United States District Court, E.D. Missouri, Eastern Division
BENJAMIN M. PHILLIPS, SR., et al., Plaintiffs,
THE LELAND STANFORD JUNIOR UNIVERSITY d/b/a STANFORD UNIVERSITY, et al., Defendants
For Benjamin M. Phillips, Sr., Chester Deans, Willis Lloyd, Plaintiffs: Bruce A. Morrison, LEAD ATTORNEY, BRUCE A. MORRISON, St. Louis, MO; Elkin L. Kistner, LEAD ATTORNEY, BICK AND KISTNER, PC, St. Louis, MO; Joseph V. Neill, LEAD ATTORNEY, St. Louis, MO; Kevin C. Roberts, LEAD ATTORNEY, ROBERTS AND WOOTEN, LLC, Hillsboro, MO; Ronnie Glynn Penton, LEAD ATTORNEY, THE PENTON LAW FIRM, Bogalusa, LA; Daniel T. DeFeo, DEFEO AND KOLKER, LLC, Lexington, MO.
For Parsons Government Services, Inc., Defendant: Dara D. Mann, LEAD ATTORNEY, MCKENNA AND LONG, Atlanta, GA; Robert A Roth, LEAD ATTORNEY, REED SMITH LLP, Chicago, IL; Tami L. Azorsky, LEAD ATTORNEY, MCKENNA AND LONG, Washington, DC; Larry D. Hale, HALE LAW FIRM, St. Louis, MO.
For The Leland Stanford Junior University, d/b/a Stanford Univeristy, Defendant, Cross Claimant: Jeffrey S. Jacobi, Sarah G. Flanagan, LEAD ATTORNEYS, PRO HAC VICE, PILLSBURY AND WINTHROP, LLP, San Francisco, CA.
For United States Army, United States of America, United States Department of Defense, Defendants: John Adam Bain, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Cilvil Division, Torts Branch; Keri Lane Berman, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
OPINION, MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Defendant the United States of America's Motion to Dismiss for Lack of Subject-Matter Jurisdiction, [Doc. NO. 165]. Plaintiffs oppose the motion. For the following reasons, the motion will be granted.
Plaintiffs bring this putative class action against the United States of America, among others, alleging in their Third Amended Complaint theories of public nuisance, Count I; battery, Count IV; and Recklessness, Count V. Presumably, the claims against the United States are brought under the Federal Tort Claims Act, 28 U.S.C. § 2674 (" FTCA" ).
Defendant United States filed a motion to dismiss for lack of subject matter jurisdiction. The government maintains that Plaintiffs' claims fall within the discretionary function exception to the FTCA's waiver of sovereign immunity.
Standard on Motion to Dismiss
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move for dismissal based on lack of jurisdiction over the subject matter. " Dismissal under Rule 12(b)(1) is appropriate if the issue before the court is whether the plaintiff has failed to satisfy a threshold jurisdictional requirement." Schubert v. Bethesda Health Group, Inc., 319 F.Supp.2d 963, 966 (E.D.Mo.2004) (citation omitted). When a court considers a Rule 12(b)(1) motion, it has " 'broader power to decide its own right to hear the case than it has when the merits of the case are reached.' ... Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (quoting and citing Williamson v.. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Further, " no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Id. at 730 (citation omitted).
Lawsuits against the United States of America are barred by sovereign immunity unless the United States consents to such suit. Hercules, Inc. v. United States, 516 U.S. 417, 422, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (citations omitted). The Eighth Circuit recently summarized the relevant law of sovereign immunity as follows:
The United States is immune from suit unless it consents. Congress waived the sovereign immunity of the United States by enacting the FTCA, under which the federal government is liable for certain torts ...