Duckwall-Kennady v. USA

Filing 13

MEMORANDUM OPINION AND ORDER: (1) Dft's 10 Motion to Dismiss for Lack of Jurisdiction is GRANTED. (2) Pla's 1 Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Joseph M. Hood on July 10, 2013. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

KATHI M. DUCKWALL-KENNADY,
ADMINISTRATRIX OF THE ESTATE
OF EDWARD EARL DUCKWALL,
JR.,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Case No.
5:13-cv-68-JMH
MEMORANDUM OPINION & ORDER

***
This matter is before the Court on Defendant’s motion
to dismiss for lack of subject matter jurisdiction.
10].

[D.E.

Plaintiff has responded [D.E. 11], and Defendant has

replied
review.

[D.E.

12].

Thus,

this

matter

is

now

ripe

for

For the reasons which follow, Defendant’s motion

to dismiss will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about May 1, 2008, Edward Earl Duckwall, Jr.,
Plaintiff’s

deceased

husband,

became

a

patient

at

the

Thomson Hood Veterans Center (“THVC”), a facility owned and
operated by the Kentucky Department of Veterans Affairs.
[D.E. 1 at 4]; see also Kentucky.gov, THOMSON-HOOD VETERANS
CENTER, http://www.thvc.ky.gov/about.htm (last visited July
10, 2013).

According to Plaintiff, Mr. Duckwall suffered

from accelerated deterioration of his health, culminating
in his death, because the physicians at THVC breached their
duty of care in several respects.

[D.E. 1 at 5—7].

While a patient at THVC, Mr. Duckwall was primarily
under the care of Dr. Joy Scott.

[D.E. 11 at 1].

Dr.

Scott is employed by the Kentucky Department of Veterans
Affairs at THVC, but also maintains “on call” telephonic
hours with the United States Department of Veterans Affairs
at the VA Nursing Home in Lexington, Kentucky.
2—3].

[D.E. 10 at

Dr. Scott only provided on-call coverage to the VA

Nursing Home on nights and weekends, and her job was to
address issues such as medication changes and whether a
resident of the VA Nursing Home should be referred to the
emergency
provided

room.
to

[D.E.

Mr.

10

Duckwall,

at

3].

The

however,

care

occurred

that

entirely

she
at

THVC, as Dr. Scott never provided any treatment or care to
Mr. Duckwall in connection with her on-call services to the
U.S. Department of Veterans Affairs.
Following
complaint

in

her
this

husband’s
Court,

[D.E. 11-1].

death,

asserting

Plaintiff
a

claim

filed
under

a
the

Federal Tort Claims Act (“FTCA”), in addition to state law
claims

for

negligent

supervision

[D.E. 1].

2

and

negligence

per

se.

II.

STANDARD OF REVIEW
A

motion

12(b)(6)

to

tests

complaint.

dismiss
the

pursuant

Fed.

of

sufficiency

to

R.

the

Civ.

P.

plaintiff’s

The Court views the complaint in the light most

favorable to the plaintiff and must accept as true all
well-pleaded

factual

allegations

contained

within

it.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic

Corp.

v.

Twombly,

550

U.S.

544,

570

(2007)).

“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a
claim

to

relief

that

is

plausible

on

its

face.’”

Id.

(citing Bell Atlantic Corp., 550 U.S. at 570).
III. ANALYSIS
The FTCA waives governmental sovereign immunity “for
injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment. . ..”

28 U.S.C. § 1346(b)(1).

It

court

thus

civil

follows

actions

omissions
particular

of

that

against
its

“district
the

employees

employee

is

office or employment.’”

government
is

‘acting

jurisdiction
for

dependent
within

the

on

the

acts

whether

scope

of

over
or
the
his

Flechsig v. United States, 991

F.2d 300, 302 (6th Cir. 1993) (citing § 1346(b)).
3

“Whether

an employee was acting within the scope of his employment
is a question of law, not fact, made in accordance with the
law of the state where the conduct occurred.”

RMI Titanium

Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th
Cir. 1996).

Therefore, because the alleged acts in the

instant case occurred in Kentucky, Kentucky law regarding
the scope of employment applies.

Flechsig, 991 F.2d at

302.
“To determine whether a particular employee action is
within the scope of employment, Kentucky courts consider
the following: (1) whether the conduct was similar to that
which the employee was hired to perform; (2) whether the
action occurred substantially within the authorized spacial
and

temporal

limits

of

the

employment;

(3)

whether

the

action was in furtherance of the employer's business; and
(4)

whether

the

conduct,

though

unauthorized,

was

expectable in view of the employee's duties.” Coleman v.
United

States,

91

F.3d

820,

823—24

(6th

Cir.

1996).

Further, “Kentucky Supreme Court cases have clarified that
whether

the

employer's

purpose

motivates

the

employee's

action-an element Coleman instructed us to consider but did
not make dispositive-controls our analysis.”

Scottsdale

Ins. Co. v. Sandler, 381 F. App'x 554, 556 (6th Cir. 2010).

4

Utilizing these factors, it is clear that Dr. Scott
was not acting within the scope of her employment with the
federally-owned VA Nursing Home while providing care to Mr.
Duckwall at the state-owned THVC.

To the contrary, the

facts as alleged by Plaintiff demonstrate that Dr. Scott’s
treatment

of

Mr.

Duckwall

occurred

entirely

within

her

capacity as a THVC physician at the THVC facility, as Mr.
Duckwall was a THVC patient who never interacted with Dr.
Scott—or

any

Nursing Home.

other

physician

for

that

matter—at

the

VA

Further, Dr. Scott was not hired at the VA

Nursing Home to perform services at THVC, and, since the
two jobs were entirely unconnected, her actions at THVC did
not benefit the VA Nursing Home, nor were her actions at
THVC motivated by the VA Nursing Home’s purposes.
simply,

Dr.

Scott

had

two

jobs

that

were

Quite

completely

independent of one another, and was only acting within the
scope of her employment at THVC when the alleged events in
this matter took place.
Plaintiff does not dispute that Mr. Duckwall received
all of his care from Dr. Scott while he was a patient at
THVC, and admits that Mr. Duckwall was never a patient of
the VA Nursing Home.

[D.E. 11 at 1].

However, Plaintiff

argues that Dr. Scott was still acting within the scope of
her employment at the VA Nursing Home while giving care to
5

Mr. Duckwall because Dr. Scott: 1) was employed by both
THVC and the VA Nursing Home simultaneously; 2) performed
similar duties in both positions; 3) furthered the United
States’ interests by working at THVC; and 4) was working at
THVC under the loaned servant doctrine, thus making the
United States liable for her actions at THVC.
3—5].

[D.E. 11 at

These arguments are unavailing.
The fact that Dr. Scott performed medical services for

Mr. Duckwall at THVC and also happened to provide similar
services at a federal facility at the same time does not
make the United States responsible for her actions at the
state

facility.

Indeed,

“all

performance

of

medical

services by a doctor employed to perform medical services
is

[not]

necessarily

conduct

within

the

scope

of

employment,” which is particularly, and obviously, the case
where the doctor is performing services for an entirely
different employer for an unaffiliated patient.

Davey v.

St. John Health, 297 Fed. App’x 466, 471 (6th Cir. 2008).
Moreover, Dr. Scott’s care of Mr. Duckwall at THVC did
not further the business of the VA Nursing Home.

While it

is true that, under Kentucky law, the “employee conduct in
question need only be done in part to benefit the employer”
to be considered conduct within the scope of employment,
the mere fact that Dr. Scott specialized in the care of
6

veterans

at

both

THVC

and

the

VA

Nursing

Home

is

insufficient to conclude that her work at THVC benefitted
the VA Nursing Home.

Coleman, 91 F.3d at 825—26.

Dr.

Scott’s choice to maintain two separate jobs independently
of

one

another

was

a

personal

choice;

she

was

not

instructed by one entity to seek employment for the other,
and

had

different

functions

at

both

facilities.

See

McGonigle v. Whitehawk, 481 F. Supp. 2d 835, 840 (W.D. Ky.
2007) (citing Patterson v. Blair, 172 S.W.3d 361, 369 (Ky.
2005)), (holding that so long as an employee “acts from
purely personal motives . . . which are in no way connected
with

the

employer’s

interests,

he

is

considered

in

the

ordinary case to have departed from his employment, and the
master is not liable.”)
Finally, Defendant is correct that the loaned servant
doctrine

does

not

apply.

Under

the

loaned

servant

doctrine, “[a] servant may be loaned or hired by his master
for

some

special

purpose

so

as

to

become,

as

to

that

service, the servant of the person to whom he is loaned or
hired, and to impose on the latter the usual liabilities of
a

master,

the

general

correspondingly relieved.”

or

original

master

being

Carnes v. Dep’t. of Econ. Sec.,

435 S.W.2d 758, 761 (Ky. App. 1968).

The premise of this

cause of action, however, is that the original employer
7

actually loans the employee to the special employer.

This

was clearly not the case here, as Dr. Scott independently
sought employment from the VA Nursing Home.

Further, her

work for the VA Nursing Home did not require her to abandon
her work at THVC.

See Nazar v. Branham, 291 S.W.3d 599,

607 (Ky. 2009) (“In borrowed servant cases, agency for one
party

is

only

destroyed

by

agency

for

another

if

the

fulfillment of one role requires the abandonment of the
other.”).
Frankly, there is absolutely no rational support for
Plaintiff’s assertion that Dr. Scott acted within the scope
of her employment at the VA Nursing Home while providing
care to Mr. Duckwall, and Plaintiff’s claim under the FTCA
must be dismissed accordingly for lack of subject-matter
jurisdiction.

Further, pursuant to 28 U.S.C. § 1367(c)(3),

the Court declines to exercise supplemental jurisdiction
over Plaintiff’s remaining state law claims.

See Musson

Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255
(6th Cir. 1996) (“When all federal claims are dismissed
before the trial, the balance of consideration usually will
point to dismissing the state law claims. . ..”).
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED:

8

1)

that

Defendant’s

motion

to

dismiss

Plaintiff’s

claim is GRANTED [D.E. 10];
2)

that

Plaintiff’s

complaint

PREJUDICE.
This the 10th day of July, 2013.

9

is

DISMISSED

WITHOUT