United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTIONS AT DOCKETS 17, 45,
W. SEDWICK, UNITED STATES DISTRICT COURT SENIOR JUDGE
docket 17 defendant Tote Maritime Alaska, Inc.
(“Tote”) moves pursuant to Rules 12(b)(1) and (6)
of the Federal Rules of Civil Procedure for an order
dismissing plaintiff Dayle James' (“James”)
claims against it. The declarations of Grace Greene and Hugh
L. Simpson supporting the motion are at dockets 19 and 20,
respectively. James opposes at docket 30, and her
lawyer's declaration is at docket 31. Tote replies at
the motion was fully briefed, James filed two motions to
supplement her opposition with evidence she obtained in
discovery. At docket 45 James filed a “Motion to Permit
Filing of Descovery [sic] Documents From General Dynamics
Defendants In Support of Plaintiff's Opposition to
[Tote's] Motion to Dismiss.” At docket 46 she filed
a “Motion to Permit Filing of Descovery [sic] Responses
of [Tote].” Tote opposes both motions at docket 47.
James did not reply.
argument was not requested and would not assist the
court's resolution of the motions.
to the complaint, Tote operated a ship that in March 2015
transported Army Stryker vehicles from the west coast of the
United States to Anchorage. The Strykers were offloaded at
the Port of Anchorage onto rail cars for transportation to
Joint Base Eielson-Wainwright. Charlie Thomas James, Jr.
(“Mr. James”) was a longshoreman tasked with
guiding the vehicles onto the rail cars. James contends that
the breaks on one of the vehicles failed, causing it to crush
Mr. James between two Stryker vehicles, killing him.
moves to dismiss, arguing that this court lacks subject
matter jurisdiction and, alternatively, that James'
complaint fails to state a claim upon which relief can be
granted. The court cannot reach Tote's latter argument
because it lacks subject matter jurisdiction.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) allows a party to seek
dismissal of an action for lack of subject matter
jurisdiction. The plaintiff then bears the burden of proving
jurisdiction. There are two types of Rule 12(b)(1)
jurisdictional attacks: facial and factual. “In a
facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction. By contrast, in a factual
attack, the challenger disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
the defendant brings a facial attack, the court assumes the
factual allegations in the plaintiff's complaint are true
and draws all reasonable inferences in the plaintiff's
favor. But the court does not accept the truth of
legal conclusions cast in the form of factual
the defendant brings a factual attack, “the district
court may review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary
judgment.” “It also need not presume the
truthfulness of the plaintiffs'
allegations.” “Once the moving party has converted
the motion to dismiss into a factual motion by presenting
affidavits or other evidence properly brought before the
court, the party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden of
establishing subject matter
motion brings a facial jurisdictional attack to James'
complaint. As such, there is no need to consider evidence
beyond the complaint. James' motions at dockets 45 and 46