N.K. v. Air Force ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 N.K., a minor by through his guardian ad CASE NO. 1:21-CV-0586 AWI JLT litem Jade King, 10 Plaintiff ORDER VACATING AUGUST 2, 2021 11 HEARING AND ORDER ON v. DEFENDANTS’ MOTION TO DISMISS 12 DEPARTMENT OF THE AIR FORCE, et 13 al., (Doc. No. 13) 14 Defendants 15 16 17 This is a personal injury action brought on behalf of minor-Plaintiff N.K. for injuries he 18 sustained at Edwards Air Force Base in Kern County, California. Currently set for hearing on 19 August 2, 2021 is Defendants’ Rule 12(b)(6) motion to dismiss. Plaintiff did not file an 20 opposition or response of any kind. After review, the Court will vacate the August 2 hearing and 21 issue this order, which resolves Defendants’ motion. 22 Background 23 The Complaint alleges that N.K. was playing at a playground on Edwards Air Force Base 24 when he fell and hit his head on a picnic table bench. N.K. hit his head on a part of the bench 25 where the rubber covering had worn away, leaving only exposed metal. N.K. suffered injuries to 26 his head from the exposed metal of the bench. N.K. names as Defendants the Department of the 27 Air Force, Edwards Air Force Base, and Edwards Air Force Base Childhood Development Center 28 and Does 1 to 100 and alleges two claims for negligence and premises liability. 1 Parties’ Arguments 2 Defendants argue that the Federal Tort Claims Act (“FTCA”) is the exclusive remedy for 3 tort actions against a federal agency and that the only proper defendant under the FTCA is the 4 United States. Because federal agencies are not subject to the FTCA, Defendants request that they 5 be dismissed, but that Plaintiff be given leave to file an amended complaint that names the United 6 States as the only defendant. 7 Plaintiff did not respond in any manner to Defendants’ motion. 8 Discussion 9 Defendants are correct. The FTCA is the exclusive remedy for tort actions against a 10 federal agency. Kennedy v. United States Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998). 11 However, the United States is the only proper defendant in an FTCA action. Lance v. United 12 States, 70 F.3d 1093, 1094 (9th Cir. 1995) (affirming dismissal of Doe defendants in FTCA 13 action). A claim against a federal agency in the agency’s own name is not a claim against the 14 United States. Kennedy, 145 F.3d at 1078. When a complaint names a federal agency as a 15 defendant, it is appropriate to dismiss the agency because the agency is not subject to the FTCA. 16 See id. Here, the Complaint does not name the United States as a defendant, it names only federal 17 agencies and sub-units of agencies. That is improper under the FTCA. Therefore, Defendants will 18 be dismissed from this lawsuit. See id.; Lance, 70 F.3d at 1094. 19 Defendants request that the Court dismiss the Complaint with leave to amend in order to 20 name the United States. Even though Plaintiff did not respond to this motion or apparently to 21 communications for a stipulation from defense counsel, the Court will grant Defendants’ request.1 22 23 ORDER 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The August 2, 2021 hearing is VACATED; 26 2. Defendants’ Rule 12(b)(6) motion to dismiss (Doc. No. 13) is GRANTED; 27 1 Although there may be one, the Court detects no reason why a stipulation could not have been entered into that 28 would have alleviated the need for Defendants to file their motion or the Court to issue this order. The Court 1 3. Defendants the Department of the Air Force, Edwards Air Force Base, and 2 Edwards Air Force Base Childhood Development Center are DISMISSED from 3 this case and the Clerk shall note that these Defendants have been terminated from 4 this case; 5 4. Within twenty-one days of service of this order, plaintiff may file an amended 6 complaint that names the United States as the only defendant; and 7 5. If Plaintiff fails to timely file an amended complaint, then leave to amend will be 8 automatically withdrawn and this case will be closed without further notice. 9 10 IT IS SO ORDERED. □□ 11 |Dated: _July 28, 2021 7 Sz, 7 Cb Lec — SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28