Baker v. San Carlos Irr. Project
| Decision Date | 13 December 2001 |
| Docket Number | No. CIV. 00-2380PHX-SRB.,CIV. 00-2380PHX-SRB. |
| Citation | 176 F.Supp.2d 970 |
| Parties | Susan BAKER, individually and as surviving mother of Sarah Baker, deceased; Jesse Bishop, individually, Plaintiffs, v. SAN CARLOS IRRIGATION PROJECT, an agency/subsidiary of the Bureau of Indian Affairs, a division of the Department of Interior, United States Federal Government, Defendants. |
| Court | U.S. District Court — District of Arizona |
Charles Moulton Brewer, John B. Brewer, Charles M. Brewer Ltd., Phoenix, AZ, for plaintiffs.
Martin Mathers, Gage & Mathers Ltd., Phoenix, AZ, for Jesse Bishop.
Jill Dahlmann Rosa, U.S. Dept. of Justice, Torts Branch Aviation & Admiralty, Washington, DC, John Robert Mayfield, U.S. Attorney's Office, Phoenix, AZ, for defendants.
This matter comes before the court on the Motion of Defendant United States of America to dismiss the complaint, or, in the alternative, for summary judgment (Docs. 3-1 and 3-2) and the Plaintiffs' Motion requesting a continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure (Doc. 13-1). On September 10, 2001, the court heard oral argument and took these motions under advisement.
As an initial matter, the Defendant argues that the only proper Defendant in a Federal Tort Claims Act (FTCA) case is the United States of America and that the San Carlos Irrigation Project, the Bureau of Indian Affairs, and the Department of the Interior must be dismissed as federal defendants. It is clear that a plaintiff may only bring suit against the United States in an FTCA action. Kennedy v. United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir.1998); see also 28 U.S.C. § 2679(a) (1994). Furthermore, the Parties' July 12, 2001 Proposed Case Management Plan represents that "Plaintiffs will voluntarily dismiss SAN CARLOS IRRIGATION PROJECT, the BUREAU OF INDIAN AFFAIRS, the DEPARTMENT OF INTERIOR, and the UNITED STATES FEDERAL GOVERNMENT, and recommends that the case be re-captioned: Baker et al. v. United States of America." Thus, the court finds that the United States of America is the only proper defendant and considers the Motion to Dismiss or Motion for Summary Judgment as a motion asserted only by Defendant United States of America.
On January 1, 1998, pilot Robert B. Martin rented a small airplane and operated the airplane during a flight with Plaintiff's decedent, Sarah Baker, and Plaintiff Jesse Bishop. Mr. Martin flew the airplane over and above the Maricopa County Floodway, located approximately four miles south of the Chandler Airpark. At an altitude of approximately 75 to 100 feet, the aircraft collided with electrical lines, causing the aircraft to crash to the ground. Plaintiff's decedent, Sarah Baker, and Mr. Martin were killed in the crash, and Mr. Bishop was severely injured. The power lines which were struck by the airplane were constructed and maintained by the San Carlos Irrigation Project (SCIP). The SCIP provides electric power to homes and businesses on the Gila River and San Carlos Indian Reservations and to neighboring communities. The SCIP is administered by the Bureau of Indian Affairs which is located within the United States Department of the Interior.
The Plaintiffs allege that the Defendant "had an absolute duty to provide adequate markings (orange balls) and/or warning devices" on the electric lines which the Plaintiffs' aircraft struck because the SCIP had actual knowledge that these same electrical lines had been struck nine years earlier. The Plaintiffs further contend that the Defendant's failure to mark the electrical lines created an inherently dangerous condition and gives rise to liability for the damages suffered by the Plaintiffs. The Plaintiffs assert their claims under the FTCA. For the purposes of this motion, the Defendant accepts as true the factual allegations in the Plaintiffs' complaint. The Defendant argues that even if the Plaintiffs' allegations are true, subject matter jurisdiction is lacking because this case falls under the discretionary function exception of the FTCA and therefore, the United States has not waived sovereign immunity.
The Plaintiffs request a "reasonable continuance" of the consideration of the present motion to allow the Plaintiffs an opportunity to conduct and complete discovery. Rule 56(f) of the Federal Rules of Civil Procedure permits the court to order a continuance if it appears "from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Fed.R.Civ.P. 56(f). Under Rule 56(f), the party seeking a continuance bears the burden of setting forth the specific facts it expects to uncover through further discovery. See Harris v. Duty Free Shoppers Ltd. P'ship, 940 F.2d 1272, 1276 (9th Cir.1991); Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir.1986). The Plaintiffs contend that further discovery is necessary to determine "whether or not the SCIP had an obligation, pursuant to industry standards and/or procedural guidelines, to place warning devices and/or orange balls on their electrical lines after receiving actual notice that an aircraft struck the exact electrical transmission lines in 1989, nine (9) years prior to the subject accident." Although the facts surrounding the Defendant's duties and obligations would impact an ultimate determination on the merits, the information which the Plaintiffs hope to obtain through further discovery is not relevant to the issue of whether the discretionary function exception applies and therefore, does not include facts essential to the Plaintiffs' opposition of the current motion. Furthermore, the Plaintiffs have not identified any additional facts or evidence they believe will be uncovered during further discovery which bears on the discretionary function issue. Thus, the court finds that a Rule 56(f) continuance is not appropriate.
The Defendant moves to dismiss this complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or, in the alternative, moves for summary judgment. The issue of whether the United States has waived sovereign immunity for a particular type of suit is properly posed as a question of subject matter jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988); see also Reed v. United States, 231 F.3d 501, 504 (9th Cir.2000) (). "Moreover, when considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy, 850 F.2d at 560; Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir.1983) (). Although the Defendant has captioned the present motion to dismiss with an alternative summary judgment motion, the Defendant's argument focuses solely on the absence of subject matter jurisdiction based on the discretionary function exception to the FTCA. Because the heart of the current inquiry is a determination of whether subject matter jurisdiction exists, the court proceeds to consider this motion as a motion to dismiss.
The United States is subject to suit only "to the extent that it has waived its sovereign immunity." Reed, 231 F.3d at 504 (citing Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir.1996)). The FTCA establishes a limited waiver of the government's sovereign immunity for:
civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (Supp.1999). However, Congress has carved out several exceptions to § 1346(b)(1), see 28 U.S.C. § 2680 (1994), including an exception for any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. § 2680(a).
The discretionary function exception "`marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.'" Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660 (1984)). Furthermore, one purpose of the exception is to "`prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy.'" GATX/Airlog Co. v. United States, 234 F.3d 1089, 1094 (9th Cir.2000) (quoting United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267 [1273], 113 L.Ed.2d 335 (1991)). The analysis of whether the discretionary function applies centers on "`the nature of the conduct, rather than the status of the actor.'" Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958 (quoting Varig Airlines, 467 U.S. at 808, 104 S.Ct. at 2761-62). The United States bears the burden of...
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