Zhang et al v. United States of American et al, No. 2:2019cv01211 - Document 17 (W.D. Wash. 2020)
Court Description: ORDER granting in part Defendants' 8 Partial Motion to Dismiss. Plaintiffs are GRANTED leave to amend those claims dismissed without prejudice(Counts 2, 4-8, and 11). Plaintiffs are ORDERED to file a First Amended Complaint within thirty (30) days from the date of this Order. Signed by Judge Ricardo S. Martinez.(PM) cc: Huifang Zhang via USPS
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Zhang et al v. United States of American et al Doc. 17 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 1 of 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 HUIFANG ZHANG, et. al, 10 11 12 CASE NO. C19-1211-RSM Plaintiffs, V. ORDER GRANTING UNITED STATES’ PARTIAL MOTION TO DISMISS UNITED STATES OF AMERICA, et. al, Defendants. 13 14 I. INTRODUCTION 15 This matter comes before the Court on Defendants’ Partial Motion to Dismiss, Dkt. #8. 16 The Court finds oral argument unnecessary to resolve the underlying issues. Having reviewed 17 Defendants’ Motion, Plaintiffs’ Response, Defendants’ Reply, and the remainder of the record, the 18 Court GRANTS IN PART Defendant’s Partial Motion to Dismiss and dismisses Plaintiffs’ claims 19 as set forth below. 20 II. BACKGROUND 21 Pro se Plaintiffs Shunichi Takahashi and Huifang Zhang bring this action on behalf of 22 themselves and their minor children, I.G. and D.G., against the United States of America, the U.S. 23 Department of Homeland Security (“DHS”), the U.S. Customs and Border Protection (“CBP”), 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 1 Dockets.Justia.com Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 2 of 23 1 and Kevin K. McAleenan in his official capacity as both Acting Secretary of the U.S. Department 2 of Homeland Security and Commissioner of U.S. Customs and Border Protection (“the 3 Government”). Mr. Takahashi is a Japanese citizen and I.G. and D.G. are U.S. citizens. At the 4 time of the alleged incident, I.G. and D.G. were a year and seven months old and seven months 5 old, respectively. Dkt. #1 at ¶¶ 56-57. Ms. Zhang was a U.S. permanent resident at the time and 6 became a U.S. citizen the following year. 7 On September 29, 2015, Plaintiffs were traveling back to the United States from Canada. 8 Id. at ¶ 14. Plaintiffs claim that at the border checkpoint in Blaine, Washington, CBP officer Paul 9 J. Carter initiated a secondary inspection of Mr. Takahashi because he did not have an admission 10 stamp on his passport. Id. at ¶¶ 15-16. Mr. Takahashi was detained for seven hours in a small 11 room where he allegedly faced repeated racial discrimination and humiliation from border agents. 12 Plaintiffs claim that Officer Carter engaged in fraudulent and malicious questioning and threatened 13 Mr. Takahashi into signing a sworn statement that was not genuine and did not reflect what Mr. 14 Takahashi actually said. Id. at ¶¶ 18-20. On the basis of this fraudulent sworn statement, CBP 15 revoked Mr. Takahashi’s Visa Waiver Program (“VWP”) status and denied him admission into 16 the United States. The statement listed Mr. Takahashi as an investor in a U.S. company who 17 performs direct sales and installation of lighting equipment, which Mr. Takahashi claims is false. 18 Plaintiffs also claim that CBP never explained why it forgot to stamp Mr. Takahashi’s passport on 19 his last trip across the border, which was the reason for his detainment. When Mr. Takahashi 20 pointed out the false statements in the CBP report, the CBP officers allegedly revised the charge 21 to “intending immigrant as having 2 US citizen children.” Id. at ¶¶ 22-24; Dkts. #1-5, #1-6. 22 Plaintiffs allege that during Mr. Takahashi’s seven-hour detainment, Ms. Zhang was also 23 detained with the couple’s two minor children while CBP officers refused to return their passports. 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 2 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 3 of 23 1 Dkt. #1 at ¶¶ 25-26. Ms. Zhang and her children were forced to sit on the floor from 5pm until 2 midnight without food, baby formula or water. At midnight, Officer Carter forced Ms. Zhang and 3 the two children to return to Canada. Ms. Zhang, I.G. and D.G. were able to enter the U.S. without 4 issue a few days later. Id. at ¶ 90. As a result of the detention, Plaintiffs claim that they suffer 5 from post-traumatic stress diso Zhang, I.G. and D.G 20 for their seven-hour detainment (Count 5). Here, Plaintiffs’ claims fail because there is no relief 21 available. Plaintiffs have attempted to avoid dismissal by waiving monetary damages for their 22 constitutional claims, see Dkt. #15 at 4, but the Court cannot conceive what non-monetary relief 23 may be granted that could remedy due process violations against Ms. Zhang and or children. 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 12 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 13 of 23 1 Because the alleged violations occurred years ago, any declaratory relief sought would be 2 retrospective, not prospective, in nature, and therefore barred on sovereign immunity grounds. 3 See Green v. Mansour, 474 U.S. 64, 73 (1985) (“[T]he issuance of a declaratory judgment in these 4 circumstances would have much the same effect as a full-fledged award of damages or restitution 5 by the federal court, the latter kinds of relief being of course prohibited . . . .”). There is likewise 6 no basis for an injunction where there is no claimed continuing violation of Ms. Zhang’s or her 7 children’s due process rights. See Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 8 2020 WL 813774, at *7 (D. Ariz. Feb. 19, 2020) (no injunctive relief available under Fifth 9 Amendment for detainees already released from custody). Furthermore, without any indication 10 of likely future injury based on these past violations, the Court finds no basis for prospective 11 injunctive relief available to Ms. Zhang, D.G, and I.G. See Nordstrom v. Ryan, 762 F.3d 903, 12 911 (9th Cir. 2014) (holding that to be entitled to prospective injunctive relief a plaintiff “must 13 demonstrate that he is realistically threatened by a repetition of [the violation]” (alterations and 14 emphasis in original) (quotation marks omitted)). For these reasons, Plaintiffs have failed to state 15 a claim upon which relief can be granted. See Choate v. Lane, No. 217-CV-03043-RFB-VCF, 16 2019 WL 691398, at *3 (D. Nev. Feb. 19, 2019) (dismissal under Rule 12(b)(6) warranted where 17 neither retrospective declaratory or injunctive relief nor prospective relief is available). 18 Finally, the Court will address Plaintiffs’ due process claims as to Mr. Takahashi’s alleged 19 treatment by CBP, including claims by I.G. and D.G. who are “entitled to have the right on behalf 20 of their father,” Dkt. #15 at 5 (Count 6). The Government argues that Mr. Takahashi has no 21 constitutional rights implicated by the denial of his participation in the VWP since, as a 22 nonresident alien, he has no constitutional right to enter this country. Dkt. #8 at 7. However, this 23 argument only addresses CBP’s inadmissibility determination—it ignores Mr. Takahashi’s due 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 13 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 14 of 23 1 process claims as to his treatment by CBP prior to the inadmissibility determination, including 2 alleged coercion into signing a sworn statement. See Dkt. #1 at ¶ 39. It is well-established that 3 the constitutional protections of the due process clause extend to all “persons” in the United 4 States, regardless of their immigration status. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 5 (2001) (holding that “the Due Process Clause applies to all ‘persons’ within the United States, 6 including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”). 7 The failure in Mr. Takahashi’s due process claims is the fact that the only remedy he may 8 seek is declaratory and injunctive relief, i.e. expunging the CBP’s finding from his record and 9 vacating the inadmissibility determination. See Dkt. #15 at 4. For the same reasons set forth 10 above regarding waiver of reviewability for inadmissibility determinations under the VWP, this 11 Court has no jurisdiction to review CBP’s decision to deny Mr. Takahashi admission to the U.S. 12 under the VWP. See 8 U.S.C. § 1187(a)(1); 8 C.F.R. § 217.2. As a result, the injunctive and 13 declaratory relief sought by Mr. Takahashi’s due process claims is not available. Again, Plaintiffs 14 have failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 15 Because the Court is dismissing Plaintiffs’ Fifth Amendment claims under Rule 12(b)(6), 16 Plaintiffs will be permitted to amend these claims. 17 D. Racial Discrimination Claims (Counts 7-9) 18 Plaintiffs also allege claims for racial discrimination based on their treatment by CBP 19 officers at the border crossing. Specifically, they allege that the officers’ discrimination violated 20 (1) the Fifth, Fourteenth and First Amendments to the United States Constitution; (2) the 21 Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A); and (3) the Civil Rights Act of 1964. 22 Dkt. #1 at ¶¶ 70-75. The Court will address each claim in turn. 23 // 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 14 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 15 of 23 1 1. Discrimination Claims under Constitution (Count 7) 2 As discussed above, Plaintiffs have no basis for claims under the Fourteenth Amendment, 3 which only applies to actions by a state and does not apply to actions taken by the federal 4 government. S.F. Arts & Athletics, Inc., 483 U.S. at 543 n. 21. Plaintiffs have likewise failed to 5 state a claim under the Fifth or First Amendments. As explained above with respect to their Fifth 6 Amendment claims, Plaintiffs fail to state a claim for any relief that this Court has authority to 7 grant. See Dkt. #15 at 4 (seeking expungement of Mr. Takahashi’s record and reversing the 8 CBP’s inadmissibility determination). Plaintiffs’ First Amendment claims fail for the same 9 reasons. Moreover, the Court is unclear on what grounds Plaintiffs invoke the First Amendment, 10 which protects freedom of religion, expression, and assembly, to challenge the CBP’s alleged 11 racial discrimination. See U.S. Const., amend. I. 12 2. Discrimination Claims under INA (Count 8) 13 Plaintiffs also allege racial discrimination claims under the Immigration and Nationality 14 Act (“INA”), 8 U.S.C. § 1152(a)(1)(A). The Government argues that Plaintiffs have no basis for 15 relief under this provision, which applies to issuance of visas. Dkt. #8 at 14. The Court agrees. 16 None of the Plaintiffs were attempting to enter the United States through an immigrant visa. 17 Consequently, this provision is inapplicable. In Response, Plaintiffs cite to another provision of 18 the INA, 8 U.S.C. § 1187(b)(1). Dkt. #15 at 9. This provision provides that “[a]n alien may not 19 be provided a waiver under the program unless the alien has waived any right to review or appeal 20 under this chapter of an immigration officer’s determination as to the admissibility of the alien at 21 the port of entry into the United States.” 8 U.S.C. § 1187(b)(1). The Court likewise finds no 22 cognizable basis for Plaintiffs’ discrimination claims under this provision. 23 // 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 15 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 16 of 23 1 2 3. Discrimination Claims under Civil Rights Statutes (Count 9) Finally, Plaintiffs allege racial discrimination claims under the Civil Rights Act of 1964. 3 The Government argues that Plaintiffs have failed to specify which of the eleven titles under this 4 provision supply a basis for relief. Dkt. #8 at 14. In their response, Plaintiffs argue that their 5 claims arise under Title III and Title IV. Dkt. #15 at 9. However, the Court agrees with the 6 Government that neither of these titles are applicable here. Title III applies to the desegregation 7 of public facilities, while Title IV refers to nondiscrimination in Federally Assisted Programs. 8 Contrary to Plaintiffs’ claim that the border constitutes a “public facility” and immigration 9 programs, such as the VWP, constitute “federally assisted programs,” the Court finds no 10 reasonable support in the statutory text that would support Plaintiffs’ expansive view of these 11 terms. “Public facilities” under Title III are defined as those facilities owned, operated, or 12 managed by or on behalf of any State or subdivision thereof . . . .” 42 U.S. Code § 2000b(a). 13 Likewise, “federally assisted programs” under Title IV generally refer to state or local agencies, 14 universities, or private corporations. See 42 U.S. Code § 2000d–4a (defining “programs”). 15 Moreover, even if the Court broadly construes Plaintiffs’ civil rights claims as arising 16 under other provisions of the 1964 Civil Rights Act, federal law is clear that the civil rights 17 statutes do not apply to actions against the federal government and do not provide a basis for 18 waiving sovereign immunity. See Brown v. Gen. Serv. Admin., 425 U.S. 820, 827 n. 8, (1976) 19 (noting that “sovereign immunity would, of course, also bar claims against federal agencies for 20 damages and promotion brought under the Civil Rights Act of 1866, as amended, 42 U.S.C. § 21 1981, and under the general federal-question jurisdictional grant of 28 U.S.C. § 1331”); see also 22 Davis v. U.S. Dep’t of Justice, 204 F.3d 723, 726 (7th Cir. 2000) (“Sovereign immunity[ ] bars § 23 § 1985(3) and 1986 suits brought against the United States and its officers acting in their official 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 16 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 17 of 23 1 capacity.”); Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 2 1999) (explaining that the Fifth Circuit “has long recognized that suits against the United States 3 brought under the civil rights statutes [42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988] are barred by 4 sovereign immunity”); United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) (“It is 5 well established in this circuit that the United States has not waived its immunity to suit under the 6 provisions of the civil rights statutes.”). While the Ninth Circuit has not weighed in on civil rights 7 statutes’ effect on sovereign immunity, the Court finds no line of cases contradicting this authority 8 from other circuits. Berdeaux v. U.S. Dep’t of Educ. Loan Discharge Unit, San Francisco CA, 9 No. CV 10-1737-PHX-JAT, 2011 WL 3876001, at *6 (D. Ariz. Sept. 2, 2011). 10 For these reasons, because the Government has not waived sovereign immunity for claims 11 arising under the civil rights statutes, the Court lacks subject matter jurisdiction and will grant 12 Defendants’ Motion to Dismiss with respect to the statutory civil rights claims in the Complaint. 13 Leave to amend would be futile, because Defendants have not waived sovereign immunity. 14 Because the remaining discrimination claims under the Constitution and the INA are dismissed 15 under Rule 12(b)(6), leave to amend is appropriate. 16 17 E. Federal Tort Claims Act (Counts 10-11) Finally, Plaintiffs bring claims under the FTCA alleging negligence by Officer Carter in 18 his handling of Mr. Takahashi’s inspection and supervisory negligence by Officer Carter’s 19 supervisors in failing to rectify Officer Carter’s mistakes. Dkt. #1 at ¶¶ 48-55 (Counts 10-11). 20 “The United States, as sovereign, is immune from suit save as it consents to be sued . . . 21 .” United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). Waivers of the 22 government’s sovereign immunity “cannot be implied but must be unequivocally expressed.” 23 United States v. King, 395 U.S. 1, 4 (1969). The Federal Tort Claims Act (“FTCA”) is one such 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 17 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 18 of 23 1 unequivocal waiver. See 28 U.S.C. §§ 1346, 2671–2680 (2008). The act grants federal courts 2 subject matter jurisdiction over suits based upon the negligent or wrongful act or omission of a 3 government employee. 28 U.S.C. § 1346(b). The statute defines employee, in pertinent part, as 4 any “person acting on behalf of a federal agency in an official capacity.” Id. § 2671. 5 As an initial matter, the Government argues that Plaintiffs should be precluded from 6 bringing an FTCA claim as to Mr. Takahashi because “the heart of Mr. Takahashi’s claims 7 involves his challenge to being revoked from the VWP,” and he should therefore not be allowed 8 to challenge his VWP revocation under the guise of an FTCA claim. Dkt. #8 at 11. The Court 9 disagrees. Under the FTCA, the “United States shall be liable . . . to tort claims in the same 10 manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 11 2674. The “broad and just purpose” of the FTCA is “to compensate the victims of negligence in 12 the conduct of governmental activities in circumstances like unto those in which a private person 13 would be liable” and therefore extends to certain negligence claims where a government entity 14 fails to exercise due care. PW Arms, Inc. v. United States, 186 F.Supp.3d 1137, 1143 (W.D. 15 Wash. 2016) (citing Indian Towing Co. v. United States, 350 U.S. 61, 68–69 (1955)). Given its 16 expansive scope, the FTCA provides a cause of action for Mr. Takahashi’s claims beyond 17 revocation of his VWP status—it also includes his alleged mistreatment by CBP officers that 18 resulted in any “mental and economical damage” to Mr. Takahashi for which he may seek 19 monetary damages. Dkt. #1 at ¶ 52. Liberally construing the Complaint, the Court finds that Mr. 20 Takahashi has asserted injuries distinct from revocation of his VWP status that may be pursued 21 under the FTCA. 22 Turning to the sufficiency of Plaintiffs’ FTCA claims, “the FTCA applies only if state law 23 would impose liability on private persons under similar circumstances.” Woodbridge Plaza v. 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 18 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 19 of 23 1 Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987). Courts recognize that “[w]hile this private 2 analogue may need not be exact, there must be some persuasive analogy to show that the 3 government actor sued would be subject to liability under state law if it were a private actor.” PW 4 Arms, Inc., 186 F.Supp.3d at 1143 (citing Westbay Steel, Inc. v. United States, 970 F.2d 648, 650 5 (9th Cir. 1992)); see also LaBarge v. Mariposa Cty., 798 F.2d 364, 367 (9th Cir. 1986) (“Because 6 the federal government could never be exactly like a private actor, a court’s job in applying the 7 standard is to find the most reasonable analogy.”). 8 Here, the Government seeks to dismiss Mr. Takahashi’s claims under the FTCA for failure 9 to identify what specific Washington law, statutory or otherwise, was allegedly violated by CBP 10 officers during the September 29, 2015 incident. Dkt. #8 at 10. Alternatively, the Government 11 argues that Mr. Takahashi has failed to allege sufficient facts to state a claim for negligence or 12 negligent supervision. Id. at 11. Plaintiffs argue in response that they bring their FTCA claims 13 under a general negligence theory. Dkt. #15 at 2-3. Because the alleged torts committed by the 14 CBP officers occurred in Washington, the Court must apply Washington law under the FTCA. 15 To state a claim for common law negligence under Washington law, a plaintiff must allege 16 (1) the defendant owed a duty of ordinary care to the plaintiff; (2) the defendant breached that 17 duty through failure to exercise ordinary care; and (3) the defendant’s breach proximately caused 18 the plaintiff’s damages. See Mathis v. Ammons, 84 Wn. App. 411, 415–16 (1997). To state a 19 claim for negligent supervision under Washington law, a plaintiff must allege (1) an employee 20 acted outside the scope of his or her employment; (2) the employee presented a risk of harm to 21 others; (3) the employer knew, or should have known in the exercise of reasonable care, that the 22 employee posed a risk to others; and (4) that the employer’s failure to supervise was the proximate 23 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 19 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 20 of 23 1 cause of the plaintiff’s harm. Briggs v. Nova Servs., 135 Wash.App. 955, 966–67, 147 P.3d 616 2 (2006), aff’d, 166 Wash.2d 794, 213 P.3d 910 (2009). 3 The Government moves to dismiss Plaintiffs’ negligence claims under the FTCA for 4 failure to show that the CBP officers breached any duty to Mr. Takahashi. Dkt. #8 at 12-13. With 5 respect to Officer Carter’s inspection of Mr. Takahashi, the Government argues that the INA 6 authorized all of Officer Carter’s actions—including requiring a sworn statement to demonstrate 7 admissibility. Dkt. #8 at 12 (citing 8 U.S.C. §§ 1225(a)(3)-(5); 1357(a)(1)). Plaintiffs respond 8 that by failing to correct Mr. Takahashi’s sworn statement, after Mr. Takashi pointed out the error, 9 Officer Carter violated his duty of ordinary care. Dkt. #15 at 3. 10 The Court finds the Government’s arguments insufficient as a basis for dismissing 11 Plaintiffs’ FTCA claim of negligence as to Mr. Takahashi. While the Government argues that 12 Plaintiffs failed to identify any duty that was breached, the complaint plainly identifies Officer 13 Carter’s breach of his duty of ordinary care through incorrectly transcribing Mr. Takahashi’s 14 sworn statement and refusing to correct factual inaccuracies identified by Mr. Takahashi. Dkt. 15 #1 at ¶¶ 48-53. The Government’s argument that Plaintiffs fail to identify “how any CBP 16 employee breached any duty which Mr. Takahashi was owed” does not provide the Court with 17 the requisite reasoned analysis that would support denial at this preliminarily stage. This is 18 especially the case here, where Plaintiffs are proceeding pro se. See Eldridge, 832 F.2d at 1137 19 (holding that courts must liberally construe pleadings of pro se litigants). The Court will not sua 20 sponte determine whether the duty identified by Plaintiffs—to correctly and accurately transcribe 21 an applicant’s sworn statement, and to correct any information before requiring signature—is a 22 duty that exists in the border inspection context. 23 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 20 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 21 of 23 1 Defendants also move to dismiss Mr. Takahashi’s negligence claims under the FTCA on 2 the basis that the INA authorized all of Officer Carter’s actions. Dkt. #8 at 12-13 (citing CBP’s 3 authority to interrogate arriving non-citizens and requiring statements under oath for admission). 4 Such an argument is premature at this state, since it relies on an interpretation of facts rather than 5 the sufficiency of Plaintiffs’ claims. See Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th 6 Cir. 2008) (“[T]he motion [to dismiss] is not a procedure for resolving a contest between the 7 parties about the facts or the substantive merits of the plaintiff's case.”) (internal quotations 8 omitted). For these reasons, the Government’s motion to dismiss Mr. Takahashi’s claims for 9 common law negligence under the FTCA, Count 10, is denied. 10 However, the Court agrees that Plaintiffs have failed to state a claim for negligent 11 supervision (Count 11). Nothing in the complaint, liberally construed, alleges that Officer 12 Carter’s actions were performed outside the scope of employment. See Niece v. Elmview Group 13 Home, 131 Wash.2d 39, 48, 929 P.2d 420 (1997) (Cause of action for negligent supervision under 14 Washington law requires that employee acted outside the scope of employment). For that reason, 15 dismissal for failure to state a claim is warranted. 16 Finally, to the extent Plaintiffs seek declaratory or injunctive relief for FTCA violations, 17 the FTCA does not authorize this Court to issue declaratory judgments and injunctions against 18 the United States. The United States has not waived its sovereign immunity under the FTCA for 19 such remedies. Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir.1992). Thus, to 20 the extent that Plaintiffs seek a remedy under the FTCA other than compensatory damages, this 21 Court lacks subject matter jurisdiction to award it. 22 // 23 // 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 21 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 22 of 23 1 2 F. Default Judgment is Not Appropriate Lastly, Plaintiffs argue that because the Government did not move to dismiss Plaintiffs’ 3 FTCA claims as to Ms. Zhang, I.G. and D.G., default judgment is appropriate. Dkt. #15 at 3. The 4 Court rejects Plaintiffs’ argument and agrees with the majority of courts interpreting Fed. R. Civ. 5 P. 12(a)(4) that “filing a partial motion to dismiss will suspend the time to answer those claims or 6 counterclaims that are not subject to the motion.” Gamble v. Boyd Gaming Corp., No. 2:13-CV7 01009-JCM, 2014 WL 1331034, at *3 (D. Nev. Apr. 1, 2014) (collecting cases). 8 9 IV. CONCLUSION Having reviewed Defendant’s Motion, Plaintiff’s Response, Defendant’s Reply, and the 10 remainder of the record, it is hereby ORDERED that Defendant’s Partial Motion to Dismiss, Dkt. 11 #8, is GRANTED IN PART as follows: 12 (1) Plaintiffs’ Administrative Procedure Act claims as to Mr. Takahashi (Count 1), 13 Fourteenth Amendment claims (Count 3), and racial discrimination claims under the 14 Civil Rights Act of 1964 (Count 9), are DISMISSED with prejudice and without leave 15 to amend. 16 (2) Plaintiffs’ Administrative Procedure Act claims as to Ms. Zhang, D.G. and I.G. (Count 17 2), Fifth Amendment claims (Counts 4, 5, 6), racial discrimination claims under the 18 Constitution and the INA (Counts 7, 8), and negligent supervision under the FTCA 19 (Count 11), are DISMISSED without prejudice and with leave to amend. 20 21 (3) The Government’s Motion to Dismiss is DENIED as to Mr. Takahashi’s claims for common law negligence under the FTCA, Count 10. 22 23 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 22 Case 2:19-cv-01211-RSM Document 17 Filed 05/04/20 Page 23 of 23 1 (4) Plaintiffs are GRANTED leave to amend those claims dismissed without prejudice 2 (Counts 2, 4-8, and 11). Plaintiffs are ORDERED to file a First Amended Complaint 3 within thirty (30) days from the date of this Order. 4 5 DATED this 4th day of May, 2020. 6 7 8 9 A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING IN PART UNITED STATES’ PARTIAL MOTION TO DISMISS - 23
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