N.K. v. Air Force

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

N.K., a minor by through his guardian ad CASE NO. 1:21-CV-0586 AWI JLT litem Jade King,

Plaintiff ORDER VACATING AUGUST 2, 2021

HEARING AND ORDER ON

v. DEFENDANTS’ MOTION TO DISMISS

DEPARTMENT OF THE AIR FORCE, et al., (Doc. No. 13)

Defendants This is a personal injury action brought on behalf of minor-Plaintiff N.K. for injuries he sustained at Edwards Air Force Base in Kern County, California. Currently set for hearing on August 2, 2021 is Defendants’ Rule 12(b)(6) motion to dismiss. Plaintiff did not file an opposition or response of any kind. After review, the Court will vacate the August 2 hearing and issue this order, which resolves Defendants’ motion.

Background The Complaint alleges that N.K. was playing at a playground on Edwards Air Force Base when he fell and hit his head on a picnic table bench. N.K. hit his head on a part of the bench where the rubber covering had worn away, leaving only exposed metal. N.K. suffered injuries to his head from the exposed metal of the bench. N.K. names as Defendants the Department of the Air Force, Edwards Air Force Base, and Edwards Air Force Base Childhood Development Center and Does 1 to 100 and alleges two claims for negligence and premises liability.

Parties’ Arguments Defendants argue that the Federal Tort Claims Act (“FTCA”) is the exclusive remedy for tort actions against a federal agency and that the only proper defendant under the FTCA is the United States. Because federal agencies are not subject to the FTCA, Defendants request that they be dismissed, but that Plaintiff be given leave to file an amended complaint that names the United States as the only defendant.

Plaintiff did not respond in any manner to Defendants’ motion.

Discussion Defendants are correct. The FTCA is the exclusive remedy for tort actions against a federal agency. Kennedy v. United States Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998). However, the United States is the only proper defendant in an FTCA action. Lance v. United States, 70 F.3d 1093, 1094 (9th Cir. 1995) (affirming dismissal of Doe defendants in FTCA action). A claim against a federal agency in the agency’s own name is not a claim against the United States. Kennedy, 145 F.3d at 1078. When a complaint names a federal agency as a defendant, it is appropriate to dismiss the agency because the agency is not subject to the FTCA. See id. Here, the Complaint does not name the United States as a defendant, it names only federal agencies and sub-units of agencies. That is improper under the FTCA. Therefore, Defendants will be dismissed from this lawsuit. See id.; Lance, 70 F.3d at 1094.

Defendants request that the Court dismiss the Complaint with leave to amend in order to name the United States. Even though Plaintiff did not respond to this motion or apparently to communications for a stipulation from defense counsel, the Court will grant Defendants’ request.1

ORDER Accordingly, IT IS HEREBY ORDERED that:

1. The August 2, 2021 hearing is VACATED; 2. Defendants’ Rule 12(b)(6) motion to dismiss (Doc. No. 13) is GRANTED; Although there may be one, the Court detects no reason why a stipulation could not have been entered into that would have alleviated the need for Defendants to file their motion or the Court to issue this order. The Court

3. Defendants the Department of the Air Force, Edwards Air Force Base, and

Edwards Air Force Base Childhood Development Center are DISMISSED from this case and the Clerk shall note that these Defendants have been terminated from this case;

4. Within twenty-one days of service of this order, plaintiff may file an amended complaint that names the United States as the only defendant; and 5. If Plaintiff fails to timely file an amended complaint, then leave to amend will be automatically withdrawn and this case will be closed without further notice. IT IS SO ORDERED. □□ Dated: _July 28, 2021 7 Sz, 7 Cb Lec

— SENIOR DISTRICT JUDGE