Eichorst v. United States of America

Filing 44

ORDER denying 26 Motion for Partial Summary Judgment. Signed by Judge H. Russel Holland on 2/11/19. (JLH, COURT STAFF)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ANDREW EICHORST,

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
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_______________________________________)

No. 3:17-cv-0098-HRH

ORDER
Motion for Partial Summary Judgment
Defendant moves for partial summary judgment and seeks the dismissal of plaintiff’s
personal injury claims for lack of subject matter jurisdiction.1 This motion is opposed.2 Oral
argument was not requested and is not deemed necessary.
Facts
Plaintiff is Andrew Eichorst. Defendant is the United States of America.
In May 2015, plaintiff was injured in a motor vehicle accident when his vehicle was
struck by Joshua Moore, who was a member of the United States Air Force and who was on
1

Docket No. 26. Jurisdiction as to plaintiff’s claims for property damage is not
contested.
2

Docket No. 34.
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duty at the time of the accident. Plaintiff testified that at the time of the accident he was
employed by Pratt and Whitney as an engine mechanic, working on F119 engines which are
used in F22 fighter jets.3 Plaintiff further testified that when the accident occurred, he was
on his way to “an engine tear down class which was held on JBER” and that he was driving
his own vehicle.4 Plaintiff testified that he received worker’s compensation benefits after the
accident.5
Plaintiff commenced this Federal Tort Claims Act (FTCA) case on May 2, 2017.
Defendant now moves to dismiss plaintiff’s personal injury claims on the ground that the
court lacks subject matter jurisdiction.6
Discussion
Although defendant has titled the instant motion as a motion for partial summary
judgment, the motion is in fact a Rule 12(b)(1) motion and is treated as such by the court.
“A party may move at any time to dismiss a complaint for lack of subject matter jurisdiction.”
Rubenstein v. Smith, 132 F. Supp. 3d 1201, 1203 (C.D. Cal. 2015) (citing Fed. R. Civ. P.
12(b)(1), (h)(3)). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air

3

Telephonic Deposition of Andrew Eichorst at 9:16-10:7, Exhibit 1, Motion for Partial
Summary Judgment, Docket No. 26.
4

Id. at 22:14-25.

5

Id. at 20:2-5.

6

Defendant’s motion for leave to file a late motion for summary judgment (after trial
was scheduled) was granted. Docket No. 25.
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for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the
challenger asserts that the allegations contained in a complaint are insufficient on their face
to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the
truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id.
Here, defendant is making a factual attack.
“In resolving a factual attack on jurisdiction, the district court may review evidence
beyond the complaint without converting the motion to dismiss into a motion for summary
judgment.” Id. The court “is not restricted to the face of the pleadings, but may review any
evidence, such as affidavits and testimony, to resolve factual disputes concerning the
existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
However, “a ‘[j]urisdictional finding of genuinely disputed facts is inappropriate when the
jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction
is dependent on the resolution of factual issues going to the merits’ of an action.” Safe Air
for Everyone, 373 F.3d at 1039 (quoting Sun Valley Gas, Inc. v. Ernst Enters., 711 F.2d 138,
139 (9th Cir. 1983)). Here, the jurisdictional issue is not intertwined with the substantive
issues; so, the court may resolve any factual disputes pertaining to jurisdiction.
As an initial matter, plaintiff argues that the instant motion must be denied because
defendant improperly relied on his deposition testimony. This argument fails. The court
“may review any evidence” in deciding a Rule 12(b)(1) motion. McCarthy, 850 F.2d at 560
(emphasis added).

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Turning then to the substance of the instant motion, defendant argues that the court
lacks subject matter jurisdiction of plaintiff’s personal injury claims. “As a sovereign, the
United States is immune from suit except to the extent that it has unequivocally consented
to litigation against itself.” LaBarge v. Mariposa County, 798 F.2d 364, 366 (9th Cir. 1986).
The FTCA “acts as a waiver of the United States’ traditional sovereign immunity for certain
torts committed by its employees.” Delta Savings Bank v. United States, 265 F.3d 1017,
1024 (9th Cir. 2001). “‘The United States shall be liable . . . in the same manner and to the
same extent as a private individual under like circumstances. . . .” Id. (quoting 28 U.S.C. §
2674). “Furthermore, ‘the district courts . . . shall have exclusive jurisdiction of civil actions
on claims against the United States, . . . if a private person[] would be liable to the claimant
in accordance with the law of the place.’” Id. (quoting 28 U.S.C. § 1346(b)). But, if a
private person would be immune from suit, then the United States is also immune from suit.
LaBarge, 798 F.2d at 369.
Under Alaska law, “a claim under the Alaska Workers’ Compensation Act is the
exclusive remedy for an employee’s injury.” Rosales v. Icicle Seafoods, Inc., 316 P.3d 580,
584 (Alaska 2013). A project owner is also covered by the exclusive liability provisions of
the Alaska Workers’ Compensation Act. Anderson v. Alyeska Pipeline Service Co., 234
P.3d 1282, 1288 (Alaska 2010). “‘[P]roject owner’ means a person who, in the course of the
person’s business, engages the services of a contractor and who enjoys the beneficial use of
the work[.]” AS 23.30.045(f)(2). A “‘contractor’ means a person who undertakes by

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contract performance of certain work for another but does not include a vendor whose
primary business is the sale or leasing of tools, equipment, other goods, or property[.]” AS
23.30.045(f)(1).
Defendant argues that it is a project owner under the facts of this case and thus
immune from suit. Defendant contends that it contracted with Pratt and Whitney to maintain
the Pratt and Whitney F119 engines installed on the F22 fighter jets at JBER. Defendant
argues that it “engage[d] the services of a contractor,” namely Pratt and Whitney, and that
it enjoyed the “beneficial use of the work” performed by Pratt and Whitney.

AS

23.30.045(f)(2).
The problem with this argument, according to plaintiff, is that there is absolutely no
evidence that defendant had a contract with Pratt and Whitney. Plaintiff acknowledges that
it is undisputed that he worked on F119 engines which were installed in F22 fighter jets, but
he argues that there is no evidence before the court as to Pratt and Whitney’s relationship
with defendant. Plaintiff suggests that it is possible that Pratt and Whitney was a vendor, not
a contractor, which would mean that defendant could not be a project owner.

AS

23.30.045(f)(1) expressly excludes “a vendor whose primary business is the sale or leasing
of tools, equipment, other goods, or property” from the definition of a “contractor.”
Plaintiff also suggests that it is possible that Pratt and Whitney had a contract with an
entity other than defendant, and while a subcontractor is covered by the exclusivity provision
in the Alaska Workers’ Compensation Act, it is possible that Pratt and Whitney would not

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be considered a subcontractor. Plaintiff cites to Morrison v. United States, Case No.
4:15-CV-00014 JWS, 2017 WL 3251392 (D. Alaska July 30, 2017), in support of this
argument.

There, Morrison “work[ed] for Pacific Alaska Freightways (PAF) as a

commercial delivery driver and was assigned to make a delivery to Iceman Outfitters, a store
within the confines of Eielson Air Force Base. . . .” Id. at *1. Morrison was injured while
making the delivery and brought a FTCA claim against the United States. Id. The
Government moved to dismiss Morrison’s claim, arguing that it was a project owner and thus
would be immune from suit under the exclusivity provision of the Alaska Workers’
Compensation Act. Id. at *2. The Government argued that PAF was a subcontractor of
Iceman Outfitters, which it argued was a contractor. Id. The court observed that
[i]f Iceman Outfitters is indeed a contractor of the Government,
and PAF is a subcontractor of Iceman Outfitters, then both
Iceman Outfitters, as the primary contractor, and the Government, as the project owner, would be potentially liable for
securing workers compensation for PAF’s employees under §
23.30.045 and in turn would be immune from any tort suit.
Id. at *3. The court, however, concluded that PAF was not a subcontractor of Iceman
Outfitters “because PAF was not contracting to do a part of Iceman’s business. . . .” Id. The
court explained that
some examples of [Iceman Outfitters’] obligations under [its]
contract [with the Government] include the following: provide
and operate an on-base store; set competitive pricing; keep
certain hours; use the Government Purchase Card for customer
billing; provide employee and sales reports; use certain quality
control and audit procedures; and maintain the facilities in good
repair.
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Id. But, PAF “is a freight hauling and delivery service” and “[s]hipping freight is not a listed
obligation” of Iceman Outfitters. Id. Thus, the court found that PAF could not be a
subcontractor of Iceman Outfitters. Id. at *4. Because PAF was not a subcontractor, the
United States could not be a project owner for purposes of the Alaska Workers’ Compensation Act. Id.
Plaintiff argues that similarly here Pratt and Whitney could have contracted with an
entity other than defendant and could have been doing work that was not part of that entity’s
contract with defendant. In other words, plaintiff argues that if Pratt and Whitney did not
have a direct contract with defendant, it is possible that Pratt and Whitney was also not a
subcontractor, which would mean that defendant might not be a project owner for purposes
of the Alaska Workers’ Compensation Act.
In reply, defendant argues that plaintiff has not offered any evidence to support his
suggestions that Pratt and Whitney might be a vendor or might not be a subcontractor.
Defendant reminds plaintiff that he has “the burden of establishing subject matter
jurisdiction. . . .” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546
F.3d 981, 984 (9th Cir. 2008). But by the same token, defendant has not offered any
evidence that establishes that Pratt and Whitney was a contractor or a subcontractor at the
time of plaintiff’s accident. The deposition testimony on which defendant relies says nothing
about what Pratt and Whitney’s relationship was with defendant. All it establishes is that

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plaintiff was employed by Pratt and Whitney and worked on the F119 engines that were
installed in F22 fighter jets.
Conclusion
Defendant’s motion for partial summary judgment is denied because the court cannot
decide the jurisdictional issue with what is currently before it. The court does not have any
evidence before it as to Pratt and Whitney’s relationship with defendant, which is critical
information for determining whether the court has subject matter jurisdiction of plaintiff’s
personal injury claims.
DATED at Anchorage, Alaska, this 11th day of February, 2019.
/s/ H. Russel Holland
United States District Judge

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