United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge.
Oscar and Diocelina Lopez and their minor child J.L. brought
this case against the United States under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1),
for the allegedly negligent execution of a search and seizure
warrant. The Government has filed a Motion to Dismiss for
Lack of Subject Matter Jurisdiction and Motion for Summary
Judgment (“Mot.”) (Doc. 76), to which Plaintiffs
have filed a Response (“Resp.”) (Doc. 86) and the
Government has filed a Reply (Doc. 91). For the reasons
that follow, the Court will grant the Government's Motion
to Dismiss, deny as moot its Motion for Summary Judgment, and
dismiss Plaintiffs' claim for lack of subject matter
jurisdiction. . . . . . . . . . . . .
case stems from federal agents' execution of a warrant on
Plaintiffs' property.On March 3, 2011, a United States
Magistrate Judge issued a search and seizure warrant for
Lopez Auto Body and Towing in Glendale, Arizona. (SOF
¶¶ 3-4.) The body shop was located on a parcel that
also contained a residence, office, and yard. (SOF
¶¶ 5-6.) Acting alongside state and local law
enforcement, federal agents executed the warrant the
following day. (SOF ¶¶ 8, 19.) Agents breached
several doors and windows of the shop, residence, and office,
as well as the windows of seven vehicles that belonged to
Plaintiffs' customers. (SOF ¶¶ 12-16.)
Plaintiffs testified that agents damaged additional property,
including a dresser, box spring, kitchen cupboards, a
television, closet door, air conditioning vents, and a
bedroom wall. (SOF ¶¶ 23-31.) Plaintiffs have also
alleged that agents seized a laptop computer and five cell
phones. (Doc. 1, Compl. ¶ 20.)
later filed an administrative claim with the United States
Drug Enforcement Agency. The agency denied the claim on
November 9, 2016. (SOF ¶ 2.) Plaintiffs filed this case
on May 6, 2017. (Compl.) Plaintiffs make a single FTCA claim
in which they allege that federal agents negligently executed
the search and seizure warrant, which resulted in wrongfully
seized and damaged property, lost profits, and emotional pain
and suffering. (Compl.) On March 20, 2018, the Court
dismissed the lost profits portion of Plaintiffs' claim
for lack of subject matter jurisdiction. (Doc. 46, Mar. 20,
2018 Order at 3-5.) With the instant motions, the Government
again seeks dismissal for lack of subject matter jurisdiction
under the FTCA, or alternatively, summary judgment for
insufficient evidence supporting Plaintiffs' claim.
Rule 12(b)(1) - Dismissal for Lack of Subject Matter
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may attack either the allegations of the
complaint as insufficient to confer upon the court subject
matter jurisdiction, or the existence of subject matter
jurisdiction in fact.” Renteria v. United
States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing
Thornhill Publ'g Co. v. Gen. Tel. & Elecs.
Corp., 594 F.2d 730, 733 (9th Cir. 1979)). “Where
the jurisdictional issue is separable from the merits of the
case, the [court] may consider the evidence presented with
respect to the jurisdictional issue and rule on that issue,
resolving factual disputes if necessary.”
Thornhill, 594 F.2d at 733; see also Autery v.
United States, 424 F.3d 944, 956 (9th Cir. 2005)
(“With a 12(b)(1) motion, a court may weigh the
evidence to determine whether it has jurisdiction.”).
The burden of proof is on the party asserting jurisdiction to
show that the court has subject matter jurisdiction. See
Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090,
1092 (9th Cir. 1990).
Rule 56 - Summary Judgment
judgment is appropriate when: (1) the movant shows that there
is no genuine dispute as to any material fact; and (2) after
viewing the evidence most favorably to the non-moving party,
the movant is entitled to prevail as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N.
Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). “Only
disputes over facts that might affect the outcome of the suit
under governing [substantive] law will properly preclude the
entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine
issue” of material fact arises only “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
considering a motion for summary judgment, the court must
regard as true the non-moving party's evidence, if it is
supported by affidavits or other evidentiary material.
Celotex, 477 U.S. at 324; Eisenberg, 815
F.2d at 1289. The non-moving party may not merely rest on its
pleadings; it must produce some significant probative
evidence tending to contradict the moving party's
allegations, thereby creating a material question of fact.
Anderson, 477 U.S. at 256-57 (holding that plaintiff
must present affirmative evidence to defeat properly
supported motion for summary judgment); First Nat'l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289
summary judgment motion cannot be defeated by relying solely
on conclusory allegations unsupported by factual data.”
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
“Summary judgment must be entered ‘against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.'” United States v. Carter, 906 F.2d
1375, 1376 (9th Cir. 1990) (quoting Celotex, 477
U.S. at 322).
Court begins and ends with the Government's motion to
dismiss. Given the Court's limited jurisdiction,
Plaintiffs must first show that this case falls within the
Court's subject matter jurisdiction. See Kokkonen v.
Guardian Life Ins. Co. of Am., 511 ...