United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S 12(B)(1) MOTION TO DISMISS
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the motion to dismiss of
Defendant United States of America
(“Government”). Dkt. 31. Plaintiffs oppose the
motion. Dkt. 37. 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 in part and denies in
part the motion for the reasons stated herein.
case involves a shooting on Joint Base Lewis-McChord
(“JBLM”) which resulted in the death of a child,
area of JBLM 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.” Dkt. 29 at
3-4. The fence separates a wooded area of undeveloped JBLM
property from the adjacent civilian residential area
(“Woodbrook neighborhood”). Id. Just
beyond the fence there is a trail through the undeveloped
wooded area of JBLM that Woodbrook neighborhood residents
frequently used as a dog-walking trail and park. Id.
at 4-5. It was widely known that the area was also frequented
by teenage children. Id. There has been a
“6-foot by 3-foot hole” in the fence since 2007.
Id. Defendant Adonis Brown (“Brown”) had
frequently used the hole in the fence to access the trail on
JBLM property. Id. at 6.
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.
While the boys were walking the trail through the undeveloped
wooded area of JBLM property, Brown “found a gun under
some brush.” Id. at 6-7. Brown accidently
fired the gun, 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 7.
August 26, 2016, Plaintiffs Jaime Demello, the Estate of
Alexander Demello, Michael Demello, and minor children A.D.
and O.D. (collectively “Plaintiffs”), filed their
original complaint against the Government, Adonis Brown
(“Brown”), and several unnamed others. Dkt. 1.
Plaintiffs asserted claims for common-law negligence, premise
liability, wrongful death, and negligent infliction of
emotional distress. Specifically, Plaintiffs alleged 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. See
1, 2017, the Government moved to dismiss the original
complaint. Dkt. 17. On August 9, 2017, the Court granted the
motion to dismiss. Dkt. 27. Specifically, the Court found
that the factual allegations in the original complaint
focused exclusively on the Government's decision not to
maintain the base's perimeter fence and that the
Government's decision was the exercise of a discretionary
function. Id. Accordingly, the Court lacked
jurisdiction to consider such a claim under the Federal Tort
Claims Act (“FTCA”). However, the Court also
found that Plaintiffs, while they had failed to adequately
allege a claim based on a failure to warn of known hazards,
had nonetheless sufficiently referenced such a claim as to
warrant leave to file an amended complaint. Id.
October 4, 2017, Plaintiffs filed their second amended
complaint. Dkt. 28. The second amended complaint alleges that
the Government knew of frequent criminal activity taking
place in the area where Alexander Demello was shot and
nonetheless failed to remedy or warn of known dangers
inherent to such an area of frequent criminal conduct, such
as the presence of weapons or other dangerous criminal
paraphernalia. Id. 8-9. The second amended complaint
also renewed Plaintiffs' allegations that the Government
is liable for its decision not to repair the hole in the
perimeter fence or maintain adequate security patrols.
November 16, 2017, the Government moved to dismiss the second
amended complaint for lack of jurisdiction on the same theory
as before. Dkt. 31. On December 5, 2017, Plaintiffs
responded. Dkt. 37. On December 11, 2017, the Government
replied. Dkt. 40.
Government 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. In a factual attacks under Rule 12(b)(1), courts
“need not presume the truthfulness of the
plaintiffs' allegations.” White v. Lee,
227 F.3d 1214, 1242 (9th Cir. 2000). Instead, a factual
attack under Rule 12(b)(1) allows district courts to look
beyond “the face of the pleadings, [and] review any
evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of
jurisdiction.” McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988).
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.