United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE AND RENOTING MOTION
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on Defendant Kitsap County's Motion to Dismiss for Failure to State a Claim and Motion to Dismiss for Insufficient Process and Service of Process (Dkt. 14). The Court has considered the pleadings filed in support of the motion and the remainder of the file.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 1, 2013, Plaintiff filed her amended complaint in Kitsap County Superior Court. Dkt. 4 at 5-9. The complaint alleges that Defendant Frank Zavier Davalos ("Davalos"), while under the supervision of Kitsap County, had "repeated intentional unwanted sexual contact with Plaintiff while she was in her home and in the Sheriffs' vehicle provided to Defendant Frank Davalos." Id. at 7. Based on those events, Plaintiff makes claims of "negligence, abuse, exploitation, outrage, and negligent infliction of emotional distress and sexual assault." Id. at 8. Under "Relief Requested, " Plaintiff requested "cost [sic] and reasonable attorney's fees pursuant to 42 U.S.C. 1983, " and "punitive damages against the Defendants pursuant to 42 U.S.C. 1983." Id. at 9. Plaintiff made no other reference to § 1983 in her amended complaint. See id.
Defendants Kitsap County Sheriff's Office and Its Direct Supervisors (Kitsap County), Defendant South Kitsap School District #402 (Kitsap School District), and Defendant Davalos are each separately represented. Dkt. 1.
On November 8, 2013, Davalos removed the case to federal court stating that this case is "founded on a claim arising under federal law, " appearing to reference a possible claim by Plaintiff under 42 U.S.C. § 1983. Dkt. 1. On November 12, 2013, Kitsap School District joined in the removal (Dkt. 7), but Kitsap County did not file any joinder or opposition to the removal. At the time of removal, Kitsap County had apparently not been served; Kitsap County was served over 60 days later, on January 23, 2013. See Dkts. 14 and 23.
On January 16, 2014, Kitsap County filed this Motion to Dismiss for Failure to State a Claim and Motion to Dismiss for Insufficient Process and Service of Process, requesting that the Court dismiss all claims against it. Dkt. 14. Kitsap County argued that Plaintiff failed to state a claim because: (1) Washington courts have held that an employer is not vicariously liable for the sexual assaults of its employees; (2) Washington's public duty doctrine precludes recovery for breach of duty because there is no special relationship between Plaintiff and Kitsap County; (3) Plaintiff does not allege a causal connection between Plaintiff's injury and Davalos's employment; and (4) Plaintiff's pleadings are insufficient to provide Kitsap County notice of the claims. Dkt. 14. Kitsap County also argues for dismissal based on insufficient service of process because Plaintiff served Kitsap County with a summons naming Davalos in the caption, not Kitsap County. Id.
Plaintiff responded on February 1, 2014, alleging that: (1) Kitsap County is liable for foreseeable sexual assaults by its employees under J.N. v. Bellingham Sch. Dist. No. 501, 74 Wn.App. 49 (1994); (2) Washington's public duty doctrine has no application for intentional torts of government agents and Kitsap County formed a special relationship with Plaintiff by assigning Davalos to Plaintiff's public school; (3) sexual assaults by an on-duty sheriff's deputy and in his patrol vehicle constitutes a causal connection; and (4) Plaintiff's pleadings are sufficient because Kitsap County's negligent supervision allowed Davalos multiple opportunities to sexually assault Plaintiff. Dkt. 23. Plaintiff also represented that she served the correct summons on Kitsap County on January 23, 2013. Dkt. 23 at 24.
In reply, Kitsap County argued that: (1) a School Resource Officer does not have a duty to students like a school does; (2) any failure to protect claim is not the cause-in-fact or the legal cause of Plaintiff's injuries; (3) there are no facts supporting a theory of negligent hiring, retention, or supervision, and even if there were, such a theory is not the proximate cause of Plaintiff's injury; and (4) the public duty doctrine applies to claims against Kitsap County. Dkt. 25. In addition, Kitsap County asked the Court to strike all of Plaintiff's reference to non-admissible hearsay. Dkt. 25 at 3-4.
Neither Davalos nor Kitsap County School District responded to this motion to dismiss.
Under 28 U.S.C. § 1441(b), a defendant may remove a civil action brought in a state court to federal court if the complaint includes a claim "arising under" federal law. However, the federal removal statute provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). A district court has "a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not." United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004).
A. Federal Question Jurisdiction
A federal court is presumed to lack subject matter jurisdiction until a plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, the plaintiff bears the burden of proving the existence of subject matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000). Removal based on federal question jurisdiction is only ...