Womack et al v. United States of America (MAG+)(LEAD)

Filing 39

MEMORANDUM OPINION AND ORDER denying the United States's 37 motion for reconsideration; further ORDERING that Ms. Womack's request for enlargement of time and request for admission to allow new evidence 38 and all further pretrial proceedings are REFERRED to the Mag Judge, pursuant to the 4 Order of referral entered on 7/11/2008. Signed by Honorable William Keith Watkins on 11/9/09. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION V E R N E S IA LEE WOMACK, P la in tif f , v. UNITED STATES OF AMERICA, D e f e n d a n t. ) ) ) ) ) CASE NO. 2:08-CV-534-WKW[WO] ) ) ) )

M E M O R A N D U M OPINION AND ORDER B e f o re the court is the United States's Motion for Reconsideration (Doc. # 37) of the p o rtio n of the court's Memorandum Opinion and Order (Doc. # 36) rejecting the R e c o m m e n d a tio n of the Magistrate Judge (Doc. # 32). For the reasons to follow, the motion is due to be denied. I. STANDARD OF REVIEW A district court has broad discretion to reconsider an interlocutory order. See Toole v . Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000); see also United States v. A c o s ta , 669 F.2d 292, 293 (5th Cir. Unit B 1982) ("[T]he district court has broad power to re c o n s id e r the correctness of its interlocutory rulings.").1 It may reconsider an interlocutory ru lin g "for any reason it deems sufficient." Canaday v. Household Retail Servs., Inc., 119

Decisions of Unit B of the former Fifth Circuit are binding precedent in this circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

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F. Supp. 2d 1258, 1260 (M.D. Ala. 2000), aff'd sub nom. Perry v. Household Retail, 268 F.3d 1 0 6 7 (11th Cir. 2001) I I . BACKGROUND P la in tif f Vernesia Womack ("Womack") brings this action against the United States, p u rs u a n t to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. Ms. W o m a c k alleges that she received inadequate and delayed medical care when she sought tre a tm e n t for abdominal pain at the Central Alabama Veterans Health Care System in M o n tg o m e ry, Alabama. Dr. Stuart Smalheiser ("Smalheiser") is alleged to be the physician w h o caused her to suffer personal injury. The United States filed a motion to dismiss the F T C A claim for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal R u l e s of Civil Procedure. (Doc. # 23.) As grounds for the motion, it asserted that Dr. S m a lh e is e r was an independent contractor, not an employee of the United States, and that, th e re f o re , the independent contractor exception to the FTCA's limited waiver of sovereign im m u n ity barred suit. See §§ 1346(b), 26712 ; (Doc. # 24.) The Magistrate Judge agreed.3 In his recommendation, the Magistrate Judge opined that the United States was raising a Rule 1 2 (b )(1 ) factual attack to subject matter jurisdiction and that Ms. Womack had failed to s u s ta in her burden of demonstrating subject matter jurisdiction. (Doc. # 36.) Ms. Womack

An employee of the United States includes an "employee[] of any federal agency," § 1346(b), but excludes "any contractor with the United States," § 2671. Pursuant to 28 U.S.C. § 636(b)(1), this case has been referred to the Magistrate Judge for all pretrial proceedings and entry of any orders or recommendations as may be appropriate. (Doc. # 4.)
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filed an objection to the Magistrate Judge's recommendation that her FTCA claim be d is m is s e d under Rule 12(b)(1) for lack of subject matter jurisdiction. (Doc. # 33.) A d d re s s in g Ms. Womack's objection in light of the Magistrate Judge's re c o m m e n d a tio n , this court framed the issue as a procedural one, namely, "whether the a p p ro p ria te standard of review was applied when assessing whether Dr. Smalheiser was an in d e p e n d e n t contractor or a federal government employee." (Doc. # 36, at 7 (Mem. Op. & O rd e r).) The court found that "the issue of whether Dr. Smalheiser is an `employee' of the U n ite d States or an `independent contractor' implicates both subject matter jurisdiction and t h e merits of [Ms.] Womack's FTCA claim." (Doc. # 36, at 10-11 (internal statutory c ita tio n s omitted) (citing Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990), & Simpson v . Holder, 184 F. App'x 904 (11th Cir. 2006)).) "Because the United States's motion in d ire c tly challenged the merits of the FTCA claim, the [United States's] motion [to dismiss] s h o u ld have been analyzed under either Rule 12(b)(6) or Rule 56, not Rule 12(b)(1)." (Doc. # 36, at 11.) The court also heeded the Eleventh Circuit's caution that the question of subject m a tte r jurisdiction, when intermeshed with the merits, should not be resolved prior to a f f o rd in g the plaintiff an opportunity to conduct jurisdictional discovery. (Doc. # 36, a t 12-16.) It concluded that on the present record, "the best course [was] to reject the M a g is tra te Judge's recommendation that [Ms.] Womack's FTCA claim be dismissed p u r s u a n t to Rule 12(b)(1), and to refer that claim back for further discovery, and for later

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disposition, if appropriate, on a properly filed motion to be reviewed under Rule 56's s tric tu re s ." (Doc. # 36, at 15-16.) The United States has moved for reconsideration of this ru lin g . (Doc. # 37.) III. DISCUSSION T h e United States argues that its Rule 12(b)(1) factual attack on the employment s t a t u s of Dr. Smalheiser does not implicate the merits of the FTCA claim. (Doc. # 37 ¶ 1 (T h e "merits of plaintiff's malpractice claim and the independent contractor issue are wholly s e p a ra te and unrelated.").) The United States's argument goes like this. Alabama law g o v e rn s the substantive law for the medical malpractice claim, but does not contain a re q u ire m e n t as to the "employment status of the defendant health care provider." (Doc. # 37 ¶ ¶ 3-4 (citing § 1346(b).) The "independent contractor issue," in turn, is determined based u p o n the federal "control test," see Bravo v. United States, 532 F.3d 1154, 1159 (11th Cir. 2 0 0 8 ). Because Ms. Womack's "substantive malpractice claim and the Federal control test s h a re no common factual elements and are not created by the same statute," the United States a rg u e s that the two matters "are not inextricably intertwined." (Doc. # 37 ¶ 5.) As support for its position, the United States relies upon Garcia v. Copenhaver, Bell & Associates, 104 F.3d 1256, 1260-62 (11th Cir. 1997), and Morrison v. Amway Corp., 323 F .3 d 920, 926 (11th Cir. 2003). It cites these cases not for their factual or statutory a p p lic a tio n , but for the general legal principle that "jurisdiction becomes intertwined with th e merits of a cause of action when a statute provides the basis for both the subject matter

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jurisdiction of the federal court and the plaintiff's substantive claim for relief." Morrison, 3 2 3 F.3d at 926 (citation and internal quotation marks omitted); see also Garcia, 104 F.3d a t 1261 (The merits and jurisdiction are intertwined when the factual "attack on subject m a tte r jurisdiction also implicates an element of the cause of action."). The court does not d is a g re e with the legal premise articulated in Garcia and Morrison. Indeed, the court applied th a t premise to the facts of this case to reach its decision, albeit contrary to the result sought b y the United States. More significant than what the United States argues in its motion for reconsideration is what it omits. It does not cite any cases addressing the independent contractor exception u n d e r the FTCA.4 In particular, there is no mention of Simpson or Lawrence, both FTCA d e c is io n s upon which this court previously relied. To reiterate, although Simpson is u n p u b lis h e d , it is persuasive. It also is directly contrary to the United States's position. Simpson, an FTCA action, involved an appeal from a Rule 12(b)(1) dismissal for lack of s u b je c t matter jurisdiction. See 184 F. App'x at 909. The Eleventh Circuit held that a Rule 1 2 (b )(1 ) attack on subject matter jurisdiction is "intertwined with the merits" of an FTCA c la im when the assertion is that the allegedly negligent actor is not an employee of the United S ta te s. Id. Hence, in Simpson, the Eleventh Circuit held that "[w]hether the . . . medical staff [ w e re ] government employees or independent contractors affect[ed] both subject matter ju ris d ic tio n under the FTCA and the merits of the FTCA claim," Id. (citing Lawrence, 919
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Morrison was brought pursuant to the Family Medical Leave Act, 29 U.S.C. §§ 2601-2654. Garcia invoked Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e.

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F.2d at 1529), and that Rule 56 provided the appropriate standard of review because matters o u ts id e the pleadings were considered.5 Id. A s referenced above, Simpson cited Lawrence as support for its holding.6 While L a w r e n c e did not involve the FTCA's independent contractor exception, it implicated the s c o p e -o f -e m p lo ym e n t requirement set out in § 1346(b)(1).7 The issue was whether the f e d e ra l employee was "acting within the scope of his office or employment" at the time of th e alleged tort. Lawrence, 919 F.2d at 1528. The Eleventh Circuit held that the scope-ofe m p lo ym e n t jurisdictional inquiry is intertwined with the merits of an FTCA claim. See id. a t 1528-29. Because whether the federal employee was acting within the scope of his e m p lo ym e n t "w[ould] resolve both the question of subject matter jurisdiction and a necessary

Simpson does not stand alone. Autery v. United States, 424 F.3d 944 (9th Cir. 2005), involved an appeal from the district court's dismissal of the plaintiffs' FTCA claim on the ground that the independent contractor exception to the FTCA's limited waiver of sovereign immunity barred suit. Id. at 955. The district court had applied a summary judgment standard to reach its conclusion, id. at 955, and the Ninth Circuit agreed with that approach, see id. at 956. The Autery court recognized that a Rule 12(b)(1) motion permits the court to "weigh the evidence to determine whether it has jurisdiction." Id. It explained, however, that the Rule 12(b)(1) standard was inapplicable: "[W]here ­ as is the case here ­ the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment." Id. (citation and internal quotation marks omitted). Simpson also cited Tisdale v. United States, 62 F.3d 1367 (11th Cir. 1995). See Simpson, 184 F. App'x at 910. In Tisdale, the Eleventh Circuit affirmed summary judgment in favor of the United States, agreeing with the district court that under the FTCA the alleged tortfeasor was not an "employee" of the United States, but rather was an independent contractor. See 62 F.3d at 1370-71. Tisdale lends support to the conclusion that Rule 12(b)(1)'s standard is inapplicable when the issue turns on an analysis of the FTCA's independent contractor exception. The scope-of-employment requirement, as well as the "employee" requirement urged in this case, is among the FTCA's "six threshold requirements." CNA v. United States, 535 F.3d 132, 141 (3d Cir. 2008); § 1346(b)(1). In other words, both these determinations ­ i.e., whether the tortfeasor is a government employee and, if so, whether he was "acting within the scope of his office or employment" at the time of the alleged tort ­ are made with respect to the same statutory provision, § 1346(b).
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element of the tort claim," id. at 1529, the district court should have applied Rule 56's s u m m a ry judgment standard when considering the evidence, not Rule 12(b)(1), id. at 1530.8 T h e Lawrence court also observed that, contrary to the teachings of Eaton v. Dorchester D e v e lo p m e n t, Inc., 692 F.2d 727, 734 (11th Cir. 1982), the district court tried to resolve the d is p u te d evidence based principally on a single defense affidavit, "without the benefit of f u rth e r jurisdictional discovery or an evidentiary hearing." Lawrence, 919 F.2d at 1529-30. The United States has not attempted to distinguish the facts or analyses of Simpson a n d Lawrence from the instant case. Nor has it cited any binding authority that calls into d o u b t their holdings. In short, the United States has not given the court any reason to alter its earlier reliance on these decisions. The court also explained why on the present record further jurisdictional discovery w a s appropriate. (Doc. # 36, at 12-16); see, e.g., Eaton, 692 F.2d at 733 ("The argument a g a in s t premature dismissal on 12(b)(1) grounds is particularly strong when the basis of ju ris d ic tio n is also an element of plaintiffs' cause of action on the merits."). The United

In the interest of thoroughness, the court reexamined its prior research. Notably, in CNA v. United States, the Third Circuit recognized that there was a circuit split as to which procedural rule ­ Rule 12(b)(1) or Rule 12(b)(6)/Rule 56 ­ governs review in FTCA actions when § 1346(b)(1)'s jurisdictional scope-of-employment requirement is intertwined with the merits. See 535 F.3d 132, 143 (3d Cir. 2008) (discussing circuit split). The Third Circuit observed that in the Eleventh Circuit, as well as in other circuits, "whether a Government employee was acting in the scope of his employment for purposes of an FTCA claim must be handled as a question of the merits to give plaintiffs the appropriate procedural safeguards." Id. at 144 (citing Lawrence, 919 F.2d at 1529); see also Kerns v. United States, ___ F.3d ___, 2009 WL 3486324, at *8 (4th Cir. 2009) ("When the scope-of-employment issue is determinative of both jurisdiction and the underlying merits of an FTCA claim, dismissal under Rule 12(b)(1) is inappropriate, unless the jurisdictional allegations are clearly immaterial or wholly unsubstantial and frivolous.").

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States' argument to the contrary (see Doc. # 37 ¶ 7) does not address Eaton and the other c a s e s relied upon by the court (see, e.g., Doc. # 26, at 12-13) and, for that reason, is not p e rs u a s iv e . The United States also suggests that the better course is to "bypass the

in d e p e n d e n t contractor issue" and require Ms. Womack to produce evidence of a "medical e x p e rt on the standard of care issue." (Doc. # 37 ¶ 8.) Absent production of such evidence b y Ms. Womack, the United States contends that it should not be required to engage in ju ris d ic tio n a l discovery. (Doc. # 37 ¶ 8.) Whatever the merits of these assertions, the United S t a te s cites no authority to support them, and the court declines to impose the course s u g g e s te d by the United States on a summary argument that is not supported by citations to le g a l authorities. IV. CONCLUSION In sum, the United States has not cited any authority or put forth any reason that w a rra n ts overturning the challenged ruling. It, therefore, is ORDERED that the United S ta te s's Motion for Reconsideration (Doc. # 37) is DENIED. It also is ORDERED that Ms. Womack's Request for Enlargement of Time and R e q u e s t for Admission to Allow New Evidence (Doc. # 38) and all further pretrial p r o c e e d i n g s are REFERRED to the Magistrate Judge, pursuant to the Order of referral e n te re d on July 11, 2008 (Doc. # 4). D O N E this 9th day of November, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 8