Mentz v. U.S., No. A1-03-123.
| Decision Date | 04 March 2005 |
| Docket Number | No. A1-03-123. |
| Parties | Kevin MENTZ, Plaintiff, v. UNITED STATES of America, The Department of the Interior, and The Bureau of Indian Affairs (BIA), Defendants. |
| Court | U.S. District Court — District of North Dakota |
Chad Rory McCabe, Vinje Law Firm, Bismarck, ND, for Plaintiff.
David L. Peterson, Bismarck, ND, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Before the Court is the Defendants' Motion to Dismiss filed on December 30, 2004. On February 1, 2005, the Plaintiff filed a response opposing the motion. For the following reasons, the Defendants' motion is granted.
Miles Gustavson was formerly employed as an auto mechanics instructor at Standing Rock Community Grant School ("Grant School").1 Complaint, ¶ 8. It is alleged that prior to November 26, 2000, Gustavson brought a 1972 or 1974 model SkiDoo Elan snowmobile to class so that his students could conduct repairs on the snowmobile. Complaint, ¶¶ 9-10.
On November 26, 2000,2 the plaintiff, Kevin Mentz, and his younger brother Tim Mentz met with Gustavson at the Grant School. Complaint, ¶ 12. According to the complaint, the purpose of the visit was Tim's interest in purchasing a snowmobile from Gustavson. The record reveals that Tim had been in possession of the snowmobile prior to November 26th, and was taking it back to Gustavson to have the handle bars repaired. Deposition of Kevin Mentz, pp. 12-13. It is unclear whether Tim had already purchased the snowmobile, or if he and Gustavson were still negotiating the sale. Deposition of Kevin Mentz, pp. 10 18. In any event, Mentz witnessed Gustavson fix the handle bars and put a new "power belt" on the snowmobile. Complaint, ¶ 14; Deposition of Kevin Mentz, p. 20. This encounter occurred on a Sunday morning, November 26, 2000. Gustavson was working on a snowmobile that he personally owned. He was not assisting students or conducting any school functions or activities while using the shop that morning. After making some modifications to the snowmobile, Gustavson encouraged Mentz to take the snowmobile for a test drive. Complaint, ¶ 15. Mentz was reluctant but did so. Deposition of Kevin Mentz, pp. 12-13, 16-17. However, Mentz drove the snowmobile for a short distance during which time a piece of the engine flew from the snowmobile, cut the choke cable, and struck Mentz in the chin. Complaint ¶ 16. Kevin sustained a broken chin, permanent scarring and damage to both eyes.
On October 17, 2003, Mentz filed an action under the Federal Tort Claims Act against the United States of America, the Department of the Interior, the Bureau of Indian Affairs, and Miles Gustavson, in his official capacity at the Grant School, alleging negligence and failure to warn. Mentz seeks damages in the amount of $2,000,000 for "loss of earnings and earning capacity, loss of income or support, and loss of employment or business or employment opportunities, pain and suffering, inconvenience, mental anguish, emotional distress, injury to reputation, humiliation, stigma and hardship." Complaint, ¶ 18.
At the outset, it is apparent from the record that Mentz has exhausted his administrative remedies, a prerequisite to filing an action under the Federal Tort Claims Act in federal court. See 28 U.S.C. § 2825(a). The Government seeks a dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. It is well-established that "a district court `has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1).'" Harris v. P.A.M. Transport, Inc., 339 F.3d 635, 637, n. 4 (8th Cir.2003) (quoting Osborn v. United States, 918 F.2d 724, 728, n. 4 (8th Cir.1990)) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947)). Unlike a motion to dismiss under 12(b)(6), to look at matters outside the pleadings does not convert a Rule 12(b)(1) motion to a motion for summary judgment. Id. The Eighth Circuit has explained that the difference between the two rules "is rooted in the unique nature of the jurisdictional question." Osborn, 918 F.2d 724, 729 (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)). "[A] district court has `broader power to decide its own right to hear the case than it has when the merits of the case are reached.'" Id. Jurisdictional issues, whether they involve questions of law or fact, are for the court to decide. Id.
"Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn, 918 F.2d 724, 730. As a result, "no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of undisputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims." Id."Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Id.
A. FEDERAL TORT CLAIMS ACT
Mentz's claim arises under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. §§ 1346(b), 2671-2680. Under the FTCA, the United States has waived its sovereign immunity to the following extent:
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) (emphasis added).3 The Court will discuss the relevant provisions of the FTCA and how they apply to this case.
At the time of the incident, Gustavson was employed by the Standing Rock Community Grant School which is operated by Standing Rock Community School Board, Inc., through an agreement entered into under the Tribally Controlled Schools Act of 1988 ("TSCA"), Public Law 100-297, codified at 25 U.S.C. § 2501-2511. See Defendant's Ex. No. 1. The term "tribally controlled school" is defined by 25 U.S.C. § 2511 as follows:
The term "tribally controlled school" means a school that —
(A) is operated by an Indian tribe or a tribal organization, enrolling students in kindergarten though grade 12, including a preschool;
(B) is not a local educational agency; and
(C) is not directly administered by the Bureau of Indian Affairs.
Congress has extended the United States' liability under the FTCA, by way of Public Law 101-512, which "imposes liability upon the United States for the acts of tribal organizations and their employees administering a grant agreement pursuant to the TSCA." Big Owl v. United States, 961 F.Supp. 1304, 1307 (D.S.D.1997); see Pub.L. 101-512, Title II, § 314, Nov. 5, 1990, 104 Stat.1959, Pub.L. No. 103-138, Tit. III § 308, Nov. 11, 1993, 107 Stat. 1416 (codified at 25 U.S.C. § 450f, Historical and Statutory Notes). Specifically, Public Law 101-512 provides:
With respect to claims resulting from the performance of functions... under a contract, grant agreement or cooperative agreement authorized by the ... [TSCA] ... an Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior... while carrying out any such agreement and its employees are deemed part of the Bureau ... while acting in the scope of their employment in carrying out the contract or agreement Provided, That ... any civil action or proceeding involving such claim brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and afforded the full protection and coverage of the [FTCA].
Id. In short, Grant School employees, such as Gustavson, are considered employees of the BIA and can be sued under the FTCA subject to the protections and immunities afforded government employees under the Act.
The alleged negligence took place in Fort Yates, North Dakota, within the exterior reservation boundaries of the Standing Rock Sioux Tribe. Since the FTCA's enactment in 1948, the "law of the place" has meant the law of the state where the negligent act or omission occurred. See F.D.I.C. v. Meyer, 510 U.S. 471, 487, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) () (citing Miree v. DeKalb County, 433 U.S. 25, 29, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Richards v. United States, 369 U.S. 1, 6-7, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Rayonier Inc. v. United States, 352 U.S. 315, 318, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957)). This same approach has been used when the negligent act or omission occurred on Indian land located within a state. See Champagne v. United States, 40 F.3d 946 (8th Cir.1994); Goodman v. United States, 2 F.3d 291 (8th Cir.1993); Red Lake Band of Chippewa Indians v. United States, 936 F.2d 1320 (D.C.Cir.1991); Seyler v. United States, 832 F.2d 120 (9th Cir.1987); Bryant v. United States, 565 F.2d 650 (10th Cir.1977). As a result, North Dakota law governs this dispute and is the "law of the place" under the FTCA.
The Court has established that Gustavson is considered to be a federal employee for purposes of the FTCA. However, the FTCA "is a limited waiver of sovereign immunity, making the Federal Government liable to the same...
To continue reading
Request your trial
-
Vinje v. United States
...Docket No.11. Jurisdictional issues, whether they involve questions of law or fact, are for the court to decide. Mentz v. United States, 359 F. Supp. 2d 856, 858 (D.N.D. 2005). Because jurisdiction is a threshold question, the district court may consider matters outside the pleadings when s......