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Demello v. United States

United States District Court, W.D. Washington, Tacoma

January 31, 2018

JAIME DEMELLO, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.



         This 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.

         I. BACKGROUND

         This case involves a shooting on Joint Base Lewis-McChord (“JBLM”) which resulted in the death of a child, Alexander Demello.

         The 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.

         On 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.

         On 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 id.

         On June 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.

         On 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. Id.

         On 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.


         A. Standard

         The 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).

         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. ...

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