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Shosie v. City of Tucson

United States District Court, D. Arizona

September 23, 2015

Linda Shosie, Plaintiff,
v.
City of Tucson, et al., Defendant.

ORDER

CINDY K. JORGENSON, District Judge.

Pending before the Court is the Motion to Dismiss for Lack of Jurisdiction (Doc. 7) filed by the United States on behalf of federal defendants.

I. Procedural History

Plaintiff Linda Shosie ("Shosie") filed a pro se Complaint in the Superior Court for the State of Arizona in Pima County alleging Defendants contaminated the groundwater supply and Shosie's body with the chemical solvent trichloro-ethylene (TCE) causing bodily injury (Doc. 1-3). In her original Complaint, Shosie alleged claims of nuisance, trespass, negligence, strict liability, and intentional torts (Doc. 1-3 at pp. 7-8) against the City of Tucson, the Tucson Airport Authority, the U.S. Air Force, Raytheon Company, Air Force Plant 44, Arizona, the U.S. Environmental Protection Agency, and the Arizona Department of Environmental Quality. After the filing of the Complaint, the federal defendant properly filed a notice removal of the action from the Superior Court of Arizona, Pima County, to the U.S. District Court, District of Arizona pursuant to 28 U.S.C. §§ 1442(a) (1) and 1446.[1] Federal defendants also filed a Motion to Dismiss for Lack of Jurisdiction (Doc. 5).

On July 21, 2015, Shosie filed an Amended Complaint. The Amended Complaint alleges the same causes of action, but alleges the conduct was committed by the City of Tucson, Pima County, the Tucson Airport Authority, the U.S. Air Force, the Aeronautical System Center, Wright Patterson, and the United States. The Court will refer to the federal defendants as "federal defendants" or "the United States."

On August 10, 2015, the United States filed a Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 7). Declarations in support of the Motion have also been filed (Docs. 8 and 9). On September 16, 2015, Shosie filed a Motion to Response and Motion for Leave to Amend Civil Complaint (Doc. 10).

II. Motion to Response and Motion for Leave to Amend Civil Complaint (Doc. 10)

Although untimely, see LRCiv 12.1(b), LRCiv 56.1(d), the Court will accept Shosie's filing as a Response/Objection to the Renewed Motion to Dismiss or, in the Alternative, a Motion to Amended Complaint to State Claims against Federal Defendants.

As discussed infra, dismissal of the claims against federal defendants is appropriate. In determining whether an amended pleading should be permitted, "[f]ive factors are frequently used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether [Shosie] has previously amended [her] complaint." Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

In this case, Shosie has not submitted a proposed Second Amended Complaint for the Court's review. See LRCiv 15.1. Nonetheless, based on Shosie's filing, the Court does not find Shosie is acting in bad faith or has acted with undue delay. However, the Court finds allowing Shosie to file a Second Amended Complaint that includes claims against federal defendants would prejudice federal defendants. Moreover, Shosie's filing does not present any valid arguments that the United States's statement of the law in its Motion to Dismiss is incorrect or inapplicable; therefore, the Court finds permitting Shosie to file a Second Amended Complaint to allege claims against federal defendants would be futile.[2]

III. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." U.S.C. § 28-1331. Additionally, this Court has "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a).

The party invoking the jurisdiction of the federal court bears the burden of establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either "facially" or "factually." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). When a motion to dismiss is a factual attack on subject matter jurisdiction, no presumptive truthfulness attaches to a plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Id. When a motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, however, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). Similarly, when a ...


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