Cupp et al v. United States Of America
Filing
23
ORDER denying 14 the United States Motion to Dismiss the Amended Complaint. Signed by Chief Judge Lisa G. Wood on 8/13/2013. (csr)
Cupp et al v. United States Of America
Doc. 23
N the Unittb Atatto 3itrttt Court
for the outbtrn MArtet of ator&
maptroma 3otbioton
TIMOTHY CUPP; and KATHY CUPP,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
*
*
*
*
*
*
*
*
*
*
ORDER
CV 512-005
Presently before the Court is the United States of
America's Motion to Dismiss. See Dkt. No. 14. Upon due
consideration, Defendant's motion is DENIED.
BACKGROUND
Plaintiffs seek to recover under the Federal Torts Claim
Act ("FTCA"). The Amended Complaint alleges that, on September
18, 2008, Timothy Cupp was struck by a forklift driven by a
national guardsman in the parking lot of the Freeport, Texas
City Hall. Dkt. No. 16, ¶JI 3-4. At the time, the national
guardsman was working on a Federal Emergency Management Agency
("FEMA") project relating to Hurricane Ike. Dkt. No. 16, ¶ 4.
The Amended Complaint asserts that the national guardsman "was
totally incompetent with regard to the operation of said fork
lift truck and was reckless in the manner in which he operated
1
AO 72A
(Rev. 8/82)
Dockets.Justia.com
said fork lift truck" and that the national guardsmen's
superiors "failed to exercise appropriate supervision." Dkt.
No. 16, ¶ 5.
On September 17, 2010, Plaintiffs mailed a Standard Form 95
("SF- 95") seeking compensation for the resulting injuries to the
National Guard Bureau. Dkt. No. 14, Ex. 1. That same day
Plaintiffs mailed an identical SF-95 to FEMA. Dkt. No. 14, Ex.
2. On March 2, 2011, the Army Claim's Office sent a letter to
Plaintiffs' counsel seeking, among other things, medical
treatment and billing records. Dkt. No. 14, Ex. 4. Although
Plaintiffs' counsel asserts he responded to that letter, the
Army contends it never received anything in response. Dkt. No.
17, Ex. 2; Dkt. No. 21, Ex. 1. On June 9, 2011, the Army
Claim's Office sent a follow-up letter stating that "[t] date,
we have not received any further correspondence from you." Dkt.
No. 14, Ex. 5. The letter further stated ", [w]ithout the
documentation we requested in our previous letter, we cannot
evaluate the claims." Dkt. No. 14, Ex. 5. On July 19, 2011,
the Army Claim's Office sent a third letter denying Plaintiffs'
claim. Dkt. No. 14, Ex. 6.
On January 19, 2012, Plaintiffs initiated the present
action. Dkt. No. 1. The United States filed a motion to
dismiss. Dkt. No. 8. After the Plaintiffs filed an Amended
Complaint, the United States withdrew its first motion to
2
AO 72A
(Rev. 8/82)
dismiss and filed a motion to dismiss the Amended Complaint.
See Dkt. Nos. 12, 14. The United States' motion argued that
sovereign immunity had not been waived pursuant to the FTCA and
attached various exhibits. In opposition to the motion,
Plaintiff's submitted an Affidavit of Timothy Cupp, which
provided additional facts surrounding his injury. See Dkt. No.
17, Ex. 1.
Federal courts have limited jurisdiction. Ishler v.
Internal Revenue, 237 F. App'x 394, 395 (11th Cir. 2007) (citing
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.
2005)) . The plaintiff bears the burden of establishing the
court's subject matter jurisdiction. Id. (citation omitted).
Under Federal Rule of Civil Procedure 12(b) (1), there are
two types of motions to dismiss for lack of subject matter
jurisdiction—facial attacks and factual attacks. Morrison v.
Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (citing
Lawrence v. Dubar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
"Facial attacks challenge subject matter jurisdiction based on
allegations in the complaint, and the district court takes the
allegations as true in deciding whether to grant the motion."
Id. "Factual attacks challenge subject matter jurisdiction in
fact, irrespective of the pleadings." Id. In resolving a
factual attack, the district court may consider extrinsic
3
AO 72A
(Rev. 8182)
evidence such as testimony and affidavits." Id. In considering
a factual attack:
the trial court may proceed as it never could under
12(b) (6) or Fed. R. Civ. P. 56. Because at issue in a
factual 12(b) (1) motion is the trial court's
jurisdiction-its very power to hear the case-there is
substantial authority that the trial court is free to
weigh the evidence and satisfy itself as to existence
of its power to hear the case. In short, no
presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material
facts will not preclude the trial court from
evaluating for itself the merits of the jurisdictional
claims.
Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645
F.2d 404, 412-413 (5th Cir. 1981)).
DISCUSSION
The United States moves for dismissal for lack of
jurisdiction for two alternative reasons. First, the United
States argues that the United State's immunity has not been
waived because of the FTCA's private analogous liability
requirement. Second, the United States contends that there is
no waiver of immunity under the FTCA because Plaintiffs failed
to satisfy the FTCIVs presentment requirement. Dkt. No. 14.
The United States has identified both arguments for dismissal as
factual attacks on subject matter jurisdiction. Dkt. No. 14 at
4. Each side has submitted documentary evidence to support
their arguments.
I. Analogous Private Liability Requirement under the FTCA
4
AO 72A
(Rev. 8182)
Under the FTCA, federal courts have jurisdiction over
claims against the United States "under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred." 28 U.S.C. § 1346(b) (1); 28 U.S.C.
§ 2674. Both parties agree that the law of Texas, where the
accident occurred, applies. See Stevens v. Battelle Mem'l
Inst., 488 F.3d 896, 899 n.3 (11th Cir. 2007) (citing Cole v.
United States, 755 F.2d 873, 879 n. 16 (11th Cir. 1985)).
The United States contends that a private person would not
be liable under Texas law because of a Texas statute limiting
liability for disaster assistance. Texas law provides that:
Except in a case of reckless conduct or intentional,
willful, or wanton misconduct, a person is immune from
civil liability for an act or omission that occurs in
giving care, assistance, or advice with respect to the
management of an incident:
(1) that is a man-made or natural disaster that
endangers or threatens to endanger individuals,
property, or the environment; and
(2) in which the care, assistance, or advice is
provided
at
the
request
of
an
authorized
representative of a local, state, or federal agency,
including a fire department, police department, an
emergency management agency, and a disaster response
agency.
Tex. Civ. Prac. & Rem. Code Ann. § 79.0003(a) (West 2003).
In the present case, the National Guardsman who hit Timothy
Cupp was operating a forklift as part of the FEMA's relief
AO 72A
(Rev. 8/82)
efforts because of Hurricane Ike, which undisputedly qualifies
as natural disaster. Dkt. No. 16, ¶ 4; Tex. Civ. Prac. & Rem.
Code Ann. § 79.0003 (a) (1). Thus, under Texas law, a private
party could only be held liable in the circumstance only for
"reckless conduct or intentional, willful, or wanton
misconduct." Id.
Plaintiffs' Amended Complaint asserts that the National
Guardsmen "operated [the] fork lift machine in a reckless
manner." Dkt. No. 16, ¶ 4. Plaintiffs' Amended Complaint
contains very little facts relating to the incident or about how
the operation was reckless. See Dkt. No. 16. The Amended
Complaint alleges that (1) the National Guardsman drove the
forklift into Timothy Cupp, (2) "was totally incompetent with
regard to the operation of [the] fork lift," and (3) that the
National Guardsman's supervisors "failed to exercise appropriate
supervision over said National Guardsman." Dkt. No. 16, ¶I 4-5.
The Affidavit of Timothy Cupp attached to Plaintiffs'
response to the United States' Amended Motion to Dismiss
contains significantly more factual details that are absent from
the Amended Complaint. See Dkt. No. 17, Ex. 1. Timothy Cupp
explains that he was standing in an area designated for truck
drivers, like Cupp, to stay. Dkt. No. 17, Ex. 1, ¶ 3. Timothy
Cupp asserts that there "was not supposed to be any active
loading or unloading in the area where [he] was standing" and
6
AO 72A
(Rev. 8/82)
that "[t]here should have never been any forklift operation in
this area." Dkt. No. 17, Ex. 1, ¶91 3-4. Timothy Cupp explains
that the forklift truck that hit him "had a pallet of bottled
water on it," such that the "water would have obstructed the
view of the driver going forward."
Dkt. No. 17, Ex. 1, ¶ 7.
Timothy Cupp states that he has worked in "jobs where a
significant portion of [his] job involved operation of forklift
trucks," and that "[a]ny competent forklift truck driver
operating a forklift would know that if the load on the pallet
obstructs the view going forward, the only safe thing to do is
to travel in reverse." Dkt. No. 17, Ex. 1, 191 6-7. The
affidavit states that Timothy Cupp spoke with Lieutenant
Burleson following the injury who told Timothy Cupp that "the
forklift truck driver was not a certified truck driver." Dkt.
No. 17, Ex. 1, ¶ 7.
The United States argues that, under the Twombly/Igbal
standard, the Amended Complaint's allegation that the conduct
was reckless is a legal conclusion and that the Amended
Complaint contains insufficient factual allegations supporting
recklessness. Dkt. No. 21 at 4-5.
See Ashcroft v. Igbal, 556
U.S. 662 (2008); Bell Atlantic Corp. v. Twornbly, 550 U.S. 544
(2007). It is not clear to this Court whether the heightened
Twombly/Igbal plausibility standard for 12(b) (6) motions applies
to 12(b) (1) motions for lack of subject matter jurisdiction. See
7
AO 72A
(Rev. 8/82)
Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)
(stating that Twombly and Iqbal are "ill-suited to application"
in the jurisdictional context); Sattar v. Holder, No. 07-cv2698-WDM-KLM, 2011 WL 2415738 at *3 (D. Cob. 2011 June 16,
2011) ("[T]he fact that Defendants believe that Plaintiff's
claims are facially implausible does not implicate the doctrine
of sovereign immunity or the Court's jurisdiction over the
claims."). Important differences exist between the two types of
motions; one evaluates the merits (or lack thereof) of a
plaintiff's claim. The other concerns this Court's power to
hear the claim. See Blue Cross & Blue Shield of Ala. v.
Sanders, 138 F.3d 1247, 1351-52 (11th Cir. 1998) ("[W]e respect
the important distinction between the lack of subject matter
jurisdiction and the failure to state a claim upon which relief
can be granted.")
This case also presents the rare circumstance where the
facts most indicative of subject matter jurisdiction are
contained outside of the Amended Complaint. The facts contained
in Timothy Cupp's Affidavit present a much stronger case for
recklessness than the scant information contained in the Amended
Complaint. As identified by the parties, the present motion
involves a factual attack on jurisdiction, which calls for the
investigation of whether subject matter jurisdiction exists in
fact. Viewing the present record, the Court is sufficiently
8
AO 72A
(Rev. 8182)
satisfied that a basis for jurisdiction exists at this stage in
the proceeding. The record contains facts indicating that the
national guardsman could have been acting recklessly, as that
term is defined under Texas law.
II. The FTCA's Presentment Requirement
Under 28 U.S.C. § 2675(a), a party must present his claim
to the appropriate federal agency prior to filing suit under the
FTCA. "A district court only has jurisdiction over an FTCA
action if the plaintiff has met section 2675(a)'s requirements."
Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir.
1999). "To satisfy 2675(a), a claimant must do two things: (1)
give the appropriate agency written notice of his or her claim
sufficient to enable the agency to investigate and (2) place a
value on his or her claim." Id. (citations omitted).
The United States argues that Plaintiffs failed to provide
sufficient information. Plaintiffs submitted Standard Form 95s
to FEMA and the National Guard Bureau. The forms state that:
While Timothy Cupp was in the parking 1t of the
Freeport Texas, City Hall, a National Guardsman
working on FEMA relief for Hurricane Ike, was
operating a fork lift, and he drove the machine into
Timothy Cupp. Kathy D. Cupp is the lawful wife of
Timothy Cupp, and has suffered a loss of consortium.
Dkt. No. 14, Exs. 1-3. The forms indicate the date and time of
the accident as Thursday, September 18, 2008 at approximately
12:00 noon. Dkt. No. 14, Exs. 1-3. The forms allege that
01
AO 72A
(Rev 8/82)
"Timothy J. Cupp received serious back injuries which have
caused him to have back surgery, and have had to have metal rods
placed on his spine." Dkt. No. 14, Exs. 1-3. Jeff Pynes the
Freeport City Manager, Lieutenant William Burleson of the
National Guard, and a National Guardsman named Sergeant Hunt are
identified as witnesses. Dkt. No. 14, Exs. 1-3. Sergeant
Hunt's first name is not given, but the forms state that "Sgt.
Hunt is believed to be employed by the Galveston Police
Department as his primary job." Dkt. No. 14, Exs. 1-3. The
total amount of damages sought by both Plaintiffs is listed as
$4,000,000. Dkt. No. 14, Exs. 1-3.
The Eleventh Circuit has described "the requisite
jurisdictional notice under § 2675 as 'minimal.'" Tidd v.
United States, 786 F.2d 1565, 1568 (11th Cir. 1986); see
Burchfield, 168 F.3d at 1255. A claimant is not required "to
provide the agency with a preview of his or her lawsuit by
reciting every possible theory of recovery or every factual
detail that might be relevant." Id. It is a "rare instance
when the filing of a Standard Form 95 claim has not provided the
appropriate agency with sufficient notice to commence an
investigation of the circumstances giving rise to the claim."
Tidd, 786 F.2d at 1570.
Here, Plaintiffs provided the time, place, and nature of
the accident as well as the type of injury suffered. The forms
10
AO 72A
(Rev. 8/82)
also included the names of three witnesses to the accident with
sufficient information to locate them. The Court concludes that
Plaintiffs provided sufficient information to "inform the
relevant agency of the circumstances so that it [could]
investigate the claim and respond either by settlement or
defense." Tidd, 786 F.2d at 1568. The information was not "so
vague or lacking in detail that the agency [could] not be
expected to initiate any investigation at all." Burchfield, 168
F.3d at 1257.
The present case is readily distinguishable from the "rare"
circumstances where the submission of a Standard Form 95 is
insufficient. Tidd, 786 F.2d at 1570. In Tidd, the Standard
Form 95 submitted by the plaintiff contained only three pieces
of information relevant to the plaintiff's claim, two of which
were the location and date she received a vaccine that allegedly
caused her harm. Id. at 1568. The date and location of the
incident provided in the form, by the plaintiff's own admission
were incorrect. Id. The Eleventh Circuit concluded that the
form "provided only the name of the claimant and the general
nature of her alleged injury, nothing more." Id. at 1568.
Plaintiffs here provided substantially more details of the
incident. Accordingly, the Standard Form 95s submitted by
Plaintiffs satisfied § 2675.
11
AO 72A
(Rev. 8/82)
The United States asserts that Plaintiffs failed to comply
with the presentment requirements by refusing to provide
evidence to substantiate their claim. Dkt. No. 14 at 8-9. The
Department of the Army twice requested that Plaintiffs submit
documents regarding their claims. Dkt. No. 14, Ex. 4-5. The
Court understands that the parties dispute whether Plaintiffs
submitted anything in response. Regardless, this Court's
jurisdiction is not affected by Plaintiffs' refusal to comply
with additional requests of information.
"A proper notice of claim under [§ 2675(a)] occurs where
the claimant (1) givens the agency written notice of his or her
claim sufficient to enable the agency to investigate and (2)
places a value on his or her claim." Tidd, 786 F.2d at 1567.
"Once that prerequisite has been complied with, any further
obligation on the part of a claimant ceases." Id. "Although a
claimant has an obligation to give notice of a claim under
§ 2675, he or she does not have an obligation to provide further
information to assist settlement of the matter." Id. (emphasis
in original). Applicable precedent makes it clear that
complying with requests for additional information is not a
perquisite to pursue an action in federal court. See Id.; Adams
v. United States, 615 F.2d 284, 288 (5th Cir. 1980)1 ("The
1
AO 72A
(Rev. 8182)
All Fifth Circuit opinions handed down prior to close of business on
September 30, 1981 constitute binding precedent in the Eleventh
12
question whether a plaintiff has presented the requisite section
2675 notice is determined without reference to whether that
plaintiff has complied with all settlement related requests for
information.")
CONCLUSION
For the reasons stated above, the United States Motion to
Dismiss the Amended Complaint, Dkt. No. 14,
is DENIED.
SO ORDERED, this 13th day of August, 2013.
ISA GODBEY (OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
Circuit. Bonner v. City of Prichard,
Cir. 1981)
13
AO 72A
(Rev. 8/82)
Ala.,
661 F.2d 1206, 1207 (11th
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?