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Gallegos Reyes v. United States

United States District Court, W.D. Texas, San Antonio Division

January 15, 2020

BLANCA MARISELA GALLEGOS REYES, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF FERNANDO ESPINO DELGADO AND AS NEXT FRIEND OF CRISTOFER DE JESUS ESPINO GALLEGOS, A MINOR, JESUS ESPINO SIFUENTES, AND CONSUELO DELGADO BRIONES, Plaintiffs,
v.
UNITED STATES OF AMERICA AND DIMMIT COUNTY, TEXAS AND JORGE LUIS MONSIVAIS, JR., Defendants.

          MEMORANDUM AND ORDER

          ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant United States of America's ("United States" or "Movant") Motion to Dismiss (the "Motion"). Docket no. 13. For the reasons explained below, the Motion is GRANTED.

         BACKGROUND

         On June 17, 2018, United States Border Patrol agents ("BPA") and the Dimmit County Sheriff s Office ("Dimmit County") initiated a traffic stop of a vehicle traveling in Dimmit County, Texas. Docket no. 1 ¶¶ 13-14. After the driver, Jorge Luis Monsivais Jr. ("Monsivais"), failed to stop, BPA and Dimmit County pursued the vehicle down Highway 85 at an alleged speed of more than 100 miles per hour. Docket no. 1 ¶¶ 14-15. At approximately 11:13 AM, Monsivais's vehicle crashed, ejecting twelve passengers including Fernando Espino Delgado ("Delgado"). Docket no. 1 ¶ 15. Delgado was fatally injured and died at the scene. Docket no. 1 ¶ 16.

         On October 30, 2018, Plaintiffs-Delgado's wife, son, and parents-each filed a Standard Claim Form 95 with United States Customs and Border Protection ("CBP") pursuant to 28 U.S.C. § 2675. Docket no. 1 ¶ 9. Plaintiffs claimed damages against the United States for the wrongful death of Delgado on behalf of themselves and the Delgado estate. Docket no. 14-2. On February 13, 2019, Plaintiffs received notice from CBP that their claims had been denied. Docket no. 14-3. Plaintiffs then filed this suit against the United States, [1] Dimmit County, and Monsivais (collectively, "Defendants") on July 27, 2019. Docket no. 1. Plaintiffs' Complaint asserts claims of damages on behalf of themselves and the Delgado estate. See Id. Plaintiffs allege that their damages are the result of negligent behavior by Defendants, including an alleged "counter evasive maneuver" by Dimmit County that Plaintiffs assert impacted Monsivais's vehicle causing it to flip over and eject Delgado. Docket no. 1 ¶¶ 16, 25, 28, 31.

         Defendant United States has moved to dismiss Plaintiffs' claims on three grounds. First, pursuant to Fed.R.Civ.P. 12(b)(1), Movant argues that the Court lacks subject matter jurisdiction over Plaintiffs' claims against the United States because the "discretionary function" exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, etseq., preserves sovereign immunity with respect to those claims. Docket no. 13 at 6-9. Second, pursuant to Fed.R.Civ.P. 12(b)(6), Movant argues that Plaintiffs failed to state a claim upon which relief can be granted. Docket no. 13 at 10-11. Finally, Movant argues that Plaintiffs did not properly comply with the requirements for filing a claim against the federal government for money damages pursuant to 28 U.S.C. § 2675(a). Docket no. 13 at 9-10.

         Because the Court concludes that Movant's first argument mandates dismissal of Plaintiffs' claims against the United States, only that argument is addressed in detail below.

         LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(1), a party can move for dismissal where the Court lacks subject matter jurisdiction over the case, including where the plaintiffs claims are barred by sovereign immunity. See Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998). "The party asserting jurisdiction has the burden of proof." United States v. Renda Marine, Inc., 667 F.3d 651, 654 (5th Cir. 2012). Dismissal under Fed.R.Civ.P. 12(b)(1) is only appropriate where it "appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).[2]

         DISCUSSION

         I. The FTCA and the Discretionary Function Exception

         "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). The Federal Tort Claims Act offers one instance of this consent, waiving the United States' sovereign immunity and granting private parties subject matter jurisdiction to bring suit when a federal employee commits a tort while acting within the scope of his or her employment. See 28 U.S.C. § 2674. However, under the FTCA's discretionary function exception, sovereign immunity is not waived-and a party lacks subject matter jurisdiction to sue the federal government-when a claim arises from a government employee's performance of a discretionary function or duty on behalf of a federal agency. 28 U.S.C. § 2680(a).

         To fall within the exception, the act that led to the injury must satisfy a two-factor test. See Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). The first factor examines whether the act was mandated by a statute, regulation, or policy. See Id. If an employee's behavior is required, "there will be no shelter from liability because there is no room for choice." United States v. Gaubert, 499 U.S. 315, 324 (1991). The second factor considers whether the tortious act implicates a social, economic, or political policy consideration. See Berkovitz, 486 U.S. at 537. To satisfy this factor, there need not be an evaluation of the subjective intent of the government employee at the time that the tortious activity occurred. See Gaubert, 499 U.S. at 325. Instead, the exception covers any discretionary decision that is "susceptible" to policy analysis. Id.

         II. Applicability of the Discretionary Function Exception to ...


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