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