiction. ECF No. 10. Thereafter, the Plaintiffs responded in opposition and the Government replied in support. ECF Nos. 21, 27. Having considered the submissions of the parties, the record, and relevant law, the Court GRANTS in part and DENIES in part, the Government's Motion to Dismiss for Lack of Jurisdiction.

FACTS

On January 5, 2012, United States Marshals shot and killed James Harrison Georgeson in the parking lot of a grocery store in Medford, Oregon. ECF No. 1 at ¶ 11. At the time of the shooting, the Marshals were attempting to take Mr. Georgeson into custody pursuant to an arrest warrant that had been issued for him. Id. Mr. Georgeson was in the driver's seat of his father's car along with two passengers, one of whom was Plaintiff Haight. Id. at ¶ 12.The Marshals had been advised by a confidential informant that Mr. Georgeson was going to be in the parking lot of the grocery store at a specified time and they were waiting in unmarked cars when he arrived. Id. While Georgeson was parked, the Marshals attempted to box in his vehicle with theirs. Id. at ¶ 13. In response, Georgeson backed up, hit a pillar, and attempted to elude the Marshals. Id. at ¶ 14. As Georgeson attempted to get away, the Marshals shot into his vehicle at least 20 times, killing him and causing injuries to Ms. Haight. Id. at ¶ 15.

The Government moves to dismiss Plaintiffs' complaint because it believes that the discretionary function exception ("DFE") to the FTCA bars Plaintiffs' claims. ECF No. 10 at 5.

DISCUSSION

1. Legal Standard for Motion to Dismiss

Under Fed.R.Civ.P. 12(b)(1), a party may base an argument that the court lacks subject matter jurisdiction because of the discretionary function exception on either a "facial or factual" challenge. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In resolving a factual challenge, such as the one put forth by the Government in this matter, the Court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where "the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to the motion for summary judgment." Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (quoting Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987)). In cases under the FTCA, merits are often closely intertwined with jurisdiction. See Safe Air for Everyone, 373 F.3d at 1039 (intertwined where statute provides the basis for both subject matter jurisdiction and plaintiff's substantive claim).

2. The FTCA and the Discretionary Function Exception

The FTCA is a limited waiver of sovereign immunity, which can render the United States liable for certain torts of federal employees. See 28 U.S.C. § 1346(b). The FTCA provides,

Subject to the provisions of chapter 171 of this title, the district courts, ..., shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a ...

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