United States District Court, D. Arizona
Felix H. Kinlichee; et al., Plaintiffs,
United States of America, Defendant
For Felix H Kinlichee, re: his father deceased Filbert Henry Kinlichee, Plaintiff: Forrest G Buffington, Scott Eugene Borg, Barber & Borg LLC, Albuquerque, NM.
For Priscilla L Davis, re: her father deceased Filbert Henry Kinlichee, Filvert H Kinlichee, re: his father deceased Filbert Henry Kinlichee, Felice H Kinlichee, re: her father deceased Filbert Henry Kinlichee, Filexis Kinlichee, re: her father deceased Filbert Henry Kinlichee, Loretta Hart, re: her father deceased Filbert Henry Kinlichee, Plaintiffs: Forrest G Buffington, Barber & Borg LLC, Albuquerque, NM.
For United States of America, Defendant: Michael A Johns, LEAD ATTORNEY, U.S. Attorney's Office, Phoenix, AZ.
James A. Teilborg, Senior United States District Judge.
Pending before the Court is Defendant's Motion to Dismiss certain claims made by Plaintiffs. (Doc. 47). Plaintiffs filed a Response (Doc. 52), and Defendant filed a Reply (Doc. 56). The Court rules on the Motion.
From November 5, 2009 to November 8, 2009, Filbert Kinlichee (" Mr. Kinlichee" ) went several times to the Emergency Department (" ED" ) at Chinle Comprehensive Health Care Facility (" CCHCF" ).  (Doc. 1 at 1, 3-5). During each of the ED visits, CCHCF medical providers evaluated and treated Mr. Kinlichee, and then discharged him to his home. ( Id. at 4). On November 8, 2009, Mr. Kinlichee developed respiratory distress, was taken to the CCHCF ED for a third time that day, received unsuccessful resuscitation measures, and died. ( Id. at 5).
Mr. Kinlichee is survived by five biological children. (Doc. 1 at 2-3). Additionally, in 1992, when Plaintiff Priscilla Davis (" Ms. Davis" ) was approximately age six, Mr. Kinlichee became Ms. Davis's stepfather because her natural mother, Sartreva Blacksheep, married Mr. Kinlichee. ( Id. ). In 2003, Mr. Kinlichee obtained guardianship of Ms. Davis after his marriage to Ms. Blacksheep ended. ( Id. ).
In May 2010, Scott E. Borg (" Mr. Borg" ), Plaintiffs' attorney, prepared a Standard Form 95 " Claim for Damage, Injury, or Death" for each of Mr. Kinlichee's biological children, and for Ms. Davis (the " Forms" ). (Doc. 45-1 at 1-30). Mr. Borg addressed and sent the Forms to the United States Department of Health & Human Services (" HHS" ). ( Id. at 3, 5, 8, 10, 13, 15, 18, 20, 23, 25, 28, 30). Mr. Borg signed each of the Forms, " Scott E. Borg for . . . ." ( Id. ). On one of the Forms, the word " Attorneys" was included next to Mr. Borg's law firm name. ( Id. at 8). The " Amount of Claim" for " Wrongful Death" was listed on each Form as " $10,000,000.00." ( Id. ). The Forms described the medical care that Mr. Kinlichee received in the CCHCF ED, the events at the time of Mr. Kinlichee's death, and the allegation that negligent care led to his death. ( Id. at 3-4, 8-9, 13-14, 18-19, 23-24, 28-29). On May 24, 2010, HHS stamped the Forms as " Received." ( Id. ).
From May through December of 2010, HHS sent three letters to Mr. Borg, as well as a fourth letter on March 7, 2011. (Doc. 45-1 at 32-33, 35-36, 39, 42-43). The first letter requested additional information from Mr. Borg, including a letter of representation. ( Id. at 32-33). The next three letters reminded Mr. Borg to send HHS the requested information. ( Id. at 35-36, 39, 42-43). Each of the four letters contained a warning that under 45 C.F.R. § 35.4(d), HHS could deem Mr. Borg's clients' claims abandoned if the requested information was not received within three months. ( Id. at 32-33, 35-36, 39, 42-43). Each of the four letters was addressed to " Scott Borg, Esq.," and referred to " your clients' claims" in the first sentence. ( Id. at 32, 35, 39, 42).
On March 14, 2011, approximately ten months after HHS marked the Forms as
received, and before Mr. Borg had received a disposition from HHS on his clients' claims, Mr. Borg filed a wrongful death complaint (the " Complaint" ) in this Court on behalf of Mr. Kinlichee's five biological children and Ms. Davis. (Doc. 1). Plaintiffs alleged that negligence on the part of CCHCF employees resulted in Mr. Kinlichee's death. ( Id. at 5-8).
On May 26, 2011, HHS sent Mr. Borg a fifth letter. (Doc. 59 at 1). HHS addressed the letter to " Scott E. Borg, Esquire." ( Id. ). The letter stated that it was a " notice of final determination on the claim," and informed Mr. Borg that because his clients filed a lawsuit, their claims made to HHS were denied. ( Id. ).
On June 22, 2012, the Family Court of the Navajo Nation in Chinle, Arizona entered its " Order Validating Navajo Common Law Adoption." (Doc. 52-1 at 1-10). That Navajo Nation court order established Mr. Kinlichee as Ms. Davis's adoptive father. ( Id. at 10). The order was posthumous (as to Mr. Kinlichee) and retroactive to 2003. ( Id. ).
On June 11, 2012, Defendant filed the pending Motion to Dismiss Plaintiffs' wrongful death claims. (Doc. 47). On June 28, 2012, Mr. Borg filed a Response on behalf of Plaintiffs. (Doc. 52). On July 9, 2012, Defendant filed a Reply. (Doc. 56).
In its Motion to Dismiss, Defendant makes two arguments for why the Court should dismiss Plaintiffs' claims. (Doc. 47 at 2-3). First, Defendant argues that all of Plaintiffs' wrongful death claims should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). ( Id. at 2). Second, Defendant argues that Ms. Davis's wrongful death claim should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction because she lacks standing to be a plaintiff. ( Id. at 2-3).
Rule 12(b)(1) " allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction." Tosco Corp. v. Comtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001). Allegations raised under Rule 12(b)(1) should be addressed before other reasons for dismissal because if the complaint is dismissed for lack of subject matter jurisdiction, other defenses raised become moot. See Wright and Miller, Federal Practice and Procedure: Civil 2d § 1350, 209-10 (1990).
" The party asserting jurisdiction [i.e., Plaintiff] has the burden of proving all jurisdictional facts." Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).
An allegation of lack of subject matter jurisdiction may be raised at any time by the parties or the court. Fed.R.Civ.P. 12(h)(3). A Rule 12(b)(1) motion to dismiss " for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs., 594 F.2d 730, 733 (9th Cir. 1979).
In resolving a " speaking motion" or " factual attack" under Rule 12(b)(1), the court is not limited to the allegations in the pleadings if the jurisdictional issue is separable from the merits of the case. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Instead, the court may view evidence outside the record, and no presumptive truthfulness is due to the complaint's allegations that bear on the subject matter jurisdiction of the court. Augustine
v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). Indeed, " the district court is  free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Id. However, if the court resolves a Rule 12(b)(1) motion on declarations alone, without an evidentiary hearing, it must accept the complaint's ...