United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANTS' MOTION TO
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant United States of
America's (“Government”) motion to dismiss.
Dkt. 17. The Court has considered the pleadings filed in
support of and in opposition to the motion and the remainder
of the file and hereby grants the motion for the reasons
August 26, 2016, Plaintiffs Jaime Demello, the Estate of
Alexander Demello, Michael Demello, and minor children A.D.
and O.D. (collectively “Demellos”), filed a
complaint against the Government, Adonis Brown
(“Brown”), and several unnamed others. Dkt. 1
(“Compl.”). The Demellos assert claims for common
law negligence, premise liability, wrongful death, and
negligent infliction of emotional distress
(“NIED”). Id. at 6. On October 13, 2016,
the Government answered. Dkt. 10. On December 13, 2016,
default was entered against Brown. Dkt. 15.
1, 2017, the Government filed a motion to dismiss. Dkt. 17.
On June 12, 2017, the Demellos responded. Dkt. 24. On June
16, 2017, the Government replied. Dkt. 25.
case involves a shooting on Joint Base Lewis-McChord
(“JBLM”) which resulted in the death of minor
civilian, Alexander Demello. The Demellos allege that the
Government's failure to secure the perimeter separating
the base from a civilian neighborhood, despite safety
complaints and knowledge of criminal activity in the area,
breached a duty owed to Alexander Demello and proximately
caused his death and the other injuries alleged.
perimeter at issue is marked by a chain-link fence that
stands “at the end of Woodbrook Drive SW just beyond
150th St SW, in Lakewood, WA.” Compl. at
¶ 3.1. The fence separates a wooded area of undeveloped
JBLM property from the adjacent civilian residential area
(“Woodbrook neighborhood”). Id. As of
October 20, 2015, there was no signage along the fence to
indicate that the property beyond belonged to JBLM.
Id. at ¶ 3.3. Just beyond the fence there is a
trail through the undeveloped wooded area of JBLM that
Woodbrook neighborhood residents used as a dog-walking trail
and park. Id. at ¶ 3.2. There has been
a“6-foot by 3-foot hole” in the fence since 2007.
Id. at ¶¶ 3.1, 3.2. Brown had frequently
used the hole in the fence to access the trail on JBLM
property. Id. at 3.5. The hole and civilian use of
the property beyond it were documented in “complaints
to the Security Specialist of JBLM on May 18, 2011, ”
which indicated that the hole was “a safety risk and
security issue” and should be repaired
“ASAP.” Id. at ¶ 3.12. There have
also been reports of criminal activity in the area around the
compromised fence. Id. at ¶¶ 3.2, 3.11.
October 20, 2015, 14-year-old A.D. and his 13-year-old
brother, Alexander Demello, followed their 17-year-old
friend, Brown, onto the undeveloped wooded area of JBLM
property. The Demellos and Brown were residents of the
Woodbrook neighborhood, and “had no knowledge that the
wooded property adjacent to their neighborhood belonged to
JBLM or that it was Government Property.” Id.
at ¶¶ 3.4, 3.5. While the boys were walking the
trail through the undeveloped wooded area of JBLM property,
Brown “found a gun under some brush.” Compl. at
¶ 3.7. In the hands of Brown, the gun accidently fired,
striking Alexander Demello “in the face just below his
right eye.” Id. On October 25, 2015, Alexander
Demello died at Mary Bridge Children's Hospital in
Tacoma, Washington. Id. at ¶¶ 3.9, 3.10.
moves to dismiss for lack of subject matter jurisdiction.
Motions to dismiss brought under Rule 12(b)(1) of the Federal
Rules of Civil Procedure may challenge jurisdiction factually
by “disputing the truth of the allegations that, by
themselves, would otherwise invoke federal jurisdiction,
” or facially by “asserting that allegations in
the complaint are insufficient on their face to invoke
federal jurisdiction.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). For facial
challenges, a plaintiff's allegations are assumed as true
and the complaint is construed in his favor. Id.
Federal courts are presumed to lack jurisdiction and on a
motion to dismiss pursuant to Rule 12(b)(1) the burden of
proof is on the plaintiff to establish subject matter
jurisdiction. Stock West, Inc. v. Confederated
Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). To meet
this burden in an action against the Government, a plaintiff
“must point to an unequivocal waiver of sovereign
immunity.” Blue v. Windall, 162 F.3d 541, 544
(9th Cir. 1998) (citing Holloman v. Watt, 708 F.2d
1399, 1401 (9th Cir. 1983)).
Discretionary Function Exception
Demellos bring claims against the Government pursuant to the
Federal Tort Claims Act (“FTCA”). The FTCA is a
limited waiver of sovereign immunity that allows claims to be
brought against the Government for “the negligent or
wrongful act or omission of any employee of the government
while acting within the scope of his office or
employment.” 28 U.S.C. § 2675(a). Congress has
designated numerous exceptions to the FTCA's waiver of
sovereign immunity by exempting the Government from liability
for certain types of claims. See 28 U.S.C. §
2680. These statutory exceptions must be construed strictly
in favor of the Government. U.S. v. Nordic Village,
503 U.S. 30, 34 (1992) (citing McMahon v. U.S., 342
U.S. 25, 27 (1951) (“statutes which waive immunity of
the Government from suit are to be construed strictly in
favor of the sovereign.”); F.D.I.C. v. Craft,
157 F.3d 697, 707 (9th Cir. 1998) (“the FTCA's
waiver of sovereign immunity is ...