De Baca v. United States
| Decision Date | 30 April 2019 |
| Docket Number | No. CIV 17-1233 JB\SCY,No. CIV 17-1161 JB\KK, No. CIV 18-096 JB\KK, No. CIV 18-0496 JB\JHR, No. CIV 18-0367 JB\KHR,CIV 17-1161 JB\KK |
| Citation | 403 F.Supp.3d 1098 |
| Court | U.S. District Court — District of New Mexico |
| Parties | Catherine C DE BACA, Plaintiff, v. UNITED STATES of America, Defendants. Gerald Ohlsen; Janet Youngberg; James Farrington; Tony and Caryn DeRochie; William and Donna McClellan; Nancy Higgins; Vernon and Binda Cobb; Christine Wood; Mark Thompson; Donald Giles and Bonnie Long; Thomas and Diane Bragg; Ernest and Frieda Vigil; Brad Wosick; Johnny and Deanne Luna; Marlene Barber ; Michael McDaniel and Paula Wiltgen, and Martin Valencia, Plaintiffs, v. United States, and Does 1-10, Defendants. State Farm Fire & Casualty Co., and Safeco Insurance Company of America, Plaintiffs, v. United States, and Does 1-10, Defendants. David Lloyd Sais; Lucille Sais; Tomas Apodaca, and Christine Apodaca, Plaintiffs, v. United States of America, and Does 1-10, Defendants. Homesite Indemnity Company a/s/o Don Giles and Bonnie Long, Plaintiff, v. United States; United States Department of Agriculture; United States Forest Service; Natural Resources Conservation Service, and Bureau of Indian Affairs, Defendants. |
A. Blair Dunn, Dori Ellen Richards, Western Agriculture Resource and Business Advocates, LLP, Albuquerque, New Mexico, Attorneys for the Plaintiffs Catherine C De Baca and Gary Cianchetti.
Mary Louise Boelcke, Mark Dow, Bauman Dow & Stambaugh, P.C., Albuquerque, New Mexico and Thomas L. Tosdal, Tosdal Law Firm, Solana Beach, California, Attorneys for the Plaintiffs Gerald Ohlsen, Janet Youngberg, James Farrington, Thomas Derochie, Caryn DeRochie, William McClellan, Donna McClellan, Nancy Higgins, Vernon Cobb, Binda Cobb, Christine Wood, Mark Thompson, Donald Giles, Bonnie Long, Thomas Bragg, Diane Bragg, Ernest Vigil, Frieda Vigil, Brad Wosick, Johnny Luna, Deanne Luna, Marlene Barber, Michael McDaniel, Paula Wilten, Martin Valencia, Vested Interest, LLC, Janice Farrington, Ken Kugler, Debbie Kugler, David Lee, Diana Lee, Joseph Lee, Alicia Lee, Ed Mortensen, Katherine Mortensen, David Coulter, Matt Urban, Marie Urban, and Olympia Salas.
Mark Grotefeld, Anooj Manu Thakrar, Kevin Scott Mosley, Cristina Gonzalez, Grotefeld Hoffmann, Austin, Texas, Attorneys for the Plaintiffs State Farm Fire & Casualty Co., Safeco Insurance Company of America, and Allstate Insurance Company.
David Lloyd Sais, Plaintiff pro se.
Lucille Sais, Plaintiff pro se.
Thomas Apodaca, Plaintiff pro se.
Christine Apodaca, Plaintiff pro se.
Vladislav Kushnir, VB Kusnir, LLC, Trevose, Pennsylvania, Attorney for the Plaintiff Homesite Indemnity Company.
Christopher F. Jeu, Ruth Fuess Keegan, Roberto D. Ortega, Assistant United States Attorneys, Albuquerque, New Mexico, Attorneys for the Defendants United States of America, United States Department of Agriculture, United States Forest Service, Natural Resources Conservation Service, Bureau of Indian Affairs, and FNU Does.
James O. Browning, UNITED STATES DISTRICT JUDGE THIS MATTER comes before the Court on Defendant's Emergency Motion for a Partial Stay of Discovery and Memorandum in Support, filed November 6, 2018 (Doc. 66)("Motion"). The Court held a hearing on November 21, 2018. See Clerk's Minutes at 1, filed November 21, 2018 (Doc. 84). The primary issue is whether the Court should stay discovery pending the Court's decision on the United States of America's Motion to Dismiss Claims for Lack of Subject Matter Jurisdiction or in the Alternative for Partial Summary Judgment, and Memorandum in Support, filed November 2, 2018 (Doc. 60)("First MTD"); the United States of America's Motion to Dismiss Ohlsen Plaintiffs' Second Amended Complaint Due to Lack of Subject Matter Jurisdiction, filed November 2, 2018 (Doc. 62)("Second MTD"); the United States of America's Motion to Dismiss Plaintiff Catherine C De Baca's Amended Complaint and Gary Cianchetti's Complaint Due to Lack of Subject Matter Jurisdiction, filed November 5, 2018 (Doc. 64)("Third MTD"); and the United States of America's Motion to Dismiss Plaintiffs Sais, Apodaca and Sorroche's Amended Complaint Due to Lack of Subject Matter Jurisdiction, filed November 15, 2018 (Doc. 80)("Fourth MTD")(collectively, "the MTDs"). The Court concludes that, because staying discovery would impede the Plaintiffs' ability to respond to the MTDs, the Court will deny the Motion and will allow discovery to continue.
The Court has consolidated C De Baca v. United States of America, No. 17-1661 JB\KK; Cianchetti v. United States of America, No. CIV 17-1186 JB\KK; Ohlsen v. United States of America, No. CIV 18-0096 JB\KK; State Farm Fire and Casualty Co. v. United States, No. CIV 18-0367 JB\KK; Homesite Indemnity Co. v. United States, No. CIV 17-1233 JB\SCY; and Sais v. United States, No. CIV 18-0496 JB\JHR. See Order Granting Unopposed Motion to Consolidate at 1, filed June 5, 2018 (Doc. 20); Order Granting Motion to Consolidate at 2, filed November 5, 2018 (Doc. 69). The Court takes its facts from the Plaintiff's Amended Complaint for Negligence Arising Under the Federal Tort Claims Act, filed November 27, 2017 (Doc. 5)("C De Baca Amended Complaint"); Plaintiff's Complaint for Negligence Arising Under the Federal Tort Claims Act, filed May 3, 2018 (Doc. 18-1)("Cianchetti Complaint"); Ohlsen Plaintiffs' Second Amended Complaint, filed August 15, 2018 (Doc. 38)("Ohlsen Second Amended Complaint"); and Amended Complaint, filed November 13, 2018 (Doc. 78)("State Farm Amended Complaint"). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely the Plaintiffs' version of events.
In 2016, the United States of America Forest Service ("Forest Service") contracted with the Isleta Pueblo to thin the Cibola National Forest, south of Albuquerque in the State of New Mexico. See State Farm Amended Complaint ¶ 11, at 4; id. ¶ 15, at 5. The Forest Service supervised the forest thinning project as "part of a cooperative agreement known as the ‘Isleta Collaborative Landscape Restoration Project,’ " which was undertaken by eleven "government agencies including the USFS, the Natural Resource Conservation Service ..., and the Bureau of Indian Affairs." State Farm Amended Complaint ¶¶ 12-13, at 4-5. The Forest Service directed and controlled the Isleta Pueblo's work. See State Farm Amended Complaint ¶ 17, at 5.
The Isleta Pueblo thinning crew used "a masticator[1 ] to shred brush and trees into mulch." C De Baca Amended Complaint ¶ 12, at 2. Masticators can "potentially ignite wildfires through sparks generated when the metal head strikes against rock." State Farm Amended Complaint ¶ 18(c), at 6. The Isleta Pueblo undertook the thinning in an area containing "logging slash[2 ] and a high quantity of forest fuels," C De Baca Amended Complaint ¶ 13, at 2-3, and "during a drought and in hot, dry, and windy conditions during the New Mexico fire season," Ohlsen Second Amended Complaint ¶ 17, at 5. The masticator either "was not in proper working order, or was not the proper equipment for the terrain," and, on June 14, 2016, sparks from the masticator ignited a forest fire. C De Baca Amended Complaint ¶¶ 14-16, at 3; id. ¶ 17, at 3.
The forest fire became known as the "Doghead Fire." C De Baca Amended Complaint ¶ 17, at 3. The Doghead Fire burned "out of control," C De Baca Amended Complaint ¶ 17, at 3, and "spread to neighboring properties," State Farm Amended Complaint ¶ 11, at 4. The Isleta Pueblo thinning crew "was not adequately trained or equipped to prevent or immediately suppress a fire, and made no attempt to immediately suppress the fire." Ohlsen Second Amended Complaint ¶ 19, at 5. The Forest Service, "New Mexico State Forestry, Bureau of Indian Affairs, and Bureau of Land Management shared command of the fire," and the Forest Service "declined to allow first responders to put out the initial fire." C De Baca Amended Complaint ¶ 16, at 3; id. ¶ 18, at 3. On the Doghead Fire's second day, "evacuations were ordered of all residences and business in the line of fire." C De Baca Amended Compliant ¶ 22, at 3. The Doghead Fire destroyed twelve residences and forty-four structures "in and near" Chilili, New Mexico. C De Baca Amended Complaint ¶ 21, at 3. The Plaintiffs' properties were among the property destroyed. See C De Baca Amended Complaint ¶ 29, at 4; Cianchetti Complaint ¶¶ 25, 28, at 6; Ohlsen Second Amended Complaint ¶ 1, at 1; State Farm Complaint ¶ 19, at 6.
At a July 6, 2018, hearing before the Honorable Kirtan Khalsa, United States Magistrate Judge for the District of New Mexico, Defendant United States requested a discovery stay until the Court decides "all dispositive motions" that the United States plans to file. Clerk's Minutes at 1, filed July 6, 2018 (Doc. 28). Magistrate Judge Khalsa denied the United States' request and informed the United States that, after filing its dispositive motions, it could file a motion to stay discovery. See Clerk's Minutes at 1. On November 2, 2018, the United States filed the First MTD, arguing that, because the Isleta Pueblo thinning crew were independent contractors, the Court should dismiss all the Plaintiffs' claims under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Evidence, and, in the alternative, seeking a partial summary judgment. See First MTD at 1-2. The same day, the United States filed the Second MTD, seeking dismissal under 12(b)(1) of the Ohlsen v. United States of America Plaintiffs' claims, because the Ohlsen v. United States of America Plaintiffs' failed to exhaust their administrative remedies, and because the discretionary-function and independent-contractor exceptions bar their claims. See Second MTD at 27. On November 5, 2018, the United States filed the Third MTD, arguing that the Court should dismiss, under rule 12(b)(1), Plaintiff Catherine C De Baca's claims, because she failed to exhaust...
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