Kuhlman v. United States

• Decision Date: 15 August 2011
• Docket Number: Civil Action No. 8:11–cv–00175–T–WHA–CSC.
• Parties: Edward N. KUHLMAN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Florida

822 F.Supp.2d 1255

Edward N. KUHLMAN, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. 8:11–cv–00175–T–WHA–CSC.

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

Aug. 15, 2011.

Adam Brum, Morgan & Morgan, PA, Tampa, FL, for Plaintiff.

John F. Rudy, III, U.S. Attorney's Office, Tampa, FL, for Defendant.

MEMORANDUM OPINION AND ORDER

HAROLD W. ALBRITTON, Senior District Judge.

I. INTRODUCTION

This case is before the court on a Motion to Dismiss (Doc. # 20) filed by Defendant United States of America (the “Government”) and a Motion to Strike (Doc. # 24), filed by Plaintiff Edward N. Kuhlman (“Kuhlman”).

Kuhlman filed an Amended Complaint (Doc. # 17) in this court on March 9, 2011, bringing a claim of negligence against the Government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. The United States has moved to dismiss this case, pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that this court lacks subject matter jurisdiction, based on the discretionary function exception to the FTCA.

For reasons to be discussed, the Motion to Dismiss is due to be GRANTED, and this case is due to be DISMISSED for lack of subject matter jurisdiction.

II. LEGAL STANDARD

A Rule 12(b)(1) motion challenges the district court's subject matter jurisdiction and takes one of two forms: a “facial attack” or a “factual attack.” A “facial attack” on the complaint requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). A “factual attack,” on the other hand, challenges the existence of subject matter jurisdiction based on matters outside the pleadings. Id. at 1529. Under a factual attack, the court may hear conflicting evidence and decide the factual issues that determine jurisdiction. Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir.1991). However, if “the jurisdictional basis of a claim is intertwined with the merits, the district court should apply a Rule 56 summary judgment standard when ruling on a factual attack. Lawrence, 919 F.2d at 1530.

In this case the Government has made a factual attack and attached affidavits to its motion. The Amended Complaint incorporated exhibits attached to it.

III. FACTS

The facts, as established by incorporated exhibits to the Amended Complaint and exhibits to the Motion to Dismiss, are as follows:

In September, 2009, the Tampa Police Department had an active warrant for the arrest of Kuhlman, due to “Violation of Probation/Parole–Felony Fleeing to Elude.” On September 2, 2009, to help locate and apprehend Kuhlman, the Tampa Police Department sought the assistance of the United States Marshals Service Florida Regional Fugitive Task Force (the “Florida Task Force”).

Scott Ley (“Ley”), a Deputy United States Marshal, began working on the case on September 2. Ley had been assigned to the Florida Task Force since 2005, and had worked for the U.S. Marshals Service since 1990. Ley had received general training in investigating and apprehending fugitives, as well as the use of force, and safety.

To prepare for the case, Ley reviewed Kuhlman's criminal history. Ley noted that Kuhlman had a history of violence, fleeing, and possessing a concealed firearm.

At 3:30 p.m. on September 2, Kuhlman was spotted at an auto parts store in Tampa. Ley learned, over the radio, that Kuhlman had exited a parked car near the store and, after seeing law enforcement, fled. Ley then saw Kuhlman run across Hillsborough Avenue, a busy six-lane road, and toward the drive-through of a Checkers restaurant.

Ley pursued Kuhlman in Ley's vehicle. Ley activated his emergency equipment, drove across Hillsborough Avenue, crossed over the center median, and drove toward the Checkers parking lot.

Upon approaching the Checkers parking lot, Ley observed Selser Pickett, a Tampa Police Department officer, heading toward him in his police cruiser. Ley and Pickett entered the Checkers parking lot simultaneously. Ley drove around the right side of the Checkers building, and Pickett drove around the left side. While driving around the right side of the building, after confirming that there were no vehicles exiting the drive-through, Ley entered the drive-through at approximately 15 miles per hour.

While moving through the drive-through, Ley attempted to use his radio to notify others of Kuhlman's location. Ley noted that it was important to notify others of Kuhlman's location because there was a middle school behind the Checkers.

At this time, Kuhlman suddenly appeared in front of Ley's vehicle. Ley was startled and ducked down for safety. Ley's vehicle struck Kuhlman, and Kuhlman landed on the hood. The vehicle then veered to the right, jumped a curb, and landed against a retaining wall. Kuhlman was injured as a result of the crash.

Kuhlman acknowledged in his FTCA Claim Form, attached as an exhibit to the Amended Complaint, that, at the time of the accident, he “was fleeing from officers.”

IV. DISCUSSION

The Government argues that the court lacks subject matter jurisdiction over this case, due to the FTCA's discretionary function exception. The Government asserts that it is making a factual challenge to subject matter jurisdiction, and accordingly, it has submitted evidence supporting its arguments. Prior to turning to the discretionary function exception issue, this court must rule on Kuhlman's Motion to Strike.

A. Motion to Strike

In support of its Motion to Dismiss, the Government submitted declarations of Ley, Pete Cajigal, and Roderick Glyder, and attached an accident report to Glyder's declaration. Kuhlman moves to strike all of the evidence filed in support of the Government's Motion to Dismiss for two reasons. Both are frivolous.

First, Kuhlman argues that all evidence outside the four corners of the Amended Complaint should be stricken, because the “Government has made a facial attack on Subject Matter Jurisdiction.” Doc. # 24 at 2. Kuhlman is wrong. The Government's Motion to Dismiss explicitly states that it is making a factual, not facial, attack. Doc. # 20 at 8 (“Here, the Defendant raises a factual challenge ....”) (emphasis added). In considering a factual attack, this court considers “ ‘the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.’ ” See, e.g., McMaster v. United States, 177 F.3d 936, 940 (11th Cir.1999) (quoting Lawrence, 919 F.2d at 1529); see also Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238–39 (11th Cir.2002) (considering statements submitted by government employees in response to a plaintiff's FTCA claim).

Second, Kuhlman argues that “[s]elf-serving [d]eclarations that are prepared in anticipation of litigation, which contain conclusory allegations but that are not made in the ordinary course and scope of business is [sic] inadmissible hearsay.” Doc. # 24 at 2. As support, Kuhlman cites no cases and presents no argument, and merely asks the court to “[s]ee generally” Rules 802, 803, and 807 of the Federal Rules of Evidence. Kuhlman did not challenge any specific portions or statements in the exhibits.

Kuhlman's argument is not only conclusory, but also meritless. Virtually all of Ley's declaration, for example, is explicitly Ley's own personal knowledge, describing his actions in preparing to pursue and pursuing Kuhlman. The court has reviewed the declarations, and finds that all of the material portions are appropriate for the court to rely on at this stage in the litigation. The court will not consider any conclusory allegations, to the extent that any exist. ¹

In sum, Kuhlman's Motion to Strike is due to be DENIED.

B. Motion to Dismiss

The court next turns to the Government's Motion to Dismiss. The Government argues that this court lacks jurisdiction over Kuhlman's claim due to the discretionary function exception of the FTCA. The court agrees.

Under the doctrine of sovereign immunity, the Government is immune from suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citation omitted). Statutory waivers of sovereign immunity are “construed strictly in favor of the sovereign.” McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951).

Through the FTCA, Congress has created a limited waiver of the Government's sovereign immunity, authorizing

claims against the United States, for money damages, ... for injury or loss of property, or 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). Congress, however, enacted several exceptions to this waiver, one of which is asserted by the Government. That exception is the discretionary function exception. If the discretionary function exception applies to Kuhlman's claim, then this court lacks subject matter jurisdiction over it, and this case must be dismissed.

In his response to the Government's Motion to Dismiss, Kuhlman's entire argument is based on the assertion that the discretionary function exception cannot apply in this case because Ley was negligent, and the Amended Complaint merely alleges negligent operation of an automobile by an employee of the government in striking Kuhlman while he was a pedestrian.² Kuhlman argues that the statutory provision containing the discretionary function exception states that the Government is not liable for “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care ....” 28 U.S.C. § 2680(a) (emphasis added).

Kuhlman's response states that “Plaintiff does not contend that U.S. Marshal...