United States District Court, W.D. Texas, San Antonio Division
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,
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
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.
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.
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,  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.
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
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.
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).
The FTCA and the Discretionary Function Exception
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).
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.
Applicability of the Discretionary Function Exception to