Fountain v. United States of America et al
Filing
48
ORDER granting in part and denying in part Defendant's 30 Motion to Dismiss; denying Plaintiff's 36 Motion to Strike; and denying as moot Plaintiff's 46 Motion to Stay. Signed by Judge J. Randal Hall on 4/14/2016. (jah)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
MARIA FOUNTAIN,
*
Plaintiff,
*
*
*
*
v.
CV 114-127
*
*
*
UNITED STATES OF AMERICA,
*
*
Defendant
ORDER
Two motions are currently before the Court:
motion
to
dismiss
strike
(doc.
36).
(doc.
30);
and
(2)
Plaintiff's
For the reasons discussed below,
motion is GRANTED in part and DENIED in part,
motion
(1)
Defendant's
motion
Defendant's
and Plaintiff's
i s DENIED.
I.
Plaintiff
Maria
Background1
Fountain
is
a
United
States
Army
veteran,
who was stationed at Fort Gordon from 1997 through 1999.
stationed
1
to
there,
Plaintiff
Unless otherwise noted,
Plaintiff's complaint.
entered
into
a
contract
with
While
Fort
the Court takes the factual background from
Gordon
relating
there.
She apparently stored her vehicle there until 2012 when
Fort
Gordon
from
the
to
storing
employees
her
determined that
storage
lot.
removed
from the
wrongfully
recreational
Plaintiff
lot
the
RV
claims
and that
vehicle
("RV")
should be
removed
that
RV
Fort
her
Gordon
was
employees
damaged her vehicle when they removed it from the lot.
Plaintiff initiated this
claims
and
a
breach-of-contract
dismiss the claims because,
jurisdiction
government.
over
to
claim.
Court,
Defendant
among other things,
certain
contract
alleging tort
moved
to
this Court lacks
claims
against
the
Plaintiff then amended her complaint to remove the
breach-of-contract
motion
case in this
claims.
dismiss,
judgement.
or
Plaintiff
Defendant
in
the
has
has
alternative,
filed
a
motion
now
filed
motion
to
for
strike
a
second
summary
exhibits
filed by Defendant.
II.
Discussion
1. Plaintiff's Original Breach-of-Contract Claims
As
based
noted,
on
a
Plaintiff's
breach
of
original
contract,
complaint
while
sought
Plaintiff's
recovery
amended
complaint alleges only claims that Plaintiff maintains sound in
tort.
Accordingly,
of-contract
claims.
Plaintiff has abandoned her express breachIn
her
amended
complaint,
however,
Plaintiff requests that the Court dismiss her breach-of-contract
claim without prejudice.
of-contract
claims
For the
asserted
are DISMISSED WITHOUT
in
sake of
clarity,
Plaintiff's
the breach-
original
complaint
PREJUDICE.
2. Plaintiff s Remaining Claims
In
her
amended
hold Defendant
employees
liable
removed it
hiring and retaining
complaint,
Plaintiff
essentially
seeks
to
for negligently damaging her RV when its
from the storage facility,
incompetent
employees,
for
proper notice that her RV was being removed,
negligently maintaining its records.
Plaintiff's amended complaint.
for negligently
not
giving her
and for
Defendant
Defendant moves to dismiss
Defendant first argues that all
of Plaintiff's alleged negligence claims are actually breach-ofcontract
Claims.
claims
that
must
be
brought
Alternatively,
Defendant
alleged negligence claims
fail under
Tort Claims Act
("FTCA")
was
independent
done
based
on
negligent
by
an
because:
and
retention
function exception to the FTCA.
Court
of
that
Plaintiff's
exceptions to the
(1)
and
the
argues
Federal
Federal
any damage done to her RV
contractor;
misrepresentations;
hiring
in
(3)
fall
(2)
her
under
she
raises
claims
the
claims
based
on
discretionary-
a. Whether
Plaintiff's
tort
claims
should
be
considered
breach-of-contract claims
Claims against the United States exceeding $10,000 based on
contracts with the United States must be brought in the Court of
Federal
Claims.
States,
this
U.S.C.
391 F.3d 1313,
provision
States
with
28
for
(11th Cir.
. . . requires
amounts
the
1315
United
in
excess
States
And
a
requirement
by
artfully
Friedman,
that
of
must
Claims.").
claims.
§ 1491(a)(1);
2004)
$10,000
against
founded
brought
not
in
avoid
labelling
v.
United
("We have held that
claims
be
plaintiff may
Friedman
on
the
this
contract
the
United
contracts
Court
of
jurisdictional
claims
as
tort
391 F.3d at 1315.
Both parties admit that, at some point, they entered into a
contract
that
affected
storing
Plaintiff's
their
RV.
relationship
And
with
Defendant
maintains
Plaintiff's tort claims arise from the contract.
Defendant
argues
that
the contract "would
[]
however,
contract,
and
evidence
on the
for
at
has
this
not
stage
produced
of
the
record of the terms
"illustrative
purposes
only,"
a
Specifically,
30 at 12.)
of
Plaintiff's
litigation,
there
contract.
Defendant
that
(Doc.
copy
of the
to
strictly govern"
whether Defendant impermissibly towed the RV.
Defendant,
respect
has
is
no
Instead,
provided
the
Court with a copy of a contract that was in effect at the time
Plaintiff
entered
into
a
contract
with
Defendant.
(Id.
at
3
n.4.)2
Defendant,
Plaintiff's
a
has
not
established the
matter
of
Defendant
law
that
essentially
Plaintiff's
asks
tort
the
claims
contract between the
parties based solely on
parties admit that a
contract exists.
so.
be
Defendants may be correct,
governed
matter
has
entirely
not
by
occurred
a
that
of
Plaintiff's
tort
arise
the
to
rule
out
fact
of
that
a
the
to do
and Plaintiff's allegations may
contract.
and
Court
The Court declines
there
But
is
no
claims
discovery
evidence
establishing the terms of the contract.
argues
terms
contract.
Accordingly,
as
however,
on
in
the
this
record
To the extent Defendant
arise
out
of a
contractual
relationship between the parties, Defendant's motion is DENIED.
b. Whether Plaintiff's claims for damage to her RV fall
under the independent-contract exception to the FTCA
The
FTCA provides
sovereign
rel.
immunity.
FDIC,
provides
224
for
immunity,
independent
1071,
1077
a
JBP Acquisitions,
F.3d 1260,
several
including
limited waiver
1263
(11th Cir.
to
Phillips
1992).
for
v.
the
v.
United
United
2000).
the
exception
contractors.
LP
(11th Cir.
exceptions
an
of
States
ex
The FTCA also
limited
waiver
of
committed
acts
United
States'
by
States,
Under this exception,
956
F.2d
"the United
2
Although Defendant maintains that it provided this contract for
illustrative purposes, it nonetheless refers to a document incorporated into
the
illustrative
contract
and
the
contract
(doc.
procedures
for
30,
ex.
removing
c)
to
a
explain
vehicle
Defendant removed Plaintiff's RV.
For obvious reasons,
bind Plaintiff to another party's contract.
the
and
to
terms
of
the
explain
why
the Court declines to
States
may
not
be
held
derivatively
or
the acts of independent contractors."
Under this theory,
Vern's Towing,
Defendant
as
an
has
that
Vern's
Id. at 1077.
that
contractor.
shows
that
Towing.
for
Defendant argues that a separate entity,
presented evidence
involved in the towing,
by
liable
removed Plaintiff's RV from the storage lot.
independent
evidence
vicariously
Vern's
Defendant
none
of
Towing was
has
Defendant's
also
And
acting
presented
employees
was
so any damage to Plaintiff's RV was done
Essentially,
Defendant
moves
for
summary
judgment on the issue of whether Vern's Towing was acting as an
independent contractor.
Indeed,
Defendant notes that "there are
no facts that would give rise to an inference that employees of
Vern's
Towing
were
(Doc. 30 at 15.)
on
this
employees
of
the
United
States . . . ."
The Court declines to grant Defendant's motion
issue.
First,
Plaintiff's
complaint
alleges
that
Defendant's employees were involved in damaging her RV, not that
Defendant
is
the parties
the
liable
for Vern's
Towing's
negligence.
Moreover,
have not yet conducted discovery in this case, and
Court declines
to
view the evidence presented by Defendant
on this issue without first allowing Plaintiff an opportunity to
conduct
discovery.
motion on this
issue.
Accordingly,
the
Court
DENIES
Defendant's
c. Whether
Plaintiff's
claims
based
on
negligent
hiring
and
retention
discretionary-function exception
Defendant's
fall
under
the
Defendant also argues that Plaintiff's claims for negligent
hiring
and
exception
excludes
retention
of
the
from
fall
FTCA.
the
under
"The
FTCA's
the
discretionary-function
discretionary
broad
waiver
function
of
exception
sovereign
immunity
Ma]ny claim . . . based upon the exercise or performance or the
failure
to
exercise
function . . . .'"
States,
562
U.S.
F.3d 1297,
or
perform
Aviation
1299
a
discretionary
Underwriters,
(11th Cir.
v.
United
(quoting 28
2009)
Inc.
U.S.C.
§ 2680(a)).
To
applies,
determine
whether
the
discretionary-function
courts apply a two-part test.
Id.
exception
"First,
the court
must examine whether the challenged conduct is 'discretionary in
nature'
or
judgment or
499
U.S.
'whether
whether
the
choice.'"
315,
that
322
conduct
Id.
is
"Second,
of
the
the
that
kind
function exception was designed to shield,'
'susceptible to policy
discretionary
'if
a
an
element
(quoting United States
(1991)).
judgment
'involve[s]
analysis.'"
federal
Id.
statute,
v.
court
decision
presume
that
is
the
inherently
act
was
one
in
decide
the
discretionary
i.e.,
whether it is
"A function
regulation,
allowing
grounded
Gaubert,
must
specifically prescribes a course of action . . . .'"
the
of
discretion,
policy
is non-
or
policy
Id.
"If
[courts]
whenever
that
discretion
is
employed."
Id.
(citation
omitted)
(internal
quotation marks omitted).
Although
decided
the
the
governmental
Eleventh
issue,
Circuit
"[c]ourts
action
does
have
not
appear
regarding employment
have
held
consistently
to
that
and termination are
an
exercise of policy judgment and fall within" the discretionaryfunction
WSD,
exception.
2015
WL
630433,
Echevarria-de-Pena
616932,
dismiss
at *3-4
on
"negligent
Brons v.
at
v.
(S.D.
a
(N.D.
United
Fla.
claim
training
*4
United States,
Feb.
States,
Feb.
based
is
Ga.
19,
on
clearly
No.
12,
No.
2013)
2015);
see
12-22248,
also
2013
WL
(granting a motion to
negligent
conduct
1:14-cv-00864-
training
that
falls
because
within
the
discretionary function exception").
In
this
case,
Plaintiff's
claim
fails
even
a
facial
challenge to jurisdiction under Federal Rule of Civil Procedure
12(b)(1).3
facially
It
allege
is
Plaintiff's
matters
exception."
Willett
1178-79
Ala.
(M.D.
marks omitted);
3
Rule
v.
2014)
outside
United
12(b)(1)
allows
"plead[]
discretionary
24
F.
Supp.
(internal
United States,
defendants
to
facts
challenge
that
function
3d
1167,
quotation
F.3d
,
subject-matter
Willet v. United States, 24 F. Supp. 3d
Ala. 2014).
As noted above, Plaintiff's claim fails a
Defendant has also attacked Plaintiff's claim factually,
to reach the merits of that argument because,
no discovery has taken place.
at *3
the
States,
see also Douglas v.
but the Court declines
WL 791232,
of
to
(citation omitted)
jurisdiction facially and factually.
1167, 1173 (M.D.
facial challenge.
burden
(11th Cir.
See Douglas v. United States,
2016).
8
F.3d
again,
, 2016
2016 WL 791232,
Mr.
at *4
(11th Cir. 2016)
("At the pleading stage,
Douglas must allege a plausible claim that falls outside the
discretionary
complaint
function
alleges
exception.").
only
that
Plaintiff's
Defendant
negligently
amended
hired
and
retained employees without any supporting facts.
In response to
Defendant's
has
motion
to
dismiss,
Plaintiff
provided
essentially no argument in opposition of Defendant's position.4
Accordingly, the Court GRANTS Defendant's motion on this issue.
d. Whether Plaintiff's claims based on misrepresentations
and false allegations fail
Under
with
the
respect
U.S.C.
FTCA,
to
claims
§ 2680(h).
exception
is
the
United
arising
"The test
whether
the
government's
failure
to
communicating
FDIC,
out
does
of
not
waive
immunity
misrepresentations.
28
in applying the misrepresentation
information."
States ex rel.
States
essence
use
of
due
JBP
the
care
claim
in
involves
obtaining
Acquisitions,
224 F.3d 1260,
1264
(11th Cir.
LP
v.
the
and
United
2000).
Defendant argues that some of Plaintiff's claims are based
on
alleged
misrepresentations
by
Defendant.
In
her
response
brief, Plaintiff affirms Defendant's argument and notes that she
claims to have been harmed by false allegations that arise from
Defendant's failure to keep records.
4
In her
regulations,
Defendant.
but
sur-reply,
does
not
(Doc. 35 at 1.)
Yet, in a
Plaintiff argues that Defendant was bound by
specify
the
regulations
or
how
they
bound
separate section of her brief,
Plaintiff maintains
her claims is based on misrepresentations.
Although
it
is
not
entirely
(Id. at 8.)
clear
that
alleged a claim based on a misrepresentation,
she
has,
the
because the
Court
Court
GRANTS
lacks
that none of
Defendant's
Plaintiff
has
to the extent that
motion
on
the
issue
subject-matter jurisdiction over claims
based on misrepresentations.
3. Plaintiff's Motion
Plaintiff
inadmissible.
has
to Strike
moved
Because
to
the
strike
Court
has
evidence Defendant has produced,
a
number
not
of
relied
exhibits
on
any
of
as
the
Plaintiff's motion is DENIED AS
MOOT.
Ill.
For
dismiss
the
(doc.
reasons
30)
is
Conclusion
discussed
GRANTED
Plaintiff's motion to strike
in
(doc.
above,
Defendant's
part and DENIED
36)
is DENIED.
motion
in part,
and
Additionally,
the Court DENIES AS MOOT Plaintiff's motion to stay (doc.
ORDER ENTERED at Augusta, Georgia this
to
46).
/^P^day of April,
2016.
*LE J./RANDAL HALL
UNITE* STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
10
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