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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Christopher Clouser, et al., )

)

Plaintiffs, ) 4:15-cv-00468 JWS

)

vs. ) ORDER AND OPINION

)

Sierra Nevada Corporation, et al., ) [Re: Motion at Docket 16] 

)

Defendants. )

)

I. MOTION PRESENTED

At docket 16 defendant United States of America (“USA”) moves pursuant to

Rule 12(b)(1) for an order dismissing the complaint of plaintiffs Christopher and Ana

Clouser (“Plaintiffs”). Plaintiffs oppose USA’s motion at docket 21; USA replies at

docket 24. Oral argument was not requested and would not assist the court.

II. BACKGROUND

Christopher Clouser was seriously injured when the aircraft he was flying ran

aground in Columbia.1

 Mr. Clouser and his wife brought this action against Sierra

Nevada Corporation (“Sierra Nevada”), the company that owned, equipped, and

maintained the aircraft, and USA, which contracted with Sierra Nevada. Plaintiffs’ claim

1Doc. 1 at 8 ¶¶ 30-31.

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against USA arises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1)

based on USA’s allegedly “negligent, careless and/or reckless acts or omissions.”2

III. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an

action for lack of subject matter jurisdiction. In order to survive a defendant’s motion to

dismiss, the plaintiff has the burden of proving jurisdiction.3 Where the defendant

brings a facial attack on the subject matter of the district court, the court assumes the

factual allegations in the plaintiff’s complaint are true and draws all reasonable

inferences in the plaintiff’s favor.4 The court does not, however, accept the truth of legal

conclusions cast in the form of factual allegations.5

IV. DISCUSSION

With certain specific exceptions, the FTCA waives USA’s sovereign immunity

from suits in tort6 and gives federal district courts jurisdiction over claims against it for

injury “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, 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.”7

An exception to this waiver exists for claims “arising in a foreign country.”8 

2Doc. 1 at 16 ¶ 79.

3Tosco v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2000).

4Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).

5

Id.

6Richards v. United States, 369 U.S. 1, 6 (1962).

728 U.S.C. § 1346(b)(1).

828 U.S.C. § 2680(k).

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Despite this exception, the Ninth Circuit formerly allowed FTCA actions to

proceed under the “headquarters doctrine.” Under this doctrine, § 2680(k) did not bar

suit where “negligent acts in the United States proximately cause[d] harm in a foreign

country.”9 These claims “typically involve[d] allegations of negligent guidance in an

office within the United States of employees who cause[d] damage while in a foreign

country, or of activities which [took] place within a foreign country.”10 The Supreme

Court struck down the headquarters doctrine, however, in Sosa v. Alvarez-Machain,

holding that “the FTCA’s foreign country exception bars all claims based on any injury

suffered in a foreign country, regardless of where the tortious act or omission

occurred.”11

 

The injury that Mr. Clouser suffered occurred in a foreign country. Following

Sosa, the FTCA’s foreign country exception bars Plaintiffs’ claim. This court lacks

subject matter jurisdiction.

V. CONCLUSION

Based on the preceding discussion, the motion to dismiss at docket 16 is

GRANTED. The United States of America is dismissed a defendant in this action.

DATED this 9th day of March 2016.

/s/ JOHN W. SEDWICK

SENIOR UNITED STATES DISTRICT JUDGE

9Cominotto v. United States, 802 F.2d 1127, 1130 (9th Cir. 1986).

10

Id.

11542 U.S. 692, 712 (2004) (emphasis added).

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