Al-Khazraji v. United States

• Decision Date: 20 February 2012
• Docket Number: 09-CV-521S
• Parties: OMRAN AL-KHAZRAJI, Plaintiff, v. UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, Defendant.
• Court: U.S. District Court — Western District of New York

OMRAN AL-KHAZRAJI, Plaintiff,

v.UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, Defendant.

09-CV-521S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Date: February 20, 2012

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Omran Al-Khazraji commenced this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346 and 2671 et seq., against the United States Department of the Army seeking damages for injuries he sustained while employed as a role player in military training scenarios. Pending before this Court is Defendant's motion to substitute the United States for the Department of the Army as defendant in this action, and to dismiss Plaintiff's complaint pursuant to FED. R. CIV. P. 12 (b)(1) for lack of subject matter jurisdiction. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and further concludes that Defendant's motion should be granted in its entirety.

II. BACKGROUND

Plaintiff, who immigrated to the United States from Iraq in 1997, was employed as a Foreign Language Speaking ("FLS") role player by non-party Goldbelt Eagle LLC ("Goldbelt") for training exercises on military bases. (Declaration of Plaintiff Omran Al-Khazraji, Docket No. 23, ¶¶ 1, 6, 9, 11-15, Ex A; Deposition of Plaintiff, Docket No. 18-1,at 14, 16). On October 4, 2006, Plaintiff was playing the role of a Civilian on the Battlefield ("COB"), specifically a sheik, in a military training scenario being conducted at Fort Dix in New Jersey. (Complaint, Docket No. 1, ¶¶ 5-7; Pl's Decl. ¶ 24). During the course of the training scenario, a Hand Grenade Simulator ("HGS") was thrown by a U.S. Army sergeant that was intended to land in a detonation pit in the training lane, however, the HGS failed to hit that target. (Deposition of Master Sergeant Darrell Eugene Lyon, Docket No. 18-2, at 19-20, 29-36, 39-40). Plaintiff "was struck by shrapnel and debris from [this] explosive device." (Complaint ¶ 6).

In April 2007, Plaintiff submitted a claim to the Department of the Army seeking two million dollars for injuries sustained to his neck and left shoulder as a result of this incident, (Docket No. 18-2 at 2), and this claim was amended in August 2008 to reflect four million dollars in alleged damages. (Complaint ¶ 14). These claims were rejected by the Department of the Army in January 2009. (Complaint ¶ 14). Plaintiff commenced the instant action on June 3, 2009, alleging that this Court has jurisdiction over his personal injury claim pursuant to 28 U.S.C. § 1346 (b).¹ (Complaint ¶ 1). Defendant asserted the lack of subject matter jurisdiction as an affirmative defense in its Answer (Docket No. 5) and its Amended Answer (Docket No. 12), and now moves pursuant to Rule 12 (b)(1) to dismiss the complaint on that ground. (Docket No. 17).² Defendant also seeks an ordersubstituting the United States for the Department of the Army as defendant. (Docket No. 17).

III. DISCUSSION

"A motion to dismiss under Rule 12 (b)(1) for lack of subject matter jurisdiction can raise a facial challenge based on the pleadings, or a factual challenge based on extrinsic evidence." SEG Vanguard General Corp. v. Ji, 195 F.Supp.2d 564, 566 (S.D.N.Y. 2002)(internal quotation marks omitted). Where, as here, a factual challenge is raised, "the court may resolve [any] disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits." Zappia Middle East Const. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). The party asserting jurisdiction has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists, and such a showing "is not made by drawing from the pleadings inferences favorable to [that party]." APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003) (internal citation and quotation marks omitted); see Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007).

Plaintiff asserts that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1346 (b), which provides that district courts "shall have exclusive jurisdiction of civil actions on claims against the United States" (emphasis added). Initially, Plaintiff correctly concedes that the United States, rather than the Department of the Army, is the proper and only party that can be sued pursuant to § 1346. Pl's Mem. of Law, Docket No. 25, at 1; See 28 U.S.C. § 2679 (a)(the authority of a federal agency to sue and be sued does not authorize suits against an individual federal agency under § 1346); Myers & Myers, Inc. v.U.S. Postal Serv., 527 F.2d 1252, 1256 (2d Cir. 1975)(suit under the FTCA lies, if at all, only against the United States); Fisko v. U.S. General Serv. Admin., 395 F.Supp.2d 57, 59 (S.D.N.Y. 2005)(same). That part of Defendant's motion seeking substitution is therefore granted. Further, under the principle of sovereign immunity, it is axiomatic that the United States may not be sued without its consent. Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004), citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Thus, where, as here, the United States is the defendant, a court's jurisdiction is defined by the terms of the United States' consent to be sued. See Hamm, 483 F.3d at 137; Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996).

A. United States as Special Employer

In enacting § 1346, Congress waived sovereign immunity with respect to certain suits against the United States, including, as relevant here:

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.

28 U.S.C. § 1346 (b)(1). Defendant argues that, even if a private person, the United States could not be held liable to Plaintiff in the instant case in accordance with the law of New Jersey, where the incident occurred, because his claim is barred under New Jersey's workers' compensation scheme. (Def's Mem. of Law, Docket No. 20, at 5-11).

"It is well settled under New Jersey law that an employee may have two employers for purposes of the work[ers'] compensation scheme - a primary employer and a 'special' employer," both of whom may be liable to that employee for workers' compensation. Roma v. United States, 344 F.3d 352, 364 (3d Cir. 2003), cert denied 543 U.S. 874 (2004);Blessing v. T.Shriver & Co., 228 A2d 711, 713 (N.J.Super.A.D. 1967). "[R]ecovery against one bars the employee from maintaining a tort action against the other for the same injury." Antheunisse v. Tiffany & Co., Inc., 551 A.2d 1006, 1007 (N.J.Super.A.D. 1998), certif. denied 115 N.J. 59 (1989); see Blessing, 344 A.2d 713. Here, Plaintiff concedes that he is receiving workers' compensation benefits as a result of his injury at Fort Dix. Pl's Dep. at 61-62. Defendant argues that it was a special employer of Plaintiff within the meaning of New Jersey's workers' compensation scheme, and therefore Plaintiff is barred from seeking further compensation from it.

Under New Jersey law, to determine whether a plaintiff is a 'special employee' of a defendant for workers' compensation purposes, a three-prong test is generally applied. Roma, 344 F.3d at 364; see Volb v. G.E. Capital Corp., 651 A2d 1002, 1005 (N.J. 1995).

When a general employer lends an employee to a special employer, the special employer becomes liable for work[ers'] compensation only if:

(a) The employee has made a contract of hire, express or implied, with the special employer;

(b) The work being done is essentially that of the special employer; and

(c) The special employer has the right to control the details of the work.

Blessing, 228 A2d at 713, quoting 1A Larson, Workmen's Compensation § 48.00, (1966), p.710; Volb, 651 A2d at 1005. Some New Jersey courts have also found significant (d) whether the special employer pays the employee's wages and (e) whether the special employer has the power to hire, discharge, or recall the employee. Roma, 344 F.3d at 364; Blessing, 228 A2d at 713. "None of these factors is necessarily dispositive, and not all five must be satisfied in order for a special employment relationship to exist." Marino v.Industrial Crating Co., 358 F.3d 241, 244 (3d Cir. 2004), citing Blessing, 228 A2d at 715. The Supreme Court of New Jersey has stated, however, that "the most important factor in determining a special employee's status is whether the borrowing employer had the right to control the special employee's work." Volb, 651 A2d at 1005; Roma, 344 F3d at 364.

Plaintiff argues that Defendant lacked any significant control over his work as a role player because he "was supervised by his Goldbelt field manager and his team leader," from whom he received training, costuming, and equipment. Pl's Mem. of Law at 9; Pl's Dep. at 23. Plaintiff highlights that the contract between Goldbelt and Defendant describes the scope of Goldbelt's work generally as "provid[ing] labor and supervision necessary to train U.S. military, other DoD and federal agency personnel in support of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) at Fort Dix and other locations." Contract, Docket Nos. 18-1 and 22-4, ¶ 1.1. Further, at his deposition, he testified that he received his instructions from only his team leader "Harath" while participating in training scenarios at Fort Dix, and he never received commands from military personnel. Pl's Dep at 23, 35-36; see Pl's Decl. ¶¶ 16, 22-23. Plaintiff's argument on this point relies almost exclusively on these assertions, which are noticeably lacking in supporting detail. See Zappia Middle East Const. Co. Ltd, 215 F.3d at 253 (a party cannot rely solely on conclusory allegations in response to a Rule 12 (b)(1) motion to dismiss). Further, Plaintiff's assertions are contradicted by...