Hamm v. U.S.

Decision Date27 July 2006
Docket NumberNo. 04-CV-6499L.,04-CV-6499L.
Citation439 F.Supp.2d 262
PartiesElizabeth M. HAMM, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Western District of New York

Donald W. O'Brien, Jr., Woods Oviatt Gilman LLP, Rochester, NY, for Plaintiff.

Christopher V. Taffe, U.S. Attorney's Office, Rochester, NY, for Defendant.

DECISION AND ORDER

LARIMER, District Judge.

On the morning of November 28, 2001, U.S. Army Reserve Specialist [SPC] Jonathan Goodwin ("Goodwin") was traveling southbound on Route 14A in Yates County, from his home in Rochester, New York to the Army Reserve Depot in Penn Yan, New York. Goodwin was on his way to the second day of a two-day training session, which was scheduled to begin at 8:00 a.m. on that day. At 8:55 a.m., Goodwin drove into the oncoming northbound lane in an attempt to pass a slower moving vehicle. There was a thick fog that reduced visibility, and Goodwin struck the vehicle driven by Elizabeth Hamm, n/k/a Elizabeth Curtiss ("Hamm") head-on. Hamm sustained severe injuries in the accident. There is no real dispute that Goodwin's actions caused the accident. Goodwin pleaded guilty to reckless driving and assault in the third degree in Yates County Court on July 30, 2002. (Dkt. # 21, Ex. 7, Transcript of Plea).

Hamm commenced this federal court action against the United States under the Federal Tort Claims Act ("FTCA") for injuries she sustained as a result of Goodwin's negligent driving.1 Pending before the Court is the Government's motion to dismiss, pursuant to FED.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The Government claims that Goodwin was not acting within the scope of his employment at the time of the accident.

FACTS

Goodwin was a civilian and was also a United States Army Reservist. As a reservist, he had certain duties. One was to attend training sessions. On November 27 and 28, 2001, he was scheduled to attend an inactive-duty training. His schedule had been arranged as a makeup for a training session that Goodwin had failed to attend in October. Goodwin completed the first day of the session and was returning for the second day when the accident occurred. Goodwin had returned to his home in Rochester (about 60 miles away) for the night between training sessions. He was scheduled to arrive for the second day at 8:00 a.m., November 28. The accident occurred at about 8:55 a.m. At the time of the accident, Goodwin was dressed in his military uniform.

After the accident, he was taken to the hospital and never actually reported to the Reserve Depot. One of his supervising officers, after visiting him in the hospital, marked Goodwin "present" on his attendance sheet, Army Form 1380, Record of Individual Performance on Reserve Duty Training. He was, therefore, apparently paid for 8 hours of training on that day. He was not reimbursed for any travel expenses.

Goodwin's medical expenses were covered and paid for by his personal automobile insurance. Goodwin has not faced military discipline for his absence or reckless driving on November 28, 2001. The Army has not conducted a line-of-duty inquiry to question Goodwin's "pay status" of November 27 and 28, 2001.

DISCUSSION
A. Standards for a 12(b)(1) motion

It is well-settled that "[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). There is also no dispute that "[j]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir.1998).

When "resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002). The consideration of materials outside the pleadings does not convert the motion into one for summary judgment. See CCS Int'l Ltd. v. United States, 2003 WL 23021951 at *1, 2003 U.S. Dist. LEXIS 23056 at *2 (S.D.N.Y.2003).

The Second Circuit recognizes that where the issue of subject matter jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits, the court should use the standard applicable to a motion for summary judgment and dismiss for lack of jurisdiction only where no triable issues of fact exist. London v. Polishook, 189 F.3d 196, 198-99 (2d Cir.1999) (quoting Careau Group v. United Farm Workers of Am., AFL-CIO, 940 F.2d 1291, 1293 (9th Cir. 1991)); see also Makarova v. United States, 1999 WL 58693, 1999 U.S. Dist. LEXIS 1211 (S.D.N.Y. Feb. 4, 1999), aff'd 201 F.3d 110 (2d Cir.2000); Augustine v. United States, 704 F.2d 1074, 1079 (9th Cir.1983) ("Because the jurisdictional issue is dependent upon the resolution of factual issues going to the merits, it was incumbent upon the district court to apply summary judgment standards in deciding whether to grant or deny the government's motion."). This doctrine is applicable when a motion for summary judgment is raised before adequate discovery has been completed, and when conflicts of fact exist.2

In this case, discovery on the issue of scope of employment has been completed, and the parties agreed at oral argument that the jurisdictional issue is ripe for decision. Accordingly, the Court has decided this issue on the present motion, despite the fact that jurisdiction and the merits are clearly intertwined.

B. The FTCA and New York respondeat superior law

The FTCA, at 28 U.S.C. § 1346(b), constitutes a waiver of the Government's sovereign immunity under certain circumstances, including for:

[C]laims against the United States, for money damages, ... for . . . 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.

To meet the burden of proving that her claim falls within the scope of that waiver, plaintiff must prove that, according to New York state law, Goodwin's actions on November 28, 2001, while driving south on Route 14A, were within the scope of his employment.3 Thompson, 15 F.3d at 249 (2d Cir.1994). In my view, plaintiff has failed to meet that burden. Under New York law, I do not believe that Goodwin was acting within the scope of his employment.

The dispute is whether Goodwin's driving was within the scope of his employment according to New York state respondeat superior law. Lundberg v. State, 25 N.Y.2d 467, 470, 306 N.Y.S.2d 947, 255 N.E.2d 177 (N.Y.1969) set a two-part standard for employer liability in New York:

The employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities.

In Lundberg, the claimant's husband was killed in a car accident caused by the negligent actions of a state employee who was driving in his private car to his work site after a weekend with his family. The Court of Appeals held that the driver was not acting in the scope of his employment because: (1) the driver was not driving in furtherance of his employment, but instead, to satisfy his personal desire to visit his home in Buffalo and (2) the State did not have the power to control the driver's actions between the end of his work assignment Friday and the beginning of his assignment Monday. Lundberg, 25 N.Y.2d at 472, 306 N.Y.S.2d 947, 255 N.E.2d 177 (N.Y.1969).

The principal dispute between the parties is the second part of the Lundberg test, that is, whether the Government had the power to control Goodwin's actions during his trip from Rochester to Penn Yan. The Government contends that this case is no different from Lundberg and numerous other cases holding that commuting to and from work is generally not within the scope of employment, principally because the element of control is lacking. Cunningham v. Petrilla, 30 A.D.3d 996, 817 N.Y.S.2d 468 (N.Y.App.Div.2006); D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896 (N.Y.1987); Correa v. Baptiste, 303 A.D.2d 355, 755 N.Y.S.2d 655 (N.Y.App.Div.2003). The Government contends here that the Army had no right to exercise control over Goodwin while he was at home between the training sessions or during his commute from home to the sessions.

Plaintiff contends, on the other hand, that because Goodwin was in the military, the case should be treated differently than the normal cases involving commuters. Plaintiff contends that Goodwin, as a reservist, was subject to more control than a civilian would be.

I am not persuaded by this argument. I find that there is no significant distinction between the level of control that the Army has over a reservist driving to a training exercise in the morning and the level of control that a private employer has over an employee driving to work.

The plaintiff argues that Goodwin was subject to greater control than an employee of a private employer because (1) Goodwin could potentially be disciplined under the Uniform Code of Military Justice ("UCMJ") for "Failure to Repair" or "Reckless Operation of a Vehicle," (2) Goodwin had already incurred five unexcused absences toward a yearly limit of nine, and (3) he was in pay status at the time of the accident and the Army has not attempted to retroactively change that status.

This Court finds that potential discipline under the UCMJ does not indicate "control" sufficient to determine that a reservist acts within the "scope of...

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    ...merits, the court should ... dismiss for lack of jurisdiction only where no triable issues of fact exist”. Hamm v. United States, 439 F.Supp.2d 262, 264 (W.D.N.Y.2006) (Larimer, J.), aff'd, 483 F.3d 135 (2d Cir.2007). “This doctrine is applicable ... before adequate discovery has been compl......
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