Stoltenberg v. Clark et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EDWIN ALLEN STOLTENBERG
Plaintiff,
v.
TROY CLARK, et al.,
Defendants.
Case No. 3:20-cv-00267-JMK
ORDER RE: MOTION TO DISMISS AT DOCKET 81
At 	Docket 	81, 	Defendant 	United 	States 	Marshal 	Service 	(“Defendant
USMS”) has filed a Motion to Dismiss. 	Defendant USMS moves to dismiss
pursuant to Rules 12(b)(1) and 12(b)(6) of Federal Civil Procedure.1
Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack
of subject matter jurisdiction either by a “facial” or “factual” attack.2 	In a facial
attack, the defendant accepts the truth of the plaintiff’s allegations, but asserts that
they “are insufficient on their face to invoke federal jurisdiction.”3 	In a factual
attack, a defendant presents evidence outside of the pleadings to demonstrate that
1 Docket 81 at 5–7.
2 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
3 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
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the Court lacks subject matter jurisdiction over the complaint based on the facts of
the case.4
When resolving a factual attack on jurisdiction, a court “need not presume
the truthfulness of the plaintiff's allegations.”5 Once a defendant presents a factual
attack, the plaintiff “must furnish affidavits or other evidence necessary to satisfy
its burden of establishing subject matter jurisdiction.”6 	“The plaintiff bears the
burden 	of 	proving 	by 	a 	preponderance 	of 	the 	evidence 	that 	each 	of 	the
requirements for subject-matter jurisdiction has been met.”7
Here, Defendant asserts that the Court lacks subject matter jurisdiction over
Mr. 	Stoltenberg’s 	complaint 	because 	he 	has 	not 	alleged 	that 	he 	has
administratively exhausted his claims under the Federal Tort Claims Act or the
Freedom of Information Act.8 Defendant furnishes a Declaration in support of this
argument at Docket 82. 	Accordingly, Plaintiff may submit affidavits or other
evidence in order to demonstrate that this Court has subject matter jurisdiction.
4 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (quoting Safe Air for Everyone,
373 F.3d at 1039).
5 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Wolfe, 392 F.3d at 362; Safe
Air for Everyone, 373 F.3d at 1039.
6 Safe Air for Everyone, 373 F.3d at 1039 (quoting Savage v. Glendale Union High Sch.,
343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).
7 Leite, 749 F.3d at 1121 (citing Harris v. Rand, 682 F.3d 846, 851 (9th Cir. 2012)).
8 Docket 81 at 8–9.
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Order Re: Motion to Dismiss
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Under Rule 12(b)(6), a defendant may move to dismiss a complaint for
failure to state a claim upon which relief can be granted. 	Plainly, this means that
a defendant argues that even if everything in the complaint is true, the defendant
did not violate the law. To determine whether a complaint states a valid claim for
relief, courts consider whether the complaint contains sufficient factual matter that,
if accepted as true, “state[s] a claim to relief that is plausible on its face.”9 	In
conducting its review, a court must liberally construe a self-represented plaintiff’s
pleading and give the plaintiff the benefit of the doubt.10 	The Court resolves a
motion under 12(b)(6) only on the pleadings before it; therefore, no additional
evidence may be submitted to defend those arguments.
Local Civil Rule 7.4 requires that unless otherwise ordered, opposition
memoranda must not exceed 35 pages or 10,000 words.
IT IS THEREFORE ORDERED:
1. 	The Court recognizes that an additional motion to dismiss from the
individually 	named 	federal 	defendants 	is 	pending 	at 	Docket 	89;
therefore, enlarged deadlines are appropriate here.
9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In making this determination, a court may consider “materials that
are submitted with and attached to the Complaint.” United States v. Corinthian Colleges,
655 F.3d 984, 999 (9th Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th Cir. 2001)).
10 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).
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2. 	Mr. Stoltenberg has until on or before 60 days after the date of this
order to file any opposition and relevant supporting evidence to
Defendant USMS’s Motion to Dismiss at Docket 81.
3. 	Defendant USMS has until 30 days after service of the Plaintiff’s
opposition to serve and file a reply.
DATED this 23rd day of March, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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