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5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7

8 CURTIS HABECKER and JANIELLE Case No.: 22-cv-1379-CAB-BLM 9 HABECKER, 10 Plaintiffs, ORDER GRANTING MOTION TO DISMISS 11 v. 12 UNITED STATES OF AMERICA, et al, [Doc. No. 12] 13 Defendants. 14 15 Plaintiffs Curtis Habecker (“Mr. Habecker”) and his wife Janielle Habecker (“Mrs. 16 Habecker”) filed this case against the United States of America (the “United States”) and 17 United States Customs and Border Protection (“CBP”), alleging four causes of action. 18 Presently before the court is the United States’ motion to dismiss (“MTD”) [Doc. No. 12]. 19 The motion has been fully briefed and oral argument was held on February 8, 2023. For 20 the reasons below, the motion to dismiss is GRANTED. 21 I. BACKGROUND 22 On December 27, 2020, CBP officers allegedly engaged in a 120 mph high-speed 23 chase with a person suspected of smuggling undocumented immigrants. [Compl. ¶¶ 19, 24 20]. In the midst of this chase, the suspect hit Mr. Habecker’s truck, causing it to roll over. 25 [Compl. ¶¶ 19, 22]. As a result of the impact, Mr. Habecker allegedly suffered from severe 26 injuries and his car had major damage. [Compl. ¶¶ 22, 23]. 27 Mr. Habecker brought an administrative claim for damages with the CBP on March 28 18, 2021 [Compl. ¶ 16] and the claim was subsequently denied by CBP on October 7, 2021 1 [MTD at 8]. As established in oral argument, there is no dispute among the Parties that (1) 2 CBP sent the denial letter via certified mail to Plaintiffs’ attorney on October 7, 2021; (2) 3 the “letter was received” [Pl. Resp. at 9]; and (3) Plaintiffs were aware they had until April 4 7, 2022 to file their claim in federal court pursuant to Section 2401(b) of the Federal Tort 5 Claims Act. 6 On September 12, 2022, Plaintiffs filed this action against both the United States and 7 CBP, alleging the tort actions of negligence, negligent hiring, training, and supervision, 8 and loss of consortium. Plaintiffs also allege a Bivens claim under

. 9 II. STANDARD OF REVIEW 10 Under Federal Rule of Civil Procedure 12(b)(1), a complaint must be dismissed for 11 lack of subject matter jurisdiction. “A motion to dismiss for lack of subject matter 12 jurisdiction may either attack the allegations of the complaint or may be made as a 13 ‘speaking motion’ attacking the existence of subject matter jurisdiction in fact.” Thornhill 14 Pub. Co. v. Gen. Tel. & Elec. Corp.,

, 733 (9th Cir. 1979). “In a facial attack, 15 the challenger asserts that the allegations contained in a complaint are insufficient on their 16 face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer,

, 1039 17 (9th Cir. 2004). “[I]n a factual attack, the challenger disputes the truth of the allegations 18 that, by themselves, would otherwise invoke federal jurisdiction.”

When assessing a 19 12(b)(1) motion to dismiss, “the district court is not restricted to the face of the pleadings, 20 but may review any evidence, such as affidavits and testimony, to resolve factual disputes 21 concerning the existence of jurisdiction.” McCarthy v. United States,

, 560 22 (9th Cir. 1988). 23 “The party asserting jurisdiction bears the burden of establishing subject matter 24 jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig.,

(9th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co. of Am.,

, 26 377 (1994)). 27 28 1 III. DISCUSSION 2 The United States argues that all Plaintiffs’ torts claims are time barred because 3 Plaintiffs filed this action more than six months after the CBP denial letter was issued, in 4 violation of the statute of limitations requirement of the Federal Tort Claims Act 5 (“FTCA”). The Court agrees. 6 a. FTCA, Statute of Limitations 7 Under the FTCA, a plaintiff must exhaust all administrative remedies prior to filing 8 their action in federal court. Once all administrative remedies are exhausted, the plaintiff 9 then has six months from the date of the administrative agency’s denial to file a claim in 10 federal court.

(b). When a Plaintiff fails to file within six months due to 11 extraordinary circumstances, the Ninth Circuit allows district courts to apply equitable 12 tolling to the FTCA statute of limitations. See Kwai Fun Wong v. Beebe,

(9th Cir. 2013). 14 For equitable tolling to apply, FTCA plaintiffs must establish both that (1) they 15 pursued their rights diligently, and (2) some extraordinary circumstances stood in the way 16 of filing the claim in federal claim. Kwai Fun Wong,

. “A garden variety 17 claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a 18 filing deadline does not warrant equitable tolling.”

Absent these two prongs, equitable 19 tolling cannot apply. Redlin v. U.S.,

(9th Cir. 2019) (finding equitable tolling 20 did not apply when there was no evidence of diligence or extraordinary circumstances). 21 In the present case, Plaintiffs have not satisfied their burden of establishing diligence 22 or extraordinary circumstances to toll the FTCA statute of limitations. While Plaintiffs’ 23 response to the motion to dismiss vaguely mentions Mr. Habecker’s severe head injuries 24 prevented him from timely filing [Pl. Resp. at 9] and Plaintiffs’ counsel mentioned in oral 25 argument the pursuit of an expert during the five-month delay, this is not enough to satisfy 26 the high burden held by Plaintiff to prove equitable tolling should apply. Ultimately, the 27 motion to dismiss adequately establishes that the CBP denial letter existed and was sent by 28 certified mail to Plaintiffs’ counsel on October 7, 2021. [MTD Exs. 3, 4]. As such, Plaintiffs 1 || were required to file the present claim by April 7, 2022 and did not do so. The Court does 2 find diligence or extraordinary circumstances have been established by Plaintiffs’ 3 || papers, and Plaintiffs were unable to demonstrate at oral argument any legitimate reasons 4 ||to apply equitable tolling to Mr. Habecker’s tort claims. 5 Mrs. Habecker never made an administrative claim for loss of consortium, and it is 6 ||therefore barred. Even if construed as a derivative claim of Mr. Habecker’s allegations 7 || against the United States, the separate claim is also late and time barred under the FTCA. 8 Thus, the tort claims made by both Plaintiffs are time barred under Section 2401(b). 9 || Accordingly, those claims are DISMISSED with prejudice. 10 b. Bivens Claim under

11 In light of the Supreme Court’s decision to decline to extend Bivens to cases against 12 ||CBP agents, Egbert v. Boule,

, 1806 (2022), and the fact that Plaintiffs’ 13 claims arising out of the accident on December 27, 2020 are now time barred, Plaintiffs’ 14 || Bivens claim under § 1983 is also DISMISSED with prejudice. 15 16 IV. CONCLUSION 17 Because Plaintiffs claims are time-barred and the Court lacks subject matter 18 jurisdiction, this case is hereby DISMISSED with prejudice. The Clerk of Court shall 19 || CLOSE this case. 20 21 It is SO ORDERED. 22 23 ||Dated: February 9, 2023 (GR 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 28