Cabalce v. VSE Corp.
Decision Date | 31 January 2013 |
Docket Number | CIVIL NO. 12-00377 JMS-RLP,CIVIL NO. 12-00376 JMS-RLP,CIVIL NO. 12-00391 JMS-RLP,CIVIL NO. 12-00373 JMS-RLP |
Parties | TERRANCE C. CABALCE, ET AL., GEORGE JOSEPH KELII, ET AL., HEATHER FREEMAN, ET AL., CHARLIZE LEAHEY IRVINE, ET AL., Plaintiffs, v. VSE CORPORATION, ET AL., Defendants. VSE CORPORATION, Third-Party Plaintiff, v. DONALDSON ENTERPRISES, INC., Third-Party Defendant. |
Court | U.S. District Court — District of Hawaii |
(Related Cases)
CONSOLIDATED ORDER
REMANDING ACTIONS TO THE
FIRST CIRCUIT COURT OF THE
STATE OF HAWAII
This consolidated Order rules on Motions to Remand filed by Plaintiffs in four related actions removed to this court by Defendant VSECorporation ("VSE"): Cabalce, et al. v. VSE Corp., et al., Civ. No. 12-00373 JMS-RLP ("Cabalce"); Kelii, et al. v. VSE Corp., et al., Civ. No. 12-00376 JMS-RLP ("Kelii"); Freeman, et al. v. VSE Corp., et al., Civ. No. 12-00377 JMS-RLP ("Freeman/Sprankle"); and Irvine, et al. v. VSE Corp., et al., Civ. No. 12-00391 JMS-RLP ("Irvine"). The cases are not consolidated, but instead were assigned to a single judge as related cases under Local Rule 40.2. Because most of the relevant pleadings and arguments are identical, it is appropriate to issue this consolidated Order in each action. Based on the following, the Motions are GRANTED, and all four actions are remanded to the First Circuit Court of the State of Hawaii ("State Court").
On November 29, 2012, this court issued an Order Granting (1) Third-Party Defendant United States' Motions to Dismiss, and (2) Plaintiffs' Motions to Strike Third-Party Complaints ("Nov. 29, 2012 Order"). Doc. No. 88 (Cabalce),1 Cabalce v. VSE Corp., 2012 WL 5996548 (D. Haw. Nov. 29, 2012). The Nov. 29, 2012 Order extensively set forth the factual background of these actions, whicharose from an April 8, 2011 fire and explosion in which Donaldson Enterprises, Inc. ("Donaldson") employees Bryan Cabalce, Justin Kelii, Robert Freeman, Neil Sprankle, and Robert Leahey were killed while working and handling a large cache of government-seized fireworks in or near a storage facility. Because the parties are well aware of the background as detailed in the Nov. 29, 2012 Order, the court does not repeat those facts here. Nevertheless, many of the rulings the court made in determining whether to dismiss the Third-Party Complaints against the United States are important -- indeed, dispositive -- in analyzing whether these actions should be remanded to State Court for lack of federal subject matter jurisdiction.2 The court thus begins by summarizing relevant rulings made in the Nov. 29, 2012 Order.
The Nov. 29, 2012 Order dismissed VSE's Third-Party Complaints against the United States for lack of subject matter jurisdiction -- the United States cannot be liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)et seq., for contribution or indemnity under the theories pled by Plaintiffs against VSE (and the other Defendants) in the Complaints, and as asserted by VSE against the United States in its Third-Party Complaints. That is, under Federal Rule of Civil Procedure 14(a)(1), the United States cannot be liable to VSE "for all or part of the claim against" VSE. Doc. No. 88, Nov. 29, 2012 Order at 22, 2012 WL 5996548 at *9. This conclusion was based on several rulings regarding the nature of the contractual relationship between VSE, its subcontractor Donaldson, and the Treasury Executive Office for Asset Forfeiture ("the government" or "the United States").
First, this court ruled that VSE was an "independent contractor" for purposes of the FTCA. "Under the 'independent contractor' exception [to the FTCA], the United States cannot be liable for a contractor's acts unless it exercises 'federal authority to control and supervise the "detailed physical performance" and "day to day operations" of the contractor.'" Id. at 26-27, 2012 WL 5996548 at *10 (quoting Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005)). This court reasoned:
Id. at 27-28, 2012 WL 5996548 at This court further explained:
At most, employees of [the government] issued disposition instructions, ordered fireworks to be destroyed, and approved a destruction plan pursuant to retained authority under the prime contract. See also Doc. No. 56-6, O'Neill Decl. Ex. 5 ( ). But even very specific governmental contractual authority is generally insufficient to render the United States liable for acts of its contractors. See Autery, 424 F.3d at 957 () (quoting United States v. Orleans, 425 U.S. 807, 816 (1976)).
Id. at 28, 2012 WL 5996548 at *11. That is, VSE was not an agent of the United States, and thus the United States could not be vicariously liable for any negligence on the part of VSE. As a result, the Third-Party Complaints failed unless the United States could be found liable for its own alleged acts. Id.
Id. And as for the claim that the United States breached a duty to warn or supervise, such acts likewise involved discretionary, policy-based, decisions. The Nov. 29, 2012 Order reasoned:
Id. at 39, 2012 WL 5996548 at *15.
Finally, as to claims based on a "non-delegable" duty under Hawaii law -- claims that the government improperly managed inherently dangerous fireworks or wrongfully supervised its contract with VSE -- this court also determined that such decisions were discretionary. Id. at 40, 2012 WL 5996548 at *16. Moreover, such strict liability theories under state law are inconsistent withthe FTCA's waiver of sovereign immunity, which is limited to claims of negligence by government employees. Id. at 41, 2012 WL 5996548 at *16 (); see also, e.g., Laird v. Nelms, 406 U.S. 797, 802-03 (1972) () (citation omitted). This court reasoned that:
VSE has not...
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