Whaley, et al. v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
JESSICA WHALEY, AMANDA FEINDT,
ELIZABETH THOMPSON-WATSON, BRIAN
JESSUP, DUSTIN WALLACE,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 23-00457 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S PARTIAL MOTION TO DISMISS COMPLAINT [ECF NO. 1]
Before the Court is Defendant United States of
America’s (“Defendant” or “United States”) Partial Motion to
Dismiss Complaint [ECF No. 1] (“Motion”), filed on January 16,
2024. [Dkt. no. 21.] Plaintiffs Jessica Whaley, Amanda Feindt,
Elizabeth Thompson-Watson, Brian Jessup, and Dustin Wallace
(“Plaintiffs”) filed their memorandum in opposition on
January 30, 2024, and Defendant filed its reply on February 14,
2024. [Dkt. nos. 31, 38.] The parties stipulated to file the
same supplemental briefing that this Court ordered in the
related case, Feindt, et al. v. United States, CV 22-00397 LEK-
KJM (“Feindt”), because it is also relevant to the instant
Motion. See Stipulated Order Regarding Effect of Supplemental
Briefing on Motion to Dismiss in Related Case (Feindt), filed
2/21/24 (dkt. no. 41). Defendant filed its supplemental brief on
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February 28, 2024 (“Supplemental Brief”), and Plaintiffs filed
their supplemental brief in response on March 6, 2024
(“Supplemental Response”). [Dkt. nos. 45, 47.] The Court finds
this matter suitable for disposition without a hearing pursuant
to Rule LR7.1(c) of the Local Rules of Practice for the United
States District Court for the District of Hawaii (“Local
Rules”). For the reasons set forth below, Defendant’s Motion is
hereby granted insofar as the portions of Counts I and II
alleging failure to properly test water samples for petroleum
are dismissed with prejudice, and the portion of Count II
alleging failure to properly remediate affected homes, and the
portions of Counts I and II alleging failure to test for
petroleum are dismissed. The Motion is denied insofar as the
portion of Count II alleging failure to properly remediate
affected homes, and the portions of Counts I and II alleging
failure to test for petroleum are dismissed without prejudice.
BACKGROUND
This case arises out of the May 6 and November 20,
2021 fuel leaks from the United States Navy’s (“the Navy”) Red
Hill Bulk Fuel Storage Facility on Joint Base Pearl Harbor-
Hickam (“Red Hill” and “JBPHH”). [Complaint, filed 11/9/23 (dkt.
no. 1), at ¶¶ 4, 6, 9.] Defendant was allegedly negligent in
releasing fuel into the water supply, and it failed to disclose
the leaks to affected parties as required, including Plaintiffs,
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who ingested the affected water. [Id. at ¶¶ 2, 4, 29, 92.f,
106.f.] Relevant to this Motion, Plaintiffs allege federal
officers failed to warn residents of the danger, and only
admitted on December 2, 2021 that the November 2021 spills
contaminated the water. [Id. at ¶¶ 29-30, 38.] Further,
Plaintiffs allege that Defendant failed to properly remediate
affected homes, [id. at ¶ 106.i], and “failed to test water
samples for petroleum,” [id. at ¶¶ 92.i, 106.j.]
Defendant’s Motion asks this Court to dismiss the
following claims for lack of subject matter jurisdiction:
(1) the portion of Counts I and II 1 alleging failure to warn;
(2) the portion of Count II 2 alleging failure to properly
1 In Count I, Plaintiffs’ negligence claim, Plaintiffs
allege “[f]ederal officers breached the duty to exercise
ordinary care at Red Hill” because, among other things,
“[o]fficers failed to warn residents that the leaks had occurred
in violation of federal and state law.” [Complaint at ¶ 92.f.]
In Count II, Plaintiffs’ negligent undertaking claim, Plaintiffs
allege “[f]ederal officers breached the duty to exercise
ordinary care after an undertaking” because, among other things,
“[o]fficers failed to warn residents that the leaks had occurred
in violation of federal and state law.” [Id. at ¶ 106.f.] In
Count V, Plaintiffs’ premises liability and duty to control
force claim, Plaintiffs’ allege “the government failed to warn
of a known but latent hazardous condition,” “failed to warn
residents of the May 2021 leak altogether,” and “failed to give
a warning which was reasonably adequate to enable plaintiffs to
protect themselves.” [Id. at ¶¶ 137, 141, 145.]
2 In Count II, Plaintiffs allege “[f]ederal officers
breached the duty to exercise ordinary care after an
undertaking” because, among other things, “[o]fficers failed to
properly remediate affected homes.” [Complaint at ¶ 106.i.]
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remediate affected homes and (3) the portions of Counts I and II 3
alleging failure to test water samples for petroleum. Regarding
the failure to warn portions of Counts I and II, Defendant
argues it is entitled to sovereign immunity pursuant to the
Federal Tort Claims Act’s (“FTCA”) misrepresentation exception
codified at Title 28 United States Code Section 2680(h).
Regarding the failure to properly remediate homes and the
failure to test portions of Counts I and II, Defendant argues it
is entitled to sovereign immunity pursuant to the FTCA’s
discretionary function exception codified at Section 2680(a).
[Motion at 2.] In the alternative, Defendant argues that the
failure to properly remediate homes and the failure to test
portions of Counts I and II should be dismissed for failure to
state a claim for relief under Federal Rule of Civil Procedure
12(b)(6). [Motion, Mem. in Supp. at 12-13, 16.]
3 In Count I, Plaintiffs allege “[f]ederal officers breached
the duty to exercise ordinary care at Red Hill” because, among
other things, “[o]fficers failed to test water samples for
petroleum and destroyed water samples from affected homes.”
[Complaint at ¶ 92.i.] In Count II, Plaintiffs allege “[f]ederal
officers breached the duty to exercise ordinary care after an
undertaking” because, among other things, “[o]fficers failed to
test water samples for petroleum and destroyed water samples
from affected homes.” [Id. at ¶ 106.j.]
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STANDARD
I. 	Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) authorizes a
defendant to move for dismissal of an action for “lack of
subject-matter jurisdiction[.]” “A Rule 12(b)(1) jurisdictional
attack may be facial or factual.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted).
“A ‘facial’ attack accepts the truth of the plaintiff’s
allegations but asserts that they are insufficient on their face
to invoke federal jurisdiction.” Leite v. Crane, 749 F.3d 1117,
1121 (9th Cir. 2014) (citation and internal quotation marks
omitted). “A ‘factual’ attack . . . contests the truth of the
plaintiff’s factual allegations, usually by introducing evidence
outside the pleadings.” Id. (citations omitted).
Defendant’s challenge to the failure to warn claims
pursuant to the misrepresentation exception is a facial attack.
“In a facial attack, the court may dismiss a complaint when its
allegations are insufficient to confer subject matter
jurisdiction, and a complaint’s factual allegations are taken as
true and construed in the light most favorable to the nonmoving
party.” McCoy v. Hawai`i Dep’t of Hum. Serv., CIV. NO. 21-00063
LEK-RT, 2021 WL 5040197, at *3 (D. Hawai`i Oct. 29, 2021)
(citations omitted).
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II. 	Federal Rule of Civil Procedure 12(b)(6)
The Ninth Circuit has described the standard
applicable to a motion under Rule 12(b)(6) as follows:
To survive a motion to dismiss for failure
to state a claim after the Supreme Court’s
decisions in Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009) and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007), the
[plaintiff’s] factual allegations “must . . .
suggest that the claim has at least a plausible
chance of success.” In re Century Aluminum [Co.
Sec. Litig.], 729 F.3d [1104,] 1107 [(9th Cir.
2013)]. In other words, their complaint “must
allege ‘factual content that allows the court to
draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” Id.
(quoting Iqbal, 556 U.S. at 678, 129 S. Ct.
1937).
Following Iqbal and Twombly, . . . . we have
settled on a two-step process for evaluating
pleadings:
First, to be entitled to the presumption of
truth, allegations in a complaint or
counterclaim may not simply recite the
elements of a cause of action, but must
contain sufficient allegations of underlying
facts to give fair notice and to enable the
opposing party to defend itself effectively.
Second, the factual allegations that are
taken as true must plausibly suggest an
entitlement to relief, such that it is not
unfair to require the opposing party to be
subjected to the expense of discovery and
continued litigation.
[Eclectic Props. E., LLC v. Marcus & Millichap
Co., 751 F.3d 990, 996 (9th Cir. 2014)] (quoting
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
2011)). In all cases, evaluating a complaint’s
plausibility is a “context-specific” endeavor
that requires courts to “draw on . . . judicial
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experience and common sense.” Id. at 995–96
(internal quotation marks omitted).
Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th Cir. 2014)
(some alterations in Levitt). This Court is not required to
accept as true “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 555).
DISCUSSION
I. 	Failure to Warn Claims
“An action can be brought by a party against the
United States only to the extent that the Federal Government
waives its sovereign immunity. If sovereign immunity has not
been waived, the court must dismiss the case for lack of subject
matter jurisdiction.” Esquivel v. United States, 21 F.4th 565,
572–73 (9th Cir. 2021) (citations and internal quotation marks
omitted).
The FTCA generally waives the United States’
sovereign immunity and permits tort suits for
damages against the government “in the same
manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C.
§ 2674; Esquivel v. United States, 21 F.4th 565,
572–73 (9th Cir. 2021). Specifically, the FTCA
grants district courts jurisdiction over civil
actions for money damages for negligent or
wrongful acts or omissions of government
employees acting in the scope of 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.” 28 U.S.C.
§ 1346(b)(1); Esquivel, 21 F.4th at 572–73.
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Agustin v. United States, Civ. No. 22-00167 JMS-WRP, 2023 WL
160076, at *3 (D. Hawai`i Jan. 11, 2023) (footnote omitted).
However, the United States did not waive sovereign immunity for
all tort claims: the misrepresentation exception codified at
Title 28 United States Code Section 2680(h) is an important
exception at issue here.
The FTCA’s misrepresentation exception absolutely bars
“claims against the United States for fraud or misrepresentation
by a federal officer.” Kim v. United States, 940 F.3d 484, 492
(9th Cir. 2019) (quotation marks and citation omitted). “The
misrepresentation exception shields government employees from
tort liability for failure to communicate information, whether
negligent, or intentional.” Lawrence v. United States, 340 F.3d
952, 958 (9th. Cir. 2003) (citation omitted). The
misrepresentation exception applies to affirmative misstatements
as well as omissions. See Green v. United States, 629 F.2d 581,
584-85 (9th Cir. 1980) (holding “the misrepresentation exception
precludes liability where the plaintiff suffers economic loss as
a result of a commercial decision which was based on a
misrepresentation by government consisting either of false
statements or a failure to provide information which it had a
duty to provide”).
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On January 11, 2024, this Court issued its Order
Granting in Part and Denying in Part Defendant’s Partial Motion
to Dismiss Fourth Amended Complaint [ECF No. 121], [Filed
6/27/23 (Dkt. No. 129)] in Feindt, which addressed the FTCA’s
misrepresentation exception in an analogous circumstance
(“Feindt Misrepresentation Exception Order”). [Feindt, dkt. no.
227. 4 ] In the Feindt Misrepresentation Exception Order, this
Court concluded that the misrepresentation exception applied to
the failure to warn claims in Feindt, except the failure to warn
claim that implicated a premises liability theory. This Court
dismissed the failure to warn claims that did not implicate a
premises liability theory. See Feindt Misrepresentation
Exception Order, 2024 WL 126882 at *3-7.
As in Feindt, the failure to warn claims at issue in
Counts I, II, and V involve “the type of failure to communicate
information within the scope of the misrepresentation
exception.” See id. at *4. In Counts I and II, Plaintiffs allege
“[o]fficers failed to warn residents that the leaks had occurred
in violation of federal and state law” as one of many theories
of negligence. See Complaint at ¶¶ 92.f, 106.f. Plaintiffs also
bring a failure to warn claim in Count V, their premises
liability claim. [Complaint at ¶¶ 137, 141, 145.]
4 The Feindt Misrepresentation Exception Order is also
available at 2024 WL 126882.
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Plaintiffs here make the same argument that the
plaintiffs in Feindt made: that the misrepresentation exception
does not apply because the failure to warn claims arise
primarily from the negligent performance of an operational task,
and misrepresentations are only collaterally involved. See Mem.
in Opp. at 14-17; Feindt Misrepresentation Exception Order, 2024
WL 126882, at *5. Adopting the reasoning in Feindt, the Court
rejects Plaintiffs’ argument, and concludes that, because
communication of information (or lack thereof) was not
collaterally involved in Plaintiffs’ failure to warn claims,
Plaintiffs’ argument that the misrepresentation exception under
Section 2680(h) does not apply on this basis fails. See Feindt
Misrepresentation Exception Order, 2024 WL 126882, at *6.
Further, Plaintiffs argue their failure to warn claims
can proceed under their premises liability cause of action, as
this Court held in Feindt. See Mem. in Opp. at 17-18; Feindt
Misrepresentation Exception Order, 2024 WL 126882, at *7.
Defendant does not ask this Court to dismiss Plaintiffs’ failure
to warn claims brought in Count V – the premises liability claim
– but rather the failure to warn claims brought in Counts I and
II as duplicative of the claims brought in Count V. [Motion,
Mem. in Supp. at 8.] All three failure to warn claims are based
on the same set of facts, and the claims can only proceed under
a premises liability theory. See Feindt Misrepresentation
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Exception Order, 2024 WL 126882 at *6-7, 9. The failure to warn
claims are barred by the misrepresentation exception to the
extent that such claims are not based on a premises liability
claim. Because the failure to warn portion of Count V is
expressly brought under a premises liability theory, the Court
declines to construe the failure to warn portions of Count I and
II as being brought under a premises liability theory. To the
extent that the portions of Counts I and II alleging failure to
warn are based on a premises liability theory, the Court
dismisses the failure to warn portions of Counts I and II as
duplicative of the failure to warn portion of Count V. See M.M.
v. Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th Cir. 2012)
(“It is well established that a district court has broad
discretion to control its own docket, and that includes the
power to dismiss duplicative claims.” (citation omitted)).
Defendant’s Motion is granted insofar as the portions
of Counts I and II asserting failure to warn claims are
dismissed. Because amendment cannot cure the defect in the
failure to warn claims in Counts I and II, the failure to warn
portions of those claims must be dismissed with prejudice. See
Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018)
(“Dismissal with prejudice and without leave to amend is not
appropriate unless it is clear . . . that the complaint could
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not be saved by amendment.” (quotation marks and citation
omitted)).
II. 	Failure to Remediate Affected Homes
and Failure to Test Claims
Plaintiffs’ failure to properly remediate affected
homes claim in Count II, and Plaintiffs’ failure to test water
samples for petroleum claims in Counts I and II are not
supported by any factual allegations. See generally, Complaint
at ¶¶ 89-110. Because the Complaint fails to allege “factual
content that allows the court to draw the reasonable inference
that the defendant is liable” for the failure to properly
remediate affected homes and failure to test water samples for
petroleum, these portions of Counts I and II must be dismissed.
See Iqbal, 556 U.S. at 678. However, because amendment could
cure the defects in those portions of Counts I and II,
Plaintiffs are granted leave to amend those portions of Counts I
and II. See Hoang, 910 F.3d at 1102. Any amendment of those
portions of Counts I and II must comply with the legal
principles articulated in the Court’s orders in Feindt regarding
the FTCA’s discretionary function exception. See Feindt, Order
Granting in Part and Denying in Part Defendant’s Partial Motion
to Dismiss Fifth Amended Complaint [ECF NO. 210] and Directing
Further Briefing, filed 2/14/24 (dkt no. 275) (“Feindt 2/14
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Order”); 5 id., Order Granting in Part and Denying in Part the
Remainder of Defendant’s Partial Motion to Dismiss Fifth Amended
Complaint [ECF No. 210], filed 3/21/24 (dkt. no. 323) (“Feindt
3/21 Order”). 6
CONCLUSION
For the foregoing reasons, Defendant’s Partial Motion
to Dismiss Complaint [ECF No. 1], filed January 16, 2024, is
HEREBY GRANTED IN PART IN PART AND DENIED IN PART. The Motion is
GRANTED insofar as: the portions of Counts I and II alleging
failure to warn are DISMISSED WITH PREJUDICE; and the portion of
Count II alleging failure to remediate affected homes, and the
portions of Counts I and II alleging failure to test are
DISMISSED. The Motion is DENIED insofar as the dismissal of the
portion of Count II alleging failure to remediate affected
homes, and the portions of Counts I and II alleging failure to
test is WITHOUT PREJUDICE. Plaintiffs are GRANTED leave to file
their amended complaint by April 29, 2024. Plaintiffs’ leave to
amend is limited to addressing the defects identified in this
Order. Plaintiffs are not permitted to add other parties,
claims, or theories of liability.
IT IS SO ORDERED.
5 The Feindt 2/14 Order is also available at 2024 WL 624021.
6 The Feindt 3/21 Order is also available at 2024 WL
1210911.
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DATED AT HONOLULU, HAWAII, March 28, 2024.
JESSICA WHALEY, ET AL. V. UNITED STATES OF AMERICA; CV 23-00457
LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
PARTIAL MOTION TO DISMISS COMPLAINT [ECF NO. 1]
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