Estate of Vinberg v. United States

636 F.Supp.3d 1002

ESTATE OF Jayson VINBERG, THROUGH its personal representative Becky VINBERG, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. 3:22-cv-0135-HRH

United States District Court, D. Alaska

Signed October 20, 2022

Ashley Katherine Sundquist, Jeffrey William Robinson, Ashburn & Mason, P.C., Anchorage, AK, for Plaintiff.

Jacquelyn A. Traini, Marie Constance Scheperle, U.S. Attorney's Office, Anchorage, AK, for Defendant United States of America.

ORDER

Motion to Dismiss

H. Russel Holland, United States District Judge

Defendant the United States of America moves to dismiss plaintiff's amended complaint, or in the alternative, to dismiss defendants the United States Navy and Bradley Udell.¹ This motion is opposed by plaintiff, the Estate of Jayson Vinberg, through its personal representative, Becky Vinberg.² Plaintiff also moves for leave to file a sur-reply.³ Oral argument was not requested on the motion to dismiss and is not deemed necessary.

Background

Plaintiff alleges that on June 13, 2020, Udell, "who is a Petty Officer for the Navy[,]" "was assigned as a watchman for the Navy's [Special Warfare Cold Weather] Detachment on Kodiak Island."⁴ Plaintiff alleges that Udell "was the only watchman on duty and was alone at the Detachment" and "was not in military uniform."⁵ Plaintiff alleges that "at approximately 9:20 pm, Vinberg was found within the fenced area of the Detachment."⁶ Plaintiff alleges that "at approximately 9:50 pm, Vinberg approached the Detachment building and began knocking on the entrance. Udell could see Vinberg through the window. Vinberg did not and could not gain access to the locked building."⁷ Plaintiff alleges that "Udell notified command personnel of Vinberg's access to the Detachment, and another Navy service member indicated he was on his way to the Detachment."⁸ Plaintiff alleges that "Vinberg left the Detachment building entrance and began walking towards the main gate" and that "Udell then came out of the locked Detachment building and Vinberg turned around and started walking towards Udell."⁹ Plaintiff alleges that "Vinberg approached within 10 feet of Udell and Udell fired at least 10 rounds at Vinberg, all of which struck Vinberg. At least two of the bullets entered through Vinberg's backside."¹⁰ Plaintiff alleges that "another Navy service member arrived at the Detachment after the shots were fired, and first responders responded shortly thereafter."¹¹ Plaintiff alleges that "Vinberg was pronounced dead at 10:35 p.m."¹²

On August 13, 2021, Becky Vinberg, Vinberg's widow, submitted a Standard Form 95 ("SF-95") to the United States Navy.¹³ An SF-95 is a form used to submit an administrative "claim for damage, injury, or death."¹⁴ In the box on the SF-95 that asks for the "name, address of claimant, and claimant's personal representative, if any[,]"¹⁵ the claimant was not listed as "the Estate of Jayson Vinberg" but rather as "Jeffrey Robinson attorney for Becky Vinberg."¹⁶ In the box that asks for the basis for the claim, Becky Vinberg stated, in part, that "Jayson Vinberg entered the Detachment" and that "a U.S. Navy serviceman . . . saw Vinberg bang on the door. Vinberg left the building entrance. [The servicman] followed [and w]hen Vinberg approached [him], he shot at least 10 rounds at Vinberg with his personal gun, 10 of which struck Vinberg, killing him."¹⁷ In the box that asks for the claimant to "state the nature and extent of each injury or cause of death," Becky Vinberg stated that "[d]ecedent is Jayson Vinberg, who was wrongfully shot by a Navy serviceman."¹⁸

On October 13, 2021, Stephen Meyer, a Navy attorney, sent Becky Vinberg's attorney a letter in which Meyer requested additional information so that he could "properly adjudicate and evaluate the claim[.]"¹⁹ Of import here, Meyer asked for "[e]vidence of your client's authority to present a claim on behalf of decedent's estate."²⁰

On November 4, 2021, Becky Vinberg's attorney responded to Meyer's October 13th letter.²¹ Becky Vinberg's attorney told Meyer that "Ms. Vinberg is Mr. Vinberg's surviving spouse. Although she has not opened a probate case, as the spouse of the decedent, she has the authority under both Utah law[²²] and Alaska law to serve as the personal representative of the estate."²³

On March 7, 2022, the Navy denied the "claim of Becky Vinberg[.]"²⁴ The Navy explained that it was denying the claim because "the FTCA specifically excludes any claim arising out of '. . . assault [and] battery . . . '."²⁵ The Navy further stated that "Petty Officer Udell was not a law enforcement officer as that term is defined in the law enforcement proviso of 28 U.S.C. 2680(h)."²⁶ The Navy advised Becky Vinberg that if she did not agree with its decision, she had six months in which to either "file suit in the appropriate Federal district court" or "request reconsideration of the denial . . . ."²⁷

On March 24, 2022, Becky Vinberg applied to be appointed as the personal representative of Jayson Vinberg's estate.²⁸ Plaintiff alleges that she has since been appointed as the personal representative.²⁹

Plaintiff commenced this Federal Tort Claims Act ("FTCA") action on May 20, 2022. In its amended complaint, plaintiff asserts two claims, a wrongful death claim and a negligence claim. Plaintiff alleges that "Udell caused Vinberg's death through his wrongful and/or negligent actions."³⁰ Plaintiff further alleges that Udell "had a duty to Vinberg to act with ordinary care and to only use reasonable force upon Vinberg so as not to cause injury or harm to Vinberg" and that Udell "failed to act with ordinary care and breached the duty of care he owed to Vinberg."³¹

Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, the United States now moves to dismiss plaintiff's complaint.

Discussion

"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. Here, the United States makes a factual challenge as it has attached exhibits to both its opening brief and its reply brief. "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Id. "The court need not presume the truthfulness of the plaintiff's allegations." Id. " 'Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.' " Id. (quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). Plaintiffs have "the burden of establishing subject matter jurisdiction." Friends of the Earth v. Sanderson Farms, Inc., 992 F.3d 939, 944 (9th Cir. 2021).

"The FTCA 'was designed primarily to remove the sovereign immunity of the United States from suits in tort.' " Millbrook v. United States, 569 U.S. 50, 52, 133 S.Ct. 1441, 185 L.Ed.2d 531 (2013) (quoting Levin v. United States, 568 U.S. 503, 506, 133 S.Ct. 1224, 185 L.Ed.2d 343 (2013)). "The Act gives federal district courts exclusive jurisdiction over claims against the United States for 'injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission' of a federal employee 'acting within the scope of his office or employment.' " Id. (quoting 28 U.S.C. § 1346(b)(1)). "Before a plaintiff can file an FTCA action in federal court, however, he must exhaust the administrative remedies for his claim." D.L. by and through Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017). "The FTCA's exhaustion requirement is jurisdictional and may not be waived." Id.

"Congress mandated only two elements necessary for proper presentment of a claim: (1) notice (to the agency) and (2) a sum certain (as to damages)." Kinlichee v. United States, 929 F.Supp.2d 951, 956 (D. Ariz. 2013) (citing 28 U.S.C. § 2675(a)). "The purpose" of the exhaustion "requirement is to encourage administrative settlement of claims against the United States and thereby to prevent an unnecessary burdening of the courts." Lexington Ins. Co. v. United States, 465 F.Supp.3d 1158, 1162 (W.D. Wash. 2020) (citation omitted). "[I]n multiple claimant actions under the FTCA 'each claimant must individually satisfy the jurisdictional prerequisite of filing a proper claim.' " Dalrymple v. United States, 460 F.3d 1318, 1325 (11th Cir. 2006) (quoting Haceesa v. United States, 309 F.3d 722, 734 (10th Cir. 2002)).

The United States argues that plaintiff's claims must be dismissed because plaintiff has not exhausted its administrative remedies. The United States argues that only Becky Vinberg filed an administrative claim, that the Estate of Jayson Vinberg, which is the plaintiff here, did not file an administrative claim. Because plaintiff did not file an administrative claim, the United States argues that plaintiff did not exhaust its administrative remedies, which means the court lacks subject matter jurisdiction.

The United States compares this case to Matthias v. United States, 475 F.Supp.3d 125 (E.D.N.Y. 2020). There, the plaintiff, "individually and as administratrix of the Estate of Kevon Brian Mustafa, her deceased infant son," filed an FTCA action, and the United States moved to dismiss her claims. Id. at 130. The United States moved to dismiss the plaintiff's claims on the grounds that she had failed to exhaust her administrative remedies. Id. The court held that the plaintiff had exhausted her administrative remedies "regarding her individual...