Opinion
3:22-cv-01028-SB
07-23-2024
WILLIAM G. BROWN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff William G. Brown (“Brown”) alleges a claim of negligence against Defendant United States of America (“the United States”). Now before the Court is the United States' motion for summary judgment on the ground that the Court lacks subject matter jurisdiction over Brown's claim (ECF No. 16). Not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons that follow, the Court recommends that the district judge grant the United States' motion and dismiss this case for lack of subject matter jurisdiction.
The Court must view these facts in the light most favorable to Brown, the non-moving party at summary judgment. See Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005).
Brown's claim arises from injuries he sustained after an altercation with a United States Postal Service mail carrier.
In the Amended Complaint, Brown alleges that on July 17, 2020, he was a pedestrian speaking with a mail carrier. (Am. Compl. ¶ 7, ECF No. 7.) While Brown spoke with the mail carrier “regarding delivery of mail by the employee, the employee drove the vehicle forward, striking plaintiff.” (Id. ¶ 8.)
Specifically, Orin Randol (“Randol”) was delivering mail in Brown's neighborhood. (Decl. Sarah E. Feldman Supp. Def.'s Mot. Summ. J. (“Feldman Decl.”) Ex. 2, Dep. William G. Brown (“Brown Dep.”) 17:13-15, 18:6-20, ECF No. 17-2; Decl. Timothy J. Heinson Supp. Pl.'s Resp. Def.'s Mot. Summ. J. Ex. A, Dep. Orin J. Randol (“Randol Dep.”) 40:8-18, ECF No. 191.) Brown heard the mail truck approaching his home, went outside to check the mail, and saw Randol drive past his mailbox without delivering mail. (Brown Dep. 18:6-9.) Brown approached Randol and asked for his mail. (Id. at 18:10, 20:22-21:1.) Randol told Brown that he should not have any vehicles blocking his mailbox next time. (Id. at 18:10-15.) Brown demanded his mail. (Id. at 18:12-13.) Brown insists that his vehicle was not blocking the mailbox, and the pair “started having words” and “cussing at each other.” (Id. at 18:13-15.)
After not receiving his mail, Brown “decided to walk back to the house” but then changed his mind because he was waiting on an important delivery for his wife. (Id. at 18:15-17, 21:9-13, 23:21-23, 31:10-17.) Brown walked back over to Randol, stood approximately one foot in front of the mail truck, and stated, “You're not leaving until I get my mail.” (Id. at 18:15-20, 23:11-17; see also Randol Dep. 40:13-14.) Randol continued to refuse Brown's demand for mail and told Brown that he would deliver mail next time if Brown moved his vehicle. (Brown Dep. at 23:19-21.) The pair started “yelling and cussing” again. (Id. at 21:14-15, 23:25-24:9.)
Randol had been driving around the right-hand side of a horseshoe shaped roadway. (Randol Dep. 40:1-5.) Brown remained slightly to the left of Randol, blocking Randol's path around a parked car in front of the mail truck. (Id. at 43:18-20, 46:10-21.) Randol told Brown to move, and Brown refused. (Id. at 40:16-19, 41:12-16; Brown Dep. at 24:12-19.) Then, according to Brown, Randol “decided to nudge [him] a couple times” with the truck to try and get Brown to move out of the way. (Brown Dep. at 18:21, 24:19-25:5.) Randol “nudged” Brown several times, and Brown testified that it appeared to be on purpose. (Id. at 24:25-25:3.) In response, Brown swung at and struck the mirror of the mail truck with his left hand. (Id. at 18:21-22, 24:21-22, 25:19-24; see also Randol Dep. 51:3-6.) Brown broke the mirror. (Brown Dep. at 26:17-19.)
After Brown punched the mirror, his body “went back a little bit” and he “stepped back” to approximately two feet from the mail truck. (Id. at 26:9-11, 27:2-6; see also Randol Dep. 51:6-7.) Then, according to Brown, Randol “decided to hit [Brown] with the vehicle.” (Brown Dep. at 18:22-23, 24:23-24.) Brown heard the mail truck's “motor wind up[,]” and Brown testified that Randol “decided to accelerate and come right at [him.]” (Id. at 26:11-13, 27:7-11; see also Feldman Decl. Ex. 1 at 5-7, ECF No. 17-1, statements by witnesses stating that the mail carrier continued to drive the vehicle forward despite Brown saying stop, turning the vehicle into Brown, and accelerating several feet, hitting Brown.) By Brown's account, the mail truck struck Brown, and Brown “flew backwards[,]” fell down, and fractured his ankle and a vertebrae in his neck, scraped his knees, and cut his right hand. (Brown Dep. at 27:16-28:7.) Randol got out of the vehicle. (Id. at 26:13-14; Randol Dep. 52:13-19.) A woman who was nearby told Randol, “You can't run people over just because they're in your way.” (Randol Dep. 52:23-24.) Then, while Brown was getting up, Randol drove away. (Brown Dep. at 26:15-16.)
According to Randol, Brown sustained his injuries when he punched the mail truck's mirror, lost his balance, and fell down. (Randol Dep. 50:3-51:8.)
Brown alleges one claim of negligence under the Federal Tort Claims Act (“FTCA”). (See Am. Compl. at 1-3.) Brown seeks economic and noneconomic damages for his injuries. (Id. at 3.)
LEGAL STANDARDS
“In ruling on a jurisdictional motion involving factual issues which also go to the merits, the trial court should employ the standard applicable to a motion for summary judgment, as a resolution of the jurisdictional facts is akin to a decision on the merits.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill Publishing Co. v. General Telephone Corp., 594 F.2d 730, 733-34 (9th Cir. 1979)). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in favor of that party. See Porter, 419 F.3d at 891.
Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
The United States argues that the Court lacks subject matter jurisdiction over Brown's claim because the gravamen of Brown's claim is battery, an intentional tort. (Def.'s Mot. Summ. J. (“Def.'s Mot.”) at 5-10, ECF No. 16.) Brown responds that the United States has failed properly to raise its argument that the Court lacks subject matter jurisdiction because the United States did not assert subject matter jurisdiction as an affirmative defense and instead admitted that the Court has subject matter jurisdiction in its answer. (Pl.'s Resp. Def.'s Mot. (“Pl.'s Resp.”) at 2-3, ECF No. 18.) Further, Brown argues that intent is not necessary to prove his claim. (Id. at 3-6.)
I. SUBJECT MATTER JURISDICTION
Federal courts are courts of limited jurisdiction. See U.S. CONST. art. III, § 2. A federal court is to presume “that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]” Kokkonen v. GuardianLife Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citing Turner v. Bank of N. Am., 4 U.S. 8, 11 (1799) and McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)). The Court must dismiss any case over which it lacks subject matter jurisdiction. SeeFED. R. CIV. P. 12(h)(3).
A. Waiver
Brown argues that the United States has failed properly to raise its argument that the Court lacks subject matter jurisdiction because, in its answer, the United States did not assert subject matter jurisdiction as an affirmative defense and instead admitted that the Court has subject matter jurisdiction. (Pl.'s Resp. at 2-3.) The United States argues that it did not concede subject matter jurisdiction because its answer merely states, “to the extent Plaintiff alleges a cause of action for negligence under the FTCA, Defendant admits that this Court has subject matter jurisdiction over such a claim.” (Answer ¶ 5, ECF No. 10.) According to the United States, it discovered throughout the course of discovery that Brown's suit arises from an alleged battery, not negligence. (Def.'s Reply Pl.'s Resp. (“Def.'s Reply”) at 4, ECF No. 20.) The United States further argues that the Court's lack of subject matter jurisdiction can be raised at any point in the litigation and can never be waived. (Def.'s Mot. at 6; Def.'s Reply at 2-5.)
“[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). Rather, “challenges to a federal court's subject matter jurisdiction . . . may be raised at any time.” Kuntz v. Lamar Corp., 385 F.3d 1177, 1182 (9th Cir. 2004) (citing, inter alia, Cotton, 535 U.S. at 630).
Brown's argument that the United States has “admitted that this Court has subject matter jurisdiction” (Pl.'s Resp. at 2) is unavailing because the United States clearly stated in its answer that the Court has subject matter jurisdiction only over a negligence claim. (Answer ¶ 5.)
In addition, “[s]ubject matter jurisdiction cannot be conferred upon the courts by the actions of the parties and principles of estoppel and waiver do not apply.” Richardson v. United States, 943 F.2d 1107, 1113 (9th Cir. 1991) (citing, inter alia, Ins. Corp. of Ir., Ltd. v.Compagnie de Bauxites de Guinee, 456 U.S. 694, 702 (1982)). Brown argues that the defense of lack of subject matter jurisdiction must be alleged in responsive pleadings, citing Federal Rule of Civil Procedure 12(b). (Pl.'s Resp. at 2-3.) However, Federal Rule of Civil Procedure 12(h) exempts lack of subject matter jurisdiction as a waivable defense. See FED. R. CIV. P. 12(h)(1) (excluding lack of subject matter jurisdiction as a defense that can be waived for failure to file a motion to dismiss or to include it in a responsive pleading); see alsoFED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”) (emphasis added).
Thus, the Court disagrees that the United States has improperly raised the defense of lack of subject matter jurisdiction and considers the merits of the defense herein. SeeIns. Corp. of Ir., Ltd., 456 U.S. at 701 (“[A] party does not waive the requirement [of subject-matter jurisdiction] by failing to challenge jurisdiction early in the proceedings. Similarly, a court . . . will raise lack of subject-matter jurisdiction on its own motion.”); Singh v. City of Oakland, No. 03-cv-05246-SI, 2009 WL 3920767, at *4 n.6 (N.D. Cal. Nov. 18, 2009) (rejecting the plaintiff's argument that the defendant had waived a challenge to the court's subject matter jurisdiction by failing to assert it as an affirmative defense in its answer), aff'd, 429 Fed.Appx. 637 (9th Cir. 2011); Hersh& Hersh v. U.S. Dep't of Health & Hum. Servs., No. 06-cv-4234 PJH, 2007 WL 1411557, at *2 (N.D. Cal. May 11, 2007) (same).
B. Federal Tort Claims Act
The United States argues that the Court should dismiss Brown's complaint for lack of subject matter jurisdiction because the FTCA's statutory exception for claims of battery applies here and thus the United States has not waived its sovereign immunity. (Def.'s Mot. at 5-10.) For the reasons explained below, the Court agrees and recommends that the district judge grant the United States' motion and dismiss this case for lack of subject matter jurisdiction.
1. Applicable Law
“Sovereign immunity is an important limitation on the subject matter jurisdiction of federal courts.” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). “An action can be brought by a party against the United States only to the extent that the Federal Government waives its sovereign immunity.” Esquivel v. United States, 21 F.4th 565, 572 (9th Cir. 2021) (quoting Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996)).
The FTCA “allows a plaintiff to bring certain state-law tort suits against the Federal Government.” Brownback v. King, 592 U.S. 209, 210 (2021) (citations omitted). Federal courts have jurisdiction over state-law tort claims if the claim is:
(1) against the United States, (2) for money damages, . . . (3) for injury or loss of property, or personal injury or death (4) caused by the negligent or wrongful act or omission of any employee of the Government (5) while acting within the scope of his office or employment, (6) under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.Id. at 212 (simplified). In sum, “[t]he FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of employment.” Morales v. United States, 895 F.3d 708, 713 (9th Cir. 2018) (citing 28 U.S.C. § 1346(b)(1)).
The United States argues that sovereign immunity bars Brown's claim because the claim falls under an exception to the FTCA's waiver of sovereign immunity found in 28 U.S.C. § 2680(h). (Def.'s Mot. at 5-10.) The FTCA does not waive sovereign immunity for several enumerated intentional torts, including battery. See 28 U.S.C. § 2680(h) (excluding “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights”).
Federal law applies to determine “what constitutes a battery . . . within the meaning of § 2680(h) of the [FTCA].” Woods v. United States, 720 F.2d 1451, 1453 n.2 (9th Cir. 1983). The Ninth Circuit refers to the Restatement of Torts to determine the essential elements of a tort claim within the meaning of section 2680(h). See, e.g., Sheehan v. United States, 896 F.2d 1168, 1171 n.4 (9th Cir.), amended, 917 F.2d 424 (9th Cir. 1990) (relying on the Restatement of Torts for the elements of an assault claim). The Restatement of Torts provides that an “actor is subject to liability to another for battery” if “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact” and “(b) an offensive contact with the person of the other directly or indirectly results.” RESTATEMENT (SECOND) OF TORTS § 18 (AM. LAW. INST. 1965).
To determine whether section 2680(h) bars a certain claim, courts must “look[] beyond the labels used” for the claim and “beyond the party's characterization,” and instead consider “the conduct on which the claim is based.” Snow-Erlin v. United States, 470 F.3d 804, 808 (9th Cir. 2006) (simplified). “If the gravamen of Plaintiff's complaint is a claim for an excluded tort under § 2680(h), then the claim is barred.” Id. at 808 (citation omitted); see also DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1123 (9th Cir. 2019) (“[I]f the governmental conduct underlying a claim falls within an exception outlined in section 2680, the claim is barred, no matter how the tort is characterized.”) (citation omitted).
2. Analysis
The United States argues that although Brown characterizes his claim as a negligence claim, the evidence reveals that the claim arises out of an alleged battery. (Def.'s Mot. at 6.) According to the United States, although Brown does not explicitly allege in the complaint that Randol intended to strike Brown with the vehicle, that is the only reasonable inference from Brown's testimony. (Id. at 8-9, citing Shipman v. U.S. through U.S. Postal Serv., No. 3:21-cv-00606-SB, 2021 WL 7904044 (D. Or. Dec. 28, 2021), findings and recommendation adopted, 2022 WL 981090 (D. Or. Mar. 30, 2022).)
In Shipman, this Court granted the United States defendant's motion to dismiss because the Court lacked subject matter jurisdiction over the plaintiff's claim “despite its label as a negligence claim.” 2021 WL 7904044, at *2. There, the plaintiff alleged that a United States Postal Service employee was agitated and angry with the plaintiff and violently slung a 350-pound mail cart “toward” and “at” the plaintiff, which struck and injured the plaintiff. Id. at *3. The Court concluded that, “[a]lthough [the plaintiff] does not allege that [the employee] ‘intended' to cause the cart to make contact with [the plaintiff], the only reasonable inference from [the plaintiff]'s allegations is that [the employee] intended to strike [the plaintiff] with the mail cart or, at the very least, intended to cause an imminent apprehension of such a contact.” Id.(citation omitted). Thus, the plaintiff alleged conduct that constituted a battery, his claim necessarily arose out of the alleged battery, and the FTCA's statutory exception to the waiver of sovereign immunity applied. Id.
Brown responds that Shipman is distinguishable. (Pl.'s Resp. at 3-4.) The Court agrees that the posture of Shipman was different because, in Shipman, the Court limited its analysis to the allegations in the plaintiff's complaint at the motion to dismiss stage. See Shipman, 2021 WL 7904044, at *1-4. By contrast here, the parties present evidence for the Court's consideration at summary judgment. Nevertheless, the substance of the Court's analysis is the same. The Court must still consider the gravamen of Brown's claim, considering the conduct on which it is based. See Snow-Erlin, 470 F.3d at 808. Importantly, Brown cannot avoid the relevant inquiry with vague pleadings. See Id. (concluding that the gravamen of the plaintiff's complaint is what matters because “[t]o hold otherwise would permit evasion of the substance of § 2680(h)'s exclusion of liability”) (simplified); A.G. by & through Galindo v. United States, No. 23-cv-745 JLS (KSC), 2023 WL 7134927, at *4 (S.D. Cal. Oct. 30, 2023) (“Artful pleaders cannot circumvent § 2680(h) by disguising a barred claim as a permissible one.”); see also Edwards v.United States, 211 F.Supp.3d 234, 237 (D.D.C. 2016) (“Jurisdictional defects cannot simply be eliminated by creative pleading.”).
Brown also argues that intent is not necessary to prove his negligence claim. (Pl.'s Resp. at 3-6.) The Court agrees, but that that is not the question before the Court. The Court must determine if the conduct on which Brown's claim is based was negligent or intentional, where Brown alleged in his complaint that Randol's conduct was negligent but clearly testified at his deposition about facts establishing that the conduct was intentional.
Brown argues that his testimony that Randol intentionally attempted to hit him is irrelevant and will be inadmissible at trial. (Pl.'s Resp. at 5-6.) The United States responds, and the Court agrees, that even if Brown would not be allowed to characterize Randol's actions as intentional, he could nonetheless testify about his perceptions and personal observations, such as explaining that he saw Randol steering and accelerating directly toward him. (See Def.'s Reply at 11 n.1.)
According to Brown's version of events, Randol would not deliver his mail and therefore Brown blocked Randol's path so Randol could not drive away. (Brown Dep. 18:15-20, 23:1117.) Brown testified that Randol and Brown were angry with each other, yelling and cussing. (Id. at 21:14-15, 23:25-24:9.) Randol purposefully “nudged” Brown several times to get Brown to move. (Id. at 24:25-25:3.) After Brown punched the mirror of the mail truck, Randol decided to hit Brown with the vehicle, accelerated, and drove directly at him. (Id. at 18:22-23, 24:23-24; 26:11-13, 27:7-11; see also id. 18:22-23, noting “when I backed off, he decided to hit me with the vehicle”; id. at 26:11-13, “I stepped back. And then he decided to accelerate and come right at me with the vehicle.”; id. at 27:14-15, confirming that Brown believed Randol intended to hit him.) Third-party witnesses support Brown's version of events. (Feldman Decl. Ex. 1 at 5-6, explaining that Brown “continued to ask the mail carrier to stop but the mail carrier continued to drive at [Brown]” and “the mail carrier turned his vehicle into the resident and seemed to accelerate into him pushing him with the vehicle several feet”; id. at 7, stating that “the postal driver seriously tried to run the man over with his mail truck”).
Brown now attempts to rely on Randol's testimony that he did not move the vehicle at the time of Brown's injury, whether to strike Brown or otherwise. (Pl.'s Resp. at 4.) According to Randol, Brown was injured when he lost his balance and fell down after he punched the vehicle's mirror. (See Randol Dep. 50:3-51:8.) Brown suggests that in light of Randol's contradiction of Brown's testimony, it is possible that Randol's negligence caused his injuries. (See Pl.'s Resp. at 5.) Specifically, Brown posits in his response that Randol could have unintentionally accelerated or oversteered the vehicle to the left, accidentally hitting Brown. (Id.) However, there is no evidence in the summary judgment record to support this version of events. On the contrary, Brown and the third-party witnesses testified that Randol steered and accelerated his vehicle toward Brown and struck him, while Randol will deny that he moved his vehicle at all and that Brown merely fell down. No witness will testify to a series of events in support of Brown's allegation in the complaint that Randol acted negligently to cause Brown's harm. Viewing the evidence in the light most favorable to Brown's version of events, Brown has failed to meet his burden of establishing that his claim arose out of negligent conduct. See Kokkonen, 511 U.S. at 377 (explaining that the party asserting a federal court's jurisdiction has the burden of establishing such jurisdiction); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (explaining that once the moving party has raised a factual motion challenging the court's subject matter jurisdiction, “the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction”).
Here, similar to Shipman, Brown bases his claim on the conduct of an agitated and angry employee who intended to cause harmful or offensive contact. See Shipman, 2021 WL 7904044, at *3. Brown testified that Randol nudged him multiple times with the vehicle to try and get him to move out of the way. (See Brown Dep. 24:23-25:5.) Despite Brown's attempt to plead around the FTCA's statutory exception for battery, the only reasonable inference from Brown's testimony is that his claim arises from his allegation that Randol intended to make contact with Brown or, at the very least, intended to cause an imminent apprehension of such a contact. See Shipman, 2021 WL 7904044, at *3. Further, the mail truck did make direct, offensive contact with Brown, the second element of a battery claim. See RESTATEMENT (SECOND) OF TORTS § 18 (AM. LAW. INST. 1965).
Viewing the record before the Court in the light most favorable to Brown and looking beyond the labels in Brown's complaint, the Court finds that Brown's claim arises out of a battery and therefore falls within the FTCA's exception to the United States' waiver of sovereign immunity. See Mendenhall v. United States, No. 3:20-cv-00312 SLG, 2021 WL 2004780, at *4 (D. Alaska May 19, 2021) (concluding that section 2680(h) barred the plaintiff's negligence claim where the plaintiff alleged that a security guard pushed him to the floor, detained him, and caused him injuries), aff'd, No. 21-35464, 2022 WL 3543366 (9th Cir. Aug. 18, 2022); Dolan v. United States, No. 1:05-cv-3062-CL, 2008 WL 362556, at *14 (D. Or. Feb. 8, 2008) (granting the United States' motion for summary judgment where the “undisputed facts” demonstrated that the plaintiff's claim was based upon conduct that fell within the definitions of assault and battery and was therefore barred by § 2680(h)); cf. Est. of Vinberg through Vinberg v. United States, 636 F.Supp.3d 1002, 1011 (D. Alaska 2022) (denying the United States factual challenge to subject matter jurisdiction over the plaintiff's negligence claim but explaining, “[h]ad the United States come forward with any evidence of what happened leading up to [the decedent] being shot, it might have been possible to conclude that the gravamen of plaintiff's amended complaint was a claim for assault and battery”). As a result, this court lacks subject matter jurisdiction and the district judge should enter judgment dismissing this action.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT the United States' motion for summary judgment (ECF No. 16) and enter judgment dismissing the case.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.