Ayala v. US, Civ. A. No. 82-S-1907.

• Decision Date: 07 August 1991
• Docket Number: Civ. A. No. 82-S-1907.
• Citation: 771 F. Supp. 1097
• Parties: Patsy AYALA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. Court of Appeals — Seventh Circuit

771 F. Supp. 1097

Patsy AYALA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 82-S-1907.

United States District Court, D. Colorado.

August 7, 1991.

Macon Cowles, Jean Dubofsky, David Griffith, Williams & Trine, Boulder, Colo., for plaintiffs.

Robin Smith, Stephen E. Handler, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

SPARR, District Judge.

THIS MATTER came before the court for trial on May 6, 1991 in Grand Junction, Colorado. The trial was on the issues of liability only. The damage issues were bifurcated for later trial if appropriate. Also before the court is Plaintiffs' Motion to Amend Complaint to Conform to the Evidence, filed May 24, 1991.

I. PROCEDURAL BACKGROUND

In light of the extensive history of this case, a brief summary of its procedural background is appropriate. Because the United States is the sole remaining defendant, the court will limit the background discussion to matters involving the claims against the United States.

The original complaint arose out of a methane and coal dust explosion which occurred on April 15, 1981 in the Dutch Creek No. 1 Mine, an underground coal mine near Redstone, Colorado. The mine was owned and operated by Mid-Continent Coal and Coke Company (Mid-Continent). Fifteen miners were killed in the explosion. The Plaintiffs are the families of some of the deceased miners. The original complaint was filed in Pitkin County, Colorado on October 13, 1982, alleging wrongful death against parties involved in the manufacture and service of the equipment used in the mine. On November 10, 1982, the case was removed to the United States District Court for the District of Colorado based upon diversity of citizenship.

On May 13, 1983, Plaintiffs filed an Amended Complaint adding, in the Thirteenth Claim for Relief, allegations of negligence against the United States by the Mine Safety and Health Administration (MSHA) for failure to exercise reasonable care in connection with mandatory safety inspections. The United States filed its Answer on August 31, 1983. On October 4, 1983, this Civil Action No. 82-JM-1907 was consolidated with 83-JM-580, an action naming the United States for negligent failure to inspect and detect improper installation of a mine lighting system, among other things.

On October 31, 1983, the United States moved to dismiss for lack of jurisdiction over the subject matter and failure to state a claim upon which relief could be granted. The United States argued that there is no actionable tort duty upon which the Plaintiff can base recovery. The United States further argued that even if there were such a duty, the Plaintiffs' claims based on any acts or omissions by MSHA inspectors are barred by 28 U.S.C. § 2680(a), the discretionary function exception to the Federal Tort Claims Act (FTCA).

On February 9, 1984, Judge John P. Moore entered an order on several pending motions. Pursuant to Fed.R.Civ.P. 12(b)(6), Judge Moore dismissed all claims then pending against the United States, concluding that the inspection procedures of the Mine Safety Act do not create a tort duty on the part of the Government toward the Plaintiffs. Ayala By and Through Ayala v. Joy Mfg. Co., 580 F.Supp. 521, 525-26 (D.Colo.1984). Since he concluded there was no tort duty, he declined to determine whether the inspection process fell within the discretionary function exception of the FTCA.

On May 3, 1984, Plaintiffs sought leave to file a Second Amended Complaint alleging a Ninth Claim for Relief entitled "Active Negligence" and a Tenth Claim for Relief entitled "Negligent Inspection." By orders of Magistrate Donald E. Abram on May 21, 1984 and Judge Moore on June 25, 1984, the Plaintiffs were allowed to add a claim based on a negligent "non-optional instruction" relating to the wiring of the lights. Plaintiffs were not allowed to reassert their claim for Negligent Inspection. Plaintiffs filed their Second Amended Complaint on May 30, 1984. The United States answered the Second Amended Complaint on July 19, 1984.

On November 7, 1984, the United States again moved to dismiss on the grounds that the court lacked jurisdiction over the subject matter and that the complaint failed to state a claim upon which relief could be granted. This motion was based on the second prong of the United States' earlier motion which was not previously decided by Judge Moore, specifically, that the Plaintiffs' claim is barred by the discretionary function exception to the FTCA. On May 9, 1985, Judge Moore determined that the acts of the MSHA inspectors fell within the discretionary function exception and dismissed Plaintiffs' Second Amended Complaint as against the United States. Ayala v. Joy Mfg. Co., 610 F.Supp. 86 (D.Colo. 1985), rev'd, 877 F.2d 846 (10th Cir.1989).

Plaintiffs appealed that dismissal to the Tenth Circuit. On June 16, 1989, in an opinion by Judge McKay, the Tenth Circuit reversed Judge Moore's Rule 12(b)(6) dismissal and remanded the case to the District Court. Ayala v. Joy Mfg. Co., 877 F.2d 846 (10th Cir.1989). The Tenth Circuit reasoned, quoting from Berkovitz v. United States, 486 U.S. 531, 547-48, 108 S.Ct. 1954, 1964, 100 L.Ed.2d 531 (1989):

"Because petitioners may yet show ... that the conduct challenged here did not involve the permissible exercise of policy discretion, the invocation of the discretionary function exception to dismiss petitioners' ... claim was improper. Berkovitz, 108 S.Ct. at 1964. We conclude that plaintiffs have pled sufficient facts to withstand a motion to dismiss in light of Berkovitz. We therefore reverse the district court's grant of defendant's motion to dismiss and remand for further proceedings consistent with this opinion." Ayala, 877 F.2d at 849.

On October 30, 1989, Plaintiffs sought leave to file their Third Amended Complaint based on additional facts and circumstances learned during discovery. When the United States objected, the Plaintiffs tendered a revised Third Amended Complaint containing a First Claim for Relief for "Active Negligence" and a Second Claim for Relief for "Negligent Failure to Inspect." Plaintiffs alleged that the Defendant's failure to enforce detected violations of mandatory safety requirements is not protected by the discretionary function exception to the FTCA because the law creates liability for disregarding mandatory regulatory requirements.

On March 13, 1990, Magistrate Abram granted the Plaintiffs permission to file their revised Third Amended Complaint, with some modifications. Magistrate Abram concluded that the Second Claim for Relief for "Negligent Failure to Inspect" merely attempted to reassert the negligence claim that had been dismissed previously by Judge Moore. Magistrate Abram re-named the Second Claim for Relief "Failure to Enforce Regulation" so that the Second Claim for Relief would allege a knowing failure to enforce the regulations, not negligence. He also struck paragraph 8 of that claim because it referred to negligence. Magistrate Abram noted that Judge Moore had never been presented the issue of a knowing or intentional failure by the inspectors to enforce mine regulations. On April 18, 1990, Judge Weinshienk affirmed Magistrate Abram's Order.

On April 26, 1990, this action was reassigned to Judge Daniel B. Sparr. On July 5, 1990, the United States moved to dismiss or for summary judgment on the grounds that the Plaintiffs' claims are barred by the misrepresentation exception to the FTCA and that the Second Claim for Relief is not actionable under the FTCA because it fails to state a duty under Colorado law. On February 27, 1991, this court issued a Memorandum Opinion and Order denying the Defendant's motion to dismiss. On March 14, 1991, the United States moved for reconsideration of that Order regarding only the Second Claim for Relief. On April 11, 1991, the court granted the Defendant's Motion to Reconsider, reinstated the motion to dismiss as to the Second Claim for Relief only, and advised the parties that the issue would be addressed at the trial commencing May 6, 1991.

On May 6, 1991, trial commenced on the issues presented in the Third Amended Complaint. At the close of the Plaintiffs' case, the United States moved for dismissal pursuant to Fed.R.Civ.P. 41(b) on the grounds that the discretionary function exception bars Plaintiffs' claims and that the Second Claim for Relief is not actionable under the FTCA because it fails to state a duty owed under Colorado law. The court declined to render judgment on those issues until the close of all the evidence. At the close of all the evidence, the United States renewed its motion to dismiss the Plaintiffs' claims.

On May 24, 1991, Plaintiffs moved pursuant to Fed.R.Civ.P. 15(b) to amend their complaint to conform to the evidence and tendered a Fourth Amended Complaint.

Because the case has been pending since 1982 and the court, counsel, and parties have expended innumerable hours and seven trial days, the court advised counsel that it would make extensive findings on the evidence notwithstanding the outcome of the legal issues in the case. Accordingly, the court makes the following Findings of Fact, Conclusions of Law, and Order.

II. MOTION TO AMEND COMPLAINT TO CONFORM TO THE EVIDENCE

Plaintiffs seek to amend their complaint pursuant to Fed.R.Civ.P. Rule 15(b) to reinsert the previously stricken paragraph 8 of the Second Claim for Relief in the Second Amended Complaint. Plaintiffs wish to amend their complaint to conform to the evidence because the evidence at trial addressed not only a knowing or intentional failure to enforce mandatory MSHA regulations, but a negligent failure as well. Defendant objects to such an amendment because (1) the claim for negligent failure to enforce MSHA regulations is barred by the law of the case; (2) the attempted amendment is merely an objection to Magistrate Abram's March 13, 1990 Order wherein he ...