Hugo v. United States

MEMORANDUM OPINION AND ORDER

GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on Defendant's Motion to Dismiss Claims for Lack of Subject Matter Jurisdiction and Failure to State a Claim, or Alternatively for Summary Judgment, and Memorandum in Support (“Motion”). Doc. 5. Having reviewed the Motion and the attendant briefing (docs. 11, 12), and being otherwise fully advised in the premises, the Court GRANTS Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim and DENIES Defendant's alternative Motion for Summary Judgment.

I. Background

On October 21, 2018, Plaintiff was riding a dirt bike at Red Sands Off-Highway Vehicle Area (“Red Sands OHVA”) in Otero County, New Mexico, when he was in a head-on collision with another recreational vehicle. Doc. 1 at ¶¶ 4, 6, 8, 10. In this case, brought under the Federal Tort Claims Act (“FTCA”), Plaintiff seeks damages for his personal injuries and property damage sustained in that accident. Id. at ¶¶ 7, 15; doc. 5

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at 2. Plaintiff brings a negligence claim against Defendant United States of America based on the United States Department of the Interior, Bureau of Land Management's (“BLM”) alleged failure to adequately maintain Red Sands OHVA for the safe use of recreational vehicles. Doc. 1 at ¶ 11.

Factual Allegations

Plaintiff alleges that Red Sands OHVA is a recreational use area owned and maintained by the BLM for the public use of recreational vehicles. Id. at ¶ 6. According to Plaintiff, “Red Sands consists of a large, one-way, loop track” where there is “known use of high-speed vehicles through rough terrain with minimal visibility around turns and over hills.” Id. at ¶ 8. Plaintiff alleges that Defendant did not “adequately maintain the premises, signage, and/or roadways” at Red Sands OHVA, and as a result, on the day of his accident he “was left with no indication as to the proper direction of travel.” Id. at ¶¶ 10, 11; see also Id. at ¶¶ 8, 9. Specifically, Plaintiff alleges that on the day of his accident, there was a “sign at the entrance with a red arrow indicating the directional path” that was “provided, designed, made, installed, and/or maintained by Defendant, ” but it was “faded, illegible, shot with multiple bullet holes, and knocked down to the point it was lying in the bushes.” Id. at ¶¶ 8-9. Plaintiff alleges that the lack of clear signage caused his head-on collision with another recreational vehicle and resulting injuries. Id. at ¶ 10.

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Procedural History and Motion to Dismiss

Plaintiff filed his Complaint on April 6, 2021. See Doc. 1. Defendant filed the present Motion on June 11, 2021, seeking dismissal of Plaintiff's claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. See Doc. 5. In the alternative, Defendant seeks summary judgment on Plaintiff's negligence claim. Id.

Defendant argues that the Court lacks jurisdiction over Plaintiff's claim because Plaintiff cannot establish a waiver of sovereign immunity under the FTCA. Id. at 6. Specifically, Defendant argues that New Mexico law does not provide a cause of action against a private landowner for the same actions and omissions alleged in the present case, which is a jurisdictional prerequisite to the FTCA's waiver of immunity. Id. at 12. Defendant contends that it benefits from the constraints on landowners' liability established in the New Mexico Recreational Use Statute (“NMRUS”), N.M. Stat. Ann. 1978 § 17-4-7 (2019), and Off-Highway Motor Vehicle Liability Statute (“OHMVS”), N.M. Stat. Ann. 1978 § 66-3-1013 (2006), so it cannot be held liable to Plaintiff in negligence. Id. at 10, 12. Finally, because Plaintiff brings his negligence claim under the FTCA, Defendant contends that “the distinction between Rule 12(b)(1) and Rule 56 analysis is immaterial” with respect to the present Motion. Id. at 5.^[1]

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II. Legal Standards

Subject matter jurisdiction is a threshold issue. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (citation omitted). “Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Off. of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994) (citations omitted). “[T]he party invoking federal jurisdiction bears the burden of establishing its existence.” Steel Co., 523 U.S. at 104 (citation omitted).

A. The FTCA & Sovereign Immunity

Under the doctrine of sovereign immunity, courts lack subject matter jurisdiction over actions against the United States absent a Congressional waiver. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). In the FTCA, Congress waived the United States' sovereign immunity for certain claims, including those “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, ” if a plaintiff alleges six prerequisite statutory elements. 28 U.S.C. § 1346(b)(1). To be actionable under § 1346(b), a claim must be:

[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred

Brownback v. King, 141 S.Ct. 740, 746 (2021) (quoting Meyer, 510 U.S. at 477).

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In addition, Congress has further limited the FTCA's waiver of immunity by removing certain types of claims from its scope. 28 U.S.C. § 2680(a)-(n); Murphy v. United States, Civ. No. 20-557 GBW/SMV, 2020 WL 6939716, at *2 (D.N.M. Nov. 25, 2020) (unpublished). One such exception is for “[a]ny claim … based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of … an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

B. New Mexico Law

“[T]he FTCA does not itself create a substantive cause of action against the United States; rather, it provides a mechanism for bringing a state law tort action against the federal government in federal court.” Lomando v. United States, 667 F.3d 363, 372 (3d Cir. 2011) (quoting In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 362 (3d Cir. 2001)). The FTCA's limited grant of subject matter jurisdiction hinges on whether a private person could be subject to state law liability under similar factual circumstances as those alleged against the government actor. Hammonds v. United States, Civ. No. 16-1230 GBW/KRS, 2018 WL 1399183, at *3 (D.N.M. Mar. 19, 2018) (unpublished) (citing Clark v. United States, 234 F.Supp.3d 1127, 1135 (D.N.M. 2014), aff'd, 695 Fed.Appx. 378 (10th Cir. 2017) (unpublished)).

Here, Plaintiff's Complaint must allege a substantive cause of action that would be viable under New Mexico state law to trigger the Court's jurisdiction under the

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FTCA. See Beller v. United States, 296 F.Supp.2d 1277, 1279-80 (D.N.M. 2003). Plaintiff brings a claim for negligence which, under New Mexico law, requires showing that 1) Defendant owed a duty to Plaintiff, 2) Defendant breached that duty, 3) Plaintiff suffered an injury, and 4) Defendant's breach of duty was the cause of that injury. Zamora v. St. Vincent Hosp., 335 P.3d 1243, 1249 (N.M. 2014).

C. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a party to contest a federal court's jurisdiction over the subject matter of a claim by motion. Fed.R.Civ.P. 12(b)(1). If the court determines that it lacks jurisdiction over the subject matter of a claim, it must dismiss it. Fed.R.Civ.P. 12(h)(3). The party invoking a federal court's jurisdiction bears the burden of establishing that jurisdiction exists. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974); Salzer v. SSM Health Care of Oklahoma Inc., 762 F.3d 1130, 1134 (10th Cir. 2014).

Normally, “a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citing Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987) and Redmon ex rel. Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991)), abrogated on other grounds by Cent. Green Co. v. United States, 531 U.S. 425 (2001).

However, the Court need not convert the present Motion into a motion for summary

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judgment under Rule 56 because “in the unique context of the FTCA, all elements of a meritorious claim are also jurisdictional.” Brownback, 141 S.Ct. at 749. Therefore, “even though a plaintiff need not prove a § 1346(b)(1) jurisdictional element for a court to maintain subject-matter jurisdiction over his claim, a plaintiff must plausibly allege all six FTCA elements not only to state a claim upon which relief can be granted but also for a court to have subject-matter jurisdiction over the claim.” Id. (internal citation omitted); see also Larson v. United States, No. 3:20-CV-03019-RAL, 2021 WL 3634149, at *8 (D.S.D. Aug. 17, 2021) (unpublished) (dismissing a claim brought under the FTCA for lack of jurisdiction where the plaintiff failed to identify an analogous state law cause of action for the conduct challenged).

In the instant Motion, Defendant asserts that the Complaint...