1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 24-cv-910-DMS-DEB

LEROY GEORGE SIDDELL,

12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS FOR LACK

OF JURISDICTION

14 UNITED STATES OF AMERICA,

15 Defendant. 16

17 18 Pending before the Court is Defendant United States of America’s motion to dismiss 19 Plaintiff LeRoy George Siddell’s Complaint for lack of subject matter jurisdiction under 20 Fed. R. Civ. P. 12(b)(1). (Defendant’s Motion to Dismiss, (Motion), ECF No. 7). Plaintiff, 21 a licensed attorney but proceeding pro se, did not file a response in opposition.1 The Court 22 found this matter to be suitable for resolution without oral argument pursuant to Civil Local 23 Rule 7.1(d)(1). (ECF No. 8). For the following reasons, Defendant’s Motion is granted. 24

25 26 1 Civil Local Rule 7.1(f)(3)(c) states that if an opposing party fails to file a response in opposition to a motion, that failure may constitute consent to the granting of a motion. A district court may grant an 27 unopposed motion pursuant to a local rule which permits as much. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). The Court declines to grant Defendants’ motion on procedural grounds and addresses 28 1 I. BACKGROUND 2 On January 31, 2024, Plaintiff Siddell, a licensed attorney in the State of California, 3 made an appearance before Immigration Judge Valerie Burch at the Otay Mesa 4 Immigration Court. (ECF No. 1, at 8). Plaintiff Siddell alleges that after proceedings were 5 adjourned Judge Burch said that she “would take [his] license to practice law” in the 6 presence of Plaintiff, her court personnel, and the government attorney. (Id.). 7 On March 29, 2024, Plaintiff Siddell filed this action in San Diego County Superior 8 Court alleging slander per se against Judge Burch for her statements on January 31, 2024. 9 (Id. at 7–10). On May 23, 2024, Judge Burch removed this action to this Court under the 10 Federal Tort Claims Act (“FTCA”) because the United States Attorney’s Office for the 11 Southern District of California certified that she was a federal employee acting within the 12 scope of her employment when she allegedly harmed Plaintiff Siddell. ECF No. 1-5, at 1– 13 2; 28 U.S.C. § 2679; 28 C.F.R. § 15.4. On May 24, 2024, Defendant United States of 14 America filed a notice to substitute itself as defendant for Judge Burch pursuant to 28 U.S.C 15 § 2679(d)(2). (ECF No. 2). Judge Benitez granted Defendant United States’ notice to 16 substitute itself as defendant and dismissed Judge Burch from this action with prejudice. 17 (ECF No. 4). 18 On June 5, 2024, Plaintiff Siddell filed a Writ of Error Coram Nobis, effectively 19 requesting that this Court should find the concept of sovereign immunity to be 20 unconstitutional. (ECF No. 5). 21 On July 3, 2024, Judge Benitez recused himself and this case was reassigned to this 22 Court. (ECF No. 6). 23 II. LEGAL STANDARD 24 A federal court is a court of limited jurisdiction and possesses “only the power that 25 is authorized by Article III of the Constitution and the statutes enacted by Congress 26 pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 535, 541 (1986). 27 Under Rule 12(b)(1), a party may move to dismiss for lack of subject matter jurisdiction. 28 See Fed. R. Civ. P. 12(b)(1). When ruling on such a motion, a court may consider extrinsic 1 evidence beyond the face of the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 2 (9th Cir. 2004). A challenge for lack of subject matter jurisdiction “may be raised by a 3 party, or by a court on its own initiative, at any stage in the litigation, even after trial and 4 the entry of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). A federal court 5 must dismiss an action if it “determines at any time that it lacks subject-matter jurisdiction.” 6 Fed. R. Civ. P. 12(h)(3). 7 When a court grants a motion to dismiss a complaint, it must then decide whether to 8 grant leave to amend. Leave to amend should be “freely given” where there is no (1) 9 “undue delay,” (2) bad faith or dilatory motive,” (3) “undue prejudice to the opposing 10 party” if amendment were allowed, or (4) “futility” in allowing amendment. Foman v. 11 Davis, 371 U.S. 178, 182 (1962). Dismissal without leave to amend is proper only if it is 12 clear that “the complaint could not be saved by any amendment,” Intri-Plex Techs. v. Crest 13 Grp., Inc., 499 F.3d 1048, 1056 (9th Cir. 2007), or “if the plaintiff had several opportunities 14 to amend its complaint and repeatedly failed to cure deficiencies.” Telesaurus VPC, LLC v. 15 Power, 623 F.3d 998, 1003 (9th Cir. 2010). 16 III. DISCUSSION 17 A. FTCA – Intentional Torts Exception 18 “[T]he United States can be sued only to the extent that it has waived its immunity.” 19 U.S. v. Orleans, 425 U.S. 807, 814 (1976). “The FTCA waives the sovereign immunity of 20 the United States, allowing the United States to be sued for damages for injuries ‘caused 21 by the negligent or wrongful act or omission of any employee of the Government while 22 acting within the scope of his office or employment.” Sisto v. United States, 8 F.4th 820, 23 824 (9th Cir. 2021) (quoting 28 U.S.C. §1346(b)(1)). “[D]ue regard must be given to the 24 exceptions . . . to such waiver.” Orleans, 425 U.S. at 814. Certain intentional torts are 25 excepted from the FTCA’s limited waiver of sovereign immunity, including “[a]ny claim 26 arising out of . . . slander.” See 28 U.S.C. §2680(h). 27 28 1 Defendant United States argues that Plaintiff’s slander per se claim is barred by the 2 FTCA’s intentional tort exception. (Motion at 6). Plaintiff does not necessarily oppose, 3 but he has made the argument sovereign immunity is unconstitutional. (ECF No. 5). 4 Defendant United States is correct. Plaintiff’s slander per se claim falls under the 5 intentional torts exception to the FTCA’s waiver of sovereign immunity because it arises 6 out of one of the enumerated torts in 28 U.S.C § 2680(h)—slander. “In determining 7 whether a claim ‘arises out of’ one of the enumerated torts, [a district court] look[s] beyond 8 a plaintiff’s classification of the cause of action to examine whether the conduct upon 9 which the claim is based constitutes one of the torts listed in § 2680(h).” Sabow v. U.S., 10 93 F.3d 1445, 1456 (9th Cir. 1996). The focus of this examination is “whether conduct 11 that constitutes an enumerated tort is ‘essential’ to a plaintiff’s claim.” Id. 12 Here, the alleged conduct and the excepted enumerated tort are one and the same. 13 The thrust of Plaintiff’s Complaint is the allegation that Judge Burch “knowingly” made a 14 “defamatory statement” in the presence of others that “ha[d] the tendency to injure and has 15 injured Plaintiff in his occupation.” (ECF No. 1, at 8–9). The essential conduct is the 16 alleged slander, since “[t]here is no other government conduct upon which [Plaintiff’s] 17 claim[] can rest.” Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1207 (9th Cir. 1988) (quoting 18 Metz v. United States, 788 F.2d 1528, 1535 (11th Cir. 1986). Thus, the Court finds that 19 Plaintiff’s slander per se claim is barred by the intentional torts exception of the FTCA. 20 The Court also finds that no amendment could save Plaintiff’s complaint from the 21 intentional torts exception. Accordingly, the Court DISMISSES Plaintiff’s complaint 22 without leave to amend. 23 B. FTCA – Administrative Exhaustion 24 “[T]he [FTCA] further provides that before an individual can file an action against 25 the United States in district court, [he] must seek an administrative resolution of [his] 26 claim.” Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (citing 28 U.S.C. 27 § 2675(a)); see also 28 U.S.C. §2675(a) (“[T]he claimant shall have first presented the 28 claim to the appropriate Federal agency.”). “The requirement of an administrative claim 1 jurisdictional.” Jd. (quoting Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000)). 2 ||“Because the requirement is jurisdictional, it ‘must be strictly adhered to. This is 3 || particularly so since the FTCA waives sovereign immunity. Any such waiver must be 4 || strictly construed in favor of the United States.’” Jd. (quoting Brady, 211 F.3d at 502). 5 Plaintiff has not represented that he attempted any administrative remedy prior to 6 || filing this complaint. Nor does Defendant have record of any administrative claim by 7 || Plaintiff. (ECF No. 7-2, at 1-2). Thus, the Court finds that Plaintiff has failed to seek an 8 || administrative resolution of his claim with the appropriate Federal agency.” The Court also 9 finds that no amendment could resolve Plaintiffs lack of administrative exhaustion. 10 || Accordingly, in the alternative, the Court would also dismiss Plaintiff's complaint without 11 leave to amend for lack of administrative exhaustion. 12 IV. CONCLUSION 13 Based on the foregoing, the Court GRANTS Defendant’s motion to dismiss. 14 || Plaintiff's claim is dismissed without leave to amend. 15 IT IS SO ORDERED. 16 || Dated: September 23, 2024 2» 17 jn Yn « 18 Hon. Dana M. Sabraw, Chief Judge United States District Court 19 20 21 22 23 24 25 26 27 28 2 Because Plaintiff has failed to exhaust his administrative remedies, the Court need not address Plaintiff's arguments that the FTCA is unconstitutional. See ECF No. 5.