Garcia et al v. United States of America

2021 | Cited 0 times | D. Arizona | March 18, 2021




Susana Villanueva Garcia, et al.,

Plaintiffs, v. United States of America,


No. CV-20-00220-PHX-MTL ORDER

Motion to Dismiss for Lack of Subject Matter Jurisdiction ) (Doc. 20). This Motion was discussed at oral argument. The Court resolves the Motion as follows. I. BACKGROUND This case involves tragic facts. In June 2017, the Highline Fire burned over 7,000 acres of land near Payson, Arizona. (Doc. 17 ¶¶ 20 21.) This fire incinerated vegetation and trees on national forest land in the Mongollon Rim area. (Id. ¶ 21.) More than 900 firefighters battled the Highline Fire. (Id. ¶ 22.) The Highline Fire specifically hit the Ellison Creek watershed, which is part of the Tonto National Forest. (Id. ¶¶ 24 25.) Many adjoining waterways that were impacted by the fire fed into Ellison Creek, which s Id. ¶ 26.) -accessed hiking and swimming area with waterfalls, a swimming hole, large boulders, and sheer Id. ¶ 27.)

As the fire raged, the United States Forest Service (the assembled an interdisciplinary Burned Area

roperty, and natural and cultural resources and to recommend emergency response actions to reduce the anticipated consequences of Id. ¶ 31.) The Forest Service issued an order closing the Highline Trail from Dry Dude Creek to Ellison Creek on June 23, 2017. (Doc. 23-7 at 2.) The purpose of this order was, in part, Id.) A Forest Service hydrologist released a Water Resources Specialist Report Water on July 2, 2017. (Doc. 20-5 at 15.) The Water Report sought to identify certain post- Id.) After considering many factors, such as watershed conditions and

pre- and post-fire peak flows, the Water Id.

at 18 19.) The Water -

Id. at 21.) After the fire was contained, on July 6, 2017, the BAER team completed its initial and interim reports ( Id. at 25 45.) The BAER Report outlined many things, including critical threats, emergency treatment objectives, and probabilities of treatment success. (Id.) This assessment noted two debris jams on Ellison Creek toward the Highline Trail and three to four other debris jams in another creek. (Id. at 5.) f Id. at 25.) This included funding for two additional flash flood warning signs for a road approximately seven miles from Cold Springs. (Id. at 3, 7 8.) This assessment did not recommend closing national forest lands that included the Water Wheel site or Cold Springs. (Doc. 15-2 ¶ 26.) On July 15, 2017, the Garcia and Garnica families decided to celebrate a birthday

by swimming near the Water Wheel recreational site at the Cold Springs. (Doc. 17 ¶ 40.) Several members of those families arrived at the Water Wheel parking lot in three separate vehicles. (Id. ¶¶ 41 42.) The Forest Service charged $9.00 per vehicle for visitors to use the Water Wheel recreation area. (Id. ¶ 43.) Somebody in the group paid a total of $27.00 by depositing that amount Id. ¶¶ 44 46.)

There were no specific flash flood warning signs at the Water Wheel site. 1

(Id. ¶¶ 49, 51.) There were signs at a kiosk which contained warnings to Id. ¶ 50; Doc. 20-6 at 7, 9.) All the family members hiked to, and swam at, the Cold Springs swimming hole. (Doc. 17 ¶ 52.) Everyone was unaware of the heavy rains that began to fall eight miles upstream. (Id.) At 1:45 PM, the National Weather Service dispatched a flash flood warning for the region that includes the Cold Springs swimming hole. (Id. ¶ 53.) people, including the Garcia family, remained in the Water Wheel area, apparently

Id. ¶ 55.) Then, [w]ithout warning, a black wall of water, logs, rocks, mud, and debris descended on the Water Wheel area, moving far too Id. ¶ 56.) Although a few people

Id. ¶¶ 57 59.) The Forest Service closed this area after the flood. (Id. ¶ 61.) Plaintiffs Susana Villanueva Garcia and her brother, Julio Cesar Garcia,

(Doc. 17.) Ms. Villanueva Garcia also brings this action on behalf of all statutory beneficiaries of Selia Garcia Castaneda, her mother, and J.L.V., her daughter. (Id.) II. LEGAL STANDARD

This case involves tort claims against the federal government. Accordingly, the governs the issues presented. Motions to dismiss 1 The Forest Service posted Wheel recreational area, but no flash flood hazard signs at the site itself. (Doc. 20-6 at 3.)

based on an exception to the waiver of sovereign immunity are treated as motions to dismiss for lack of subject matter jurisdiction and reviewed under Rule 12(b)(1) of the Federal Rules of Civil Procedure. McCarthy v. United States, 850 F.2d sovereign immunity against suits for damages is, in the first instance, a question of

. While the plaintiff has the burden of showing that it has

of proving the applicability of an exception to the waiver of immunity under the FTCA. Bailey v. United States, 623 F.3d 855, 859 (9th Cir. 2010); Prescott v. United States, 973 F.2d 696, 701 02 (9th Cir. 1992). III. DISCUSSION The Garcias assert two causes of action under the FTCA: (1) negligence/gross negligence and (2) wrongful death. (Doc. 17 ¶¶ 68 85.) The Garcias allege that the individuals in the Water Wheel area of the potential for flash floods, including by posting

appropriate signs at the Water Wheel parking lot and/or the adjacent (2) [f]ailing to warn individuals in the Water Wheel area of the NWS flood alert that after the NWS flood alert was issued on July 15, 2017; 2

and (4) [f]ailing to take reasonable steps, such as removing floatable debris, to mitigate the danger posed by the Id. ¶ 74.) The United States argues that the negligence theory, failing to place appropriate flash floods signs. (Doc. 20 at 3 8.) The

cause their simple and gross negligence

Id. at 8 17.) 2 does not make clear whether the Garcias third theory of negligence includes the failure to close the Water Wheel area to the public after the Highline Fire, as opposed to closing it after the NWS flood alert.

The United States enjoys sovereign immunity; it cannot be sued without its consent and such consent is a prerequisite for jurisdiction. Conrad v. United States, 447 LaBarge v. Mariposa Cnty., 798 F.2d 364, 366 (9th Cir. 1986). In one

United States, if a private person, would be liable to the claimant in accordance with the law of see also 28 U.S.C. aims, in the same manner and to the same extent as a private individual under like circumstances . Nanouk v. United States, 974 F.3d 941,

944 (9th Cir. 2020). This statutory immunity for any claim based on a discretionary function. See 28 U.S.C. § 2680(a). The United States argues that both the existence of a discretionary function and a private party analogue that shields it from liability and amounts to two jurisdictional hurdles that the Garcias cannot overcome. The Court will address each argument in turn.

A. Discretionary Function Exception Courts follow a two-step test to determine whether the discretionary function exception applies. First, courts ask whether the challenged act or omission was a discretionary one Berkovitz v. United States, 486 U.S. 531, 536 (1988). The discretionary function

exception does not Id. choice, Nanouk, 974 F.3d

at 945.

Berkovitz The decision

Young v. United States, 769 F.3d 1047, 1053 (9th Cir. 2014). The government prevails at step two if it can United States v. Gaubert, 499 U.S. 315, 325 (1991). The Ninth Circuit lines of precedent regarding what decisions are discretionary in nature, particularly

when the allegation of agency wrongdoing involves a failure to warn. Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005). Courts [g]overnment ivorced from the Id. (quoting O Toole v. United

States, 295 F.3d 1029, 1035 (9th Cir. 2002)).

1. Discretionary or Mandated Act

statute, regulation or policy that mandated the placement of additional or more specific flash flood warning signs or posters at the Water Wheel Parking Lot and/or adjacent The United States points to Forest Service manuals and Sign Id. at 5.) The Garcias respond by arguing that the Guidelines

applicable language gives 7.) The Court finds

Discretion was conferred upon the Forest Service both explicitly and implicitly. See Sabow v. United States, 93 F.3d 1445, 1452 (9th Cir. 1996) ; Marshall v. Anaconda Co., 596 F.2d

. . Section 7.7 of the Guidelines concerns flash flood hazard site signage at developed recreational sites. (Doc. 20-4 at 70.) This section provides:

The Flash Flood Hazard site sign or poster . . . should be posted at all developed recreation sites that the Forest Service has determined are vulnerable to flash flooding. Hydrologists and recreation managers should advise on the need for Flash Flood Hazard site signs or posters. Flash flood hazard site signs or posters should be posted on information boards and/or at other prominent locations so that the signs are likely to be seen by all visitors.

(Id. (emphasis added).) mandatory practice with deviations allowed where engineering judgment or engineering


(Id. at 30.) The Garcias contend the Guidelines mandate that the Forest Service post flash flood hazard signs in vulnerable areas unless . (Doc. 23 at 6 7 (emphasis in

original).) This argument side-steps flash flood signs is still discretionary. The Guidelines and its definitions make clear that this is only guidance or a recommendation. Guidelines is misplaced because Forest Service officials evaluate several discretionary factors when determining to put flash flood signs in certain locations. (Doc. 20-4 at 4 5.) Focusing on argument because no facts suggest that such a judgment or study mandated that the Forest

Service place flash flood signs at the Water Wheel site. As the United States points out, argument also final sentence, which states that is equal to (Doc. 24 at 3.) The Garcias point to another paragraph in Section 7.7 of the Guidelines to argue that the Forest Service is mandated to coordinate 4

(Id. at 7.) This argument fails 3 This definition also states that in the Manual on Uniform Control Devices, which is the Id. at 22, 30.) The Forest Service has adopted this manual. (Id. at 22.) 4 tor and appropriate regional office recreation staff if new signs or posters need to be developed to mitigate specific hazards. Regional supplements may be developed as necessary to respond to specific situations or conditions or to insure consistency acro Id. at 68.)

See Kingdomware Technologies, Inc. v. United States, 579 U.S. , 136 S. Ct. 1969, 1977 . . implies discretion . . . . . This paragraph also does not mention that

coordination to implement new signs or posters is mandatory in any way. Indeed, this paragraph implies that coordination to develop new signs is a discretionary process that only needs to be done when presented with specific situations or hazards. (See Doc. 20-4 at 68.)

the embedding of discretionary choices throughout the policies. See Gonzalez v. United States, 814 F.3d 1022, 1029 (9th Cir. 2016) as here, a government agent s performance of an obligation requires that agent to make

Director of Recreation, Heritage, and Wilderness Resources, Chris Hartman, indicates, n -4 at 4.) Mr. Hartman further stated that he has never interpreted the Guidelines

(Id.) Indeed, these decisions depend on several discretionary factors. (Id. at 4 5.) The challenged act therefore involves an element of judgment or choice.

2. Susceptible to Policy Analysis The Court must now determine whether Young, 769 F.3d at

1053. The United States argues that its decision regarding sign and poster placement and wording are susceptible to policy analysis. (Doc. 20 at 5 6.) The United States provides nization to show this decision is grounded in social and political policy. (Id. at 6 (citing 16 U.S.C. § human resources among competing priorities necessarily implicate

(Id.) challenged decision not to install additional signage involved balancing competing policy

rms with the proliferation of signage and the sheer number of trailheads and developed recreational sites to manage. (Id. at 6 8.) known hazard . . . is not the kind of broader social, economic or political policy that the

8 (quoting Sutton v. Earles, 26 F.3d 903, 910 (9th Cir. 1994)).) The Garcias argue that the Forest Service knew of potential flash flooding risks at Cold Springs and the failure to warn of that Id. at 9 10.) The Garcias cite Kim v. United States, 940 F.3d 484 (9th Cir. 2019), to support their position. (Id. at 8.) In Kim, two children were killed after a tree limb fell on their tent while camping at Yosemite National Park. 940 F.3d at 486. Park policies established seven-point system that required documenting and quantifying hazardous trees with a rating system. Id. at 488. A government worker, following this seven-point system, failed to remove the tree that ended up killing the children. Id. at 488 89. policy considerations that went into the choice to adopt the system, the implementation of

such system cannot be said to turn on those same considerations Id. (emphasis in original). was not protected by the discretionary function exception. Id. at 490 91. Coming to this

decision, the panel reasoned that park workers inspecting trees were not making policy choices given the application of specialized knowledge and professional judgment making this decision. Id. at 489. to evaluate the danger of the trees in the campground, they were required to do so

Id. The parties also addressed two more recent Ninth Circuit cases on this issue at oral

argument Lam v. United States, 979 F.3d 665 (9th Cir. 2020) and Nanouk v. United States, 974 F.3d 941 (9th Cir. 2020). (Doc. 26.) In Lam, the plaintiff was asleep in a recreational area when a tree crashed into his tent and crushed his foot. 979 F.3d at 670.

Id. at 670 71. This worke Id. at 671. A divided Ninth Circuit panel found

the decision whether to remove the tree protected by the discretionary function exception. Id. at 682. As to whether this decision implicated policy analysis, the court noted that

Id. a the government from suit in this situation. 5

Id. In Nanouk, the plaintiff sued the United States when she alleged that her property chemicals negligently released from the site of a nearby The plaintiff asserted three negligence theories against the government: failing to remediate and dispose of the toxic chemicals while the government operated the station at issue, shutting down the military facility and allowing toxic barrels leak into the soil, and failing to clean up a 13-year-old hotspot. Id. at 945 50. The court found the first two theories protected by the discretionary function

exception bec on the disposal of the toxic chemical and the abandonment of the station were discretionary actions. Id. As to the second prong of the discretionary function exception, the court concluded that the first two negligence 5 Judge Hurwitz dissented. Id. at 687 88. He Kim whether a tree is diseased and poses a danger to campers, judgment, not decisions of social, economic, or political policy. Id. at 689 (citation omitted). Judge Hurwitz sta inspecting trees on its property to keep campers on its property safe, the government should not escape liability for its alleged negligence by casting result of a policy decisi Id. would not apply here because the Forest Service provided no specific or technical mandate that flash flood signage be placed at the Water Wheel site.

theories turned on issues of supervision, inspections, and competing policy

concerns presented by environmental contamination at sites assigned a higher priority e intertwined in social, economic, and political policy. Id. The court, its failure to discover and remediate the contamination sooner was susceptible to policy analysis and remanded on that issue. Id. at 949 50. The Court is persuaded that the discretionary function exception applies here. The government has provided sufficient evidence to prove its discretionary action to place flash flood signs in certain areas of the national park is susceptible to policy analysis. The Forest Service had to consider multiple policy-driven factors, such as how to allocate funding and human resources among competing priorities. (Doc. 20-4 at 4 5.) This economic factor balanced the expense of sign installations and maintenance with future Forest Service objectives. (Id.) The government also had to weigh the risks associated with the proliferation of hazard signs around the national forest. (Id.) The Forest decision to place flash flood signs in certain locations also involved the weighing of competing policy and safety considerations, which is protected by the discretionary function exception. See Nanouk, 974 F.3d at 945 50. The BAER Report expressly weighed competing policy considerations of which safety measures to take in an expedited fashion, including where to place flash flood hazard signs. (Doc. 20-5 at 25 45.) While the BAER Report recommended the Forest Service provide two additional

flash flood signs at roads miles away from the Water Wheel area, there was no directive that the Forest Service place flash flood signs at the Water Wheel site itself. Forest Service officials made policy decisions when deciding to prioritize certain safety risks over others or where to allocate emergency funding. (Id.) The Court agrees with the United States that Kim is distinguishable. (Doc. 24 at 4.) Unlike the seven-point system in Kim, there are no facts suggesting that the Forest Service was bound under a specific, technical system to evaluate where to place flash

flood signs. As the court in Lam recognized, when the government is balancing multiple policy-driven factors without a specific system in place to instruct its decision-making process, the government will be protected by the discretionary function exception. Here, the Forest Service was doing just that, considering several policy-driven factors while trying to balance safety decisions in the aftermath of a natural disaster.

theory because the discretionary fun decision regarding flash flood warning sign placement. The Court therefore grants the

of liability, that is, whether the Forest Service failed to warn visitors with flash flood signage at the Water Wheel area.

B. Private Party Analogue Evident from 28 U.S.C. §§ 2674 and 1346(b)(1), the FTCA encompasses only those claims which possess a state-law private party analogue. See Myohanen v. United States, No. CV-19-05866-PHX-JJT, 2020 WL 6063294, at *5 (D. Ariz. Oct. 14, 2020).

LaBarge v. Mariposa Cnty., 798 F.2d 364, 366 (9th Cir. 1986). The United States argues here that it cannot be liable because of See Wilson v. United States, 909 F.2d 953, 955 56 (8th Cir. 1993) ( ). Arizona recreational

use statute lessee, tenant, manager or occupant of premises is not liable to a recreational or educational -1551(A). The parties agree that the Garcia family members were , insofar that they were hiking, swimming, and engaging in other recreational pursuits. Id. § 33-1551(C)(5).

The parties contest whether two exceptions to the recreational use statute apply. Those two exceptions allow liability when a landowner: (1) charges the person entering

the land an admission or entry fee, excluding nominal fees; or (2) malicious or grossly negligent conduct that was a direct cause of the injury to the

Id. §§ 33-1551(A), (C)(5).

1. Fee Charged Exception The United States acknowledges that the Garcias paid $9.00 for each of their three Doc. 20 at 11.) Because this

wa concludes that it basis. (Id.)

Garcia family was required to pay in exchange for permission to enter the premises with

the language of the statute at issue. See Howard v. United States, 181 F.3d 1064, 1070


-1551(C)(5). Courts have identified two categories of statutes that are often used in state recreational use statutes: (1) See Howard, 181 F.3d at 1068 70 (collecting cases). eclined to apply the exception to immunity unless an actual fee has been charged by the Id. any form of benefit to the landowner will act to trigger the immunity excepti Id. at

1069. ly -1551(C)(5).

Indeed, other courts have found that recreational use statutes using the term

Ducey v. United States, 713 F.2d 504, 510 (9th Cir. 1983).

The United States relies on two cases, Jones v. United States, 693 F.2d 1299 (9th Cir. 1982) and Howard, 181 F.3d at 170, to contend that its reading of the statute should govern. 6

(Doc. 20 at 10 11.) In Jones, the al statute, to determine whether the plaintiff, who was injured while snow tubing, could recover from the government. 693 F.2d at 1303. The court determined that the government was immune from suit under this statute because the fee paid to a third-party concessionaire to rent the inner tube was not a charged fee to enter or use the Id. at 1303 04. Similarly, in Howard, the court analyzed a Hawaii al use statute. 181 F.3d at 1070. The court found the government immune from suit because it yone for the use of its

injury. Id. at 1070 71.

Both Jones and Howard tes, rather than the consideration statute here. Both cases also dealt with situations in which the plaintiff was not charged a fee to use the government s land at all. Here, however, the Garcias paid consideration to enter the Water Wheel site and use the surrounding area. 7 poster required visitors to pay 6 many Forest Service recreation sites. Visitors must pay the posted use fee to an attendant a criminal offense an -6 at 9.) 7 consideration applied to any visitor, whether that be someone arriving in a vehicle to use the Water Wheel si picnic tables. (Doc. 20-6 at 9.) The United States agrees that this fee applied to any visitor using the Water Wheel area and only certain individuals are exempted from paying this fee, such as those with annual passes. (Doc. 24 at 4 5.) This fee applied to the Garcias, who used the Water Wheel recreation area. (Doc. 17 ¶ 40.)

prosecution. This case does not involve a payment to a third-party concessionaire for an inner tube or a payment to a private party that was not related to the use of government land as in Jones and Howard. The government does not dispute that the Garcias paid a fee to use the Water Wheel recreation site. The cases that the United States relies on hold that a use fee is sufficient to invoke a recreational use immunity waiver, especially when the fee is governed by a consideration statute. The Garcias payment was therefore a fee paid under the sta immune under the recreational use statute unless this fee was nominal.

The Arizona recreational use statute provides that [a] nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an -1551(C)(5). Arizona state courts recreational- MacKinney v. City of Tucson, 231 Ariz. 584, 591 (App. 2013).

These courts look to dictionaries to aid their interpretation Id. (citations omitted). Regardless of the exact definition, the parties agree that this is a

very small amount in comparison to what value is actually worth. (Doc. 20 at 11; Doc. 23 at 12.)

The parties dispute whether the $9.00 fee for each of the three vehicles was a nominal payment. In this case, the fee equates to $1.80 per person. (Doc. 20 at 11.) The United States relies on Allen v. Town of Prescott Valley, 244 Ariz. 288 (App. 2018), to show that similar fees have been construed as nominal, especially given the costs offset other operating, maintaining, or improving fees. The United States also provides declarations noting that the fees collected here were applied toward operation and maintenance for several picnic sites. (See, e.g., Doc. 20-2 ¶¶ 7 9, 16 17.) The Garcias point to MacKinney, which noted that

MacKinney nominal fee, - Id. The Garcias contend that MacKinney shows that it is premature to answer whether the $9.00 fee was nominal at this time. (Doc. 23 at 12 13.)

whether this fee is nominal may ultimately prevail, it is too soon to conclude that the

$9.00 fee is nominal. Though the United States has provided evidence that this fee was offset by other costs, the Garcias are entitled to test this theory through discovery. Tellingly, the only case that the United States cites on this issue was decided at the summary judgment stage, after discovery had occurred. See Allen, 244 Ariz. at 289. The United States cites no other cases to suggest that answering this fact-intensive question at this stage is appropriate. The Court will therefore allow limited discovery. The Court will deny the Motion without prejudice as to the three remaining simple negligence claims. The United States may reassert this argument in a later motion to dismiss.

2. Willful, Malicious, or Grossly Negligent Conduct Exception guilty of willful, malicious or grossly negligent conduct that was a direct cause of the

-1551(A). The statute defines owing or reckless indifference to the health and safety Id. § 33-1551(C)(2). As the United States notes, Arizona state courts find that a defendant is would lead a reasonable person to realize that his conduct not only creates an

unreasonable risk of bodily harm to others but also involves a high probability that , 170 Ariz. 591, 595 (App. 1991). Although the st serious injury to another probably will result or with a wanton and reckless disregard of

the possible result S. Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 563 (1975). Arizona

state courts have clarified that gross negligence and willful or malicious conduct are Williams v. Thude, 188 Ariz. 257, 259 (1997). The United States argues that the Garcias have failed to establ 20 at 12 17.) The United States points to remaining three gross negligence theories

(1) failure to relay the NWS to park visitors, (2) failure to close the Water Wheel or Cold Spring areas, and (3) failure to remove debris jams and other floatable debris identified by the Forest Service, to contend that no facts suggest that the government could be liable under any theory. (Id.) The Garcias respon ruling on a highly fact-intensive inquiry, where no discovery has been done, and where

at 13.) In any event, the Garcias contend that there are disputed materials facts with each

negligence theory that can be dealt only with on a more fully developed record. (Id. at 13 going to both the jur cts in have anticipated the danger to visitors, and whether it was negligent or grossly negligent

for failing to warn, close the area, or otherwise mitigate the risk to unsuspecting Id. at 17.) The United States cites several cases to support its arguments that it cannot be liable for gross negligence on any theory. 8

Notably, each of these cases proceeded to summary judgment. substantive issue are so intertwined that the question of jurisdiction is dependent on

8 The United States cites: Wringer v. United States, 790 F. Supp. 210 (D. Ariz. 1992); Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1 (2003); Armenta v. City of Casa Grande, 205 Ariz. 367 (App. 2003); Grant v. Wakeda Campground, LLC, 631 F. Supp. 2d 120 (D.N.H. 2009); and , 831 F.3d 1264 (10th Cir. 2016). (Doc. 20 at 12 17.)

factual issues going to the merits, the jurisdictional determination should await a Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). When these issues are

intertwined, Id. Courts therefore decline to dismiss cases at this stage of the litigation where there has been no discovery to better understand the disputed jurisdictional and substantive issues. See, e.g., Young v. United States, 769 F.3d 1047, 1052 53 (9th Cir. 2014) ( have

Even though the Court must accept as true the factual allegations in the complaint at this stage of the proceedings, see Kim, 940 F.3d at 490 Complaint does not provide an adequate basis for this Court to evaluate whether the

jurisdictional and substantive issues are so intertwined. The First Amended Complaint asserts many allegations that the Forest Service and its employees had knowledge of, or were reckless in failing to identify, many dangers that allegedly should have been fixed or at least warned about. (See, e.g., Doc. 17 ¶¶ 26, 29, 30, 62, 73, 75.) The First Amended gross negligence theory is conflated with their simple negligence claim. (Doc. 17.) Given

rst Amended Complaint does not contain the required level of specificity to plead that separate cause of action. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The result of what the First Amended Complaint provides are legal conclusions that the Forest Service was

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Federal Rule of Civil Procedure 15(a) provides that leave to amend should be leave to amend . . the propriety of a motion to amend by ascertaining the presence of any of four factors:

Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (quotation omitted). should be perf Griggs v. Pace

Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999). As to the gross negligence theories, the Motion will be granted and the Garcias will have leave to amend. IV. CONCLUSION Accordingly, IT IS ORDERED granting in part and denying in part Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 20) as follows:

1. The Garcias first negligence theory, failure to warn visitors with flash flood signage, is dismissed with prejudice for lack of subject matter jurisdiction.

2. T Motion to dismiss the simple negligence theories is denied without prejudice and may be refiled. Plaintiffs are permitted limited jurisdictional discovery on the nominal fee issue. The Court will allow the Garcias until May 3, 2021 to conduct this limited discovery. The Garcias may amend their complaint to include additional jurisdictional facts on this issue.

3. ce theories is granted for failure to state a claim, with leave to amend.

IT IS FINALLY ORDERED that the Garcias shall file their amended complaint, if they choose to do so, no later than May 13, 2021. Dated this 18th day of March, 2021.

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