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Jackson v. Patra Investments, LLC

United States District Court, D. Oregon

November 20, 2017

KIMBERLY JACKSON, Plaintiff,
v.
PATRA INVESTMENTS, LLC, Defendant / Third-Party Plaintiff,
v.
UNITED STATES OF AMERICA, Third-Party Defendant.

          FINDINGS AND RECOMMENDATION

          Honorable Paul Papak United States Magistrate Judge

         Plaintiff Kimberly Jackson filed this action against defendant Patra Investments, LLC ("Patrsa") in the Multnomah County Circuit Court on or around November 1, 2016. Jackson amended her complaint on or around May 15, 2017. By and through her amended complaint, Jackson alleges Patra's liability for negligence in connection with an incident in which Jackson slipped and fell, sustaining serious injuries, while walking on a sidewalk located on property owned by Patra and leased to the United States of America (the "USA"). Arising out of the foregoing, Jackson seeks award of economic damages in the amount of $30, 881.86 and non-economic damages in the amount of $128, 500.00.

         On or around August 17, 2017, Patra answered Jackson's amended complaint and alleged the liability of third-party defendant the USA under Oregon common law for contribution, indemnity, and breach of contract. By and through its third-party complaint, Patra seeks award of damages from the USA in the amount of any award that may issue against Patra in Jackson's favor.

         The USA removed this action to this court effective September 22, 2017, pursuant to 28 U.S.C. § 1442(a)(1).

         Now before the court is the USA's motion (#4) to dismiss Patra's third-party claims against it for lack of subject-matter jurisdiction. I have considered the motion and all of the pleadings and papers on file. For the reasons set forth below, the USA's motion (#4) to dismiss should be granted, Patra's third-party claims should be dismissed, and this court should remand Jackson's action sua sponte to the Multnomah County Circuit Court.

         LEGAL STANDARD

         The federal courts are courts of limited jurisdiction. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005), citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). As such, the courts presume that causes of action "lie[] outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377; see also, e.g., Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006).

         A motion under Federal Civil Procedure Rule 12(b)(1) to dismiss for lack of subject- matter jurisdiction may be either "facial" or "factual." See Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack on subject-matter jurisdiction, the moving party asserts that a plaintiffs allegations are insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the moving party disputes the factual allegations that, if true, would give rise to subject-matter jurisdiction. Where a defendant raises a facial challenge to subject-matter jurisdiction, the factual allegations of the complaint are presumed to be true, and the motion may be granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Savage v. Glendale Union High Sch, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). By contrast, where a defendant raises a factual challenge to federal jurisdiction, "the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment, " Safe Air v. Meyer, 373 F.3d at 1039, citing Savage, 343 F.3d at 1039 n. 2, and "need not presume the truthfulness of the plaintiffs allegations, " id, citing White, 227 F.3d at 1242.

         "Defective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts." 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective allegation of jurisdiction without leave to amend "unless it is clear, upon de novo review, that the complaint could not be saved by amendment." Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6 (9th Cir. 2002), citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001).

         MATERIAL FACTS

         Jackson alleges that on June 21, 2015, she was walking on sidewalk located at 630 NE Killingsworth Street in Portland, Oregon, when she suffered a fall after her foot caught on uneven pavement. See Amended Complaint, ¶ 3. Jackson alleges that she suffered serious injury as a result of the fall. See id., ¶¶ 6-9. The premises at 630 NE Killingsworth Street were and are owned by defendant Patra, se id., ¶ 2, and were leased to third-party defendant the USA, see Answer and Third-Party Complaint, ¶¶ 3-4. The USA, through its agency the United States Post Office (the "USPS"), operated and operates a post office within those premises. See id.

         On August 3, 2015, Jackson filed an administrative tort claim with the USPS in connection with her fall, See id., ¶ 9, Exh. C at 1. The USPS denied the claim on March 3, 2016, advising her that the only proper defendant for her claim was the USA rather than the USPS, and that she had six months from that date either to challenge the decision by filing a lawsuit against the USA in federal court or, in the alternative, to file a written request for reconsideration of the denial of her claim, and that her failure to do either within six months would result in her claim being time-barred. See id., Exh. C at 9-10.

         Rather than file an action against the USA in a federal court, Jackson filed this action against Patra in the Multnomah County Circuit Court on or around November 1, 2016 (more than six months after filing her notice of tort claim against the USPS). As noted above, Jackson amended her complaint on or around May 15, 2017, and on or around August 17, 2017, Patra answered Jackson's amended complaint and alleged the liability of third-party defendant the USA under Oregon common law for contribution, ...


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