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Watchman-Moore v. United States

United States District Court, D. Arizona

June 22, 2018

Derrith Watchman-Moore, et al., Plaintiffs,
v.
United States of America, et al., Defendants.

          ORDER

          Honorable Stephen M. McNamee Senior United States District Judge

         Pending before the Court is the United States of America's (“Defendant” or “the government”) Motion to Dismiss pursuant to Rules 12(b)(1) and (b)(6). (Doc. 11.) Plaintiffs have filed a response to the Motion to Dismiss and filed a Motion for leave to amend. (Doc. 17.) Magistrate Judge jurisdiction was agreed to by some parties, but not all.[1](Doc. 15.)

         Pending before this Court, the magistrate judge's Report and Recommendation that the partial motion to dismiss be granted and that the motion for leave to amend de denied without prejudice[2]. (Doc. 34.)

         After considering the Report and Recommendation and the arguments raised in the Objection, the Response, and the Reply, the Court now issues the following ruling.

         STANDARD OF REVIEW

         When reviewing a Magistrate Judge's Report and Recommendation, this Court “shall make a de novo determination of those portions of the report…to which objection is made, ” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

         DISCUSSION

         The Government's partial motion to dismiss raises several grounds for dismissal. (Doc. 11.) The Government first argues that (a) Derrith Watchman-Moore, as personal representative of the decedent's estates, and the decedent's siblings, Callan David Moore, Cheyenne Summer Moore, Cerra Dawn Moore, and Chael Skye Moore, should be dismissed as plaintiffs from this action because they are not the proper parties to bring a wrongful death action under Arizona law. (Id. at 2.) The Government also argues that (b) because the United States is the only proper defendant in a claim brought under the FTCA; all other defendants should be dismissed. Additionally, the Government argues that (c) the Court should dismiss Plaintiff's claims for negligent supervision, hiring, and retention in paragraphs 50 - 51 and 61 of the Complaint pursuant to Rule 12 (b)(6) for failure to state a claim because the FTCA does not provide for suits against institutional defendants. Finally, the parties' dispute (d) whether Arizona or Navajo law applies to Plaintiffs' FTCA claim. (Doc. 11 at 3-4, Doc 17 at 11-14, Doc. 22 at 3-5.)

         After reviewing this matter de novo, the Court agrees with the magistrate judge's recommendation on all issues. These issues have been extensively analyzed and reasoned in the Report and Recommendation. (Doc. 34.)

         A. Proper parties to a wrongful death action under Arizona Law The Government argues that pursuant to Arizona Revised Statute 12-612(a),

An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.

          The Plaintiffs object, citing that a “personal representative of [the] estate may file a survival action….” This Court agrees with the language contained within A.R.S. § 12-612(A).

         B. Proper Defendants

         The Government next argues that all other named defendants should be dismissed because the United States is the only proper defendant in a claim brought under FTCA. Plaintiffs have not objected to this. As previously noted, in all future claims, the ...


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