State of Idaho v. United States of America

Filing 28

MEMORANDUM DECISION GRANTING 21 MOTION for Leave to File First Amended Complaint filed by State of Idaho. ( Amended Complaint due by 2/24/2014.) Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
STATE OF IDAHO,
Case No. 3:12-CV-00608-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
The Court has before it the United States’ Motion to Dismiss (Dkt. 16) and
the State of Idaho’s Motion for Leave to File First Amended Complaint (Dkt. 21)
(“Motion to Amend”) to add two individual defendants to this case. Defendant
opposes Plaintiff’s Motion to Amend, suggesting this case should be dismissed for
lack of subject matter jurisdiction, rendering Plaintiff’s Motion to Amend moot.
However, for the reasons expressed below, the Court will grant Plaintiff’s First
Motion to Amend and allow individuals John Clough, Jr., and Jacob Johnson to be
added as defendants (hereinafter “Individual Defendants”) to this action. The
Court will defer ruling on Defendant’s Motion to Dismiss until the Individual
Defendants have had the opportunity to obtain representation and to respond to
MEMORANDUM DECISION AND ORDER - 1

both Plaintiff’s Complaint and Defendant’s Motion to Dismiss. Following such
response, an evidentiary hearing to resolve the scope of employment issue will be
necessary in order for the Court to rule on Defendant’s Motion to Dismiss.
BACKGROUND
This case involves a fire that occurred at the Naval Reserve Officer Training
Corps (NROTC) Building at the University of Idaho. On June 18, 2011, activeduty Navy and Marine ROTC students attended a mandatory “Field Day” to
thoroughly clean the NROTC building on campus. (Dkt. 16-3, pp. 7-8.)1 The
cleaning was organized by senior ROTC officer Gunnery Sergeant Bradley Tyson.
(Id., p. 15; Dkt. 16-4, p. 14.) Approximately ten ROTC members were present for
the Field Day, and each was assigned to clean a specific part of the NROTC
building. (Dkt. 16-3, p. 24; Dkt. 16-4, pp. 14, 17; Dkt. 16-7, p. 7.) The cleaning
project started first thing in the morning and ended several hours later, near lunch
time. (Dkt. 16-3, pp. 7, 15.) After the cleaning project was complete, the
mandatory assignment was over and the ROTC students were free to leave. (Dkt.
16-3, pp. 7, 15, 17; Dkt. 16-7, pp. 8, 15.) However, Sergeant Tyson decided to
1

In outlining the factual background of this case, the Court cites to deposition testimony
attached to Defendant’s counsel’s affidavit in support of Defendant’s Motion to Dismiss.
A motion to dismiss for lack of subject matter jurisdiction may rely on extra-pleading
material to attack the substance of a complaint’s jurisdictional allegations, and the Court
may rely on such material to decide the issue. St. Clair v. City of Chico, 880 F.2d 199,
201 (9th Cir. 1989).
MEMORANDUM DECISION AND ORDER - 2

barbeque some leftover meat found in the NROTC building’s refrigerator to
reward the men for their work. (Dkt. 16-4, p. 25.) Approximately nine of the ten
ROTC students who had been present for Field Day stayed for the barbeque. (Dkt.
16-3, p. 24.)
Sergeant Tyson went home and retrieved his barbeque grill, chimney lighter
and charcoal, and also purchased some provisions from the store for the barbeque.
(Dkt. 16-8, pp. 8-10.) It was pouring rain that day, and Sergeant Tyson had some
trouble getting the coals hot enough to cook the meat. (Id., p. 13.) Sergeant Tyson
left the party while the majority of the men were still there, and Sergeant Johnson
took over the cooking. (Dkt. 16-7, pp. 12-13.) When the cooking was complete,
Sergeant Clough set the grill on the sidewalk in front of the NROTC building for
the rain to dump into it. (Dkt. 16-3, p. 18.) Sergeant Johnson also dumped a
bucket of water on the coals while they were still in the grill. (Dkt. 16-3, pp. 1819; Dkt. 16-7, pp. 15-16.) Later, Sergeant Johnson dumped the coals out in the
dirt next to the concrete patio. (Dkt. 16-7, pp. 15-16.) Sergeants Clough and
Johnson also each dumped one or more buckets of water onto the coals to further
extinguish them. (Dkt. 16-3, p. 19; Dkt. 16-7, pp. 15-16.) When the men left the
barbeque, the coals were sitting in a mud puddle up against the concrete. (Id.)

MEMORANDUM DECISION AND ORDER - 3

Later than evening, by 6:00 p.m., the NROTC building was on fire. (Dkt.
16-8, p. 19.) Plaintiff alleges the charcoal coals were not fully extinguished and
ignited nearby mulch/plant material, which then spread to the building and caused
substantial damage. (Dkt. 1, ¶ 11.) Plaintiff alleges the ROTC students were
acting within the scope of their employment when they negligently failed to
extinguish the charcoal, and brings a negligence action, pursuant to the Federal
Tort Claims Act, 28 USC § 2671 et. seq., (hereinafter “FTCA”) against the
Defendant United States. In its Motion to Amend, Plaintiff seeks to add a
negligence claim against the Individual Defendants, and suggests Sergeants
Clough and Johnson were responsible for failing to extinguish the charcoal.2
1. Motion to Amend
Federal Rule of Civil Procedure 15(a) is “very liberal” and leave to amend
“shall be freely given when justice so requires.” AmerisourceBergen Corp. v.
Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Bowles v. Reade,
198 F.3d 752, 757 (9th Cir. 1999)). The decision of whether to grant or deny a
motion to amend pursuant to Rule 15(a) rests in the sole discretion of the trial
court. U.S. v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). The four factors that are
commonly used to determine the propriety of a motion for leave to amend are: 1)
2

Plaintiff does not specify whether its negligence action is brought against the Individual
Defendants in their official or individual capacity. (Dkt. 21-1.)
MEMORANDUM DECISION AND ORDER - 4

undue delay, bad faith or dilatory motive on the part of the movant; 2) repeated
failure to cure deficiencies by amendments previously allowed; 3) undue prejudice
to the opposing party by virtue of allowance of the amendment; and 4) futility of
amendment. C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975,
985 n. 5 (9th Cir.2011) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
These factors are not of equal weight in that delay, by itself, is insufficient to
justify denial of leave to amend. Howey v. United States, 481 F.2d 1187, 1191 (9th
Cir. 1973). “Only where prejudice is shown or the movant acts in bad faith are
courts protecting the judicial system or other litigants when they deny leave to
amend a pleading.” Id. Thus, although all four factors are relevant when ruling on
a motion for leave to amend, the Ninth Circuit has held that the “crucial factor is
the resulting prejudice to the opposing party.” Id., at 1190. Indeed, prejudice is
the touchstone of the inquiry under Rule 15(a). Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir.2003). Ultimately, “[u]nless undue prejudice to
the opposing party will result, a trial judge should ordinarily permit a party to
amend its complaint.” Howey, 481 F.2d at 1190.
In this case, Plaintiff filed the Motion to Amend to add the Individual
Defendants by the Scheduling Order deadline of October 1, 2013. (Dkt. 12.)
Further, pretrial motions are not due until April 30, 2014, and trial is not scheduled
MEMORANDUM DECISION AND ORDER - 5

to begin until November 12, 2014. Under these circumstances, the Court finds
allowing the proposed amendment would not unduly prejudice the United States.
Further, the other three factors are not at issue because there is no evidence of
undue delay or bad faith and Plaintiff has not previously sought to amend the
Complaint. And, although the United States appears to imply amendment would
be futile because this Court lacks subject matter jurisdiction, the Court finds
Plaintiff has presented facts to raise a genuine dispute as to the character of the
ROTC students’ acts, namely, whether such acts were taken within the scope of
their federal employment. Because the Court has subject matter jurisdiction under
the FTCA if the ROTC students were acting within the scope of their employment,
allowing Plaintiff to amend the Complaint to add the Individual Defendants would
not be futile. As such, the Court will GRANT the Motion to Amend the
Complaint.
2. Motion to Dismiss
In order for this Court to have subject matter jurisdiction under the FTCA,
the ROTC students must have been acting with the scope of their federal
employment when they were allegedly negligent.3 28 U.S.C. §§ 1346(b)(1),

3

The FTCA waives sovereign immunity for the acts or omissions of an employee of the
government while acting within the scope of his or her employment. 28 U.S.C. §
1346(b)(1). Absent a waiver, sovereign immunity shields the federal government and its
MEMORANDUM DECISION AND ORDER - 6

2679(b)(1). Defendant concedes that the ROTC students are employees of the
United States. (Dkt. 16-1, p. 2.) However, Defendant argues the ROTC students
were not acting within the scope of their employment when they allegedly acted
negligently.4 (Id.)
Under the FTCA, members of the armed forces act within the scope of their
employment when they act “in the line of duty.” 28 U.S.C. § 2671. In the FTCA
context, the phrase acting “in the line of duty” merely invokes the state law of
respondeat superior. Merritt v. United States, 332 F.2d 397, 398 (1st Cir. 1964)
(citations omitted). The parties agree that because the fire and events leading to
the fire occurred in Idaho, Idaho respondeat superior law determines whether the
ROTC students were acting within the scope of their employment for purposes of
the FTCA. (Dkt. 16-1, pp. 2-3; Dkt. 19, p. 4.)
Generally, under the Idaho doctrine of respondeat superior, work performed
to serve the employer falls within the scope of employment, whereas actions
pursued for a purely personal purpose do not. Finholt v. Cresto, 143 Idaho 894,

agencies from suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity is
jurisdictional in nature, and the terms of the United States’ consent to be sued defines
federal courts’ jurisdiction. Id.
4

If the Individual Defendants were not acting within the scope of their employment, this
case would not arise under the FTCA and the Court would be without subject matter
jurisdiction.
MEMORANDUM DECISION AND ORDER - 7

897, 155 P.3d 695 (2007). Defendant argues the ROTC students were pursuing
purely personal purposes when they held the barbeque and disposed of the coals.
(Dkt. 16-1, p. 6.) In support of this argument, Defendant notes that the men were
not required to attend the barbeque, that the barbeque grill, charcoal, buns, beer
and condiments were supplied Sergeant Tyson, and not by the ROTC, that
Sergeant Tyson did not receive reimbursement from the ROTC for the items he
purchased, that the ROTC had no knowledge of and did not authorize the
barbeque, and that the barbeque was purely social, and was not an ROTC event.
(Id., pp. 6-7.)
Plaintiff counters that, unless displaced by Idaho Code §6-1607(2),
employers may be subject to respondeat superior liability for negligence arising
from employee social gatherings. (Dkt. 19, p. 7) (citing Slade v. Smith’s
Management Corp., 119 Idaho 482, 808 P.2d 401 (1991)). In Slade v. Smith’s
Management Corp., (“Slade”), the Idaho Supreme Court reversed the district
court’s grant of summary judgment in favor of defendant employer, finding
genuine issues of material fact precluded judgment on the issue of whether an
employer could be held liable on the basis of respondeat superior where an
employee acted negligently following a social event hosted by the employer. Id. at
495. Defendant’s employee in Slade struck and killed a pedestrian while driving
MEMORANDUM DECISION AND ORDER - 8

home intoxicated from a social event sponsored by defendant. The Slade court
held an employer may be liable for an employee’s drunk driving following a
company social event where the party was held to further the employer’s interest,
and when the employee’s presence at the social event was either specifically
requested or at least impliedly requested or implicitly expected by the employer.
Id. at 495. The Slade court found several facts supported respondeat superior
liability, including that the employer’s local manager was present at the social
event, that the employer furnished a substantial nucleus of the alcoholic beverages
which were consumed at the party,5 and that the party was held in part to improve
the employer’s employee morale. Id.
Plaintiff suggests the United States can be found liable under Slade because
Sergeant Tyson initiated and was present for the barbeque and was thus analogous
to the local manager who was present and procured much of the alcohol for the
company party in Slade. (Dkt. 19, p. 9.) Further, like the employer in Slade, the
ROTC or Sergeant Tyson furnished the supplies at the barbeque, including the
meat and condiments which were located in the NROTC building, as well as all of
the other provisions (including the charcoal which ultimately caused the fire).
(Dkt. 16-8, p. 9-11.) The barbeque was also held on the ROTC’s premises. (Dkt.
5

Many of the employees in Slade had also brought their own alcoholic beverages to the
company party. Id. at 484.
MEMORANDUM DECISION AND ORDER - 9

19, p. 10.) Finally, like the company event in Slade, the barbeque was held for
employee morale, or to “reward” the men for fulfilling their ROTC field day
duties. (Dkt. 16-4, p. 25.) The Court finds the aforementioned facts, as well as the
fact that the ROTC students’ presence was mandatory at the Field Day, and was
thus potentially impliedly requested at the barbeque immediately following the
Field Day, are sufficient to raise a genuine issue of material fact as to whether the
ROTC students were acting within the scope of their employment when they
attended the barbeque and allegedly negligently extinguished the charcoals.
Defendant suggests Slade is not good law because it was decided nine years
before Idaho Code § 6-1607(2) was enacted in 2000. (Dkt. 20, p. 2.) Idaho Code
§ 6-1607(2) established a presumption against respondeat superior liability, which
can only be rebutted by clear and convincing evidence that the employer’s acts
constituted gross negligence or reckless, willful and wanton conduct, unless the
employee was:
[W]holly or partially engaged in the employer’s business, reasonably
appeared to be engaged in the employer’s business, was on the employer’s
premises when the allegedly tortious act or omission of the employee
occurred, or was otherwise under the direction or control of the employer
when the act or omission occurred.
I.C. § 6-1607(2).
The aforementioned exceptions to the presumption against respondeat
MEMORANDUM DECISION AND ORDER - 10

superior liability are stated in the disjunctive. “Therefore, if one of the
circumstances exists, the presumption does not apply.” Nava v. Rivas-Del Toro,
151 Idaho 853, 860, 264 P.3d 960 (2011). As the fire occurred on the ROTC’s
premises,6 at least one of the exceptions is present in this case and the presumption
against respondeat superior liability established by Idaho Code § 6-1607(2) does
not apply. Moreover, the ROTC students could be found to have been partially
engaged in the ROTC’s business when they disposed of the charcoal because, as at
least one of the ROTC students testified, leaving a dirty grill would have been
counter to the purpose of the Field Day and could have subjected the students to
ROTC discipline. (Dkt. 16-7, pp. 9, 18.) Under the “dual purpose doctrine,” an

6

Defendant suggests the fire occurred on the University of Idaho’s, and not the Navy’s,
premises because the building was owned by the University of Idaho and the University
allowed the Navy to use the building “without charge.” (Dkt. 20, p. 4.) However, the
University of Idaho is the main affiliation and location for the active duty Navy and
Marine ROTC students associated with the University of Idaho, Washington State
University and Lewis & Clark State College. (Dkt. 16-3, pp. 8-11.) The University of
Idaho is where such students “always meet.” (Id.) All of the ROTC events for such
students occur at the University of Idaho’s campus, presumably in the NROTC building.
(Id.) If the location designated for and always used by the local Navy and Marine ROTC
students could not be considered the ROTC’s premises because it is owned by the
University of Idaho, it is difficult to imagine what other location could be considered the
ROTC’s premises. The ROTC had control over the premises, even if the United States
did not “own” the premises. Therefore, the Court finds the NROTC building represented
the ROTC’s premises. Although, as Defendant notes, the fact that a tortious act occurred
on an employer’s premises does not establish that the conduct was within the scope of
employment, this fact does establish that Idaho’s presumption against respondeat
superior liability is not at issue in this case. (Dkt. 20, p. 4) (citing Nava v. Rivas-Del
Toro, 151 Idaho at 860).
MEMORANDUM DECISION AND ORDER - 11

employee’s “tortious conduct may be within the scope of employment even if it
was partly performed to serve the purposes of the employee or third person.” Nava
v. Rivas Del Toro, 151 Idaho at 858 (quoting 27 AM. JUR. 2D EMPLOYMENT
RELATIONSHIP § 385 (2004)). The Court accordingly rejects Defendant’s
contention that none of the exceptions to Idaho’s presumption against respondeat
superior liability apply in this case.
Although the Court finds that Plaintiff has presented facts to raise a genuine
dispute as to whether the ROTC students were acting within the scope of their
employment, there is a related issue that must also be addressed. The Federal
Employees Liability Reform and Tort Compensation Ac, commonly known as the
“Westfall Act,” accords federal employees absolute immunity from common law
tort claims arising out of acts undertaken during the course of their official duties.
28 U.S.C. § 2679(b)(1). The stated purpose of this provision is to “protect Federal
employees from personal liability for common law torts committed within the
scope of their employment, while providing persons injured by the common law
torts of Federal employees with an appropriate remedy against the United States.”
Pub. L. No. 100-694, § 2(b). As a means to achieve this purpose, the Westfall Act
provides federal employees with immunity from ordinary tort suits if the
complained of conduct arises out of acts performed within the scope of the
MEMORANDUM DECISION AND ORDER - 12

defendant employee’s employment. 28 U.S.C. § 2679(d)(1). The parties do not
address this issue. However, the Court notes that the Individual Defendants would
be immune from suit if they were acting within the scope of their employment
when the fire occurred.7 The Court must defer ruling on the Motion to Dismiss not
only because there are disputed facts which will require an evidentiary hearing, but
also because the potential liability of the Individual Defendants is dependent on the
Court’s holding with respect to scope of employment. That is, the Individual
Defendants should be immune from suit if they were acting within the scope of
their employment, but are subject to suit in their individual capacities if they were
not acting within the scope of their employment when the allegedly negligent acts
occurred. As the Individual Defendants are not yet parties to this action, they have
not been given the opportunity to respond to Defendant’s claim that they were not

7

The Westfall Act allows the Attorney General to certify that a defendant employee “was
acting within the scope of his office or employment at the time of the incident out of
which the claim arose.” Id. Upon certification “such claim…shall be deemed an action
against the United States under the provisions of [the FTCA], and the United States shall
be substituted as the party defendant.” Id. The Attorney General’s decision regarding the
scope of employment certification is conclusive unless challenged. Green v. Hall, 8 F.3d
695, 698 (9th Cir. 1993). “[T]he party seeking review bears the burden of presenting
evidence and disproving the Attorney General’s decision to grant or deny scope of
employment certification by a preponderance of the evidence.” Id. If challenged, the
Attorney General’s scope of employment certification is subject to de novo review in the
district court. Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir.
1991). As the Individual Defendants were not named in the original complaint, it is not
clear whether they have attempted to obtain certification from the Attorney General, nor
whether they have been advised of their right to do so.
MEMORANDUM DECISION AND ORDER - 13

acting within the scope of their employment, nor have they presumably obtained
representation to advise them of their potential immunity or liability. In the
interests of justice, the Court cannot resolve the scope of employment issue
without allowing the Individual Defendants, whose personal liability depends upon
resolution of this issue, to appear and respond to Defendant’s Motion to Dismiss.
The Court accordingly directs the University of Idaho to serve the Individual
Defendants with the Amended Complaint. Once served, the Individual Defendants
shall have a right to respond to both the Amended Complaint and to Defendant’s
Motion to Dismiss. The Court also directs both the University of Idaho and the
United States to brief its position with respect to the Individual Defendant’s
immunity under the Westfall Act. Upon reviewing such responses, the Court will
set a date for an evidentiary hearing on the scope of employment issue.
ORDER
IT IS HEREBY ORDERED:
1. Plaintiff’s Motion to Amend (Dkt. 21) is GRANTED and Plaintiff is
directed to file its Amended Complaint within five (5) business days of the date of
this Order.
2. Defendant’s Motion to Dismiss (Dkt. 16) is deferred until the Individual
Defendants have been served and given the opportunity to respond to both the
MEMORANDUM DECISION AND ORDER - 14

Amended Complaint and to Defendant’s claim that they were not acting within the
scope of their employment when the fire occurred. The Individual Defendants
shall have twenty-one (21) days from the date they file their responsive pleading to
the Amended Complaint to file a response to Defendant’s Motion to Dismiss;
3. Following the filing of the briefing by the Individual Defendants, the
University of Idaho and the United States are each directed to file simultaneous
within fourteen (14) days, briefs outlining their respective position with regard to
the Individual Defendants’ immunity under the Westfall Act.
4. The Court has withdrawn the reference order to the Magistrate Judge on
Plaintiff’s Motion to Amend (Dkt. 21) because analysis of the Motion to Amend
was intertwined with consideration of Defendant’s Motion to Dismiss (Dkt. 16).

DATED: February 13, 2014

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 15