United States District Court, D. South Dakota, Central Division
ORDER RE: MOTION TO DISMISS
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion to Dismiss, Doc.
14, and Plaintiffs Motion for Denial of Defendant's
Motion to Dismiss, Doc. 21. For the reasons set forth herein,
the Court hereby notifies the Parties that the Court will
rule on Defendant's Motion to Dismiss following
submission by the parties of materials for the Court's
consideration regarding the Court's jurisdiction.
district court has the authority to dismiss an action for
lack of subject matter jurisdiction on any one of three
separate bases: "(1) the complaint alone; (2) the
complaint supplemented by undisputed.facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts."
Johnson v. United States, 534 F.3d 958, 962 (8th
Cir. 2008) (citing Williamson v. Tucker, 645 F.2d
404, 413 (5th Cir. 1981)). In Osborn v. United
States, the district court looked to matters outside the
pleadings on a motion that it construed as one for dismissal
under Rule 12(b)(1). Osborn v. United States, 918
F.2d 724, 728 (8th Cir. 1990). On appeal, then, the Eighth
Circuit had to address what standard of review governs the
district court's determination of a motion under Rule
12(b)(1) when matters outside the pleadings are considered.
Id. Recognizing that Rule 12 requires Rule 56
standards be applied to motions to dismiss for failure to
state a claim under Rule 12(b)(6) when the court considers
matters outside the pleadings, the Court acknowledged that
some courts have held that Rule 56 also governs a 12(b)(1)
motion under the same circumstances. Id. at 729.
However, the Eighth Circuit agreed "with the majority of
the circuits that have held to the contrary."
The reasons for treating a 12(b)(1) motion differently than a
12(b)(6) motion, which is governed by Rule 56 when matters
outside the pleadings are considered, "is rooted in the
unique nature of the jurisdictional question." It is
"elementary, " the Fourth Circuit stated, that a
district court has "broader power to decide its own
right to hear the case than it has when the merits of the
case are reached." Jurisdictional issues, whether they
involve questions of law or of fact, are for the court to
decide. Moreover, because jurisdiction is a threshold
question, judicial economy demands that the issue be decided
at the outset rather than deferring it until trial, as would
occur with denial of a summary judgment motion.
Id. (internal citations omitted). The Court goes on
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 plaintiffs
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims. Moreover the plaintiff
will have the burden of proof that jurisdiction does in fact
Id. at 730 (citing Mortensen v. First Fed. Sav.
& Loan Ass 'n, 549 F.2d 884, 891 (3d Cir.
there is no statutory procedure prescribing an approach to
determinations of jurisdiction, "trial courts have wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under rule 12(b)(1)."
Johnson, 534 F.3d at 964 (citing Land v.
Dollar, 330 U.S. 732, 735 n. 4 (1947) and Holt v.
United States, 46 F.3d 1000, 1003 (10th Cir. 1995)). The
Eighth Circuit has found parties have an ample opportunity to
be heard through affidavits and briefs. Id.
exception to the court's authority to decide a
jurisdictional issue in this manner exists "in instances
when the jurisdictional issue is so bound up with the merits
that a full trial on the merits may be necessary to resolve
the issue." Osborn, 918 F.2d at 730 (citing
Crawford v. United States, 796 F.2d 924, 929 (7th
Cir. 1986)). In determining whether or not an action falls
within an employee's "scope of employment, "
trial courts rely on state law-in this case, South Dakota
law. See Locke v. United States, 215 F.Supp.2d 1033,
1042 (D.S.D. 2002) (citing Primeaux v. United
States, 181 F.3d 876, 878 (8th Cir. 1999)). "Under
South Dakota law, the scope of employment inquiry is based
upon a foreseeability test that evaluates whether a
sufficient nexus exists 'between the agent's
employment and the activity which actually caused the
injury.'"/J. at 1043 (citing St. Johnv. United
States, 240 F.3d 671, 676 (8th Cir. 2001)).
2008, the question of whether the jurisdictional.question of
"scope of employment" was intertwined with the
merits of the lawsuit came before the Eighth Circuit in
Johnson. 534 F.3d at 963. In Johnson, an
arrestee brought action against the United States under the
Federal Tort Claims Act (FTCA) alleging that a Bureau of
Indian Affair's (BIA) correctional officer committed
various torts. Id. at 960. The BIA's corrections
program is distinct from its law enforcement program and
correctional officers are to supervise inmates and maintain
order within the BIA's detention facilities. Id.
at 963. They have no authority to make arrests. Id.
In applying the foreseeability analysis to the alleged
actions of the officer, the district court found his
actions-namely, throwing the plaintiff to the ground during
an arrest and beating him so badly it resulted in a broken
collar bone and brain damage that required speech therapy to
remedy-outside the scope of his employment. Id. at
961, 963. On appeal, when the plaintiff argued that the
jurisdictional question was so intertwined with the merits of
the lawsuit that the district court could not decide the
issue on a 12(b)(1) motion, the Eighth Circuit stated:
While Johnson is correct that generally, whether an
employee's actions are within the scope of their
employment is a question of fact, we fail to see how the
factual nature of this inquiry somehow renders the
jurisdictional issue "so bound up with the merits that a
full trial on the merits" is necessary to resolve the
issue. Indeed the issue whether Little Light's conduct
was within the scope of his employment is unrelated to
whether Little Light's conduct was negligent, which is
the most important issue on the merits.
Id. at 964-65.
in the case at hand, the most important issue on the merits
is whether or not Mr. Clausen was negligent. Therefore, the
Court finds it within its power to resolve the issue of scope
of employment raised by the 12(b)(1) motion as it is a