Bartholomew v. Burger King Corp.

Decision Date13 May 2014
Docket NumberCivil No. 11–00613 JMS/RLP.
Citation21 F.Supp.3d 1089
PartiesClark BARTHOLOMEW; Tanya Bartholomew; and Aric Bartholomew, a Minor, By His Next Friend Clark Bartholomew; Plaintiffs, v. BURGER KING CORPORATION; CTI Foods Holding Co., LLC.; United States Army and Air Force Exchange Services; Does 1–150, Defendants.
CourtU.S. District Court — District of Hawaii

Paul H. Saccoccio, Stephen M. Shaw, Saccoccio & Lopez, Haleiwa, HI, for Plaintiff.

Normand R. Lezy, Leong Kunihiro Lezy & Benton, Grant K. Kidani, Honolulu, HI, for Defendant.

ORDER DENYING DEFENDANT UNITED STATES ARMY AND AIR FORCE EXCHANGE SERVICES' MOTION TO DISMISS, DOC. NO. 207

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

This tort action arises from an incident in which Plaintiff Clark Bartholomew (Bartholomew) allegedly sustained injuries from eating a Triple Whopper sandwich imbedded with two needle-shaped metal objects. The sandwich was purchased from a Burger King Corporation (Burger King) restaurant franchised to Defendant United States Army and Air Force Exchange Service (“AAFES” or the “government”). At the time, Bartholomew was an active duty soldier in the United States Army.

On October 12, 2011, Bartholomew, his wife, and his son (collectively, Plaintiffs) filed this action alleging tortious conduct by Defendants Burger King and CTI Foods Holding Company (CTI), the hamburger patty supplier. (AAFES was later added as a Defendant in a First Amended Complaint.) Currently before the court is AAFES' March 10, 2014 Motion to Dismiss, arguing that the court lacks subject matter jurisdiction because Plaintiffs' claims are barred under the Feres doctrine,” which insulates the United States from liability for injuries “incident to military service.” Feres v. United States, 340 U.S. 135, 144, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Based on the following, the Court DENIES the Motion to Dismiss.

II. BACKGROUND
A. Factual Background
1. Bartholomew's Military Service and Injury

Bartholomew was on active duty in the Army from 2007 to 2011. Doc. No. 207–6, Def.'s Ex. A at 12–13, 16. In April 2010, Bartholomew was stationed at Schofield Barracks, a U.S. Army military installation, where he and his family lived in on-base military housing. Id. His regular working schedule was 6:00 a.m. until “whenever we get done.” Id. at 34.

According to AAFES, on December 1, 2010, Bartholomew's duty status was “on quarters” because he was experiencing back pain and had not been to work that day.1 Doc. No. 207–2, Def.'s Mot. at 3.

AAFES clarified at the hearing on the Motion that this status is similar to taking a “sick day.” That evening, at approximately 6:30 p.m., Bartholomew's wife went to a Burger King restaurant located on Schofield Barracks to pick up dinner. Doc. No. 207–6, Def.'s Ex. A at 24. It is undisputed that the Burger King at issue is not limited to use by military personnel but, rather, is open to “non-service affiliated civilians” as well. Doc. No. 207–2, Def.'s Mot. at 17; Doc. No. 219, Ching Decl. ¶ 7 (“There is no restriction as to who can patronize the Burger King restaurant located on Schofield Barracks.”). Further, at the time of the incident, Schofield Barracks was also not restricted to military personnel—civilians could enter the installation if they obtained an appropriate pass. Doc. No. 219, Ching Decl. ¶ 5. Bartholomew's wife ordered a Triple Whopper meal and took it home for Bartholomew around 6:30 p.m. Doc. No. 207–6, Def.'s Ex. A at 24.

While eating the sandwich, Bartholomew bit into a needle-like object, which pierced his tongue. Id. at 26–27. After holding a napkin on his tongue to stop the bleeding, he went to an urgent care clinic where he was instructed to place ice on his tongue and monitor it. Id. at 27. Two days later, Bartholomew allegedly experienced stomach pain and sought medical attention. Doc. No. 164, Am. Compl. at 7. Apparently, another needle-like object was lodged in his small intestine, requiring hospitalization. Id. He was placed on bed rest until December 9, 2010. Id. AAFES indicates that Bartholomew received health care from the government for all of his medical injuries related to the Whopper incident and also was given paid time off to recuperate. Doc. No. 207–2, Def.'s Mot. at 3, 17.

2. The AAFES Burger King on Schofield Barracks

“AAFES is a Joint command of the Army and the Air Force and ... consists of all activities, personnel, property, and [non-appropriated fund instrumentalities] that provide exchange services to the Army and the Air Force [.] Doc. No. 207–7, Def.'s Ex. B (Army Reg. 215–8 ¶ 1–9). It is “an instrumentality of the United States ... entitled to the immunities and privileges enjoyed by the Federal Government.” Id. ¶ 1–11. Its mission is “to provide quality merchandise and services to its customers at competitively low prices and to generate earnings which provide a dividend to support morale, welfare, and recreation (MWR) programs,” id. ¶ 1–6, and it is a “category C” MWR program. Doc. No. 207–8, Def.'s Ex. C (Army Reg. 215–1 ¶ 3–2). The AAFES Burger King is such an MWR program, established under the MWR's food, beverage and entertainment program to assist “in meeting the food service needs of [a military] installation's assigned or visiting personnel.” Id. ¶ 8–24a. AAFES operates the Schofield Burger King pursuant to a franchise agreement between Burger King and AAFES. Doc. No. 164, Am. Compl. at 2; Doc. No. 207–2, Def.'s Mot. at 6.

Although AAFES employees are federal civilian employees, Doc. No. 207–7, Def.'s Ex. B (Army Reg. 215–8 ¶ 4–1a), the military has authority over certain of AAFES' operations. See Doc. No. 207–4, Wynn Decl. at 3–4. “The Hawaii Exchange, AAFES has a close working relationship with the U.S. Army Garrison Hawaii and the commander of each installation where [AAFES] services are provided.” Id. ¶ 5. “AAFES takes very seriously the Garrison Command's input [and] [o]n certain issues, such as place and time limitations on the sale of alcohol, the Garrison Commander has decision making authority[.] Id. ¶ 6. At the time of Bartholomew's injuries, the Garrison Commander, an active duty military officer, worked closely with AAFES on ensuring its facilities met the needs and requirements of Schofield Barracks. Id. ¶ 7. Further, [b]oth Burger King and the Department of the Army conduct periodic inspections” of the restaurant in question, and the inspections “include[ ] examination of food temperature and water quality and ensuring that the food product is within [the Army's] standards.” Id. ¶ 9.

B. Procedural Background

On October 12, 2011, Plaintiffs filed this action alleging that Burger King and CTI acted negligently in exercising their duty of care owed to Plaintiffs. Doc. No. 1, Compl. On February 19, 2013, Burger King filed a third-party complaint against AAFES, Doc. No. 147, and AAFES filed a crossclaim against CTI and a counterclaim against Burger King on August 9, 2013. Doc. No. 153. On September 17, 2013, Plaintiffs filed an Amended Complaint against Burger King, CTI, and AAFES. Doc. No. 164.

On March 10, 2014, AAFES filed its Motion to Dismiss. Doc. No. 207. On April 10, 2014, Plaintiffs filed their Opposition, Doc. No. 213, and AAFES filed its Reply on April 18, 2014. Doc. No. 216. On March 26, 2014, CTI filed a Statement of No Position, Doc. No. 201, and on April 11, 2014, Burger King filed a Statement of No Opposition. Doc. No. 214. The court heard the Motion on May 6, 2014. AAFES supplemented the record on May 12, 2014 with a declaration setting forth an unopposed and uncontradicted proffer of facts regarding access to the Burger King on Schofield Barracks. Doc. No. 219.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over which it lacks proper subject matter jurisdiction. “A motion to dismiss pursuant to the Feres doctrine is properly treated as a [Rule] 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, rather than as a motion for summary judgment.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1997).

Under Rule 12(b)(1), a defendant may challenge the plaintiff's jurisdictional allegations in one of two ways, “facial” or “factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). A “facial” attack accepts the truth of the plaintiff's allegations but asserts that they “are insufficient on their face to invoke federal jurisdiction.” Id. The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6) : Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient invoke the court's jurisdiction. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.2013).

But, [i]n resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039 (citation omitted). “The court need not presume the truthfulness of the plaintiff's allegations.” Id. “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 jurisdiction.” Id.

“With one caveat, if the existence of jurisdiction turns on disputed factual issues, the district court may resolve those factual disputes itself.” Leite v. Crane Co., 749 F.3d 1117, 1121, 2014 WL 1646924, at *2 (9th Cir. Apr. 25, 2014) (citations omitted). “The caveat is that a court must leave the resolution of material factual disputes to the trier of fact when the issue of subject-matter jurisdiction is intertwined with an element of the merits of the plaintiff's claim.” Id. at 1122 n. 3, at *2 n. 3 (citing Safe Air for Everyone, 373 F.3d at 1039–40 ). In that...

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