United States District Court, D. South Dakota, Central Division
NORMA SORACE, Administratrix of the Estate of MELANIE SORACE, Deceased, JAHNEVA CANNADAY, Deceased, Guardian for DOMINIQUE HARRIS and TAMAYA SORACE, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER GRANTING MOTION TO DISMISS
ROBERTO A. LANGE, District Judge.
Plaintiff Norma Sorace (Sorace), the administratix of the estates of Melanie Sorace (Melanie) and Jahneva Cannaday and guardian for Dominique Harris and Tamaya Sorace, brought this suit against Defendant United States of America (Government) under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. Sorace alleges that the Rosebud Sioux Tribe Police Department was negligent in failing to stop a vehicle driven by an intoxicated driver, Shad Dillon (Dillon), before he collided with a vehicle driven by Melanie. Doc. 1. The Government moves to dismiss Sorace's Complaint under Federal Rule of Civil Procedure 12(b). Docs. 7, 8. Because Sorace has failed to state a claim upon which relief can be granted, this Court grants the Government's motion to dismiss.
This case arises out of a horrible and tragic drunk-driving accident, killing two innocent people and injuring two other children. On June 30, 2011, in Mission, South Dakota, an intoxicated Dillon crashed his pickup truck into a vehicle occupied by Melanie and three children - Jahneva, Dominique, and Tamaya. Doc. 1 at ¶¶ 6, 7; Doc. 8-2 at 2. The impact killed Melanie and Jahneva and injured Dominique and Tamaya. Doc. 1 at ¶ 7; Doc. 8-2 at 3. Dillon pleaded guilty to two counts of involuntary manslaughter and is serving a forty-month prison sentence. Doc. 8-1.
According to Sorace's Complaint, the Rosebud Sioux Tribe Police Department had received numerous calls on June 30, 2011, advising both that Dillon was drunk and driving and that a pickup truck was driving erratically through Mission, South Dakota. Doc. 1 Despite receiving these calls prior to the accident, Sorace's Complaint alleges, the Rosebud Sioux Tribe Police Department failed to take action to locate and arrest Dillon before the collision. Doc. 1 at ¶¶ 6-8.
II. Standards of Review
The Government moves to dismiss Sorace's Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) provides for dismissal of a suit when the court lacks subject matter jurisdiction. The United States Court of Appeals for the Eighth Circuit has drawn a distinction between facial and factual 12(b)(1) motions, explaining the applicable standard in each instance. See Osborn v. United States , 918 F.2d 724, 728-30 (8th Cir. 1990). Under a facial attack, the "court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Jones v. United States , 727 F.3d 844, 846 (8th Cir. 2013) (quoting Osborne, 918 F.2d at 729 n.6). Under a factual attack, however,
the trial court may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case - there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Osborne, 918 F.2d at 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3rd Cir. 1977)). Plaintiffs faced with either a factual or facial attack under Rule 12(b)(1) have the burden of proving subject matter jurisdiction. V.S. Ltd. P'ship v. Dep't of Hous. & Urban Dev. , 235 F.3d 1109, 1112 (8th Cir. 2000). Here, the Government makes a factual attack, asking this Court to resolve whether the Rosebud Sioux Tribe Police Department received any communications regarding Dillon driving erratically prior to the car accident. Although neither party has requested an evidentiary hearing on this issue, see Osborn , 918 F.2d at 730 (explaining that a district court considering factual attack under 12(b)(1) may hold an evidentiary hearing "[i]f necessary"), both have submitted affidavits supporting their position. Even though a court generally should consider a jurisdictional attack under Rule 12(b)(1) first, see Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) (per curiam), here the issues converge in a way where deciding the motion to dismiss under Rule 12(b)(6) makes greater sense.
Rule 12(b)(6) permits a pre-answer motion to dismiss for "failure to state a claim upon which relief can be granted[.]" Although a complaint need not contain detailed factual allegations to survive a motion to dismiss under Rule 12(b)(6), it must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Twombly , 550 U.S. at 556 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236 (1974)). On a motion to dismiss under Rule 12(b)(6), courts must accept the plaintiff's factual allegations as true and construe all inferences in the plaintiff's favor, but need not accept a plaintiff's legal conclusions. Retro Television Network, Inc. v. Luken Commc'ns, LLC , 696 F.3d 766, 768-69 (8th Cir. 2012). Finally, in determining whether to grant a Rule 12(b)(6) motion, a court "generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings." Smithrud v. City of St. Paul, 746 F.3d 391, 395 (8th Cir. 2014) (quoting Porus Media Corp. v. Pall Corp. , 186 F.3d 1077, 1079 (8th Cir. 1999)). As the moving party under Rule 12(b)(6), the Government bears the burden of proving that no claim exists. See 5B Charles Alan Wright et al., Federal Practice and Procedure § 1357 (3d ed. 2004) ("All federal courts are in agreement that the burden is on the moving party to prove that no legally cognizable claim for relief exists.").
A. FTCA and Private Analogue
Absent a waiver, sovereign immunity protects the United States and its agencies from suit. FDIC v. Meyer , 510 U.S. 471, 475 (1994). The FTCA, under which Sorace brings her claims, waives the sovereign immunity of the United States for certain torts committed by government employees acting within the scope of their employment. Sorace alleges in her Complaint that the Rosebud Sioux Tribe Police Department was performing law enforcement services on the Rosebud Indian Reservation pursuant to a self-determination contract and that the Rosebud Sioux Tribe Police Department was negligent in performing these services. Doc. 1 at ¶¶ 4, 5. As such, the FTCA is the appropriate vehicle for Sorace's claims. See Hinsley v. Standing Rock Child Protective Servs. , 516 F.3d 668, 672 (8th Cir. 2008) ("Tort claims against tribes, tribal organizations, or their employees, that arise out of the tribe or tribal organization carrying out a self-determination contract, are considered claims against the United States and are covered to the full extent of the FTCA.").
The FTCA's waiver of sovereign immunity is limited to "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); see also 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...."); Eubank v. Kansas City Power & Light Co. , 626 F.3d 424, 427 (8th Cir. 2010) ("If a private person, under like circumstances, would be liable under the substantive law of the State where the act or omission occurred, then the FTCA waives sovereign immunity."). The term "law of the place" in section 1346(b)(1) "refers to the substantive law of the state where the wrongful conduct took place." Washington v. Drug Enforcement Admin. , 183 F.3d 868, 873 (8th Cir. 1999). Because Sorace's claims arise out of conduct that occurred on an Indian reservation located within South Dakota, the substantive law of South Dakota governs this action. LaFromboise v. Leavitt , 439 F.3d 792, 796 (8th Cir. 2006). To state a claim for relief that is cognizable under the FTCA, Sorace's ...