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Ramirez v. Garcia

United States District Court, S.D. Texas, Corpus Christi Division

October 30, 2019

VERONICA RAMIREZ, Plaintiff,
v.
RIGOBERTO POMPA GARCIA, et al, Defendants.

          ORDER GRANTING UNITED STATES OF AMERICA'S MOTIONS TO DISMISS

          NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE.

         Plaintiff Veronica Ramirez (the decedent's widow) filed this wrongful death action on behalf of herself, the Estate of Martin Gomez Arrellano (the decedent), and A.A.G. (the decedent's minor son). D.E. 1-2, 14. Ramirez sued Juan Enrique Escobedo Moreno (Escobedo), who filed a third-party claim against the United States, seeking contribution. D.E. 42-1.[1] Plaintiff Blanca Gomez Arellano (the decedent's mother) filed a separate wrongful death action against the United States on behalf of herself and the decedent's estate. D.E. 44. The cases have been consolidated in this action.

         Before the Court are the Government's substantively identical motions to dismiss (D.E. 7, 16, 22), challenging all of the claims raised against it by both sets of Plaintiffs and the Third-Party Plaintiff. The Government argues that the Court lacks subject matter jurisdiction to adjudicate the claims by virtue of its sovereign immunity. Plaintiffs responded (D.E. 24, 29, 31) and the Government replied (D.E. 33, 34). For reasons set forth, the motions to dismiss (D.E. 7, 16, 22) are GRANTED.

         DISCUSSION

         Martin Gomez Arellano (Gomez) died of asphyxiation while he was concealed and trapped in an inner compartment of a Kenworth tractor sleeper berth. The tractor-trailer had been detained and impounded at the Falfurrias, Texas checkpoint after Border Patrol agents discovered Roberto Rico-Duran, an undocumented alien, hiding in the closet of the same sleeper berth. The agents took Rico-Duran and the truck driver, Escobedo, into custody, charging Escobedo with the crime of unlawful transportation of an alien.

         Plaintiffs claim that the Border Patrol agents were required to open all compartments and inventory them before impounding the vehicle. Doing so, they claim, would have ensured that Gomez was discovered and removed from the compartment before he died. According to the pleadings, the agents failed to conduct that inventory. Alternatively, Plaintiffs allege in conclusive terms that the agents discovered Gomez, but intentionally left him to die. Because of the nature of the features of the compartment, Gomez could not open it from the inside and his body was discovered three days later when its decomposition became apparent.

         Plaintiffs sued the United States (as the proper party encompassing the Department of Homeland Security and the Customs and Border Protection Agency) for negligence, assault and battery, false imprisonment, and intentional infliction of emotional distress, alleging that the agents' failure to discover Gomez, or their intentional or reckless disregard for him, caused his death. D.E. 14, 42-1, 44. The United States seeks dismissal of all claims against it on the basis of sovereign immunity, which defeats jurisdiction.

         A. Standard of Review

         Absent a waiver of sovereign immunity, courts lack subject matter jurisdiction over lawsuits against the United States. Lehman v. Nakshian, 453 U.S. 156, 161 (1981). The burden of proof on a Rule 12(b)(1) motion challenging jurisdiction is on the party asserting jurisdiction-Plaintiffs and the Third-Party Plaintiff here. Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001). In examining a Rule 12(b)(1) motion, a court may consider “(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Willoughby v. United States ex. Rel. U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013).

         B. FTCA Waiver

         To determine the Court's jurisdiction, we look to see if Plaintiffs have shown that the Government has waived its immunity with respect to the category of claims in which the action falls. Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). Plaintiffs bring state law tort claims under the Federal Tort Claims Act (FTCA), which waives the government's sovereign immunity for claims of

personal injury or death caused by the negligent or wrongful act or omission of any Government employee while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). On its face, the FTCA waiver applies to defeat sovereign immunity for the tort claims against the United States unless a separate statutory exception applies.

         C. Customs-Duty Exception

         The Government argues that sovereign immunity still applies in this case because the facts place the claims within an exception to the FTCA waiver that is alternately referred to as the customs-duty or detention of property exception. This exception preserves sovereign immunity against “[a]ny claim arising in respect of . . . the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer . . . .” 28 U.S.C. § 2680(c). The Supreme Court has held that any claim ...


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