Duckwall-Kennady v. USA
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,
UNITED STATES OF AMERICA,
Civil Case No.
MEMORANDUM OPINION & ORDER
This matter is before the Court on Defendant’s motion
to dismiss for lack of subject matter jurisdiction.
Plaintiff has responded [D.E. 11], and Defendant has
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.,
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
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].
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.
[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
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.
Federal Tort Claims Act (“FTCA”), in addition to state law
STANDARD OF REVIEW
The Court views the complaint in the light most
favorable to the plaintiff and must accept as true all
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a
(citing Bell Atlantic Corp., 550 U.S. at 570).
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).
office or employment.’”
Flechsig v. United States, 991
F.2d 300, 302 (6th Cir. 1993) (citing § 1346(b)).
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.”
Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th
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
“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
action was in furtherance of the employer's business; and
expectable in view of the employee's duties.” Coleman v.
Further, “Kentucky Supreme Court cases have clarified that
action-an element Coleman instructed us to consider but did
not make dispositive-controls our analysis.”
Ins. Co. v. Sandler, 381 F. App'x 554, 556 (6th Cir. 2010).
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
capacity as a THVC physician at the THVC facility, as Mr.
Duckwall was a THVC patient who never interacted with Dr.
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.
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].
argues that Dr. Scott was still acting within the scope of
her employment at the VA Nursing Home while giving care to
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.
[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
services by a doctor employed to perform medical services
employment,” which is particularly, and obviously, the case
where the doctor is performing services for an entirely
different employer for an unaffiliated patient.
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.
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
insufficient to conclude that her work at THVC benefitted
the VA Nursing Home.
Coleman, 91 F.3d at 825—26.
Scott’s choice to maintain two separate jobs independently
instructed by one entity to seek employment for the other,
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
ordinary case to have departed from his employment, and the
master is not liable.”)
Finally, Defendant is correct that the loaned servant
doctrine, “[a] servant may be loaned or hired by his master
service, the servant of the person to whom he is loaned or
hired, and to impose on the latter the usual liabilities of
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
actually loans the employee to the special employer.
was clearly not the case here, as Dr. Scott independently
sought employment from the VA Nursing Home.
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
fulfillment of one role requires the abandonment of the
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
Further, pursuant to 28 U.S.C. § 1367(c)(3),
the Court declines to exercise supplemental jurisdiction
over Plaintiff’s remaining state law claims.
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. . ..”).
For the reasons stated above, IT IS ORDERED:
claim is GRANTED [D.E. 10];
This the 10th day of July, 2013.
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