HON. ROGER T. BENITEZ United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Before this Court is the Motion to Dismiss Plaintiffs' Complaint filed by Defendant United States of America (hereinafter, "the government"). (Docket No. 6.) The Motion is fully briefed. The Court finds the Motion suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons set for below, the government's Motion is GRANTED.

BACKGROUND

In January 2015, decedent Andreina Tortolero ("Tortolero") coordinated with the Federal Bureau of Investigation ("FBI") and the Drug Enforcement Administration ("DEA") to participate in undercover drug negotiations with drug dealers in Mexico. The "FBI and DEA had [Tortolero] set up [an] agreement to deliver 10 kg of. . . methamphetamine" to the dealers in Mexico. (Docket No. 1, Compl. at 3.) "On or about the day of the proposed drug deal, the DEA and/or FBI sent [Tortolero] to Mexico with the understanding that she was to deliver [the drugs]." (Id.) Tortolero waited for the delivery of the drugs, but the drugs never arrived because the DEA and FBI never intended to provide the drugs. Tortolero was subsequently strangled and killed by Mexican drug cartel members.

On September 19, 2016, Plaintiffs Eztor Placencia, Eztor Placencia, Jr., and Gabriella Torolero Mejias (Tortolero's husband, son, and mother, respectively) filed this action asserting claims against the government under the Federal Tort Claims Act ("FTCA") for wrongful death and related emotional distress. (Docket No. 1.) The government responded by filing the instant motion to dismiss for lack of subject matter jurisdiction on the grounds that it was immune from suit under the foreign country exception to the FTCA. (Docket No. 6.)

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction. The party opposing a motion to dismiss brought under Rule 12(b)(1) bears the burden of proving that the case is properly in federal court. See In re Ford Motor Co./Citibank (S. Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001) ("The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court.") (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). Dismissal is appropriate if the complaint, considered in its entirety, on its face fails to allege facts that are sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 985 (9th Cir. 2008) (citing Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990)). ///

"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted in original)). In a facial attack, the moving party contends that the complaint's allegations are insufficient on their face to invoke federal jurisdiction. Id. In contrast, the moving party in a factual attack disputes the truth of the allegations that, by themselves, would otherwise establish federal jurisdiction. Id. A district court considering a factual attack need not presume the truthfulness of a plaintiff's allegations, id. (citing White, 227 F.3d at 1242), and may review evidence beyond the complaint without converting the motion into a motion for summary judgment. Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003)).

When the government invokes its sovereign immunity in a Rule 12(b)(1) motion to dismiss, a district court must examine whether it has subject matter jurisdiction. Singh v. United States, No. 16-CV-01919 NC, 2017 WL 635476, at *2 (N.D. Cal. Feb. 16, 2017) ("Whether the government waived sovereign immunity is a question of the Court's subject matter jurisdiction.") (citing Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995)). Because the government relies on extrinsic evidence to support is motion to dismiss, the Court treats the government's motion as a factual 12(b)(1) attack and considers all admissible evidence in the record. Righthaven LLC v. Newman, 838 F. Supp. 2d 1071, 1074 (D. Nev. 2011) ("Attacks on jurisdiction pursuant to Rule 12(b)(1) can be either facial, confining the inquiry to the allegations in the complaint, or factual, permitting the court to look beyond the complaint.") (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003)).

DISCUSSION

The Complaint describes a tragic and disturbing chain of events resulting in the death of Tortolero at the hands of drug dealers. However, because it is undisputed that decedent died in a foreign country (Mexico), Defendants argues that Plaintiffs' claims are barred under the foreign country exception to the FTCA, 28 U.S.C. § 2680(k). Plaintiffs' opposition contends the foreign country exception does not apply to Plaintiffs' claims because the majority of the government's actions or omissions occurred in the United States. In addition, Plaintiffs' opposition requests leave from the Court to file an amended complaint to assert additional claims under the Alien Tort Statute ("ATS") and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In its reply, the government opposes Plaintiffs' request for leave to amend on futility grounds. The Court considers the government's motion to dismiss and Plaintiffs' request for leave to amend in turn.

A. The Government's Motion to Dismiss

"The FTCA generally waives the United States' sovereign immunity from suits in tort, 'render[ing] the Government liable in tort as a private individual would be under like circumstances.'" S.H. by Holt v. United States, 853 F.3d 1056, 1059 (9th Cir. 2017) (quoting Richards v. United States, 369 U.S. 1, 6 (1962)); see also 28 U.S.C. § 2674. However, this waiver is subject to certain exceptions. See generally 28 U.S.C. § 2680. Under the foreign country exception, upon which the government relies, "the FTCA's waiver of immunity does not apply to '[a]ny claim arising in a foreign country.'" S.H. at 1059 (quoting 28 U.S.C. § 2680(k)).

The Supreme Court in Sosa v. Alvarez-Machain, held that the foreign country exception "bars all claims based on any injury suffered in a foreign country." 542 U.S. 692, 712 (2004). Other federal courts have applied the FTCA's foreign country exception to claims that are necessarily derivative of injuries sustained in a foreign country. See Gross v. United States, 771 F.3d 10, 13 (D.C. Cir. 2014) (holding that foreign country exception applied because wife's economic injuries in the United States were derivative of harm suffered by husband abroad); see also Harbury v. Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008) (district court lacked jurisdiction over a plaintiff's claims for emotional or economic injuries occurring in the United States because those injuries were derivative of harm suffered by plaintiff's spouse in a foreign country). The Court finds the reasoning in these courts' decisions persuasive. It is clear that the FTCA's foreign country exception would preclude a claimant who was actually injured (or a claimant's estate where the claimant was killed) in a foreign country from bringing a lawsuit against the government, and it appears Congress intended to similarly bar emotional distress and related survivor claims by persons who sustained their injuries in the United States.

Here, each of Plaintiffs' wrongful death claims and emotional distress claims derives from Tortolero's death. (See generally Complaint.) The Complaint alleges the government "sent [Tortolero] to Mexico" and while it does expressly state Tortolero died in Mexico, the government provided copies of Plaintiffs' Administrative Tort Claim documents, wherein Plaintiffs indicate Tortolero "was beaten & strangled to death in or near Tijuana, Mexico." Schweiner Decl., Ex. A. Plaintiffs also provided Tortolero's death certificate, which states Tortolero's place of death as "Tijuana, Baja California." Id., Exs. B-C. Thus, it appears that, based on Plaintiffs' own pleadings, admissions, and evidence, Tortolero's death occurred in Mexico.

Rather than dispute this fact, Plaintiffs urge the Court to apply the now-defunct "headquarters doctrine." (Pls. Opp'n at 3-4.) Under the headquarters doctrine, § 2680(k) did not bar suit where "'negligent acts in the United States proximately cause [d] harm in a foreign country.'" Clouser v. Sierra Nevada Corp., No. 4:15-CV-00468 JWS, 2016 WL 912313, at *1 (D. Ariz. Mar. 10, 2016) (quoting Cominotto v. United States, 802 F.2d 1127, 1130 (9th Cir. 1986), abrogated by Sosa, supra, 542 U.S. at 703-04). These claims, similar to what Plaintiffs' attempt to argue in opposition, typically involved allegations of negligent conduct by government employees within the United States that resulted in damages to a plaintiff while in a foreign country. Id.

However, as the government points out, the Supreme Court in Sosa determined that the "headquarters [doctrine] analysis should have no part in applying the foreign country exception" before holding that "the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred." Sosa, 542 U.S. at 711-12 (emphasis added and in original). Indeed, this Court has previously examined Sosa, and determined that proximate causation does not eliminate application of the foreign country exception. See Ortega-Chavez v. United States, No. 11-CV-1507 BEN DHB, 2012 WL 5988844, at *2 (S.D. Cal. Nov. 29, 2012). Sosa continues to control, and because Plaintiffs do not dispute the fact that Tortolero was killed in Mexico, the Court finds Plaintiffs' derivative claims are barred under the foreign country exception.

Plaintiffs' final argument asserts, without citing any case authority, that the government waived the foreign country exception defense by enacting 21 U.S.C. § 904. But Section 904 merely authorizes the Attorney General to "pay tort claims in the manner authorized by section 2672 of Title 28, when such claims arise in a foreign country in connection with the operations of the Drug Enforcement Administration abroad." 21 U.S.C. § 904. In turn, Section 2672 of Title 28 sets forth guidelines regarding the Attorney General's administrative adjustment of claims - nowhere does it discuss the government's general relinquishment of its immunity from being sued in a district court. In short, Plaintiffs have not met their burden to demonstrate this Court has subject matter jurisdiction over their claims.

Accordingly, the government's Motion to Dismiss for lack of subject matter jurisdiction is GRANTED.

B. Plaintiffs' Request for Leave to Amend

Before trial, and after the time has elapsed for which a party may amend its pleading as a matter of course, Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that: "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a). Leave to amend under Rule 15(a)(2) should be "freely give[n] . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). Courts consider "undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of the proposed amendment" in deciding whether justice requires granting leave to amend under Rule 15. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 370 U.S. 178, 182 (1962)). Although each factor may warrant consideration, "prejudice to the opposing party ... carries the greatest weight." Eminence Capital, 316 F.3d at 1052. /// ///

Plaintiffs seek leave to amend their Complaint. (Pls.' Opp'n at 4.) The Court has considered the Foman factors and finds justice does not require granting Plaintiffs leave to amend.

First, with respect to the proposed ATS claim, Plaintiffs have not established the Court has jurisdiction over their claims. As Plaintiffs know, in actions against the United States, "[t]he waiver of sovereign immunity is a prerequisite to federal-court jurisdiction." Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011). A plaintiff asserting a claim against the government must also demonstrate the government's consent to the lawsuit, or face mandatory dismissal for lack of jurisdiction. See Dunn & Black, P.S. v. United States, 492 F.3d 1084,1088 (9th Cir. 2007) ("Where a suit has not been consented to by the United States, dismissal of the action is required [because] the existence of such consent is a prerequisite for jurisdiction.") (quotation marks and citation omitted).

Here, the ATS is a jurisdiction statute only; it does not waive sovereign immunity. Tobar, 639 F.3d at 1196. As a result, "any party asserting jurisdiction under the [ATS] must establish, independent of that statute, that the United States has consented to suit." Id. (emphasis added). Plaintiffs have not established that independent consent, and the Court is unaware of authority that would allow them to proceed with their claims. Therefore, it appears to the Court that it would be futile to allow Plaintiffs to amend their pleading to include ATS claims.

Second, with respect to Plaintiffs' proposed Bivens claims, Plaintiffs cite no case authority or statue that would authorize Plaintiffs' proposed Bivens claims (i.e. that the government is liable to Plaintiffs because "Federal officers violated [Tortolero's] Fifth Amendment in that she was deprived of her life [sic]" because they put her in a position that was likely to result in her death at the hands of members of the Mexican cartel). Moreover, the Supreme Court recently discussed Bivens-type claims at length and stated that it has "made clear that expanding the Bivens remedy is now a "disfavored" judicial activity." Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (emphasis added). Thus, it appears that amendment would also be futile as to Plaintiffs' proposed Bivens claims.

In sum, Plaintiffs have not demonstrated why justice requires the Court to grant them leave. Fed. R. Civ. P. 15(a)(2). In contrast, the government has indicated that granting Plaintiffs leave to amend would cause undue prejudice and waste judicial resources in light of the unmeritorious claims. Plaintiffs' request for leave to amend their Complaint is denied.

CONCLUSION

For the reasons outlined above, Defendant's Motion to Dismiss is GRANTED and Plaintiffs' request for leave to file an amended complaint is DENIED.

IT IS SO ORDERED. DATED: July 13, 2017

/s/_________

HON. ROGER T. BENITEZ

United States District Judge