Dold-Apger v. Friends of the San Pedro River, Inc., No. 11-397-TUC-JGZ

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtJennifer G. Zipps
PartiesDesiree Dold-Apger; Thomas Apger, Plaintiffs, v. Friends of the San Pedro River, Inc., et al., Defendant.
Decision Date19 July 2012
Docket NumberNo. 11-397-TUC-JGZ

Desiree Dold-Apger; Thomas Apger, Plaintiffs,
Friends of the San Pedro River, Inc., et al., Defendant.

No. 11-397-TUC-JGZ


Dated: July 19, 2012


On October 14, 2011, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation in which he recommended that the Plaintiffs' Motion to Remand (Doc. 17) and the United States' Motion to Remand (Doc. 24) be granted. Defendant Friends of the San Pedro River, Inc. ("FSPR") filed an Objection to the Report and Recommendation (Doc. 46), and Plaintiffs replied. (Doc. 48.) FSPR then moved for permission to file a response to Plaintiffs' Reply. (Doc. 49.) Upon independent review and for the reasons stated herein, the Report and Recommendation is adopted and the motion to file a response (Doc. 49) is denied.

I. Defendants' Motion for leave to file Response to Plaintiffs' Reply

As an initial matter, the Court addresses Defendants' request for permission to file a reply to Plaintiffs' response to Defendants' objections to the R&R. Defendants contend that additional briefing is necessary because Plaintiffs' reply offers a new theory - "namely that FSPR has failed to aver a federal defense." The Court will deny the request. This matter

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has been fully and completely and exhaustively briefed. Defendants have filed Responses to the two Motions to Remand (Docs. 19, 28), a Supplemental Brief in Opposition to Plaintiffs' and the Government's Motions to Remand (Doc. 32), a Reply to Plaintiffs' Response to FSPR's Supplemental Brief (Doc. 34), a Reply to the Government's Response to FSPR's Supplemental Brief (Doc. 38), and an Objection to the R&R (Doc. 46). The requirement that FSPR demonstrate "a colorable federal defense" was set forth in Plaintiffs' filings (Doc. 17), the Government's filing (Doc. 24), Defendants' filing (Doc. 32, p. 8) and the R&R (Doc. 39, p. 4). Defendants addressed this argument, asserting that the volunteer Agreement and the Long affidavit "sanction and [sic] a 'colorable federal defense'" and "their right to the federal defense of personal immunity under the FTCA." (Doc. 39, pp. 12, 15.) No opportunity for further briefing is warranted.

II. Consideration of Report and Recommendation

A. Standard of Review

The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to portions of the R & R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

B. Factual Background

The factual background contained in Magistrate Judge Ferraro's R&R is uncontested. As such, it is adopted by reference herein.

C. Discussion

This is a tort suit for negligence under Arizona state law. Plaintiffs allege that Defendants FSPR, a volunteer group, and Nancy Doolittle, one of FSPR's members, were negligent in the organization and supervision of a trail ride in which Plaintiff Desieree Dold-Apger was thrown from her horse and injured. Defendant FSPR's notice of removal indicates that the ground for removal is a Group Volunteer Services Agreement ("Agreement") between FSPR and the Bureau of Land Management ("BLM"); that Agreement deems members of FSPR federal employees for purposes of the Federal Tort

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Claims Act ("FTCA").1 Defendants filed a petition for certification pursuant to 28 U.S.C. § 2679(d)(3), asking the Court to find that Defendants were operating as federal employees at the relevant time and thus "are accorded protection under the [FTCA]." (Doc. 14.) In the Petition, FSPR asserted that removal was proper under "the federal officer/ agency removal statute, 28 U.S.C. § 1442." (Id.)

The Plaintiffs and the Government moved to remand this case to state court on the ground that this Court lacks subject matter jurisdiction. (Docs. 17, 24.) In his R&R, the Magistrate Judge recommended granting the Motions because Defendants failed to meet their burden of proving removability under § 1442. The Magistrate Judge found that: Defendants did not allege or provide any evidence that a federal official directed or asserted direct control over the trail rides conducted by FSPR; FSPR's activities were not required by federal law and did not involve a federal duty; and, thus, the Defendants failed to meet at least one of the requirements of § 1442. (Doc. 39, p. 5.) Defendants object to the R&R on two grounds and assert that: (1) the Magistrate Judge misapplied the governing law and (2) the Magistrate Judge failed to give effect to the Group Volunteer Services Agreement. Defendants appear to misunderstand the applicable law.

The Court is required to remand an action to state court "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). The party invoking the federal court's jurisdiction carries the burden of establishing removability. California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831...

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