Fina Air Inc. v. U.S.

• Decision Date: 28 May 2008
• Docket Number: Civil No. 06-2219 (FAB).
• Citation: 555 F.Supp.2d 321
• Parties: FINA AIR INC., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

Page 321

555 F.Supp.2d 321

FINA AIR INC., Plaintiff, v. UNITED STATES of America, Defendant.

Civil No. 06-2219 (FAB).

United States District Court, D. Puerto Rico.

May 28, 2008.

Peter John Porrata, Peter John Porrata Law Office, San Juan, PR, for Plaintiff.

Andrew M. Eschen, U.S. Department of Justice, Washington, DC, Isabel Munoz-Acosta, United States Attorney's Office, San Juan, PR, for Defendant.

OPINION AND ORDER

FRANCISCO A. BESOSA, District Judge.

On January 25, 2007, plaintiff Fina Air Inc. ("Fina") filed an amended complaint against the United States of America¹, pursuant to the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq. (Docket No. 4) On May 24, 2007, the United States filed a motion to dismiss for lack of subject matter jurisdiction. (Docket No. 7) On July 3, 2007, plaintiff opposed defendant's request. (Docket No. 13) Defendant filed a reply and plaintiff a sur-reply. (Docket Nos. 15 and 19)

For the reasons stated below, defendant's motion to dismiss is GRANTED.

I. Factual Background

Fina, a business incorporated in 2003 under the laws of the Commonwealth of Puerto Rico, is a small airline dedicated mainly to the transportation of passengers from Puerto Rico to the Dominican Republic. (Docket No. 4, Amended Complaint, ¶¶ 4 and 5)

To provide transportation services as an air carrier, Fina needed to obtain authorization from the Federal Aviation Administration ("FAA"). In or about February 2003, Fina filed a petition with the FAA in the San Juan Flight Standards District Office ("FSDO") requesting a Part 135 Certificate for Commuter and On-Demand Operations ("Part 135 Certificate") to operate its three (3) SAAB 340A aircraft. The FSDO informed Fina that its personnel (pilots, aviation mechanics and flight attendants) had to be certified by a qualified flight academy in order to receive the Part 135 Certificate. Because Fina did not have its own flight academy, it sought permission from the FAA to use the Pan Am International Flight Academy ("Pan Am") to train its personnel. Fina alleges that the FAA sent Ismael Ortiz (from the FSDO) to investigate Pan Am, and that Pan Am was later approved and certified as a qualified academy to provide the necessary training to Fina's personnel. After Pan Am was supposedly approved as a qualified academy, Fina allegedly invested approximately three hundred and fifty thousand dollars ($350,000), in addition to salaries, per diem and lodging, to train its personnel at Pan Am, relying on what it alleges was Pan Am's certification as a qualified academy by the FAA. Id., at ¶¶ 7-13,18.

On October 3, 2003, the FSDO approved and issued Fina's Part 135 Certificate. Ten (10) months after Fina commenced its flights, however, the FAA/Atlanta Regional Office ("Atlanta Office") sent a six (6) man team to Puerto Rico to investigate Fina's operations. After the investigation, the Atlanta Office informed Fina's president, Lazaro Canto, that its pilots had been flying illegally because Pan Am was not a qualified academy and therefore could not have certified Fina's pilots. The Atlanta Office also found that Fina's planes did not comply with the required updates of its aircraft manuals. Consequently, it required Fina to ground their three (3) aircraft. Fina then questioned the FSDO—which initially certified Pan Am as a qualified academy—about the Atlanta Office's determination that Pan Am was not a qualified academy. Id., at ¶¶ 14-19.² This suit followed.

II. Discussion

A. Motion to Dismiss Standard under Rule 12(b)(1)

As courts of limited jurisdiction, federal courts have the duty to construe their jurisdictional grants narrowly. Alicea-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.P.R.1998). The party asserting jurisdiction has the burden of demonstrating its existence. Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995); Droz-Serrano v. Caribbean Records Inc., 270 F.Supp.2d 217 (D.P.R.2003).

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss an action for lack of subject matter jurisdiction. A court's subject matter jurisdiction can be challenged in two different ways under this rule. Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.2001). The first is a "facial attack" and the second, a "factual attack". Valentin, 254 F.3d at 363.

In a "facial attack" challenge, the party seeking dismissal only questions the sufficiency of the pleading. Ohio Nat. Life Ins. v. United States, 922 F.2d 320, 325 (6th Cir.1990) The "facial attack" challenge requires the court merely to determine "whether the plaintiff has sufficiently alleged a basis for subject matter jurisdiction, and the allegations in [the] complaint are taken as true for purposes of the motion." Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir.2007); Compagnie Maritime Marfret v. San Juan Bay Pilots Corp., 532 F.Supp.2d 369, 373 (D.P.R.2008). The court must also draw all reasonable inferences in the plaintiffs favor in reaching its final determination. Valentin, 254 F.3d at 363.

In a "factual attack" challenge, on the other hand, the party seeking the dismissal does not argue that the plaintiff did not properly plead jurisdiction; it "... asserts that jurisdiction is lacking on the basis of facts outside of the pleadings." Compagnie Maritime Marfret, 532 F.Supp.2d at 373. The court is not limited to the allegations in the complaint and may look beyond the pleadings when a "factual attack" challenge is made. Rivera Torres, 502 F.Supp.2d at 247, n. 3; Compagnie Maritime Marfret, 532 F.Supp.2d at 373.

As a general rule, "a pleading's allegations of jurisdiction are taken as true unless denied or controverted by the movant." Torres-Negron, 504 F.3d at 162. Therefore,

... if the movant fails to contradict the pleader's allegation of subject matter jurisdiction in his motion to dismiss [for lack of subject matter jurisdiction], then he is presumed to be challenging the pleading's sufficiency under Rule 8(a)(1), and the allegations of the pleading pertaining to jurisdiction are taken as true. But if the movant, either in his motion or in any supporting materials, denies or controverts the pleader's allegations of jurisdiction, then he is deemed to be challenging the actual existence of subject matter jurisdiction, and the allegations of the complaint are not controlling. Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1363, at 643-54 (1969).)

When addressing a Rule 12(b)(1) motion that involves factual questions, the court must engage in a two part inquiry. First, it must determine whether the relevant facts, those which would determine the courts jurisdiction, also implicate elements of the plaintiffs cause of action. Torres-Negron, 504 F.3d.at 162-163; Compagnie Maritime Marfret, 532 F.Supp.2d at 373. If the court finds that "the jurisdictional issue and substantive claims are so intertwined that the resolution of the jurisdictional question is dependent on factual issues going to the merits, it should employ the standard applicable to a motion for summary judgment." Torres-Negron, 504 F.3d at 162. The court should grant the motion to dismiss only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Id., at 163. Conversely, if the relevant facts are not intertwined with the merits of plaintiffs claim, the court must apply the second part of the test. This second part of the analysis allows the court to proceed as it never could under Federal Rule of Civil Procedure 12(b)(6) and it is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id., at 163 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)).

B. Federal Tort Claims Act

The FTCA provides a limited waiver of the United States' sovereign immunity. The Act provides that the United States is liable for torts caused by negligent acts or omissions of employees of the Government while acting under circumstances where the Government, if a private person, would be liable under the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b)(1) and 2674 (emphasis added); United States v. Olson, 546 U.S. 43, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) (holding that the United States waives sovereign immunity where local law would make a private person liable in tort under analogous, not the same, circumstances.); Abreu-Guzman v. Ford, 241 F.3d 69, 75 (1st Cir.2001).

Exceptions to immunity contained in the FTCA must be strictly construed in favor of the United States. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct 2698, 69 L.Ed.2d 548 (1981); Dynamic Image Technologies, Inc. v. United States, 221 F.3d 34, 39 (1st Cir.2000). The exceptions to the FTCA's waiver of immunity are listed in 28 U.S.C. § 2680. Section 2680(h) states that the waiver of immunity shall not apply to "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights." (emphasis added) 28 U.S.C. § 2680(h); Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983); United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). The federal government is not liable for the acts or omissions of government employees giving rise to any claim arising under the type of conduct listed in § 2680(h).

When assessing the misrepresentation exception, the court must construe the term misrepresentation according to the traditional and commonly understood legal definition of that tort. United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961); Diaz Castro v. United States, 451 F.Supp. 959, 960-961 (D.P.R.1978). The traditional legal definition of negligent misrepresentation is the "... duty to use due care in obtaining and communicating information upon which [the plaintiff] may...