Viola v. United States

• Decision Date: 20 January 2011
• Docket Number: CIVIL ACTION NO: 10-1720,c/w 10-1959
• Parties: SPENCER JOSEPH VIOLA v. UNITED STATES, ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

SPENCER JOSEPH VIOLA

v.UNITED STATES, ET AL.

CIVIL ACTION NO: 10-1720

c/w 10-1959

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SECTION: R

DATED: January 20, 2011

ORDER AND REASONS

This action involves the liability vel non of the United States for the action of its recruiter in an incident in which a recruit was injured. Because the Court finds that the recruiter was not acting within the scope of employment, and the training and supervision of recruitment officers falls within the discretionary function exception, the Court holds that the government is immune from liability in this action.

I. BACKGROUND

Spencer Viola sued the United States in civil action number 10-1720 alleging that its army recruiter, Joseph Abel, negligently caused Viola to be injured in an incident occurring outside of Sidelines Bar around midnight on July 4, 2009.¹ Viola asserts that the United States is vicariously liable for Abel's negligence and that it is directly liable for its failure to properly train and supervise Abel in his interaction withrecruits. Viola also sued Founders Insurance Company, the insurer of 1229 Inc., d/b/a Sidelines Bar and Grill, for the bar's alleged breach of duty in allowing Viola to consume alcohol to a point of intoxication and without ascertaining his age. Later, Viola sued 1229 Inc., Founders Insurance Company and Abel in state court for injuries arising from the same incident.²1229 Inc. and Founders (collectively "Sidelines Bar") removed the action on the basis that Abel was acting within the course and scope of employment at the time of the alleged incident.³ On September 3, 2010, the removed action was consolidated with civil action number 10-1720.

The United States now moves in these consolidated actions to dismiss for lack of subject matter jurisdiction, or alternatively for summary judgment, on the grounds that Abel was not acting within the scope of employment at the time of the alleged negligence and that any claim for negligent training or supervision is barred by the discretionary function exception to the Federal Tort Claims Act.⁴ In support of its motion, the United States has submitted the sworn statements of three witnesses.⁵ No other party has submitted any evidence inconnection with the motion. To the extent that the factual allegations in the complaint contradict the facts asserted in the submitted sworn statements, the Court relies on the sworn statements. See Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 994 (5th Cir. 2001) ("[T]he purpose of... Rule 56(e) [is] to prevent the nonmoving party from merely relying on his pleadings when the moving party supported his motion for summary judgment with affidavits and other evidence."); id. at 994 n.38 ("A non-movant cannot rely upon his own unverified pleading to contradict factual matters properly before the court in support of the motion for summary judgment.") (quoting Ratner v. Young, 465 F. Supp. 386, 389 n.5 (D.V.I. 1979)).

Sidelines Bar opposes the United States' motion as to plaintiff's vicarious liability claim, but does not oppose dismissal of plaintiff's negligent supervision and training claim. Viola does not oppose the government's motion on any ground. Based on the evidence submitted, the Court determines that the government's motion must be granted.

II. STATEMENT OF FACTS

On June 30, 2009, Viola enlisted in the U.S. Army under the deferred enlistment program.⁶ On the drive home from theprocuring station, Viola told defendant Joseph Abel, one of Viola's recruiting officers, that he worked as a bartender at Pub Zero. On the night of July 4, 2009, Viola sent a text message to Abel informing him that he was at the Pub Zero bar.⁷ Abel replied to Viola's text message by asking if Viola was at Pub Zero working or just hanging out.⁸ Viola responded that he was hanging out.⁹

Abel and his girlfriend Celeste Combel met Viola at Pub Zero.¹⁰ Shortly thereafter, Abel and Combel decided to leave Pub Zero and go to another bar. At that time, Viola asked for a ride because he was too intoxicated to drive himself and Abel agreed.¹¹ The three drove to Sidelines Bar in Metairie, Louisiana.

After leaving Sidelines Bar at about 12:00 a.m., Abel jokingly asked Combel to carry him.¹² Viola told Abel to get on his back and that he would carry Abel.¹³ Abel got on Viola'sback for a few steps, but as he jumped off, Viola fell to the ground and suffered serious injuries.¹⁴

III. LEGAL STANDARD

A) Rule 12(b)(1) Motion to Dismiss

Rule 12(b)(1) requires dismissal if a court lacks jurisdiction over the subject matter of the plaintiff's complaint. Under Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Motions submitted under Rule 12(b)(1) allow a party to challenge the court's subject matter jurisdiction based upon the allegations on the face of the complaint. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). In ruling on a 12(b)(1) motion to dismiss, the court may rely on "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id. (citations omitted).

In the context of the FTCA, a claim against the United States should not be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) based upon the resolution of thedisputed factual question whether an employee of the government was acting within the scope of his employment. Montez v. Dep't of the Navy, 392 F.3d 147, 151 (5th Cir. 2004) (citations omitted). Instead, it is incumbent on the court to apply a rule 12(b)(6) or summary judgment standard to resolve the issue, which is dispositive of both subject matter jurisdiction and the merits. Id.

B. Motion for Summary Judgment

If a court considers materials outside the pleadings, it must treat a motion to dismiss as a motion for summary judgment under Rule 56(c), which requires notice to the nonmovant and an opportunity to respond with evidence. See Fed. R. Civ. P. 12(b); Scanlan v. Tex. A&M Univ., 343 F.3d 533, 539 (5th Cir. 2003). Because the United States has submitted materials outside the pleadings with its motion, the Court will treat its motion as one for summary judgment. This will not prejudice Sidelines Bar, who had notice the Court might treat the United States' motion as one for summary judgment as demonstrated by its opposition titled "Memorandum in Opposition to United States' Motion to Dismiss For Lack of Subject Matter Jurisdiction or, Alternatively, Motion for Summary Judgment, " and by the application of the summary judgment standard in its memorandum.

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth 'ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 7 54 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075; Isquith ex rel. Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir. 1988), cert. denied, 488 U.S. 926 (1988).

IV. DISCUSSION

A. The Federal Tort Claims Act and "Line of Duty"

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). The terms of the United States' consent to be sued define the court's jurisdiction to entertain the suit. Id. The FTCA provides a limited waiverof sovereign immunity, subjecting the United States to liability for negligent or wrongful acts of government employees while in the course and scope of government employment.¹⁵ See 2 8 U.S.C. § 1346(b)(1) ("[T]he district courts... shall have exclusive jurisdiction of civil actions on claims against the United States... for injury or loss of property, or...