Dishmond v. United States Of America

Filing 26

ORDER granting Plaintiff's 19 Motion to continue the Government's partial summary judgment motion and to allow limited discovery. The Court grants the Plaintiff's request for limited discovery and provides the parties with ninety (9 0) days to address Laura Lee's employment status. Thereafter, Plaintiff shall have ten (10) days to respond to Defendant's motion for partial summary judgment and, in the alternative, to change venue. Plaintiff is directed to file its response to the remaining motion - Defendant's motion to dismiss in part - within 14 (14) days of this Order. Signed by Judge J. Randal Hall on 10/09/2014. (jah)

IN THE UNITED

FOR THE

STATES DISTRICT

COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

MICHAEL DISHMOND,
and as

the

of

estate

the

Dishmond,

individually

*

administrator
of

*

Teresa

*

deceased,

*
•

Plaintiff,

*

v.

*

CV 114-083

•k
•k

UNITED STATES OF AMERICA,

*

Defendant.

*

ORDER

Presently pending before this

Court

is

Plaintiff's motion

to continue the Government's partial summary judgment motion and
to

allow

forth

limited

below,

discovery

address
shall

the

and

Laura

Lee's
(10)

summary

venue.

remaining

Court

provides

have TEN

partial

discovery.

motion

GRANTS

the

within FOURTEEN (14)

For

with

status.

the

request

NINETY

reasons
for

(90)

Thereafter,

and,

DIRECTED

Defendant's

in
to

the

alternative,

file

motion

DAYS of this Order.

its

to

DAYS

to

Plaintiff

to

response

dismiss

set

limited

DAYS to respond to Defendant's motion

is

—

19.)

Plaintiff's

parties

employment

judgment

Plaintiff

(Doc.

in

for

change
to

the

part

—

I.

Background

Plaintiff filed his complaint on March 31, 2014,

asserting

various claims1 against the United States following a vehicle
collision in Judith Basin County,
(Compl.
wife,

SI

14.)

Teresa

Plaintiff

Dishmond,

alleges

vehicle,

was

("USPS")

at

awarded to

26.)

Plaintiff

L&L

time

of

Express

not

Laura

hauling mail
the

suffered

did

that

Montana on September 2, 2011.

the

survive

Lee,

for

various

the

the

the

driver

of

his
(Id.)

the

other

Postal Service

pursuant

("L&L").

and

accident.

United States

collision

Transport

injuries

to

(See

a

contract

Compl.

11

17-

Plaintiff alleges that Laura Lee and Lawrence Hurley each

owned 50 percent

of

L&L at

the

time of

the

(Id. 1

accident.

27.)

Defendant filed three motions in response to the complaint:

(1)

a

motion

dismiss
transfer

in

for

part;

venue.

partial

summary

and,

in

the

(Doc.

14.)

judgment;

(2)

The

motion

for

motion

to

(3)

alternative,

a
a

motion

to

partial

summary

judgment asserts that Claims I and II fail as a matter of law
because neither L&L nor Laura Lee were federal employees at the
time of the accident.
III

because

Montana

(Id.)
law

does

Defendant moves
not

consider

to

dismiss Claim

hauling

mail

and

1
Count I alleges negligence as to Laura Lee, the other driver in the
accident; Count II alleges negligence on the part of the United States Postal
Service ("USPS") because it failed to control the work and operations of L&L
Express Transport ("L&L"); Count III alleges negligence on the part of USPS
because it failed to take reasonable precautions against inherently dangerous
work; and Count IV alleges negligent hiring, retention, and supervision.
(Compl.)

driving

a truck to

Defendant

also

regarding

the

be

seeks

inherently dangerous
dismissal

hiring

and

of

Claim

retention

of

activities.
IV

Claims

Act[.]"

alternative,
States

(Id.

Defendant moves

District

Court

non conveniens.

for

at

2.)

[of]

Finally,

to transfer the

the

District

of

"claims

contractors . . . are

barred by the discretionary function exception

Tort

because

(Id.)

the Federal

and

in

the

case to the United

Montana

based on

forum

(Id.)

Plaintiff responded with the present motion to continue the
partial

summary

discovery.

(Doc.

judgment

19.)

motion

and

to

allow

for

limited

Plaintiff specifically seeks a limited

discovery period of 90 days to prepare a response to Defendant's

motion

for

summary

judgment,

and

similarly

requests

that

the

Court defer ruling on all pending motions until such discovery
has

concluded.

I.

Discussion

Because Plaintiff's motion refers to three motions filed by

Defendant,
A.

the Court will address each separately.

Motion for Partial Summary Judgment

"Summary judgment is premature when a party is not provided
a reasonable

opportunity

his opposition."
1059,

1064

to discover

Smith v.

(11th Cir.

Civil Procedure 56(d)

Fla.

2013).

information

essential

Pep't of Corrections,
Additionally,

provides that,

Federal

to

713 F.3d
Rule

of

when facts are unavailable

to the

non-moving party,

to take discovery.

the

Fed.

inter alia,

court may,

R. Civ.

allow time

P. 56(d).

Defendant moved for partial summary judgment on two claims,
asserting

that

Claims Act
and its

Plaintiff

("FTCA")

Laura

recover

under

the

Federal

Tort

for negligence by an

independent contractor

For these two claims,

Defendant argues that

employees.

neither

cannot

Lee

nor

L&L

were

employees

of

the

federal

government,

and thus Plaintiff cannot succeed on these claims as

a

law.

matter

No

of

discovery

has

taken place;

in

fact,

on

July

31,

the United States Magistrate Judge granted the parties'

2014,

request

for a stay of discovery pending this Court's resolution of the

pending motions.
of

limited

(Doc.

discovery

25.)
"to

Here,

Plaintiff requests

determine

the

parameters

contractual relationship between the USPS and L&L."
1-2.)

stage

The

of

Court

agrees

litigation,

with

Plaintiff

much less a reasonable one,
Dutton v.

19,

2013) .

United States,

No.

Plaintiff

has

not

had

the

(Doc. 19 at

given

any

of

the

early

"opportunity,

to conduct discovery" on this issue.
6:13-cv-58,

Doc.

15

(S.D.

Ga.

Aug.

It would be premature for this Court to rule on the

motion for partial summary judgment.

proceeding

that,

90 days

with

inappropriate.

full

discovery

Accordingly,

The Court also finds that

at

this

point

would

be

the parties shall have NINETY (90)

DAYS from the date of this Order to conduct discovery limited to

the issue of Lee's employment status.
on

any

other

subject

matter.

No discovery is permitted

Consequently,

the

Court

hereby

DEFERS ruling on Defendant's motion for partial summary judgment
and

Plaintiff

shall

have

TEN

(10)

DAYS

after

the

close

of

the

limited discovery period to file his response brief.
B.

Motion

to Dismiss

in Part

In considering a motion to dismiss under Rule 12(b)(6), the
court tests the legal sufficiency of the complaint,

not whether

the plaintiff will ultimately prevail on the merits.

Scheuer v.

416

Rhodes,

U.S.

"should ... be

232,

236

resolved

(1974).

before

Motions

dismiss

begins"

discovery

to

because

"[s]uch a dispute always presents a purely legal question" and
"there are

no

issues

of

fact because the allegations

in the pleading are presumed to be true."
Motor Corp.,

123 F.3d 1353,

Defendant

claims

in

dismiss

mail

the

Counts

and

activities;

has

filed

and

driving
and

motion

complaint.

III

a

(2)

the discretionary

to

truck

dismiss

a claim for

not

that

of

the

seeks

four

to

(1)

delivering

inherently

dangerous

negligent

exception

two

Defendant

grounds

are

Mazda

1997).

Specifically,

IV on the

function

Chudasama v.

1367 (11th Cir.

a

contained

under

hiring

the

is barred by

FTCA,

and this

Court does not have subject matter jurisdiction to decide claims
barred under the FTCA.

(Doc.

14.)

In
to

time

his

motion

depose

Hurley;

(3)

Bridge

Rice,

for

seven

Wesley
who

awarded;

have

roadway,

Ex.

six

knowledge

Lee;

Leza

the

Lawrence

Fhong,

of

Trooper Joseph H.

regarding

(2)

how

and

the

L&L

DeJong who "is

condition

of

and the manner in which the collision occurred."

1.)

Although

individuals

Lee's

Parker,

have

(4)

knowledge

Laura

requests

the

the weather conditions in the area where the collision

occurred,

19,

and

(1)

Plaintiff

Wesley

purportedly

believed

discovery,

individuals:

Rankins,

contract was

to

limited

could

employment

deposition

of

it appears the
reveal

status,

Trooper

information

the

DeJong

depositions

Court

the

first

to

Laura

pertinent

fails

would relate

of

to

to

(Doc.

see

the

issue.

that

how

It

appears to the Court that this deposition would be used for the

purpose
III,

of

responding

to

Defendant's

which asserts that Laura Lee was

dangerous activity.

depose

Trooper

associated
(Doc.

with

to

dismiss

Claim

engaged in an inherently

In fact, Plaintiff asserts that he seeks to

DeJong
the

motion

"to

highway

determine
upon

which

any
the

peculiar
crash

dangers

occurred."

21 at 2.)

Allowing discovery on a motion to dismiss would be futile,
however,

the

as the Court relies solely on the legal sufficiency of

complaint and accepts all

Accordingly,

the

Court

its assertions of

hereby DIRECTS

Plaintiff

fact

to

as true.

file

his

response,
FOURTEEN
C.

if

any,

(14)

to

Defendant's

motion

to

dismiss

within

DAYS of this Order.

Motion for Transfer of Venue

In

the

alternative,

Defendant

the District of Montana,

to delay responding.
district
which

is

the

even

provides:

proper

the

to

transfer

to which Plaintiff has

venue

to

requested leave

The Court first notes that venue in this
under

Plaintiff

where

seeks

the

FTCA,

resides.

original

28

venue

as

it

U.S.C.

is

is

§

the

district

1402(b).

proper,

in

However,

Section

1404(a)

"For the convenience of the parties and witnesses,

in

the interest of justice, a district court may transfer any civil

action

to

any

other

been brought . . . ."

Plaintiff
to

transfer

seeks

venue

district

or

division

where

it

might

have

28 U.S.C. § 1404(a).

to

delay

until

period because — if the

responding

the

close

of

to
the

Defendant's
limited

motion

discovery

case proceeds to trial — "the facts of

the wreck and the level of injuries and death are not likely to
be

in dispute [.]"

above

ruling

(Doc.

allowing

19 at

for

4.)

In light

limited

of

discovery,

the

Court's

it

will

additionally defer ruling on the motion to transfer venue until
the close of the ninety day period, which is strictly limited to
consideration of

Strange Eng'g,

22,

2012)

Laura Lee's

Inc., No.

employment

1:ll-cv-74-JRH,

status.

Doc. 22

See Thomas v.

(S.D. Ga. Mar.

(deferring ruling on a motion to dismiss for lack of

personal

jurisdiction

transfer

venue

pending

and,

in

the

the

alternative,

conclusion

of

a

a

motion

limited

to

discovery

period to determine personal jurisdiction).
Ill.

Conclusion

Based upon the foregoing,

the Court hereby DEFERS ruling on

Defendant's motion for partial summary judgment and provides for
a

limited

employment

DAYS

to

summary

NINETY
status.

file

his

judgment

(90)

DAY

discovery

Thereafter,

response
and,

in

to
the

addressing

Plaintiff

Defendant's
alternative,

shall

have

motion
to

Laura

Lee's

TEN

for

(10)

partial

transfer

venue.

Plaintiff is DIRECTED to file its response to Defendant's motion

to dismiss in part within FOURTEEN (14) DAYS of this Order.

ORDER ENTERED at Augusta, Georgia, this
October,

/^

2014.

lNDAL

STATES

IRN

HALL

DISTRICT

JUDGE

DISTRICT OF GEORGIA

day of