Hawthorn Corp. v. United States

• Decision Date: 24 March 2015
• Docket Number: Case No. 8:13–CV–2895–T–17MAP.
• Citation: 98 F.Supp.3d 1226
• Parties: The HAWTHORN CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Florida

98 F.Supp.3d 1226

The HAWTHORN CORPORATION, Plaintiff

v.UNITED STATES of America, Defendant.

Case No. 8:13–CV–2895–T–17MAP.

United States District Court, M.D. Florida, Tampa Division.

Signed March 24, 2015.

William J. Cook, Barker, Rodems & Cook, PA, Tampa, FL, for Plaintiff.

Michael Kenneth, U.S. Attorney's Office, Tampa, FL, for Defendant.

ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on:

Dkt. 5	Motion to Dismiss
	Dkt. 7	Opposition
	Dkt. 13	Reply

Plaintiff's Complaint is based on the duty to exercise reasonable care in the execution of official duties. Plaintiff The Hawthorn Corporation (“THC”) seeks a judgment against Defendant United States of America for damages, interest, costs and other relief.

Plaintiff THC asserts Plaintiff's claims against employees of the United States government acting in their official capacity. Dr. Chester A. Gipson is Deputy Administrator of Animal Care for the USDA's Animal and Plant Health Inspection Service (“APHIS”). Elizabeth Goldentyer, D.V.M. is the Director, Eastern Region, APHIS Animal Care. Cynthia DiGesualdo, D.V.M. is an APHIS animal welfare inspector.

Plaintiff THC is licensed by the United States Department of Agriculture as an animal exhibitor pursuant to the Animal Welfare Act (“AWA”), 7 U.S.C. Sec. 2131 et seq. Plaintiff THC hired Lancelot Kollman in 2012 as a trainer for Plaintiff's group of sixteen white tigers. (Dkt. 1, p. 2, par. 7).

In the Complaint, Plaintiff The Hawthorn Corporation (“THC”) alleges the following claims:

Count I Negligence attributable to Elizabeth Goldentyer

a. failed to notify APHIS inspectors that Kollman could not handle, train or present tigers for THC;

b. failed to instruct APHIS inspectors to report that THC was in violation of the AWA and its regulations if they found that Kollman was handling, training or presenting tigers for THC;

c. failed to tell THC that Kollman could not handle, train or present tigers under its license

Count II Negligence attributable to Dr. Gipson

a. failed to notify APHIS inspectors that Kollman could not handle, train or present tigers for THC;

b. failed to instruct APHIS inspectors to report that THC was in violation of the AWA and its regulations if they found that Kollman was handling, training or presenting tigers for THC;

c. failed to tell THC that Kollman could not handle, train or present tigers under its license;

Count III Negligence attributable to Cynthia DiGesualdo

a. failed to tell THC that Kollman could not handle, train or present tigers under its license.

In each Count, Plaintiff THC alleges that Defendant proximately caused Plaintiff's damages, including but not limited to the loss of revenues from the Soul Circus contract as well as substantial costs in the transportation and upkeep of the tigers, such as approximately 7,000 pounds of meat to feed the tigers, freight costs, additional handlers, and sawdust.

I. Background

The AWA was enacted to regulate commerce with the following intentions:

(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;

(2) to assure the humane treatment of animals during transportation in commerce; and

(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.

Congress further found that it is essential to regulate ... the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use. 7 U.S.C. Sec. 2131.

A license is required to operate as a dealer or exhibitor with respect to animals. 7 U.S.C. Sec. 2134. The terms “dealer,” “exhibitor,” and “animal” are defined in the AWA and in the regulations. 7 U.S.C. Secs. 2132(f) (dealer), 2132(g) (animal), 2132(h) (exhibitor); 9 C.F.R. Sec. 1.1. An “exhibitor” is defined in relevant part as “any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses and zoos exhibiting such animal whether operated for profit or not....” 7 U.S.C. Sec. 2132(h).

A person whose license has been revoked is barred from buying, selling, exhibiting, and transporting animals. 9 C.F.R. Sec. 2.10(c) (“Any person whose license has been ... revoked shall not buy, sell, transport, exhibit or deliver for transportation, any animal during the period of ... revocation”). Such a person is not prohibited from “handling” animals, which is defined as “petting, feeding, watering, cleaning, manipulating, loading, crating, shifting, transferring, immobilizing, restraining, treating, training, working and moving, or any similar activity with respect to any animal.” 9 C.F.R. Sec. 1.1.

In the Complaint, Plaintiff THC alleges that Plaintiff hired Lancelot Kollman in 2012. Plaintiff further alleges:

Hawthorn's representatives knew that Kollman's own USDA exhibitor's license had been revoked as a result of a procedural default, but Hawthorn also knew that many licensed exhibitors hire unlicensed individuals to handle and present their animals. Thus, Hawthorn (and Kollman) reasonably understood that even though Kollman was not licensed, he could train and present Hawthorn's tigers so long as he was Hawthorn's employee.

Plaintiff THC further alleges that Hawthorn began exhibiting the tigers with Kollman as their presenter in 2012. During 2012, Plaintiff provided APHIS with an itinerary of the tigers' expected destinations so that the agency always knew the tigers' location and the individuals accompanying the tigers. Plaintiff THC alleges that APHIS: 1) knew Kollman was exhibiting Plaintiff's tigers; and 2) was free to inspect Hawthorn and Kollman for compliance with the AWA and its regulations.

Plaintiff THC alleges that, under APHIS guidelines, when AWA inspectors inspect traveling exhibitors like Hawthorn, they are required to pay “special attention” to the training and experience of the handlers and employees of performing animals. (Exh. 1, 6.16.13). Plaintiff THC further alleges that after each inspection, an inspector is required to conduct an exit briefing. (Ex. 2, 9.1.3). Plaintiff THC alleges that APHIS inspectors repeatedly inspected Plaintiff's tigers with Kollman present, and reported no violations, leading Hawthorn to believe that Kollman was free to work for Plaintiff THC or another licensee.

Plaintiff THC alleges that after the 2012 season, during which Plaintiff exhibited Plaintiff's tigers with Kollman as Plaintiff's employee, Plaintiff THC entered into a contract with Soul Circus, Inc., to exhibit the same tiger act with the traveling UniverSoul Circus, for which Soul Circus agreed to pay Plaintiff THC $672,000, ($7,000 per week, January 18, 2013 until November 24, 2014). Plaintiff THC transported the tigers to Florida in January, 2013 to prepare for opening in Tampa on January 26, 2013.

Plaintiff THC further alleges that Soul Circus was aware that Kollman's license had been revoked, and therefore contacted Dr. Chester A. Gipson, Deputy Administrator of Animal Care for the USDA's Animal and Plant Health Inspection Services (“APHIS”) to seek reassurance that Kollman was allowed to present the tiger act under Plaintiff Hawthorn's license. Dr. Gipson stated that Kollman was not permitted to handle or present Plaintiffs tigers, because his license had been revoked. Thereafter, Soul Circus rescinded the contract with Plaintiff THC, and Plaintiff THC incurred substantial costs for 7,000 pounds of meat to feed the tigers, freight costs, additional handlers and sawdust.

Plaintiff THC's SF 95 Claim for Damage or Injury is attached to the Complaint. (Ex. 3). In the Claim, Plaintiff THC alleges that Plaintiff incurred “significant damages as a result of the inspectors' and investigators' negligence, including the loss of a contract that would have paid Plaintiff $672,000.00.” In the letter attached to the Claim, Plaintiff THC states that “APHIS investigators are obligated to inspect for violations and report any violations to licensees so that they may be corrected. Their failure to notify Hawthorn of the apparent violation when they well knew of Kollman's presence and status proximately caused Hawthorn's loss of the Soul Circus contract and damages of $672,000.00.”

An excerpt of the Animal Care Inspection Guide is attached to the Complaint as Exhibit 1, and Appendix 1, Inspection Requirements, is attached to the Complaint as Exhibit 2.

II. Standard of Review

A motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, can be a facial attack or a factual attack. In a facial attack, the factual allegations of the Complaint are taken as true. In a factual attack, the Court may consider matters outside the Complaint, and is free to weigh evidence and satisfy itself as to the existence of its power to hear the case. In a factual attack, the allegations of the Complaint are not presumptively true. Where the attack on jurisdiction implicates the merits of the plaintiff's federal cause of action, the Court should find that jurisdiction exists and deal with the objection as a direct attack on the merits of plaintiff's case, proceeding under Rule 12(b)(6) or Rule 56. The exceptions to this rule are narrowly drawn, and are intended to allow jurisdictional dismissals only in those cases where the federal claim is clearly immaterial or insubstantial. See Williamson v. Tucker, 645 F.2d 404 (5th Cir.). cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981).

In the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists. Menchaca v. Chrysler Credit Corp., ...